PRESCOTT v NEW ZEALAND POLICE [2020] NZHC 2191

PRESCOTT v NEW ZEALAND POLICE [2020] NZHC 2191 [27 August 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000163[2020] NZHC 2191BETWEEN PETER PRESCOTTAppellantAND NEW ZEALAND POLICERespondentHearing: 20 June 2020 (further submissions received on 14 and 22 July and7 August 2020Appearances: Appellant in personK Fitzgibbon for RespondentJudgment: 27 August 2020JUDGMENT OF LANG J[on appeal against conviction]This judgment was delivered by me on 27 August 2020 at 3.30 pm.Registrar/Deputy RegistrarDateSolicitors:Crown Solicitor, Auckland[1] Mr Prescott was charged with exceeding the speed limit after a motor vehicleregistered in his name was captured by a speed camera travelling above the postedspeed limit on 20 July 2016.[2] Mr Prescott denied the charge and the matter was set down for hearing beforeJustices of the Peace on 27 October 2016. Mr Prescott failed to appear at that hearingand the Justices of the Peace found the charge proved in his absence. They orderedMr Prescott to pay a fine of $80 and court costs of $30.[3] Mr Prescott appealed against the decision, but in a decision delivered on21 March 2018 Judge Tremewan dismissed the appeal.1[4] Mr Prescott appeals against the Judge's decision. Leave to appeal out of timewas granted by Whata J on 5 June 2020.Leave to bring a second appeal[5] Leave is also required because this would be a second appeal.2 Justice Whatadid not address this issue in his decision granting leave to appeal out of time so I amrequired to determine whether leave should be granted. Leave to bring a second appealmay only be granted where the proposed appeal raises an issue of general or publicimportance or where there is a risk a miscarriage of justice may have occurred (or mayoccur) if leave is not granted.3Background[6] A speed camera captured a vehicle registered in Mr Prescott's name travellingalong Triangle Road in West Auckland at a speed of 64 kilometres per hour on 20 July2016. The posted speed limit in that area is 50 kilometres per hour.[7] The police issued an infringement notice against Mr Prescott and served it onhim on 2 August 2016. Mr Prescott contested the infringement notice and requested1 Police v Prescott [2018] NZDC 5372.2 Criminal Procedure Act 2011, s 237(1).3 Section 237(2).a hearing. As previously recorded, he failed to appear at the hearing so the prosecutionobtained a conviction in his absence.The proposed appealJurisdiction[8] In the District Court Mr Prescott contended neither the Justices of the Peacenor the Judge had jurisdiction to deal with the infringement. He advanced an array ofarguments under this head, contending that the police failed to establish thejurisdiction of the Court and that the District Court acted without jurisdiction.Mr Prescott did not advance this argument in support of the proposed second appealand he was wise not to do so. It is plainly without merit and would not justify leaveto appeal being granted.Failure to provide adequate particulars of the offence in the infringement notice[9] Mr Prescott now advances an argument he did not rely upon in the DistrictCourt. This is based on the fact that the infringement notice he received did not specifythe statutory provision he allegedly contravened by travelling in excess of the postedspeed limit. Mr Prescott submits this meant the infringement notice was fatally flawedand the conviction could not stand on that basis.[10] As Ms Fitzgibbon for the respondent points out, however, s 140 of the LandTransport Act 1998 (the Act) provides that an infringement notice "must be in the formprescribed by regulations under [the] Act", and it must contain information aboutspecified matters. These include such details of the alleged infringement offence thatare sufficient to fairly inform the recipient of the "time, place and nature" of the allegedoffence.4 Notably, however, s 140 does not require an infringement notice to set outthe statutory provision the recipient of the notice is alleged to have breached. Section140(1)(h) requires only that the notice must include "a summary of the provisions ofs 133".4 Land Transport Act 1998, s 140(1)(a).[11] The prescribed form for moving vehicle offence infringement notices is set outin Schedule 2 to the Land Transport (Infringement and Reminder Notices) Regulations2012. This contains all the information required by s 140 but does not advise therecipient of the statutory section that has allegedly been contravened. The prescribedform also contains the following information in a section headed "Information" on thereverse side of the form:Information about moving vehicle offences and special vehicle laneoffences5 Section 133 of the Land Transport Act 1998 provides that proceedingsfor a moving vehicle offence or a special vehicle lane offence may betaken against 1 or more of the following persons:(i) the person who allegedly committed the offence:(ii) the person who, at the time of the alleged offence, wasregistered under section 18 of the Transport (Vehicle andDriver Registration and Licensing) Act 1986 or Part 17 of theLand Transport Act 1998 in respect of the vehicle involved inthe offence:(iii) a person who, at the time of the alleged offence, was lawfullyentitled to possession of the vehicle involved in the offence(whether jointly with any other person or not), —whether or not, if item (b) or (c) applies, the person is an individual orwas the driver or person in charge of the vehicle at the time the allegedoffence was committed.6 Where proceedings in respect of a moving vehicle or a special vehiclelane offence are taken against you not as the person who allegedlycommitted the offence but as a person referred to in paragraph 5(b) or(c), the acts or omissions of the driver or person in charge of thevehicle at the time of the alleged offence are presumed to be your actsor omissions unless you establish the defence described in paragraph8.The Court file does not contain a copy of the reverse side of the infringement noticeissued to Mr Prescott and the police do not hold a copy on their file. Following thehearing, and at my request, Mr Prescott filed a copy of the reverse side of theinfringement notice he received. This is headed "Information" and one sectioncontains advice about s 133 in the same terms as that in the prescribed form set outabove. The infringement notice that Mr Prescott received therefore complied with therequirements of s 140(1)(h) of the Act.[12] I am satisfied there is no legal requirement for an infringement notice to specifythe statutory provision the recipient has allegedly contravened. It will be sufficient forthe reverse side of the notice to contain the information set out under the sectionheaded "Information" as prescribed in the regulations.[13] This proposed ground of appeal therefore has no merit and would not justifythe granting of leave.Proof of identity[14] Mr Prescott next seeks to argue, as he did before the Judge, that the prosecutionfailed to identify him as the person who was driving the vehicle. I deal with thisargument on the assumption that the prosecution was able to prove he was the ownerof the vehicle captured in the photograph taken by the speed camera.[15] The problem Mr Prescott faces in relation to this issue arises from s 133 of theAct, which provides as follows:133 Owner liability for moving vehicle offences and special vehiclelane offences(1) Proceedings for a moving vehicle offence or a special vehicle laneoffence may be taken against any 1 or more of the following persons:(a) the person who allegedly committed the offence:(b) the person who, at the time of the alleged offence, wasregistered under Part 17 in respect of the vehicle involved in theoffence (or, if the offence is alleged to have been committedbefore the commencement of section 242, a person who, at thetime of the alleged offence, was registered as the owner, or 1 ofthe owners, of that vehicle in a register kept under section 18 ofthe Transport (Vehicle and Driver Registration and Licensing)Act 1986):(c) a person who, at the time of the alleged offence, was lawfullyentitled to possession of the vehicle involved in the offence(whether jointly with any other person or not);—whether or not (in the case of a person referred to in paragraph (b) orparagraph (c)) the person is an individual or was the driver or personin charge of the vehicle at the time the alleged offence was committed.(2) In proceedings taken against a person under paragraph (b) orparagraph (c) of subsection (1), in the absence of proof to thecontrary, it must be presumed that—(a) the defendant was the driver or person in charge of the vehicleat the time of the alleged offence (whether or not the person isan individual); and(b) the acts or omissions of the driver or person in charge of thevehicle at that time were the acts or omissions of the defendant.(3) It is a defence to proceedings against a person for a moving vehicleoffence or a special vehicle lane offence if another person has, byvirtue of an order under the Criminal Procedure Act 2011 or theSummary Proceedings Act 1957, become liable to pay a fine or costs,or both, in respect of the offence.(4) It is a defence to proceedings against a person under paragraph (b) orparagraph (c) of subsection (1) if,—(a) At the time the alleged offence was committed,—(i) the person was not lawfully entitled to possession of thevehicle (either jointly with any other person orseverally); or(ii) another person was driving the vehicle; and(b) Immediately after becoming aware of the alleged offence, theperson advised the enforcement authority in writing that, at thetime the offence was committed, he or she was not lawfullyentitled to possession of the vehicle or another person wasdriving the vehicle (as the case may be); and(c) The person has given the enforcement authority a statutorydeclaration—(i) identifying the driver, by giving—(A) the full name and full address of the driver; and(B) any other identifying particulars, so far as they arewithin the person's knowledge, such as thedriver's date of birth, occupation, telephonenumber; or(ii) Establishing that the person could not identify the driver,after taking all reasonable steps to do so.(5) In proceedings for a moving vehicle offence a statutory declarationgiven under subsection (4) is, in the absence of proof to the contrary,sufficient evidence of the matters stated in the declaration; and it isadmissible for all purposes of any proceedings under this section.[16] The definition of "moving vehicle offence" in s 2 of the Land Transport Act1998 is as follows:moving vehicle offence means an offence detected by approved vehiclesurveillance equipment that is—(a) a speeding offence; or(b) an offence in respect of the failure to comply with the directions givenby a traffic signal or a traffic sign that is a variable traffic or lanecontrol sign; or(c) any offence against regulations made under this Act or the Transport(Vehicle and Driver Registration and Licensing) Act 1986 that isdeclared by regulations under this Act to be a moving vehicle offencefor the purposes of this definition ; or(d) a toll offence:[17] As will be plain from the wording of s 133, there is a presumption that theregistered owner of a vehicle was driving the vehicle at the time it is involved in thecommission of a moving vehicle offence. In order to escape conviction for thatoffence the owner must prove two things. First, that he or she was not driving thevehicle at the time the offence was committed. Secondly, the identity of the personwho was driving the vehicle at that time.[18] Mr Prescott failed to attend the hearing before the Justices of the Peace andprovide proof to rebut the statutory presumption. The prosecution was therefore notrequired to prove he was the driver of the vehicle at the relevant time.[19] The Judge disposed of this argument as follows:[24] This point can also be disposed of quickly. Mr Prescott was theregistered owner of the vehicle at the relevant time. He was therefore liableunder s 133 of the Land Transport Act. That provision permits proceedings tobe taken against the registered owner of the vehicle. In the absence of proofto the contrary, it must be presumed that the defendant was the driver and thatacts or omissions of the driver or person in charge of the vehicle at the timewere the defendant's actions. Mr Prescott failed to attend and provide proofto the contrary. Accordingly, it was unnecessary for the prosecution to provethat Mr Prescott was the driver of the vehicle at the relevant time.[20] I agree with the Judge's assessment. Mr Prescott's argument under this headis untenable and leave to appeal on this ground could not be justified.The manner in which the prosecution proved the offence[21] This is a new argument and was not considered in the District Court. It flowsfrom Mr Prescott's previous argument relating to proof of identity. Mr Prescottcontends the process used at the hearing before the Justices was flawed and theconviction should not stand for that reason.[22] The Justices' decision was brief to say the least:[1] In the case of Mr Peter Prescott, non-appearance at 11.50 am.Information given by way of formal statement. He will be ordered to pay afine of $80 and Court costs $30.[23] Mr Prescott originally sought judicial review of the process that led to hisconviction. Ms Fitzgibbon relies on an affidavit sworn and filed in that proceeding bySergeant Garth Coffey, a police prosecutor based in Wellington, to explain theprocedure used at the hearing before the Justices. Sergeant Coffey deposes:6. The hearing was before two Justices of the Peace, where the matterproceeded to formal proof as Mr Prescott did not appear. Formalproof for an infringement offence of this nature generally involves theprosecutor providing a sworn statement to the Court from the trafficcamera operator and the Police summary of facts, which I attach asExhibit GMC-2. My search of the Police file indicates it appears tono longer contain a copy of the operator's sworn statement. Ifrequired, it may be able to be obtained from the District Court'srecords.7. The Justices of the Peace found the offence proved and ordered MrPrescott to pay a fine of $80 and court costs of $30. I attach the oraljudgment as Exhibit GMC-3.[24] Sergeant Coffey was not the prosecutor at the hearing before the Justices so hecan only speak to the general practice followed when a defendant does not appear incases of this type. The District Court file has now been searched and the swornstatement from the traffic camera operator cannot be located on it. Notwithstandingthis deficiency Ms Fitzgibbon submits the Court can be confident the prosecutionprovided sworn evidence to the Justices that Mr Prescott was the owner of the vehiclecaptured in the photograph taken by the speed camera. She therefore submits thisground of appeal has no merit.[25] I would have accepted Ms Fitzgibbon's argument if the Justices had describedthe information contained in the formal statement to which they referred andconfirmed it was sworn or affirmed so as to be admissible. It would not have beensufficient, for example, for the prosecutor to tender a summary of facts unaccompaniedby evidence from a witness. I would also have accepted Ms Fitzgibbon's submissionif the police had been able to locate a copy of the witness's evidence on their file.Unfortunately, however, neither form of confirmation is available. The Justices'decision does not even go so far as to confirm they received evidence in an admissibleform.[26] The prosecution bore the onus of proving beyond reasonable doubt that MrPrescott was the owner of the vehicle photographed by the speed camera. The absenceof any evidence to establish how it discharged that onus leaves me in a position whereI cannot be sure how or whether the prosecution proved the charge. Conviction inthose circumstances would amount to a miscarriage of justice. Mr Prescott hastherefore established the necessary basis on which to bring a second appeal.Result[27] Leave to bring a second appeal against conviction is granted. The appealagainst conviction is allowed and the sentence and costs order imposed by the DistrictCourt are quashed.Lang J