B v Police HC Rotorua Cri-2010-463-21
[2010] NZHC 711
•14 May 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2010-463-21
B
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 13 May 2010
Appearances: Ms L Preiss for Appellant
Ms L Owen for Respondent
Judgment: 14 May 2010 at 9.30 am
JUDGMENT OF LANG J
[on appeal against finding as to liability]
This judgment was delivered by me on 14 May 2010 at 9.30 am, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Crown Solicitor, Rotorua
Davys Burton, Rotorua
B V NEW ZEALAND POLICE HC ROT CRI-2010-463-32 14 May 2010
[1] On 3 August 2009, Mr B was driving his motor vehicle in a westerly direction alone Lake Road, Rotorua towards Fairy Springs Road. At the intersection of Lake Road and Bennetts Road, Mr B ’s vehicle was involved in a collision with a road-sweeper travelling in the opposite direction. Both vehicles were moderately damaged as a result of the collision.
[2] Following the collision, Mr B received an infringement notice alleging that he had breached s 40 of the Land Transport Act 1998 and r 4.2(2) of the Land Transport (Road User) Rules 2004 (“the Rules”). The notice particularised the alleged offending as follows:
The defendant being the driver of a vehicle on a road who was turning or about to turn you failed to give way to a vehicle not making a turn.
[3] Mr B elected to defend the notice, and the alleged infringement proceeded to a defended hearing in the District Court at Rotorua on 29 January 2010 before the Justices of the Peace. Mr B appeared for himself at the hearing and cross-examined the prosecution witnesses. These comprised the driver of the street- sweeper, Mr Warren, and a police officer, Constable McLaughlin, who is attached to the Rotorua Strategic Traffic Group.
[4] After the prosecution closed its case, Mr B elected not to give or call evidence. He and the prosecuting sergeant then made closing submissions. After a brief retirement the Justices found the allegations in the infringement notice proved. They fined Mr B $150 and ordered him to pay court costs of $30. Mr B now appeals to this Court against the Justices’ decision.
Grounds of appeal
[5] Counsel for Mr B has filed detailed submissions in support of the appeal. In short, however, she contends that the Justices were faced with conflicts in the evidence and that they failed to resolve those conflicts in a principled fashion. In particular, counsel for Mr B submits that the Justices failed to reach a definite conclusion as to whether Mr B had collided with the street-sweeper, as alleged by the prosecution. The alternative scenario, for which Mr B contended, was
that the street-sweeper had crossed the centre line and collided with his vehicle. Counsel for Mr B submitted that, unless the Justices resolved this issue in favour of the prosecution, it was not open to them to find the allegations proved.
[6] Secondly, counsel for Mr B pointed to the fact that damage to Mr B ’s vehicle was located on the front right hand side of the vehicle. The damage to the street-sweeper, on the other hand, was to an area across the front of the vehicle. Counsel for Mr B submitted that the location of the damage in those two locations was inconsistent with the prosecution’s theory of events. If that theory was correct, one would expect to see damage on the left hand side of Mr B ’s vehicle rather than the right hand side.
Decision
[7] Rule 4.2(2) of the Rules provides as follows:
4.2 Giving way where vehicles are controlled by same type of sign or in absence of signs
...
(2) A driver changing lanes or about to change lanes, or turning or about to turn, must give way to any vehicle not changing lanes, or not making a turn.
[8] I accept the submission of counsel for the respondent that, in order to establish a breach of r 4.2(2), the prosecution needed to establish the following elements:
a) That Mr B was the driver of the vehicle that was turning or about to turn; and
b) That the road-sweeper was not making a turn; and
c) That Mr B failed to give way to the road-sweeper.
[9] The only evidence regarding the events that gave rise to the accident came from Mr Warren. His evidence was to the effect that the collision occurred whilst he
was driving between Fairy Springs Road and his home in Whakarewarewa. His journey took him down Lake Road, past the Bennetts Road intersection and then through Rotorua City. He said that he was travelling in the centre of the lane and that he was intending to travel straight ahead through the intersection of Lake Road and Bennetts Road. He accepted, however, that his left hand indicator may have been on, thereby indicating that he intended to turn left into Bennetts Road. His evidence regarding the collision was as follows:
Q. As you got to Bennetts Road, the intersection? A. Yes.
Q. Whereabouts in the lane were you when your vehicle collided with this other vehicle?
A. Probably where a car should be, I had gone past, actually gone past
Bennetts Road, like there are two halves of the road, the (inaudible
12:47:00) gone past there, I went halfway onto the other – where the cars actually come out onto Bennetts Road and it was there that I got hit.
Q. Where did this other vehicle come from?
A. It came from Lake Road, wanting to turn into Bennetts Road.
Q.So the other vehicle was turning – this car went from the opposite direction, turning right across your path is that right?
A. Yeah.
Q. What part of your vehicle collided with the other vehicle. What part of your vehicle got hit?
A.The front of my vehicle, my vehicle got hit and the side got a big (inaudible 12:47:46) down the front, (inaudible 12:47:50) between the brushes and my can. There was still about a metre at the front of my vehicle that hadn’t been hit.
Q.So it was actually the right-hand side of your vehicle that was struck, not the front?
A. Yes, in front yes, right-hand side.
Q. Did you see the other vehicle before it hit you? A. Yes I did.
Q. Whereabouts were you when you first saw this other vehicle?
A.I was still on the – on the downhill part of it. I could see his vehicle parked that time you know, waiting, wanting to turn, I oh now, just
keep moving, and as I got closer and closer, I could see, oh this fellow is going to go, I was back here before I realised he shouldn’t go and he wasn’t looking at me and he just drove into the side of the machine.
Q. So he was looking at you or he wasn’t looking at you?
A.No because I paid attention – I started to pay attention to it and I was watching what other cars on Bennetts Road and then as I got quite close to him, then he just decided to go this way and hit that part of my vehicle.
Q.I still want to be quite clear on this Mr Warren, did you say he was or was not looking at you?
A. He wasn’t looking at me.
Q. So he was not looking at you? A. No.
Q. Did you have an idea as to where he was looking?
A.Yeah he wasn’t looking at me, (inaudible 12:49:36) looking at the vehicles that were wanting to come out onto Lake Road.
Q. Are you talking about to his right? A. To his right, yes.
Q.So did you see this other driver looking in your direction at all before the collision?
A. Um, it was only till I got close to him that I realised he wasn’t watching, he wasn’t looking at me, he wasn’t looking at me, it was like I wasn’t even there and he just drove, it was like he couldn’t see me, ‘cos he wasn’t looking at me.
Q. When you first saw that other vehicle, it was stationary? A It was. Yes.
Q. Now, if my memory is correct there is a (inaudible 12:50:41) at the intersection is that right?
A. Yeah.
Q.Or if a vehicle’s travelling in the direction of the defendant’s vehicle is travelling, or the other vehicle is travelling?
A. Yeah.
Q. There is a separate right turning lane there isn’t there? A. Yes, that’s correct.
Q. Whereabouts in that lane was the defendant’s vehicle when you first saw it?
A. It was in the correct lane, you know, over to the centre of the road.
Q. So how far back from the limit line was it when you first saw it or was it right up to the limit line?
A.Um, I don’t know how far up, do you mean up the road or the limit being 30?
Q. The lane in the middle of the road where the other vehicle was stationary, there is a white line across, basically marking the end of the lane isn’t there?
A. Oh yeah.
Q. He went right up to that line? A. No he went a bit further back.
Q. He was further back from that line? A. Yeah.
Q. How far back approximately?
A.Um, quite a bit because where he hit me. He should have been – he should have been still – he should have been further up before he even turned.
Q.Just to get a clearer picture of surrounding traffic, did you notice if there was any other traffic coming out of Bennetts Road?
A. Yes there was a car parked in Bennetts Road, there was probably –
there was a gap there, because I had cleared a gap for him, I (inaudible
12:52:29) any other vehicle and I think – I saw cars turning into LakeRoad, from Bennetts Road onto Lake Road, turning left.
[10] Mr B challenged Mr Warren’s version of events in cross-examination, but he remained steadfast in his description of what happened.
[11] Mr B ’s submissions to the Justices, echoed in his counsel’s submissions on appeal, were to the effect that Mr Warren’s street-sweeper collided with his vehicle whilst he was waiting to turn right at the intersection of Lake Road and Bennetts Road.
[12] There is, however, no evidence to suggest that this is what occurred. Mr
B did not give evidence and his submissions could not become evidence to be
taken into account by the Justices. Mr Warren’s evidence was to the effect that he was travelling straight ahead, and that he had no intention of turning into Bennetts Road. Indeed, there was no reason for him to turn left into Bennetts Road, because his route home required him to travel straight ahead through the intersection of Lake Road and Bennett’s Road.
[13] Mr B ’s defence therefore lacked an evidential basis. For that reason it is not surprising that the Justices found the allegations in the infringement notice proved based on Mr Warren’s evidence. It was, of course, open to the Justices to accept or reject Mr Warren’s evidence as they saw fit. In my view, logic and common sense suggest that Mr Warren’s evidence on this point was correct. There is no reason why Mr Warren would have driven his vehicle over the centre line, just as there was no reason for him to turn left into Bennetts Road. Mr B , on the other hand, accepted that he was intending to turn left into Bennetts Road. If Mr Warren’s evidence is correct, Mr B may well have been concentrating on vehicles that were coming out of Bennetts Road rather than vehicles travelling straight ahead through the intersection.
[14] The fact that Mr Bennett may have been indicating that he intended to turn left does not assist Mr B to establish his version of events. If that occurred, it would suggest that Mr Warren’s streetsweeper was turning to the left. In order to cross the centre line and collide with Mr B ’s car, however, Mr Warren would have needed to steer his streetsweeper to the right.
[15] I therefore take the view that the Justices were entitled to conclude that the prosecution had established beyond reasonable doubt that Mr B was turning into Bennetts Road at the time that the collision occurred, and that at that time Mr Warren’s vehicle was travelling straight ahead towards Rotorua City. Given the fact that the collision occurred, the inevitable conclusion from those two proved facts must be that Mr B failed to give way to Mr Warren’s vehicle. As a result, Mr B committed an offence under r 4.2(2) of the Rules.
Result
[16] For these reasons the appeal is dismissed.
Lang J
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