SHACKLETON v POLICE [2020] NZHC 384

SHACKLETON v POLICE [2020] NZHC 384 [5 March 2020]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2019-409-000108[2020] NZHC 384BETWEEN MICHAEL SCOTT SHACKLETONAppellantAND NEW ZEALAND POLICERespondentHearing: 27 February 2020Appearances: Appellant in personA Harvey for RespondentJudgment: 5 March 2020JUDGMENT OF OSBORNE J(on appeal)This judgment was delivered by me on 5 March 2020 at 2.30 pmRegistrar/Deputy RegistrarDate:[1] Michael Shackleton was served with infringement notices for offences said tohave occurred on 22 May 2017, being:(a) operating a heavy motor vehicle at a speed exceeding 90 km/h (theallegation being 123 km/h); and(b) operating a heavy road user charges (RUC) vehicle on a road where thereading of the distance recorder fitted to the vehicle exceeded themaximum reading specified in the distance licence for the vehicle bymore than 500 km (the allegation being that the excess was 4,138 km).[2] The vehicle Mr Shackleton was driving was a Dodge Ram, which has a grossvehicle mass of 4,000 kg.[3] Mr Shackleton pleaded not guilty. After it became apparent that a prompthearing was unavailable in the District Court at Westport, the proceeding wastransferred to Christchurch for hearing.The formal proof judgment[4] Judge W K Hastings, on a formal proof hearing on 2 August 2018, found bothinfringements proved (the formal proof judgment). His Honour imposed fines of $300for the speeding offence and $1,000 for the RUC offence.1 Mr Shackleton had notappeared at the hearing.[5] Mr Shackleton applied for a rehearing. He stated as his grounds for rehearingthat the District Court had sent the notice of the 2 August 2018 hearing date to him atan incorrect address. The notice was sent to an address in Tucson Place inChristchurch. With his application for rehearing, Mr Shackleton attached evidencethat his residential address was elsewhere. In his application, Mr Shackleton alsoreferred to previous email correspondence he had with the District Court in July-August 2017 outlining his (substantive) issues with the infringement notices. He1 Police v Shackleton [2019] NZDC 16893.ticked the "yes" box in the District Court standard form on notice of application whichasked whether the applicant requests an oral hearing.[6] The prosecutor filed a three-page written submission. There is no evidencethat Mr Shackleton was informed of his right to reply to that submission or that theCourt was proceeding to deal with his application on the papers.The rehearing judgment[7] Judge Hastings dealt with the application for rehearing on 29 November 2018on the papers (the rehearing judgment).2[8] In the rehearing judgment, the Judge identified that Mr Shackleton's ground ofapplication was that the notice of hearing had been sent to the wrong address.[9] His Honour then set out s 177 of the Act and referred to authority in relation tothe test of "miscarriage of justice" adopted in relation to rehearings.[10] His Honour then considered the application, before dismissing it. His Honourstated:[7] Mr Shackleton wished to be heard in the Westport District Court.However, given the number of sitting days in Westport and the low priority ofMr Shackleton's infringement offences his hearing was delayed on a numberof occasions.[8] On 12 June 2018 Mr Shackleton confirmed through email the newhearing date of 2 August 2018 in the Christchurch District Court. Althoughthe notice of hearing was sent to the incorrect address, it appears from thiscommunication that Mr Shackleton was in fact aware of the hearing date andlocation.[9] A hearing was held on the 2 August 2018 and Mr Shackleton foundguilty by way of formal proof. These offences are strict liability.[10] In the circumstances, I am of the view that no miscarriage of justiceoccurred. While there was an irregularity of procedure in the sending of thenotice of hearing to the incorrect address, this irregularity cannot beconsidered so serious or fatal as to have affected the trial outcome or to haveresulted in an unfair trial, particularly as these are strict liability offences to2 Shackleton v Police [2018] NZDC 24667. This was a hearing on the papers pursuant tos 125(6) Criminal Procedure Act 2011.which his response provides no defence, and the court record indicates thatMr Shackleton knew of and consented to the date of 2 August 2018.[11] For these reasons, the application for a rehearing is dismissed.The appeal[11] Upon receipt of the formal proof judgment, Mr Shackleton filed an appeal. Ashis grounds of appeal, he stated that he had not been advised of court dates to attend"as attached documentation shows". The documents he attached to his notice ofappeal included:(a) copies of correspondence between himself and the District CourtRegistries in relation to hearing dates and venue;(b) a "to whom it may concern" letter of 7 June 2018 (provided to theCourt) setting out his explanations for defences in relation to the twoinfringement notices; and(c) evidence of his correct residential address.Appeal hearing[12] For this hearing, Mr Harvey for the Police filed and served a written synopsisof submissions. Mr Shackleton did not file written submissions but orally addressedthe Court.[13] Mr Shackleton indicated that, in coming to this Court on his appeal, he wishedto have resolved in this Court not only whether there should be a rehearing but, if so,the rehearing of the infringement offences themselves.[14] I heard submissions from both Mr Shackleton and Mr Harvey against thebackground of two substantive or procedural "corrections".The operative provision for the rehearing[15] The Judge in the rehearing judgment proceeded on the basis that s 177 of theCriminal Procedure Act 2011 applied.3 As Mr Harvey responsibly identified, it didnot. Section 125 of the Act provides for rehearings (or retrials) in the situation wherea defendant (as here) has been found guilty or sentenced in their absence.The speeding offence[16] The speeding infringement notice contained the allegation that it was a "heavymotor vehicle" which Mr Shackleton was operating. The term "heavy motor vehicle"is however defined in s 2 Land Transport Act 1998 in this way: heavy motor vehicle means a motor vehicle (other than a motorcar that isnot used, kept, or available for the carriage of passengers for hire or reward)having a gross vehicle mass exceeding 3 500 kg[17] While what is effectively a double-negative in that definition creates adifficulty in the immediate comprehension of the definition, I find that the definitionmeans that Mr Shackleton's Dodge Ram was not a "heavy motor vehicle" despite itweighing more than 3,500 kg. That is because a motor car does not come to be treatedas a "heavy motor vehicle" simply because it weighs more than 3,500 kg unless it is"used, kept, or available for the carriage of passengers for hire or reward".[18] As this was not a matter raised in Mr Shackleton's grounds of appeal, I raisedit at the hearing. Mr Harvey's submission was that the meaning of the definition isless than clear but he was unable to refer to any reasoning which cuts across theconstruction I have identified.The application for rehearingSection 125 Criminal Procedure Act[19] Mr Shackleton was entitled to apply to the District Court for an order grantinga rehearing.4 His application met the procedural requirements under s 125 of the Act.3 Shackleton v Police, above n 2, at [8].4 Criminal Procedure Act 2011, s 125(1).[20] Mr Shackleton's first ground of application was that he had not been notifiedof the hearing date.[21] Upon the rehearing, the District Court had power to order a retrial if satisfiedof certain matters under s 125(7) of the Act but Mr Shackleton's grounds of appealbrought into play the provisions of s 125(8) which provides:Despite subsection (7), the court must order a retrial if satisfied that thedefendant was not notified of the trial.The process of notification[22] After Mr Shackleton had been served with the notices, there was difficulty inobtaining a prompt hearing in the District Court at Westport which led to discussionof a transfer to Christchurch (Mr Shackleton was based in Christchurch, not Westport).[23] The Court Registry Officer wrote to Mr Shackleton by email on 12 June 2018discussing the possibility of transfer. She recorded:Currently there are hearing dates in Christchurch on the 12th of July, 2nd ofAugust and the 23rd of August. Westport's next date would be towards the endof August or September.Does any of this information change your mind about appearing on Thursday?It is your absolute right to appear, I am just concerned that you will spend yourmoney and not get your hearing.[24] On the same day, Mr Shackleton replied by email (he informs me it was anemail which he dictated to his wife), stating:Hi LisaConfirm the change of date and venue as discussed at this stage.2nd August.RegardsMichael Shackleton[25] On the day of the email exchange, 14 June 2018, the Court Registry Officeraddressed a letter to Mr Shackleton confirming that the date of hearing of the chargeswas 2 August 2018 and would be at the Christchurch District Court. The letter wasaddressed to an address which the evidence establishes was not Mr Shackleton'saddress. Mr Shackleton states, and I accept, that he did not receive the original of thatletter.Discussion[26] The issue is whether the District Court Judge ought to have been satisfied thatMr Shackleton was not notified of the trial.[27] In the Court below and in this Court the Police submitted that the emailexchange between the Court and Mr Shackleton on 14 June 2018 meant that MrShackleton had been notified of the date and place of hearing.[28] I asked Mr Shackleton why he did not view the email exchange as a clearsetting of the date of 2 August. He explained that the intention of the email (as he haddictated it to his wife) was, having decided that the 2 August 2018 date wouldpotentially work for him, to ask the Officer to confirm that date. Hence the directorywords "Confirm the change of date and venue" (my emphasis) rather than "I confirmthe change of date and venue ".[29] In the way the exchange took place, and having regard to the whole of MrShackleton's 12 June 2018 email, I cannot reach a conclusion that the District Courtshould have been satisfied (under s 125(8) of the Act) that Mr Shackleton had not beennotified of the hearing date. The natural reading of Mr Shackleton's email (despite thedegree of short-hand) is that Mr Shackleton was confirming acceptance of the 2August date.[30] Accordingly, the Judge would have had the power under s 125(7) of the Act toconduct a rehearing of the charges if satisfied of the threshold tests in that subsection.[31] One of those threshold tests involves a consideration of the merits of adefendant's defence. At this point, it is appropriate to turn to the two allegedinfringements and matters of defence.The speeding charge[32] The matters of potential defence on Mr Shackleton's part are limited to two,namely:(a) his challenge to the speed at which he was alleged to be traveling; and(b) (as raised by this Court) the fact that he was not travelling in a heavymotor vehicle.[33] For the initial hearing, the Police in fact produced clear evidence as to MrShackleton having travelled at 123 km/h. Constable Shane Thomson gave evidenceas to his own certification and as to the certification of the speed detection equipment.He gave evidence of activating his radar and locking Mr Shackleton's vehicle's speedat 123 km/h. He stated that when he approached Mr Shackleton and asked him if heknew what speed he was driving at, Mr Shackleton replied "I don't know what I wasdoing".[34] In subsequent correspondence, Mr Shackleton raised three particular matters.I will deal with those in turn.[35] First, the officer had informed him that the speed limit for his vehicle was 90km/h. It had "mystified" Mr Shackleton that the officer identified a 90 km/h limit. Iam satisfied by reason of the definition of "heavy motor vehicle" to which I havereferred above that the permitted speed of Mr Shackleton's vehicle was in fact 100km/h, leaving his speed (if 123 km/h) still 23 km/h in excess of the limit for thatvehicle.[36] Secondly, Mr Shackleton explained that he was asked how fast he thought hewas going. He replied that he was not sure, he had just overtaken two trucks and acampervan which he believed to be travelling at 70 km/h. Mr Shackleton's belief asto the speed at which other vehicles were travelling when he overtook them, and inparticular his extrapolation as to what speed he may have been travelling, wasinherently unreliable and, by reason of the very nature of overtaking, carried with itthe real possibility of excess speed.[37] Thirdly, Mr Shackleton referred in correspondence to realising that his GPShas a "factory set" which beeps at 120 km/h. He took it from the fact that the beepinghad not activated that he was not travelling as fast as 120 km/h. Again, in the absenceof evidence of the auditing of such a device, the fact that the device did not beep countsfor nothing.[38] I am satisfied that none of the matters raised by Mr Shackleton in relation tothe speed at which he was travelling cast any reasonable doubt on the police evidencethat his vehicle was travelling at 123 km/h.[39] Therefore, had the infringement notice been laid or substituted as an offenceof operating a motor vehicle on a road at a speed exceeding 100 km/h, Mr Shackletonwould have had no reasonable prospect of success if he had attended the hearing.[40] I return to the consequence of that below.Road user charges[41] Constable Thomson inspected the RUC label at the time he stopped MrShackleton's vehicle. The end-mileage from the RUC label was 85,772 km whereasthe reading on the vehicle's odometer was 89,910 km, being an over-run of 4,138 km.[42] Constable Thomson stated that when he informed Mr Shackleton of the RUCover-run and asked if he had purchased more, Mr Shackleton stated "we would havegot more I am sure".[43] Before me, Mr Shackleton confirmed that he had subsequently paid the "over-run" RUC.[44] As he explained in correspondence to the District Court he considers that heought not to have been served with an RUC offence because of his subsequent paymentof arrears. He explained "so retrospectively no offence has occurred".[45] Mr Shackleton maintained that position in his submissions to me, displaying aseeming inability to understand that, when legislation requires payment to be made inadvance of a service or event, the payment must be so made. Failing that, associatedinfringement consequences may follow.[46] Mr Shackleton had no prospect of successfully defending the RUC offence.[47] In his submissions to this Court, however, Mr Shackleton focused also on thelevel of fine imposed in the District Court, namely $1,000.[48] The prosecutor in the District Court had in his written submissions stated that"the RUC fine of $1,000 is a mandated fine. There is no discretion."[49] I infer that the prosecutor's reference to a mandated fine of $1,000 derives fromsch 2 of the Road User Charges (Infringement Offences) Regulations 2012. Thatschedule provides:[50] To understand the relevance of that schedule, one must work through the RoadUser Charges Act 2012 and the Regulations.[51] The offence with which Mr Shackleton was served is created by s 10 of theRoad User Charges Act 2012. Section 10(2) provides:A person commits an offence if the person operates a RUC vehicle on a roadwhere the reading of the distance recorder fitted to the vehicle exceeds themaximum reading specified in the distance licence for the vehicle by morethan 500 kilometres.[52] Section 10(3) of the Road User Charges Act provides for maximum penalties:A person who commits an offence against subsection (2) is liable onconviction,—(a) in the case of an individual, to a fine not exceeding $3,000:(b) in the case of a body corporate, to a fine not exceeding $15,000.[53] The Act draws a distinction between a "heavy RUC vehicle" and a "light RUCvehicle". The term "heavy RUC vehicle" is defined in s 5 of the Act to mean a motorvehicle or trailer with a gross vehicle mass of more than 3,500 kg. The definition of"heavy RUC vehicle" in the Road User Charges Act does not have the exception inrelation to "cars not for hire" as found in the Land Transport Act (above at [16]).[54] The Road User Charges (Infringement Offences) Regulations 2012 provide forinfringement fees in relation to offences against sections of the Act. Regulation 4(2)deals with offences against s 10(2) thus:An offence against section 10(2) of the Act is an infringement offence againstthe Act for which the infringement fee is,—(a) for an offence involving a light RUC vehicle, $200:(b) for an offence involving a heavy RUC vehicle, the fee specified in thesecond column of Schedule 2 that relates to the amount of distance bywhich the distance reading for the vehicle exceeds the maximumreading specified on the distance licence for the vehicle.[55] As the vehicle Mr Shackleton was driving weighed more than 3,500 kg, theapplicable "infringement fee" under sch 2 of the Road User Charges (InfringementOffences) Regulations was $1,000.[56] One cannot discern from the brief formal proof judgment whether the Judgewas alert to the fact that the Court (notwithstanding the provisions of the Road UserCharges (Infringement Offences) Regulations) retains a discretion in relation to thelevel of the RUC fine. What is clear, however, is that the prosecutor understood thatto be the "mandated fine" with "no discretion" and submitted so in those terms.[57] As a matter of law, the District Court ought to have proceeded upon the basisthat the regime of fixed infringement fees was irrelevant. Mander J in Payne v Policeundertook a detailed review of infringement offences and fixed infringement fees.5The review was in relation to the Summary Proceedings Act 1957 but is equallyapplicable to the RUC legislation. His Honour found:6It is apparent from the case law that where an infringement offence passes outof the administrative procedure and into the Court either by the enforcementauthority electing to proceed summarily, or by the defendant requiring thematter to be heard by the Court, a fixed infringement fee becomes redundant.The matter is able to be dealt with by the Court in the usual judicial mannerand the normal principles of sentencing can be expected to apply.[58] In Williamson v Police, this Court heard an appeal against a fine under the RUClegislation itself. 7 Heath J applied the decision in Payne to the RUC case before him,stating:[8] I have considered a judgment given by Mander J, in Payne v NewZealand Police. In that decision, the Judge made it clear that once thequestion of infringement was before the Court an approach toimposition of penalty should be adopted that proceeds on ordinaryprinciples of sentencing. That enables me to take account of thepersonal mitigating factor arising from the problem involvingdyslexia, and the relatively small number of kilometres over the limitthat gave rise to the $600 infringement fee.(footnotes omitted)[59] I respectfully adopt the reasoning and conclusions in these two cases asestablishing that the Court has a discretion when sentencing for RUC offences such asthat which Mr Shackleton faced.[60] I find there to have been, in terms of s 125(7)(b) Criminal Procedure Act, amatter of defence available to Mr Shackleton in the context of the fine he faced,namely that he would have been entitled to invoke the Court's discretion to imposeother than the standard "infringement fee". He did not have that opportunity.[61] The appropriate outcome in relation to the infringement notice under the RUClegislation requires this Court on appeal to view Mr Shackleton's case very much as acase on its own facts. At the appeal hearing, it was clear that he had spent significant5 Payne v Police [2014] NZHC 328.6 At [33].7 Williamson v Police [2016] NZHC 2291.and conscientious effort to understand the relevant provisions of the RUC legislation,arriving at the conclusion that (contrary to the prosecutor's submission to the DistrictCourt) there had in fact remained in that Court a discretion.[62] While Mr Shackleton's grounds for seeking substantial clemency as a matterof discretion would have been slim when this matter was first before the District Courtat Westport in 2018, this Court (when now required to consider the rehearing of thealleged offences) cannot appropriately ignore Mr Shackleton's necessary engagementwith the complex provisions of the legislation, stemming from an incorrectprosecutorial submission as to a lack of discretion.Determination on the merits[63] Mr Shackleton, as I recorded earlier in this judgment, seeks finality in relationto this proceeding.[64] In relation to the speeding infringement, it is clear that had it come to light inthe course of the District Court hearings that Mr Shackleton's vehicle had beenincorrectly categorised as a heavy motor vehicle, the Judge appropriately could haveamended the infringement to one under cl 5.1 Land Transport (Road User) Rule 2004of operating a motor vehicle on a road at a speed exceeding 100 km/h. Mr Shackletonwould appropriately have then been found guilty upon the basis that he had exceededthat limit by 23 km/h.[65] The appeal against the failure to grant a rehearing will be allowed, theinfringement notice will be amended and a fine of $200 (instead of $300) imposed.8[66] On the infringement under the RUC legislation, the appeal will also be allowed,and by way of rehearing the infringement confirmed but a fine of $500 substituted forthe previous $1,000 fine.8 Land Transport (Offences and Penalties) Regulations 1999, sch 1B, pt 2.Orders[67] I order:(a) the appeal against the District Court's dismissal of the appellant'sapplication for a rehearing is allowed;(b) the infringement notice numbered 3799541 is amended (in "details ofthe offence") to read "did operate a motor vehicle on a road at a speedexceeding 100 km/h";(c) the fine of $300 under the infringement notice numbered 3799541 isquashed;(d) a fine of $200 is imposed instead; and(e) the fine of $1,000 under the infringement notice numbered 3799542 isquashed and the appellant is instead fined $500.Osborne JSolicitors:Crown Solicitor, ChristchurchCopy to: M S Shackleton