IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE	
CRI-2018-463-83
[2018] NZHC 3036	

BETWEEN	DAWSON ANTHONY BLISS
Appellant	
AND	NEW ZEALAND POLICE
Respondent	

Hearing:	19 November 2018	
Appearances:	P Chambers on behalf of the Appellant A Hill on behalf of the Respondent	
Judgment:	22 November 2018	

JUDGMENT OF GORDON J

This judgment was delivered by me
on 22 November 2018 at 11 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors:	Crown Solicitor, Rotorua Counsel:	P F Chambers, Auckland

BLISS v POLICE [2018] NZHC 3036 [22 November 2018]

Introduction

[1]	Following a hearing on 15 May 2018 in  the  District  Court  at  Taupo,1  Judge Hollister-Jones convicted Mr Bliss of two charges of carrying on an unlicensed transport service without the appropriate current licence.2

[2]	Mr Bliss now appeals his convictions.

[3]	The Crown opposes the appeal.

Factual background

[4]	Mr Bliss purchased an Isuzu truck (the truck) in December 2016. It was initially registered in the name of John Caulton. Mr Caulton had been the holder of a transport service licence since 2002.

[5]	The business arrangement between Mr Bliss and Mr Caulton was that Mr Bliss would source refrigeration panels from China for Mr Caulton and place them in a shipping container. After importation, Mr Caulton undertook refrigeration work on the truck and was paid for that work.

[6]	Mr Caulton says he also thought there was a business opportunity in Mr Bliss’ intended use of the truck as a mobile fruit vending business. Mr Caulton says, however, no agreement was reached between the two of them as to any business venture.

[7]	Mr Bliss, on the other hand, says he was in partnership with Mr Caulton and that partnership involved him using Mr Caulton’s transport service licence.

[8]	On 9 March 2017, the registration of the truck was transferred to Mr Bliss’ wife, Novia Pujianingsih.

1	New Zealand Police v Bliss [2018] NZDC 9199.
2	Land Transport Act 1998, s 79A(1).

[9]	On 15 August 2017, Lyn Williams from the New Zealand Transport Agency (NZTA) visited Mr Caulton to discuss his transport service licence. Mr Caulton advised Ms Williams that he had sold all vehicles over a six-tonne gross vehicle mass. He did not say that Mr Bliss was using his transport service licence without authority.

[10]	On or about 13 December 2017, Mr Caulton demanded payment from Mr Bliss of the outstanding balance owed for the earlier refrigeration work. He threatened to report Mr Bliss to the NZTA for operating the truck without a transport service licence. On 15 December 2017, he then reported Mr Bliss to the NZTA.

[11]	On  17  January  2018,  Ms  Williams  wrote  a   letter  to  Mr   Bliss  and   Ms Pujianingsih. She informed Mr Bliss that Mr Caulton’s transport service licence was used to help the truck obtain a certificate of fitness when it should not have been. She stated, “therefore there is now a block on this vehicle from obtaining a [certificate of fitness] until you the new owner get a [transport service licence yourself]”.

[12]	Following receipt of the letter, Mr Bliss consulted with Andre Jarden, who had experience as a vehicle inspector. Mr Jarden told Mr Bliss he did not need a new transport service licence until the next time the truck needed a certificate of fitness.

[13]	On 1 February 2018, Mr Bliss was driving the truck carrying fresh produce.

[14]	The police stopped Mr Bliss on two occasions on that day, the first east of Taupo and the second in Turangi. On the first occasion, Senior Constable Hayes issued Mr Bliss with a notice forbidding him to operate an unlicensed transport service, but permitted him to drive to Taupo to unload the fruit to prevent it from spoiling. On the second occasion, Constable Campbell saw Mr Bliss unloading the fruit in Turangi. The Constable advised Mr Bliss that as he had continued to operate the vehicle without a transport service licence and had failed to comply with Senior Constable Hayes’ instructions, he would be charged again.

[15]	Mr Bliss was charged on each occasion pursuant to s 79A(1) and (2) of the Land Transport Act 1998 (the Act), namely that he carried on a transport service without the appropriate current licence.3

District Court decision

[16]	Judge Hollister-Jones first identified the issue as “whether the defendant was covered by the transport service licence of Mr John Caulton”.4 Mr Bliss claimed that he was driving the truck on the date in question on behalf of Mr Caulton either as a business partner or as a result of some other business relationship.

[17]	As it was not disputed that Mr Bliss was carrying on a transport service on the day in question, the Judge stated that the element to be proved beyond reasonable doubt was that “on each occasion on 1 February 2018, the defendant did not have the appropriate current licence”.5 In this case, the appropriate current licence was a transport service licence. The Judge then observed that Mr Bliss was not charged with driving a transport service vehicle without a licence under s 79AB of the Act.6

[18]	After setting out the background, Judge Hollister-Jones accepted that the registration of the truck in Mr Caulton’s name “confirms the existence of an actual or intended business arrangement” between the two men regarding the use of the truck.7 But, he stated that the “exact business arrangement” between Mr Bliss and Mr Caulton was “unclear” for the following reasons:8
(a)	There was no evidence of what Mr Caulton’s investment in the fruit vending business was;

(b)	If Mr Caulton was providing refrigeration engineering services in return for a share in the fruit vending business, why did he expect to be paid for his refrigeration work?

(c)	There was no evidence of any discussion over profit share;

(d)	There was no evidence of any joint bank account or shared contributions towards operating expenses; [and]

3	Section 79A(2) is the penalty provision.
4	New Zealand Police v Bliss, above n 1, at [2].
5	At [5].
6	At [6].
7	At [12].
8	At [12].

(e)	Mr Caulton never received a share of the profits from the fruit vending business[.]

(Citations omitted)

[19]	To the Judge, the change in registration of the vehicle indicated “a cooling or change in the relationship” between the two men.9

[20]	Turning to the legal analysis, Judge Hollister-Jones stated as follows:

[26]	On 2 February 2018, the defendant was clearly in control of the goods service vehicle.

[27]	The requirement for a person in control of the transport service licence to meet the fit and proper person requirement applies to situations in which the application is being made on behalf of a trust, a company or partnership. The application form used by the NZTA requires the personal details of all partners in a partnership application.

[28]	The fit and proper person requirement is central to the issuing of a transport service licence. Both the applicant and any person having control of the service must meet that requirement. The defendant did not have current approval as a fit and proper person. As such, the transport licensing regime provided by the October 2007 amendments to the [Act] does not permit a non- transport licensing holding partner operating a transport service to be covered by his or her partner’s transport service licence. I am therefore not required to make findings as to whether the defendant and Mr Caulton were in fact in a partnership to operate a fruit vending business on 1 February 2018.

[21]	The Judge reiterated that Mr Caulton was not charged with driving a vehicle in a transport service without the relevant licence.10 He was charged with carrying on a transport service without the relevant licence. Therefore, the defence provided under s 30P did not apply.

[22]	I interpolate that s 30P provides:

30P Driver must have or drive under transport service licence

A transport service driver must, when using a vehicle in a transport service,—

(a)	have the relevant transport service licence; or

(b)	drive on behalf of the holder of the relevant transport service licence; or

9	At [13].
10	At [29].

(c)	have been facilitated to connect with passengers by a facilitator who holds a small passenger service licence.]

[23]	In any event, the Judge stated that he was not satisfied that s 30P(2)11 would apply to Mr Bliss:

[30] … A transport service driver is defined under s 2 [of the Act] as “any person who is, or is from time to time, employed or engaged in driving a vehicle being used in a transport service.” I am not satisfied that the defendant was employed or engaged in driving the Isuzu on 1 February 2018. There is no suggestion that the defendant was employed by Mr Caulton. Furthermore, I interpret engaged to mean a contractual relationship between the holder of the transport service licence and the driver. There is no evidence of any contractual relationship between the defendant and Mr Caulton on 1 February 2018. By that time, Mr Caulton had nothing to do with the Isuzu or the fruit vending business since 9 March 2017 when the registration of the Isuzu was transferred to Ms Pujianingsih. Nor do I consider that the term engaged would apply to a business partner driving the vehicle.

[24]	As to the 17 January 2018 letter, the Judge held that it was clear that Mr Bliss “needed to apply for a new transport service licence either on his own behalf or as an operator of the service for a partnership”.12 Mr Jarden’s advice to Mr Bliss did not provide him with any assistance.13 In any event, the Judge stated Mr Bliss’ interpretation of the letter did “not set aside the application of the licensing requirements” for a transport service licence as prescribed by the Act.14

[25]	Therefore, Judge Hollister-Jones concluded that he was satisfied that, while operating the truck, Mr Bliss did not have the appropriate current licence.15    As     Mr Bliss accepted he was carrying on a transport service, the Judge was satisfied beyond reasonable doubt that both charges were proved.16

Approach on appeal

[26]	Pursuant to s 232(2) of the Criminal Procedure Act 2011, the appeal must be allowed if the Court is satisfied that:

11	It appears that the Judge was intending to refer to s 30P(b). There is no s 30P(2).
12	At [32].
13	At [32].
14	At [33].
15	At [34].
16	At [34].

(a)	The Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b)	A miscarriage of justice has occurred for any reason.

[27]	A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:17

(a)	has created a real risk that the outcome of the trial was affected; or

(b)	has resulted in an unfair trial or a trial that was a nullity.

[28]	The Supreme Court, in Sungsuwan v R, defined a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.18 That being said, the Supreme Court in Condon v R held that not every departure from good practice renders a trial unfair.19 The departure must be “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the decision.20

[29]	An appeal against conviction proceeds by way of rehearing.21 Mr Bliss is entitled to judgment in accordance with the independent opinion of this Court. But I can only interfere with the factual findings of the trial Judge if such findings were plainly not open to the Judge on the evidence before him.22

Grounds of appeal

[30]	Mr Chambers, for Mr Bliss, submits that Judge Hollister-Jones erred in fact and in law in the following two ways:

17	Criminal Procedure Act 2011, s 232(4).
18	Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
19	Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
20	At [78]; citing Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
21	Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
22	Kueh v R [2013] NZCA 616 at [32]; Baylis v R [2018] NZCA 271 at [43].

(a)	By interpreting s 30P(b) of the Act as not encompassing the evidence of Mr Bliss’ operation of a vehicle under the existing transport licence; and

(b)	By concluding that the threshold requirements to convict Mr Bliss under s 79A(1) of the Act had been satisfied based on the evidence.

[31]	Mr Hill, for the Crown, submits the findings of fact were open to Judge Hollister-Jones on the evidence before him, and the law was correctly interpreted and applied.

Discussion

[32]	Mr Chambers accepts the Judge’s conclusions as to whether there was a partnership between Mr Bliss and Mr Caulton, as well as the conclusion that there was clearly some sort of business arrangement between the two parties (otherwise the truck would never have been in Mr Caulton’s name). He further accepts that even if there was a  partnership,  Mr  Bliss  did  not  meet  the  fit  and  proper  person  test  under s 30L(1)(b) of the Act.

[33]	Mr Chambers submits, however, that the Judge overlooked the definition of “driver” and “carrying on a transport service”, as well as the requirement of intent on the part of the individual charged under s 79A(1). He says the Judge’s findings had particular importance in that regard given the absence of precedent to assist in identifying intent as an element in the charge.

[34]	Mr Hill, on the other hand, submits the Judge correctly concentrated on the elements of s 79A, which is directed at transport operators, not transport drivers. Section 79AB applies to transport drivers, and the definition of transport driver is narrower than the definition of transport operator.

Analysis

[35]	Section 79A(1) of the Act provides as follows:

(1)     A person commits an offence if the person carries on (or, in relation   to a small passenger service operator, facilitates) any transport service without the appropriate current licence.

[36]	Section 2(1) of the Act relevantly defines transport service as meaning “any goods service”. Goods service is then relevantly defined as meaning “the carriage of goods on any road, whether or not for hire or reward, by means of a motor vehicle whose gross vehicle mass is 6 000 kg or more”.23

[37]	As Judge Hollister-Jones noted, it is accepted that Mr Bliss was carrying on a transport service on the day in question.

[38]	Nevertheless, I agree with Judge Hollister-Jones that s 30P has no application in the circumstances of this case. It applies to transport service drivers. There is a separate offence which relates to transport service drivers, namely s 79AB, which provides in subs (1):

79AB Offence to drive vehicle used in transport service without licence

(1)	A transport service driver commits an offence if the driver uses a vehicle in a transport service and there is no relevant transport service licence held by any of the following:

(a)	the driver:

(b)	a transport service operator on whose behalf the driver is driving:

(c)	a facilitator who facilitated the driver to connect with passengers of the service.

[39]	Mr Bliss was charged under s 79A, which relates to those who carry on transport services. Section 2(1) of the Act defines a transport service operator as a “person who carries on a transport service”. As a transport service operator, s 30J(a) requires Mr Bliss to be licensed. Section 30L(1) further provides:

30L	Grant of licence

(1)	After considering an application for a transport service licence, the Agency may grant the licence only if the Agency is satisfied that—

23	Land Transport Act, s 2(1).

(a)	the applicant is a fit and proper person to hold a transport service licence; and

(b)	any person who is to have, or is likely to have, control of the transport service is a fit and proper person to have such control; and

(c)	any representative meeting the requirements of subsection (1A)(b) is a fit and proper person to be a representative; and

(d)	the applicant or any person who is to have control of the transport service is the holder of the appropriate certificate (if any) required by the regulations or the rules; and

(e)	all relevant requirements of this Act, the regulations, and the rules have been complied with.

[40]	As noted, Mr Chambers accepts Mr Bliss cannot satisfy s 30L(1)(b). Section 30P(b) differs in that it allows transport service drivers to drive on behalf of the holder of the relevant transport service licence. But, Mr Chambers is wrong to suggest that Judge Hollister-Jones “determined” that Mr Bliss was not a transport service driver. As stated, Mr Bliss was not charged under the provision relating to transport service drivers. The Judge did not have to consider whether Mr Bliss was a transport service driver.

[41]	It is therefore immaterial whether Mr Bliss was covered by any form of partnership arrangement. As Judge Hollister-Jones explained:

[28] … the transport licensing regime provided by the October 2007 amendments to the [Act] does not permit a non-transport licensing holding partner operating a transport service to be covered by his or her partner’s transport service licence. I am therefore not required to make findings as to whether the defendant and Mr Caulton were in fact in a partnership to operate a fruit vending business on 1 February 2018.

[42]	Even if the evidence established some form of partnership arrangement, it would not absolve Mr Bliss of liability under s 79A. The statutory wording is clear. There are different offences with corresponding definitions applying to transport service drivers and transport service operators. Mr Chambers’ submissions to this effect are predicated on Mr Bliss having been charged under s 79AB. But that is not the case.

[43]	As to arguments over intent, this is  strict liability offending.24    The text of    s 79A(1) did not require the prosecution to prove that Mr Bliss knew that he was carrying on a transport service without the appropriate current licence. There is no stated mens rea requirement. Instead, the prosecution had to prove beyond reasonable doubt that Mr Bliss was carrying on a transport service, which is accepted, and that he did not have the appropriate current licence.

[44]	Mr Chambers referred the Court to ss 79E and 79J of the Act, and submitted that those provisions indicated that s 79A is not a strict liability offence. Those two sections provide in relevant part:

79E	Liability of persons who use unlicensed transport service

(1)	A person commits an offence if the person uses a transport service and knows or ought reasonably to know that, at the time the person used the transport service,—

(a)	the operator of the transport service did not hold an appropriate transport service licence; or

(b)	the operator of the transport service was disqualified from holding or obtaining a transport service licence; or

(c)	the transport service licence of the operator was suspended or revoked.

…

79J	Liability of employers and principal

If an offence is committed against this Part by a person as the employee, agent, or contractor of another person, that offence must be treated as having been committed by both persons, whether or not it was done with the other person's knowledge or approval, if it is proved that—

(a)	the other person—

(i)	knew, or could reasonably be expected to have known, that the offence was to be, or was being, committed; and

(ii)	failed to take the steps that were reasonably practicable to prevent the commission of the offence; and

(b)	the other person failed to take the steps that were reasonable in the circumstances to remedy the effects of the act or omission that gave rise to the offence.

24	See Millar v Ministry of Transport [1986] 1 NZLR 660 (CA).

[45]	Rather than assisting Mr Chambers’ argument, those two sections point the other way. First, the circumstances contemplated by those two provisions are different from s 79A. That there is a mens rea element is understandable given the nature of the offences in those two sections. Second, the fact that there is a reference to a mental element in those sections, but not in s 79A, underscores that the latter section is a strict liability offence.

[46]	Therefore, Mr Bliss’ belief as to whether he was complying with the Act or not are irrelevant. Either he has objectively complied with the Act or he has not. I accept that there is a defence of total absence of fault.25 The onus is on the defendant to establish it. But, based on the evidence before Judge Hollister-Jones, it cannot be said that the defence would apply.

[47]	It is therefore unnecessary to  examine  the  evidence  of  Mr  Jardine  and  Mr Caulton to ascertain whether Mr Bliss believed his actions were lawful. It cannot be said that Judge Hollister-Jones erred in this regard either.

[48]	Both counsel made submissions on the Judge’s alternative findings in paragraph [30] of his decision, set out in [23] above. However, having regard to my conclusion that s 30P did not apply, it is not necessary to consider the Judge’s alternative finding.

Conclusion

[49]	The appeal is dismissed.

Gordon J

25	Millar v Ministry of Transport, above n 24, at 668.