R v Pratt

[1990] 2 NZLR 129

(Judgment by: McMullin J, Casey J, Bisson J) Court:
Court of Appeal Wellington

Judges:
McMullin J

Casey J

Bisson J

Judgment date: 1 March 1988

Wellington


Judgment by:
McMullin J

Casey J

Bisson J

For the trial of the accused Russell David Pratt the Crown presented an indictment containing the single count that he "unlawfully and without colour of right but not so as to be guilty of theft took for his own use a vehicle namely a Sakai road roller" the property of the complainant (ss 66(1) and 228(1) of the Crimes Act 1961). Counsel for the accused then moved under s 342 of the Act for an order quashing the indictment upon the ground that it did not state in substance a crime. Laing DCJ refused to quash the indictment. The accused now applies pursuant to s 379A of the Act for leave to appeal against that refusal.

Section 228 of the Crimes Act is at the heart of this case. Subsections (1) and (2) of that section are as follows:

"228. Conversion or attempted conversion of motorcars, etc .

(1)
Every one is liable to imprisonment for a term not exceeding 7 years who, unlawfully and without colour of right, but not so as to be guilty of theft, takes or converts to his use or to the use of any other person any of the following things, namely:

(a)
Any motorcar, or any vehicle of any description:
(b)
Any ship:
(c)
Any aircraft:
(d)
Any part of any motorcar, vehicle, ship, or aircraft:
(e)
Any horse, mare, or gelding.

(2)
Every one is liable to imprisonment for a term not exceeding 2 years who attempts to commit the offence referred to in subsection (1) of this section, or who, unlawfully and without colour of right, interferes with or gets into or upon or attempts to get into or upon any of the things referred to in paragraphs (a) to (d) of that subsection."

Section 342(1) provides for the quashing of an indictment if it "does not state in substance a crime". Mr Walshaw argued before the District Court, as he did here, that the indictment did not disclose the commission of a crime because a road roller is not a "vehicle" within s 228 of the Act. Although the depositions do not describe the nature of a Sakai road roller, we were told by Mr Squire that it is a self-propelled roller used for rolling a road surface and that it is driven and operated by a man sitting in a seat on it. The question of whether in fact the motion to quash the indictment was properly brought under s 342 was raised with counsel in this Court because s 342 applies only if the indictment does not state in substance a crime. The present indictment does state a crime in the very words of s 228(1) adding by way of particulars that the converted vehicle was a Sakai road roller. Mr Walshaw submitted that the taking of the roller, if such can be proved, did not constitute a crime because such a roller is not a vehicle. Even if this were the case, it would not be a ground for saying that the indictment does not state in substance a crime. It is rather a contention that whatever the roller is established to be on the evidence at the trial it is not a vehicle within the appropriate section.

"Crime" is defined in s 2(1) of the Act as an offence for which an offender may be proceeded against by indictment. In New Zealand all crimes are the creation of statute; common law crimes have been abolished (s 9). Section 342 is intended to ensure that no one is charged in any indictment with any offence other than an identifiable crime. It raises a threshold question. The challenged indictment is not covered by s 342 because it states in substance an identifiable crime. Therefore there is no jurisdiction to quash it and the motion to do so was bound to fail.

However, as the District Court Judge considered Mr Walshaw's submissions as to what is a vehicle for the purposes of s 228(1), we propose to consider the application for leave to appeal against the refusal to quash as though it were properly before us. If we did not do so, the case were to proceed to trial, and the accused were to be convicted, he would still be able to argue this point on an application for leave to appeal under s 383(1)(a) or (b). We therefore deal on its merits with Mr Walshaw's argument that a road roller is not a vehicle.

He submitted that the Sakai road roller was not "any vehicle of any description", as that phrase appears in para (a) of s 228(1), because it was not a vehicle within the ordinary dictionary meaning of the word. There is no definition of vehicle in the Crimes Act. Therefore in interpreting the statute one must have regard to the ordinary everyday meaning of vehicle. Unwin v Hanson [1891] 2 QB 115. The Oxford English Dictionary defines vehicle as a


"means of conveyance provided with wheels or runners and used for the carriage of persons or goods; a carriage, cart, wagon, sledge, or similar contrivance";

"any means of carriage, conveyance, or transport; a receptacle in which anything is placed in order to be moved".

Mr Walshaw placed some emphasis on these meanings as indicating that it is of the essence of a vehicle that its purpose is to carry passengers or some other load. He cited a number of cases to support that view. One such case, probably the strongest, is Bransgrove v Archer [1926] NZLR 254. In that case a farming tractor unsuitable for the conveyance of goods or passengers was held not to be within the definition of "motor vehicle" in s 2 of the Motor-vehicles Act 1924 which defined "motor vehicle" as


"any vehicle propelled by mechanical power, and includes a trailer and any other vehicle or locomotive of a class declared by regulations under this Act to be motor vehicles:".

On a charge under s 3 of the Motor-vehicles Act 1924 against the respondent for using a tractor on a road a Magistrate found that a tractor, taken to a repair shop and back, was not used and was not capable of being used for the carriage of goods or passengers. He dismissed the charge. On appeal Stringer J upheld the dismissal and said at p 255:


". . . and it seems to me that the etymology of the word 'vehicle' shows that it includes only contrivances, with wheels or runners, in or on which passengers or goods are or may be transported."

Since that case the definitions of vehicle and motor vehicle under the Transport Act 1949 (now the Transport Act 1962) have been enlarged, possibly to overcome the limitations which Bransgrove v Archer imposed on the operation of the Act. A vehicle, for the purposes of s 2 of the Transport Act 1962 , now means, save for a number of stated exceptions


"a contrivance equipped with wheels, tracks or revolving runners upon which it moves or is moved".

However, the definition has no application to this case and no more need be said about it. There are, however, a number of cases where, against a variety of statutory backgrounds, the meaning to be given to the word vehicle is discussed. Again, for the reason that the use of the word must be considered against the statutory background, there is little point in discussing these.

Section 228 of the Crimes Act was first introduced into the legislation as s 32 of the Police Offences Act 1927. This section made it an offence to take or convert any horse or any motor car or other vehicle or carriage of any description or any launch, yacht, boat or other vessel. It was enacted to overcome the difficulties inherent in proving on a charge of theft the essential ingredient that the taking was with the intention of depriving the owner permanently of the thing taken. Section 2 of the Police Offences Amendment Act 1935 substituted a new section for s 32. It differed from s 32 only in its classification of the things which could be the subject of the charge into five classes one of which was


"(a) Any motor car or other vehicle or carriage of any description;".

Section 228 was considered in Hensley v Police [1965] NZLR 963 where a railway locomotive was held to be a vehicle for the purposes of the section even though it was used for drawing carriages and, save for the driver, was not itself used for transportation. Haslam J referred to the fact that the dictionary meanings of the word tended to give emphasis to the historical element of means of carriage which have changed in variety and in complexity in recent times, and that in general speech we now allude to breakdown trucks which tow vehicles back to a repair shop as "vehicles" without regard to any special enactment.

In considering the variety of self-propelled appliances which are similar to road rollers Mr Walshaw was obliged to concede that if a self-propelled road roller was not a vehicle for the purposes of s 228(1)(a) then neither would be an ordinary farm tractor, a road grader, bulldozer or mobile crane. However it is common knowledge that many farmers use farm tractors as a means of locomotion, and not for the drawing of loads, around the farm and on the roads and that mechanical appliances such as graders, bulldozers and mobile cranes are from time to time taken for the purposes of "joy riding", the very mischief which s 228 aims to prevent.

While the dictionary meanings of vehicle seem to give some emphasis to a means of conveyance used for the carriage of passengers or goods, it is noteworthy that this definition is founded on the early usage of the appliance when mechanical appliances such as tractors, road graders, bulldozers, mobile cranes were not much in vogue or had not even been developed. All these appliances are now commonly regarded as vehicles. Although not used for the carriage of goods or passengers they require to be driven by an operator who sits on or in them. It is noteworthy that a shift in meaning away from the carriage of passengers or other loads is indicated in other dictionary meanings. Hence Chambers 20th Century Dictionary defines vehicle as "a means of conveyance or transmission" and Heinemann's New Zealand Dictionary as "any device for moving or carrying, especially one on wheels". Today's ordinary man, reared in a world of technological advancement and mechanical development, would regard a self-propelled road roller carrying its own driver as much a vehicle as he would Jehu's chariot (2 Kings 9), that is always assuming that he knew of the latter's existence. The need to modify the traditional meaning to meet modern technology was mentioned in Sugar City Municipal District No 5 v Bennett & White (Calgary) Ltd [1950] 3 DLR 81 by Rand J at p 93:


"The word 'vehicle' in its original sense conveys the meaning of a structure on wheels for carrying persons or goods. We have generally distinguished carriage from haulage, and mechanical units whose chief function it is to haul other units, to do other kinds of work than carrying, are not usually looked upon as vehicles. But that meaning has, no doubt, been weakened by the multiplied forms in which wheeled bodies have appeared with the common feature of self propulsion by motor".

Further light on the interpretation of vehicle in s 228(1) is shed by the use in that provision of the phrase "of any description" in relation to "vehicle". The legislature has thereby indicated that the word vehicle is to be read in its widest sense. The appliance must be within the genus of vehicle but in interpreting that the word must be given its widest meaning. The wide scope of the section is also demonstrated by the inclusion in paras (b), (c), (d), and (e) of s 228(1) of various forms of transport by land, sea and air. The emphasis in these paragraphs is on something which can be "got into" or "upon". Moreover there is nothing in the section which would suggest that it should be limited to a vehicle intended for the carriage of passengers or goods.

In the ultimate the Court must have regard to the rules of construction contained in the Acts Interpretation Act 1924. Section 5(j) applies to penal statutes as well as to others (R v Clayton [1973] 2 NZLR 211) the principle that the Court shall give the statute such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the Act. That object is to deter, by the imposition of a legal sanction, the taking or other misuse of appliances whose very nature makes them a target for joy-riders and effect is best given to it by holding a Sakai road roller to be a vehicle for the purposes of the section.

The District Court Judge was right to hold that the Sakai road roller, the subject of the indictment, was a vehicle for the purposes of s 228(1) of the Crimes Act. We therefore dismiss the appeal.Appeal dismissed.


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