Frank Deliu and his McLaren at his Auckland home in 2017. Photo / Supplied
Frank Deliu and his McLaren at his Auckland home in 2017. Photo / Supplied
A man caught driving his McLaren sports car with his wife and child in the front seat has fought his conviction in the High Court - and won.
The High Court has overturned Frank Deliu’s conviction and set aside a $200 fine, highlighting a legal loophole that may allow children under 15 to, in some circumstances, sit in the front seat of a moving car without using a proper restraint in New Zealand.
“This law has been on the books for almost two decades and not a single one of the bureaucrats, police, prosecutors or supposedly learned Queen’s and King’s Counsel ever noticed that,” Deliu told Open Justice.
Deliu, a lawyer-turned stay-at-home dad with a history of suing judges, was stopped by police when driving on the northern motorway in his McLaren two-door sports car in January 2017.
Police initially charged Deliu for failing to properly restrain a child under 7 in a moving vehicle.
The former Auckland barrister said he stopped practising in January 2017. Photo/ Janna Dixon
Deliu told Open Justice his son was born in 2010 but would not reveal his age, only that police “did an awful job of proving their case” which he “tore apart”.
Unable to prove the boy’s age, prosecutors amended the charge to 7.9 of the Land Transport Rule 2004, which forbids drivers from allowing passengers under 15 to sit in the front seat of a moving car without a child restraint or seat belt.
“Unless -,” the rule goes on, ”(a) the vehicle is not provided with sitting positions behind the driver’s seat; or (b) all the sitting positions behind the driver’s seat are occupied by passengers under the age of 15 years”.
Justices of the Peace found Deliu guilty of the charge, fined him $200 and court costs of $30, which he later appealed against but was dismissed after his no-show at the appeal hearing.
He took a second appeal to the High Court, which Justice Graham Lang allowed, saying the case raised an issue of general or public importance.
Deliu's McLaren has no rear seat. Photo / Supplied
At a hearing on October 18, Deliu said his car had no rear seat, which meant it fell within the exception created by the law.
“There’s nothing in the law that says the seatbelt can’t be used in that fashion,” he said over an audiovisual link from the United States.
Lawyer for the police William Fotherby argued that Deliu did not restrain his child as securely as possible, which was the intent and purpose of the law.
In a written decision the same week, Justice Lang said the courts will always try to interpret the law in a way that gave effect to their underlying purposes, especially where a literal interpretation undermined it or created an unworkable or impracticable outcome.
But the Court did not need to interpret the law in this case because the meaning was clear, he said.
The word “unless” plainly creates a general exception to the requirements, the judge said. “In other words, those requirements do not apply when the vehicle in question has no rear seat or where the rear seat is occupied by other young passengers.”
Justice Lang said the consequences of this legal loophole could be significant if a child under 15 was injured or died sitting without proper restraint in the front seat of a moving car.
“Legislative amendment is necessary,” he said, to ensure the law reflects its purpose and the intention of Parliament.
But until that occurs, he said, the law had a clear meaning which meant that Deliu’s argument succeeded and his appeal must be allowed.
“I knew all along that I was innocent,” Deliu told Open Justice after the ruling.
Asked if he continued to drive with his son in the front seat, he said, “Whenever I drive my son around I do so in accordance with the legal requirements promulgated by the authorities.
“People need to stop being scared of living ... Our ancestors lived much riskier lives and somehow survived to make us.”
