DELIU v NEW ZEALAND POLICE [2022] NZHC 2732

DELIU v NEW ZEALAND POLICE [2022] NZHC 2732 [21 October 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-252[2022] NZHC 2732BETWEEN FRANCISCO CATALIN DELIUAppellantAND NEW ZEALAND POLICERespondentHearing: 18 October 2022Appearances: Appellant in personW N Fotherby and F J McKechnie for RespondentJudgment: 21 October 2022JUDGMENT OF LANG J[on application for leave to bring second appeal against conviction]This judgment was delivered by me on 21 October 2022 at 10.30 am.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Auckland[1] Mr Deliu was found guilty by Justices of the Peace on a charge laid under cl 7.9of the Land Transport (Road User) Rule 2004 (the Rule).1 He was ordered to pay afine of $200 and court costs of $30.2[2] Mr Deliu filed an appeal against the Justices' decision but failed to appear whenthe appeal was scheduled to be heard. This prompted Judge A-M J Bouchier to dismissMr Deliu's appeal.3[3] Mr Deliu now seeks leave to advance a second appeal against conviction.Background[4] The charge was laid after a police officer stopped Mr Deliu whilst he wasdriving on the northern motorway on 30 January 2017. Mr Deliu was driving aMcLaren two-door sports car. His wife was in the passenger seat with a child sittingbetween her legs. She and the child were restrained by a single seatbelt.[5] Mr Deliu was originally charged under cl 7.6 of the Rule, which requires adriver to ensure that, whilst a vehicle is in motion on a road, every passenger underthe age of seven years is properly restrained by an approved child restraint appropriatefor that passenger. During the hearing before the Justices the prosecution encountereddifficulties in proving the age of the child in Mr Deliu's vehicle. At the close of thePolice case the prosecutor sought leave to amend the charge to one under cl 7.9, whichprovides as follows:7.9 Driver must not permit passengers under 15 years to sit in front seatwithout child restraint or seat beltA driver must not, while the vehicle is in motion on a road, permit a passengerunder the age of 15 years who is not properly restrained by an approved childrestraint or seat belt appropriate for that passenger to be alongside the driverunless –(a) the vehicle is not provided with sitting positions behind the driver'sseat or,1 Police v Deliu [2017] NZDC 22482.2 At [32].3 Police v Deliu [2018] NZDC 4631.(b) all the sitting positions behind the driver's seat are occupied bypassengers under the age of 15 years.[6] The Justices granted the amendment after Mr Deliu filed a memorandumadvising that he did not object to it because he had a complete defence to the amendedcharge.The Justices' decision[7] The Justices found Mr Deliu guilty of the amended charge for the followingreasons:4[25] Turning to Mr Deliu's argument that he did not have a back seat to hiscar, he believed the charge must fail. The law creates a general obligation fordrivers carrying passengers under the age of 15 years not to permit thosepassengers in the front seat if not properly restrained by an approved childrestraint or seat belt unless the back seats are unavailable. The two situationsin which the back seats are unavailable are set out in subs (a) and (b). Eitherthere are no back seats or all of the back seats occupy passengers under theage of 15. It is not permissible to have an adult in the back seat and a personunder the age of 15 in the front. The obligation in clause 7.9 operatesalongside the obligations in clauses 7.6 and 7.8.[30] Mr Deliu's McLaren two door convertible vehicle contained only twoseats and clearly there were three occupants in the vehicle when the policeconstable ordered the vehicle to stop on a public highway. The photographsprovided in evidence clearly show three occupants even though Mr Deliu isseen attempting to conceal the car's occupants form the photographing by theconstable.[31] The law is clear, each person in a car must have, "A seatbeltappropriate for that passenger." In this case, the child and the female weresharing one seat belt for one seat. A seat belt that is shared is not appropriatefor a child as they would not be properly restrained. Accordingly, we find theamended charge proven.[8] Mr Deliu contends the Justices failed to engage with the legal argument he hadadvanced in relation to the amended charge. Judge Bouchier was not required toconsider that issue because Mr Deliu did not appear when his appeal against theJustices' decision was called.4 Police v Deliu, above n 1.Jurisdiction for second appeal[9] The principles that apply in the present context are well-established. Section237 of the Criminal Procedure Act 2011 prohibits the Court from granting leave tobring a second appeal against conviction unless the appeal involves a matter of generalor public importance or a miscarriage of justice may have occurred, or may occurunless the appeal is heard.[10] For the reasons that follow I am satisfied the proposed appeal raises an issueof general or public importance. Leave to bring a second appeal is accordinglyjustified.The issue[11] Mr Deliu acknowledges that the first segment of cl 7.9 imposes restrictions thatapply to passengers in moving vehicles who are under the age of 15 years. However,he points out that this ends with the word "unless". Mr Deliu contends the use of thisword creates two exceptions to the restrictions imposed by the preceding segment.These are set out in cls 7.9(a) and (b). The exception created by cl 7.9(a) is where thevehicle in question has no rear seat. During the hearing before the Justices there wasno dispute that Mr Deliu's vehicle had no rear seat. Mr Deliu therefore says his vehiclefalls within the exception created by cl 7.9(a), and this provides a complete defence tothe charge.[12] For the respondent, Mr Fotherby acknowledges Mr Deliu's argument isavailable if cl 7.9 is given its literal meaning. He contends, however, that the rule mustbe interpreted with regard to the purpose of the Rule and in the context of the regimeof which cl 7.9 forms part. The purpose of the Rule is in part to "[promote] the safeand efficient operation of roads by providing a legal framework to support consistentand predictable responses by road users".5[13] Mr Fotherby submits that Parliament intended cl 7.9 to limit the situations inwhich persons under the age of 15 years could travel in the front seat of a moving5 Land Transport (Road User) Rule 2004, sch 1 cl 1(3).vehicle, and to impose seat belt requirements for when that occurred. It did so byprohibiting such persons from travelling in the front seat of a vehicle unless the vehiclehas no rear seat (cl 7.9(a)) or the rear seat is occupied by other children or youngpersons (cl 7.9(b)). In either of those situations a person under 15 years of age maytravel in the front seat alongside the driver but only if he or she is properly restrainedby an approved child restraint or a seat belt appropriate for that passenger.Analysis[14] I accept that cl 7.9 cannot be viewed in isolation. It forms part of a suite ofprovisions that govern the wearing of seat belts in a motor vehicle whilst it is inmotion. These are to be found in cls 7.6 to 7.10, which provide as follows:7.6 Driver must ensure passengers under 7 years use child restraintA driver must ensure that, while the vehicle is in motion on a road,every passenger under the age of 7 years is properly restrained by anapproved child restraint appropriate for that passenger.7.7 Driver must ensure passengers aged 7 use child restraint or seatbeltA driver must ensure that, while the motor vehicle is in motion on aroad, every passenger aged 7—(a) is properly restrained by an approved child restraintappropriate for that passenger, if such a restraint is availablein the vehicle; or(b) if such a restraint is not available in the vehicle, is restrainedas securely as practicable in the circumstances using any childrestraint or seat belt that is available (whether or not that childrestraint or seat belt is approved).7.8 Driver must ensure passengers of 8 to 14 years wear seat belts(1) Subclause (2) applies when a person—(a) is a passenger in a motor vehicle; and(b) occupies a seat fitted with a seat belt, whether or not the seatbelt is an approved seat belt; and(c) is aged from 8 to 14 years.(2) The driver of the vehicle must ensure that, while the vehicle is inmotion on the road, the person—(a) wears the seat belt correctly so that he or she is properlyrestrained; and(b) keeps the seat belt securely fastened.7.9 Driver must not permit passengers under 15 years to sit in frontseat without child restraint or seat beltA driver must not, while the motor vehicle is in motion on a road,permit a passenger under the age of 15 years who is not properlyrestrained by an approved child restraint or seat belt appropriate forthat passenger to be alongside the driver unless—(a) the vehicle is not provided with sitting positions behind thedriver's seat; or(b) all the sitting positions behind the driver's seat are occupiedby passengers under the age of 15 years.7.10 Persons of or over 15 years must wear seat belts and keep themfastened(1) Subclause (2) applies when a person—(a) is in a motor vehicle; and(b) is occupying a seat fitted with a seat belt, whether or not theseat belt is an approved seat belt; and(c) is aged 15 years or more.(2) While the vehicle is in motion on the road, the person must—(a) wear the seat belt correctly so that he or she is properlyrestrained; and(b) keep the seat belt securely fastened.[15] These rules obviously provide a graduating series of requirements dependingon the age of the passenger. For the most part they are clearly worded and it is notdifficult to determine the restrictions they impose. The same cannot be said for cl 7.9.[16] I accept that cl 7.9 is designed to produce the outcome for which Mr Fotherbycontends. The heading to the section confirms this is so. However, the word "unless"plainly creates a general exception to the requirements imposed by the precedingwords. In other words, those requirements will not apply when the vehicle in questionhas no rear seat or where the rear seat is occupied by other young passengers.[17] Mr Fotherby referred me to two cases in support of his submission that I shouldapply a purposive approach. In Karpavicius v R the Privy Council was required todetermine the meaning of the term "in any other case" as it appears in s 6(2A)(c) ofthe Misuse of Drugs Act 1975.6 Section 6(2A) provides as follows:6 Dealing with controlled drugs(2A) Every person who conspires with any other person to commit anoffence against subsection (1) of this section commits an offenceagainst this Act and is liable on conviction ... to imprisonment for aterm—(a) Not exceeding 14 years where a Class A controlled drug wasthe controlled drug or one of the controlled drugs in relation towhich the offence was committed:(b) Not exceeding 10 years where paragraph (a) of this subsectiondoes not apply but a Class B controlled drug was the controlleddrug or one of the controlled drugs in relation to which theoffence was committed:(c) Not exceeding 7 years in any other case.[18] The issue before the Privy Council was whether the words "in any other case"in s 6(2A)(c) referred only to cases involving Class C controlled drugs or whether italso included situations where the offender could not be prosecuted under s 6(2A)(a)or (b) because the Crown was unable to establish whether the drugs in question wereClass A or Class B drugs.[19] Their Lordships proceeded on the basis that, from a linguistic perspective, thearguments were finely balanced.7 However, they were satisfied a purposive approachwas appropriate for the following reasons:[16] The reasoning of the Court of Appeal has the virtue that it inquiresinto the circumstances in which the legislature used the words "in any othercase", and what the object was which the legislature had in mind. Given thescheme and structure of the legislation it is to be inferred that the legislatureaimed to create a comprehensive system of control of drugs with no obviousgap. But, as already pointed out, on the appellant's interpretation there aresignificant gaps, resulting in the spectre of the acquittal of criminals who6 Karpavicius v R [2004] 1 NZLR 156, (2002) 19 CRNZ 609 (PC).7 At [15].undoubtedly dealt in controlled drugs. An interpretation which requires theguilty to go free tends to bring the law into disrepute and to undermine publicconfidence in the administration of justice. Such a result is avoidable in thiscase by interpreting the words "in any other case" in a sense which enables s6(2A)(c) to operate additionally as a residual category. Such an interpretationascribes to the words, in their context, a perfectly natural meaning. And it isbetter suited to the purposes and policies underlying the legislation than thenarrower interpretation.[20] In the second case to which Mr Fotherby referred, Ministry of Fisheries v Vu,the respondent had been convicted of aiding and encouraging the illegal purchase ofpaua from an undercover fisheries officer.8 On appeal, Duffy J quashed the convictionbecause the fisheries officer was an agent of the Crown. Section 192(5) of theFisheries Act 1996, which makes it unlawful for a person to purchase paua fromanyone other than a licensed seller, does not apply to "any transaction with theCrown".9 Duffy J acknowledged her conclusion would lead to unworkable andimpracticable outcomes but did not consider there was any scope for interpretation ofthe section other than in accordance with its literal meaning.[21] The Court of Appeal disagreed. It held that s 192(10), which exemptstransactions involving the Crown from being an offence under s 192(5), should onlyapply to situations in which the person seeking to rely on it knew or believed onreasonable grounds that he or she was transacting lawfully with the Crown.10 TheCourt considered the literal interpretation adopted in the High Court ignored theunderlying purpose of s 195(10).[22] The courts will always endeavour to interpret legislative provisions in amanner that gives effect to the underlying purpose of the legislation. This isparticularly so where a literal interpretation would undermine that purpose and/orcreate an unworkable or impracticable outcome. Karpivicius and Vu are examples ofthis.[23] However, unlike those cases, the present case does not require the Court tointerpret the meaning of a word or phrase. The meaning of the words used in cl 7.9 isclear and does not give rise to any issues of interpretation. The problem arises because8 Ministry of Fisheries v Vu [2010] NZCA 469, [2011] NZAR 114.9 Fisheries Act 1983, s 192(10).10 Above n 8, at [26].of the manner in which the rule has been constructed. It would have been a simplematter for cl 7.9 to have been structured in a manner similar to cls 7.7, 7.8 or 7.10.Had that been done there could be no argument. However, the structure used in cl 7.9creates a problem that the courts cannot solve without effectively rewriting the clause.[24] The consequences of the loophole created by cl 7.9 are not significant in thepresent case, but may well be in another involving injury to, or even the death of, achild under 15 who is not properly restrained in the front seat of a moving vehicle.Legislative amendment is necessary to ensure cl 7.9 accurately reflects the intentionof Parliament and the purpose of the clause. Until that occurs, however, effect mustbe given to the clear meaning of cl 7.9. It follows that Mr Deliu's argument succeeds,and the appeal must be allowed.Result[25] Leave to bring a second appeal is granted. The appeal is allowed and theconviction and fine are set aside.Lang J