B v Police HC Invercargill CRI 2005 425 20

[2005] NZHC 247

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2005 425 20

B

Appellant

v

POLICE

Respondent

Hearing:         17 November 2005 (Heard at Christchurch)

Appearances: JHM Eaton for Appellant

K T Dalziel for Respondent

Judgment:      18 November 2005

ORAL JUDGMENT OF CHISHOLM J

[1]      The appellant unsuccessfully defended an infringement notice alleging that he had failed to stop at a stop sign on a road leading from Coronet Peak.  A fine of

$150 was imposed and he was ordered to pay Court costs.  This is an appeal against the finding that the charge was proved and the order for payment of the fine and costs.   It revolves around two primary allegations:   the sign did comply with the traffic regulations;  and the standard of the appellant’s driving did not fall below that of a reasonably prudent driver.

[2]      A brief outline of events will suffice.  At around 3.30pm on 29 August 2004 the appellant was driving with his daughter from the Coronet Peak skifield to his

B  V POLICE HC INV CRI 2005 425 20  18 November 2005

home at Lakes Hayes.   By the time they were nearing the intersection in question they were behind a large four wheel drive vehicle.   Immediately before the intersection that vehicle unexpectedly signalled and turned right into a parking bay. The appellant did not see any signs indicating the requirement to stop at the intersection and he proceeded slowly through it.

[3]      On the Judge’s findings the stop sign was somewhere between 12 and 20 metres from the intersection (depending on where the measurement is taken from). He also found that the road markings were predominantly obliterated by grit on the road.   During the time that the appellant was being issued  with his ticket four vehicles went through the same intersection without stopping.

[4]      At the hearing evidence for the prosecution was given by the police officer who had apprehended the appellant.  She produced photographs that had been taken some months later, by which time the road markings had been repainted.  Although this had not been mentioned in her brief, the police officer gave evidence about a sign around 200 metres before the intersection which warned that there was a stop sign ahead.   There was no photograph of that particular sign.   Under cross- examination the police officer acknowledged that while she had been stationed at the intersection very few vehicles had come to a stop at the intersection.

[5]      The appellant gave evidence on his own behalf and acknowledged that he had not seen either sign.   He believed that he had failed to see the sign immediately before the intersection because he was concentrating on the vehicle immediately ahead of him which had unexpectedly turned into a parking bay.   He has a clean driving record.  Within half an hour of receiving the ticket he had taken photographs of the road surface to prove that markings on the road were virtually non-existent.

[6]      Counsel for Mr B          argued at the summary hearing that the sign was non- complying because it was not within nine meters of the main roadway as required by a Transit New Zealand advisory manual.  This manual included a statement that the sign “ should be closer than 9 meters to the edge of the main roadway”.   Even though the Judge had found that the sign was further away he was of the view that the information contained in the manual was only recommendatory and that the fact

that the sign was more than nine metes away from the intersection was of “no moment”.

[7]      Then the Judge turned to the merits of the case.   He concluded that the appellant had not exercised the degree of care and skill that a reasonable and prudent motorist would have exercised in the circumstances:  The Judge said:

“[26] … He did not see the sign because he said he was reasonably focusing on the manoeuvre of the vehicle ahead of him.  The need to do so was not explained.  He said that the vehicle had indicated a right turn.   If he had been following an appropriate distance behind the vehicle there should have been no problem. Even if he was not, there was no need for him in my view to be distracted from the clear lines of the sight of an intersection which was approaching.  There was no evidence of a need to take evasive action or any emergency stopping procedure.  Nor was there any explanation given for his failing to observe the pre- warning sign.”

An argument revolving around the absence of any road markings on the road was also rejected by the Judge on the basis that despite the absence of those markings a reasonably prudent driver would have been aware of the need to stop at the intersection.  He considered that the requirement to stop arose by virtue of the sign, not the markings.

[8]      In the normal course of events there would probably be little prospect of an appeal of this nature succeeding because, at least on the surface, it revolves around issues of fact.  But this matter is out of the ordinary.  Information available to this Court was not available to the Judge and I have to say that this information leaves me distinctly uneasy about the conclusion that the charge was proved beyond reasonable doubt.  Indeed, if the District Court Judge had had the benefit of the information before this Court he may well have reached a different conclusion.

[9]      A joint Transit/Ministry of Transport manual called “Manual of Traffic Signs and Markings” includes the following:

“1.7.2 LONGITUDINAL POSITION (a)  Regulatory Signs

… The following regulatory signs must, however, be located within the tolerances specified below:

(i)   …

(ii)  STOP and GIVE WAY Signs:  Closer than 9 m to the edge of the main roadway.”

Immediately above this requirement under the heading “General” there is a directive that “the final sign location must be decided at the actual site …”.  To me this refers to the specific location of the stop or give way sign within the nine meter tolerance. There is no conflict with clause 1.7.2.(a)(ii).   This information was not before the Judge.

[10]     Even if clause 1.7.2(a)(ii) has no legal effect (although this is probably the case, I refrain from expressing any final view on that matter), it is clearly an extremely robust directive, presumably reflecting road traffic safety considerations. It does not sit particularly comfortably with the Judge’s conclusion that the fact that the sign was more than nine meters away from the intersection was of no moment.  I would have thought that when considering the degree of care and skill that a reasonable and prudent motorist would have exercised, the fact that this sign was well outside the tolerance recommended by Transit and the Ministry of Transport would be a very relevant consideration, especially when the evidence indicates that other motorists were also failing to observe the requirement to stop.

[11]     Had that been the only matter the outcome of this appeal would have been in the balance.  But there is another matter that tips the balance.  This is the fact that the road markings were for all intents and purposes non-existent, as is apparent from the photographs taken by the appellant.   No motorist could reasonably be expected to have seen any markings on the road.

[12]     Regulation 106 of the Traffic Regulations provides:

“106 Warnings to be painted on road surfaces

(1) Not more than 10m before any limit line marked at a stop sign, the controlling authority shall, if the road surface permits it, mark the word “STOP”, in capital letters at least 2m high.

…

(4) All such words or numerals marked on the road surface shall be in a colour contrasting with the colour of the road surface, and shall be marked where they will be clearly visible to approaching traffic.”

There is no suggestion that the road surface was unsuitable for the painting of the word “STOP”.   Indeed, the photographs produced by the prosecution show that some time after the appellant was apprehended newly painted markings were in existence.  In other words, regulation 106 was not complied with.

[13]    It is also necessary to read regulation 106 alongside regulation 111 which prohibits persons other than a controlling authority from painting markings on roads. For present purposes clause (3) is significant:

“(3)     It shall not be a defence in any prosecution for a breach of these regulations that any road-marking lines, islands, or studs did not conform with the requirements of this Part of these regulations, provided the marking is in substantial conformity with those requirements.” (Underlining added)

By no stretch of the imagination could it be said that the markings on the road were in substantial conformity with the specified requirements.  Again, it is unnecessary to determine in precise legal terms the implications that arise from the absence of road markings because at the very least this factor must have been very relevant to whether the appellant’s failure to stop represented a departure from the standards of a reasonably prudent motorist.

[14]     Given those matters, I am satisfied that the conclusion reached in the District Court is unsafe.  While this may be an unduly cautious approach, it would not surprise me if the outcome in the District Court would have been different if the Judge had had the benefit of the additional information available to me.

[15]     The appeal is allowed.  The findings in the District Court are quashed and the penalty is set aside.

Solicitors:         JHM Eaton for Appellant

Crown Solicitor, Christchurch