GREEN TRANSPORT LTD v POLICE [2023] NZHC 3282

GREEN TRANSPORT LTD v POLICE [2023] NZHC 3282 [20 November 2023]IN THE HIGH COURT OF NEW ZEALANDHAMILTON REGISTRYI TE KŌTI MATUA O AOTEAROAKIRIKIRIROA ROHECRI-2022-419-000085[2023] NZHC 3282BETWEEN GREEN TRANSPORT LIMITEDAppellantAND NEW ZEALAND POLICERespondentHearing: 20 November 2023Counsel: J Ding for AppellantJT Lewis for RespondentJudgment: 20 November 2023ORAL JUDGMENT OF DOWNS JSolicitors/Counsel:Crown Solicitor, Hamilton.J Ding, Auckland.[1] This is an appeal, out of time, in relation to two infringement offences. Theoffending goes back to 6 October 2021.[2] Green Transport Ltd is, as its name implies, a transport company.On 6 October 2021, Daniel Huntley, a company employee, was driving a truck andtrailer. He was stopped by Police at Manunui, just south of Taumarunui. The truckand trailer were weighed. They weighed 51,090 kilograms. The maximumpermissible weight was 50,000 kilograms, albeit there is a tolerance of 500 kilograms.The weigh-in occurred at 3.20 pm.[3] Mr Huntley then drove to a weigh station in Taumarunui. He arrived there atapproximately 3.44 pm, that is, within half an hour of being weighed by Police atManunui. His truck and trailer were weighed at the Taumarunui weigh station also.This weigh-in gave a result of 50,460 kilograms, which is still over the maximumpermissible weight, but within the 500-kilogram tolerance.[4] On behalf of the company Mr Green wrote to Police on 1 November 2021:On the 6th October my truck was pulled up and issue a ticket for beingoverweight. Your officer at the time weighted this in at 51090Kg, please seeattached Weighcert for this load that was weighed showing that the weight ofthe load was 50460kg which is still within the 500kg tolerance offered. Anyquestions feel free to contact me.Mr Green attached the certificate from the Taumarunui weigh bridge.[5] Shortly thereafter, Police charged the company with two infringementoffences: exceeding the maximum gross mass limit for a high productivity vehicle;and breaching the critical condition of an overweight permit.[6] The company engaged a barrister, Mr Gotlieb. Not guilty pleas were enteredto the two charges.[7] On 1 August 2022, the District Court sent an email to Mr Gotlieb advising ofa hearing date of 18 August 2022. While the email reached Mr Gotlieb, he was notaware of it until after the hearing. So, the hearing (on 18 August 2022) proceeded inthe company's absence.[8] Judge B Northwood found both charges proved.1[9] The company then sought a rehearing pursuant to s 126 of theCriminal Procedure Act 2011. The same Judge dealt with the application, albeit onthe papers.[10] The Judge concluded the company had notice of the hearing by virtue of theemail to Mr Gotlieb. The Judge also considered the interests of justice. He concludedthe later weigh-in at the Taumarunui weigh bridge did not raise any doubt about theaccuracy of the earlier weigh-in. That said, the Judge did not have an affidavit onbehalf of the company before him, he had only the weigh-in receipts. The Judgedismissed the application.2[11] The company then sought to appeal that determination. On 1 May 2023,Venning J dismissed the appeal for want of jurisdiction.3 Necessarily, the Judge didnot consider the merit of the case.[12] The company now appeals out of time. It contends time should be extended asprocedural misadventure is the reason for the delay, rather than the company notpursuing its appeal rights in a timely fashion.[13] On behalf of the appellant, Ms Ding contends the company has suffered amiscarriage of justice given the affidavit on behalf of the company from Mr Green,which outlines the described history and second weigh-in. Ms Ding invites me toreceive the affidavit as fresh evidence.[14] On behalf of the respondent, Mr Lewis contends justice has not miscarried.He observes it was open to the District Court to proceed in the company's absence asthe offences were infringement offences only. Mr Lewis also contends that the merefact of the later weigh-in—with a different result—does not undermine the earlierweigh-in as Police adduced a certificate of accuracy in relation to it.1 Police v Green Transport Ltd [2022] NZDC 16641.2 Green Transport Ltd v Police [2022] NZDC 21386.3 Green Transport Ltd v Police [2023] NZHC 990.[15] I am satisfied the company has suffered a miscarriage of justice. While it wasopen to the District Court to proceed in the company's absence, and no criticismattaches to the Court for doing so, it is now clear the company wished to offer a defenceto the charges, and this defence has not been considered. I say this becauseJudge Northwood did not have the benefit of the affidavit from Mr Green when headdressed the application for a rehearing on the papers (through no fault of thecompany).[16] I make one thing clear. The mere fact of the later weigh-in (with a lowerweight) would not ordinarily be sufficient to warrant this outcome. What merits it isthat the company protested its position from the earliest opportunity, identified thecircumstances to Police, and wished to advance that defence in the District Court.I should add that a certificate of accuracy was obtained in relation to the later weigh-in.It therefore follows there is a serious issue for the District Court to consider.[17] This leaves one matter. Mr Green's affidavit does not expressly say that thedriver, Mr Huntley, did not stop between the two weigh-ins and remove anything fromthe truck or trailer. Though it is a matter for the District Court, it may be thoughtMr Huntley would need to testify to make explicit what it is currently implicit inMr Green's affidavit.Result[18] Time is extended for the appeal and the evidence of Mr Green is received onappeal.[19] The appeal is allowed. The convictions and fines are quashed.[20] A rehearing is ordered...Downs J