B v Police HC Auckland Cri-2009-004-16786

[2010] NZHC 175

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-004-016786

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 February 2010

Appearances: Appellant in person

A Longdill for the Respondent

Judgment:      26 February 2010

RESERVED JUDGMENT OF PRIESTLEY J

This judgment was delivered by me on 26 February 2010 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Solicitors:

A Longdill, Meredith Connell & Co, P O Box 2213, Auckland 1140. Fax: [phone]

Copy to:

W B  , 91 Hinemoa Street, Birkenhead, North Shore City 0626.

B V NEW ZEALAND POLICE HC AK CRI-2009-004-016786  26 February 2010

The Appeal

[1]      Having sought a hearing in respect of an infringement offence, the appellant was ordered to pay a $150 fine and $30 costs by a bench of two Justices of the Peace in the Auckland District Court in September 2009.   The Court was satisfied the infringement offence had been proved.

[2]      This appeal challenges that result.   The appellant appeared in person and presented, in a courteous and competent way, the same arguments which did not find favour before the two Justices of the Peace.

The Offence

[3]      The infringement notice and the hearing involved an alleged prohibited left turn at the Gillies Avenue north bound on-ramp to Auckland’s southern motorway (State Highway 1).

[4]      Attached to this judgment is a copy of a photograph (taken by the appellant and produced by him as an exhibit at the District Court hearing) which sets the scene.

[5]      There are two on-ramps from Gillies Avenue to the motorway.  The first is designed to take traffic travelling north along Gillies Avenue towards Newmarket. The photograph looks straight across to that on-ramp and shows two cars moving into it.

[6]      The second on-ramp caters for traffic travelling in the opposite direction along Gillies Avenue (south bound) and is controlled by traffic lights.  South bound traffic in Gillies Avenue turning right at the on-ramp must wait for the appropriate traffic light signal.  The two cars at the right of the photograph are in the vicinity of the traffic light and this second on-ramp.

[7]      Gillies Avenue, at the on-ramps and in the vicinity of the Newmarket viaduct

(also shown in the photograph), has two lanes in each direction.

[8]      Relevant to the offence are various markings.  So far as the two north bound lanes are concerned the left hand (or inside) lane is painted with a left turning arrow. The right hand (outside) lane has a straight-ahead arrow.   At the traffic lights themselves, and past the entrance to the on-ramp designated for south bound traffic, are two standard signs (shown in the photograph) prohibiting a left hand turn.

[9]      A further sign of relevance, and central to the appellant’s submissions, is a white information sign (which appears to have no regulatory effect) on which, in black letters, are the words “turn left at any time with care”.  That sign is visible in the photograph on the post supporting the blue, white, and red state highway information sign.

[10]     It is common knowledge, there was some brief evidence to this effect, that both  during the  morning and  afternoon  rush  hours,  Gillies  Avenue  takes  heavy traffic.  The speed of north bound traffic in the left lane is slow and frequently backs up as a result of the slow rate of merger on the motorway itself.  There is thus the temptation for drivers travelling north along Gillies Avenue and wanting to go on to the motorway to travel up the less congested right hand (outside) lane which, in terms of the road markings is designed for traffic bound not for the motorway but for Newmarket; reach the lights; and then turn left on to the on-ramp designed for south bound Gillies Avenue traffic.

[11]     Although,  as  I disclosed  to  the  parties  at  the  appeal  hearing,  I am  very familiar with this location, my own observations are irrelevant and have not influenced me.

[12]     There was unchallenged evidence from a police officer in the District Court. At 5.35 pm he was in an unmarked police vehicle observing the on-ramp.   His evidence was:

… I had parked my car in a position where I could see the flow-on traffic, and also monitor the traffic that people seemed to take when they – on a straight arrow lane, some people cut the corner, by taking that lane, and making a left turn onto the on ramp.

[13]     The appellant performed the very manoeuvre to which the police officer was alert.  His evidence was that it was peak hour traffic; there was a long line of traffic turning left from Gillies Avenue on to the motorway; that he observed the appellant in the right (outside) lane marked for traffic proceeding straight ahead, signalling a left hand turn and then turning on to the motorway.  The appellant was stopped.  He subsequently was issued with an infringement notice.

[14]     The alleged offence against the appellant was laid generally under the Land Transport Act 1998 and in particular Rule 2.4 of the Land Transport (Road User) Rule 2004.   The stiplulated offence was that, being a driver approaching an intersection, he used a lane contrary to its marking or signage.   The signage in question was twofold, the first being the lane marking (a straight-ahead arrow) on the lane the appellant was using, and the second being the two signs prohibiting a left hand turn.

[15]     At the appeal hearing the appellant challenged the accuracy of a Google map photograph of uncertain age which showed the straight-ahead arrow on the right hand lane between the designated on ramp and the traffic light.  In the appellant’s submission there was no proof that the lane was marked in that fashion at the time of the offence.

[16]     Although the appellant is correct to point to the dangers which might be visited on prosecutors who rely on Google map and other data bases as part of the required evidence, this is not such a case.   The police officer gave unchallenged evidence about the road markings which he had observed at the time of the offence.

Discussion

[17]     The principle plank of the appellant’s submissions, both in the District Court and on appeal, was that the white information sign “turn left at any time with care” permitted him to carry out a left hand turn on to that portion of the on-ramp that he did.  He accepted that the three signs were inconsistent.  Nonetheless his submission was that the white sign permitted him to make the turn that he did and thus an offence had not been established.

[18]     On  appeal  he  referred  me  to  a  judgment  of  Ronald  Young  J,  Hollis  v Wellington City Council1  in which at [9], in the context of confusing and contradictory parking signs on and around a parking meter, the Judge expressed the view that if there was to be a prosecution based on signage, then one unambiguous sign was required.

[19]     The two Justices of the Peace reviewed the evidence they had heard and the parties’ submissions comprehensively.  They regarded the appellant’s interpretation of the law and the signage as being “in error”.   Their approach was essentially pragmatic.  They said:

Firstly, the very fact that there was a line of traffic back to Alpers Avenue, and secondly that there are road markings showing both the turn onto the motorway, and as the Google map shows, the road going straight through clearly shows where the traffic is heading.  The Bench does not accept your argument that you believed you could legally take that left turn in the lane that was leading to Newmarket.   Further, it is our view that the separate signs that you have said are conflicting, quite clearly relate to the specific parts of the on-ramp where they are positioned, in other words, for clarification purposes the turn left at any time with care sign, in our view, unquestionably relates to the motorway on-ramp for the left hand side, the approach from Gillies  Avenue  heading in  a  northerly direction, and the round circle with the line through it clearly indicates where traffic cannot turn when they are at the lights.

[20]     On that basis the District Court found the charge had been proved.

[21]     I consider that this reasoning process is essentially correct.   Initially Ms Longdill, in her submission, was inclined to the view that the Court’s rejection of the appellant’s “argument that [he] believed [he] could legally take that left turn in the lane that was heading to Newmarket” was a finding of fact with which this Court should not interfere.   I do not consider that the appellant’s belief at the time has much significance as to whether or not a strict liability offence, such as non- compliance with lane markings and direction signs, has been proved.  Rather I think the Justices of the Peace were referring to the appellant’s legal argument before them.

1 Hollis v Wellington City Council (CRI-2009-485-000078, 6 August 2009)

[22]     Ms  Longdill  is  on  strong  ground  when  she  observed  that  the  white information sign could not possibly have the practical and legal consequences for which the appellant contended.  Not only, as the Justices of the Peace observed, was its positioning directed at traffic entering the on-ramp from the left hand Gillies Avenue lane (possibly designed as a warning to left turning traffic where the two on- ramps merge with each other), but the appellant’s contention just made no sense. Quite apart from contending that it permitted him to turn left in breach of the two signs prohibiting left hand turns, his interpretation might also permit him to turn left in the face of the red traffic light at the mouth of the on-ramp designed for south bound Gillies Avenue traffic.

Result

[23]     Stripped to its essence, the appellant’s argument is that the black and white “turn left at any time with care” information sign somehow trumps the lane marking and the left hand turn prohibition signs, thereby exempting traffic from obeying them.

[24]     I have no hesitation in rejecting that submission.  Whatever might have been the appellant’s beliefs or motivation on the day of the offence have no relevance. The evidence clearly established that the appellant was travelling in a lane marked with an arrow which required all traffic in it to proceed straight ahead.  Not only did he disobey that sign, he additionally disobeyed two prominent signs prohibiting a left hand turn.

[25]     The appellant was clearly in breach of the relevant law and committed the offence with which he was charged.  The Justices of the Peace were correct in their conclusion.

[26]     For these reasons the appeal is dismissed.

.......................................… Priestley J