R v Laurence

[2020] NSWDC 581

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Laurence [2020] NSWDC 581

Hearing dates:

21 July 2020; 2 October 2020

Date of orders:

2 October 2020

Decision date:

02 October 2020

Jurisdiction:

Criminal

Before:

Adams QC ADCJ

Decision:

Appeal upheld

Catchwords:

Local Court Appeal - failure to stop at a stop line at a yellow light

Legislation Cited:

Road Rules 2014

Crimes (Appeal and Review) Act 2001

Category:

Principal judgment

Parties:

Office of the director of Public Prosecutions (Respondent)
Nathan Laurence (Appellant)

Representation:

Solicitors:
S Makin; M Gillies (Respondent)
J Lewis (Appellant)

File Number(s):

2019/00284315

Publication restriction:

NONE

Judgment

Introduction

1. Nathan Warwick Laurence (“the appellant”) was convicted in the Local Court on 13 February 2020 of an offence, committed on 10 July 2019, of failing to stop at a stop line at a yellow light contrary to s 57(1)(a) of the Road Rules 2014. On 9 March 2020 he appealed to this Court against both conviction and sentence. Section 57(1)(a) is as follows –

57 Stopping for a yellow traffic light or arrow

(1) A driver approaching or at traffic lights showing a yellow traffic light must stop —

(a) if there is a stop line at or near the traffic lights and the driver can stop safely before reaching the stop line — as near as practicable to, but before reaching, the stop line, or

(b) if there is no stop line at or near the traffic lights and the driver can stop safely before reaching the traffic lights — as near as practicable to, but before reaching, the nearest or only traffic lights, or

(c) if the traffic lights are at an intersection and the driver cannot stop safely in accordance with paragraph (a) or (b), but can stop safely before entering the intersection — before entering the intersection,

and must not proceed past the stop line or nearest or only traffic lights, or into the intersection (as the case may be), until the traffic lights show a green or flashing yellow traffic light or no traffic light.

Maximum penalty—20 penalty units.

2. The crucial question in the case was whether the appellant could have stopped safely before reaching the stop line.

3. This appeal is brought under Part 3 of the Crimes (Appeal and Review) Act 2001 which gives a right of appeal to any person who has been convicted or sentenced by the Local Court against conviction or sentence or both. Section 18 of the Act provides that an appeal against conviction is to be by way of rehearing on the basis of evidence given in the Local Court proceedings (subject to an irrelevant exception). This is not a hearing de novo but a rehearing and the question is whether the judge is satisfied beyond reasonable doubt of the guilt of the appellant on the evidence admitted on the hearing of the appeal. It is necessary that the judge form his or her own view of the facts, taking into account the advantage enjoyed by the Magistrate who saw and heard the witnesses. The judge is entitled to consider the reasons of the Magistrate including the resolution of issues of credibility based upon the evidence called in the hearing.

4. In the present appeal, there has been no application to call fresh evidence and the parties have proceeded on the basis of the transcript of evidence, photographs, in car video, technical data of speed/distances and Police Body Worn Video, tendered during the hearing in the Local Court.

The evidence

5. (The colour of the light is variously described as orange and amber, though the rule uses “yellow”. I have not bothered to translate.)

6. The appellant was travelling westbound on Park Avenue which joins at a T junction with the Pacific Highway, running north-south. He turned right into the Highway, northbound. This road junction is controlled by a traffic light which was certainly red (against him) when he was in the intersection. One of the questions in dispute is whether it showed yellow before he came to the stop line and, if so, for how long. The appellant was familiar with the area and this junction and had been working nearby for a few days. Just before the junction on the south side of Park Avenue there is a T junction with Wade Lane which is about 40 m short of the junction with the Highway. Wade Lane runs north/south and is used as a “rat run” for traffic heading to the Highway. Just east of Wade Lane and on the opposite side of the road is the driveway where police cars, including Highway Patrol vehicles, exit Gordon Police Station.

7. Senior Constable Croese was in a Highway Patrol car leaving the driveway when he saw the appellant’s vehicle (a Hilux Ute) as it approached Pacific Highway westbound on Park Avenue. The officer saw that the traffic light was orange and he thought that the appellant was going to run the light since he appeared to be going quite fast and did not slow or brake. The traffic light was red when the Hilux was in the intersection but it may have turned red after the appellant crossed the line. The officer gave chase and came up to the Hilux on the Highway. The appellant said the light had been orange. The officer was unsure and reviewed his video footage but it captured the Hilux about half a second late. He was 50 metres behind and, because of his uncertainty as to the point at which the light turned red, he issued a ticket for crossing against an orange light.

8. The officer had over 6 years’ experience with Highway Patrol. He said that the right-hand side of the driveway is 48.5m from the relevant stop line. In his vehicle, he was so little bit off to the left so another couple of metres could be added. There was no vehicle directly in front of the Hilux and nothing behind it. There were 2 cars at the intersection of Wade Lane obviously waiting to enter Park Avenue to go to the Highway. There were no parked cars. He referred to published technical data which showed that, for a car doing 50 km/h the average stopping distance is 29.7m, allowing for a reaction time of one second or 13.9m and an average braking distance of 14.8m. (I interpolate that these are averages and must be applied with care. Possible variations include the condition and weight of the vehicle and the nature of the roadway. Also, the reaction time refers to the interval between decision and action but it does not account for the time taken to make the decision to stop or proceed.) The officer said that he returned shortly, perhaps 20 or 30 minutes, after the incident to the junction and timed the period for which the orange light was on at 4 seconds.

9. The appellant gave evidence. He is a roof plumber living at Terrigal and was working at Willoughby public school at the relevant time. He said that he was driving one of his father’s vehicles on the day in question and for a few days before. He said that, as he was driving up to the lights, it was definitely green. As he approached Wade Lane he noticed a car at the intersection with Park Avenue, which he thought was creeping forward. It was slightly over the line at the stop sign. This distracted him for a moment. He said that the light turned amber when he was quite close to the T-junction but he thought he could not stop safely without ending up in the middle of the intersection. The tray of the Hilux was steel and loaded with heavy toolboxes. It was also carrying “a whole heap of lead flashing”. He did not know the phasing of the light changes and just thought they were standard. He said, in effect, that vehicles entering from Wade Lane tended to do so aggressively which is why he was distracted when he saw a vehicle there. He said he was virtually in line with the Lane, probably 3m or 4m from it. He took his eyes off the traffic light for what he described as “a split second” and when he looked up he was perhaps 7m or 10m further up the road, the light was amber and he thought it unsafe to attempt to stop. He said –

… And then when I looked up I travelled further up the road and it was amber. By that time it was too late for me to make a complete stop safely before hitting the Pacific Highway. At the safe speed I was travelling, going off the speed of the street and all that sort of stuff, the weight of my vehicle and all that, like I’ve driven around in these vehicles for a good part of my life, you know, and we carry materials on it and we are almost trained not to do, like, like brake rapidly, you know what I need because we could have stuff and it could – you understand what I mean your Honour? …

Had he not been distracted, he said he would easily have stopped at the light.

10. The appellant’s father also gave evidence but it is not presently material.

The issues

11. By the end of the evidence, the crucial question depended on the time that the appellant had to stop his vehicle when he noticed the yellow light. This depended on three factors: first, the distance between his vehicle and the junction; second, the period for which the light was yellow before turning red; and third, the time he had for deciding to stop or proceed. Working back from the evidence, were it accepted, that the light turned red at the instant after the Hilux entered the intersection, this gave a moment less than four seconds, on the basis of the Senior Constable’s timing of the phase, for the appellant (accepting his account as reasonably possible) to be distracted, see the yellow light and decide to go through the intersection. This, of course, is on the assumption – which seems to be an accepted fact – that he was travelling at 50 kp/h.

The Magistrate’s reasoning

12. It is common ground that the appellant did not stop at the yellow light. The learned Magistrate was satisfied, and clearly there was a proper basis for so doing, that the yellow/red light phase was 4 seconds. Her Honour also accepted that the appellant was distracted by the vehicle at the intersection of Wade Lane and Park Avenue. She said that the evidence of the appellant was that he was surprised by the vehicle moving forward. However, he had not actually said this, he said he seen the car as he came to the intersection and had been (in effect, momentarily) distracted. Perhaps more significant, is her Honour’s conclusion that the light was not green when the appellant approached Wade Lane. Although she did not explain this conclusion, I take it from her Honour’s earlier reference to the phase, that the combination of speed, distance and time established that he noticed the intruding vehicle when the light was already yellow and when he had time to stop. Her Honour referred to the ladder on the top of the vehicle as being a reason given by the appellant for deciding it was dangerous to attempt rapid braking and, reasoning that he should have ensured it was securely fastened and not at risk of dislodgment if he stopped suddenly, she concluded, in effect, he did not need to worry about an emergency stop. I have set out the evidence of the appellant in this respect above. There is no reference to a ladder. At all events, the question is not whether he had the duty to ensure a ladder was properly secured but whether it in fact was at risk of dislodgment were he to stop suddenly. In substance, his evidence was that he had been “trained” by his experience not to stop suddenly, hence his decision not to do so. He said he was carrying heavy lead flashing. This would have added significantly to the weight of the vehicle.

13. Another difficulty with the reasoning of the learned Magistrate is her Honour’s description of the issue of not stopping because it was not safe to do so as a “defence”. Her Honour’s approach to this question was, to my mind, that it was for the appellant to establish that he was unable to stop safely, in effect, reversing the onus of proof. In my opinion, it is for the prosecution to establish beyond reasonable doubt that, in the circumstances, it is safe for a driver to stop when the light is yellow. At all events, in the present case, the learned Magistrate’s misapprehension of the appellant’s evidence was a significant error.

Assessment of the evidence

14. Making every allowance for the advantage of the learned Magistrate in hearing the witnesses, and, in particular, that of the appellant in respect of whom her Honour made an adverse credit finding, I have come to the view that the appeal should be allowed and the appellant acquitted.

15. The distances and speeds involved here make potentially significant an error even of less than a second in the officer’s measurement of the phase. It is notorious that, where events are happening quickly, as was certainly the case here, accurate perceptions of distance and time are likely to be susceptible of significant error. Given the range of relevant factors here, even a relatively slight error in one or more could well be significant. There is also validity in the submission made on the appellant’s behalf that the distance to the lights was less than that measured by the officer. It is also necessary to factor into the technical data the distraction time when the appellant saw the car in Wade Lane, the time it took for his decision about it and the time he took to decide whether it was safe for him to stop sharply. These matters appear to have been ignored. They certainly, for understandable reasons, are not taken into account by the technical data. Furthermore, the data were not based on the actual physical parameters of the appellant’s vehicle which qualified their suitability for the precise calculations upon which the prosecution case depends. Lastly, the question of safe stopping is a matter of judgment that is inherently uncertain, in which the opinion of the driver, especially of a vehicle that requires some experience different from the conventional, is of significance, even if it is not determinative.

16. I have concluded that it was reasonable for the appellant to consider the potential risk presented by the vehicle in the side road and I accept his evidence that his assessment of safety was informed by his experience and was reasonably open to him. It follows that the prosecution has failed to prove beyond reasonable doubt that the appellant committed the offence charged.

17. It is therefore not necessary to consider the appeal against sentence.

Costs

18. No application is made for costs.

Amendments

02 October 2020 - Minor amendment on coversheet.

Decision last updated: 02 October 2020