Broderick v Police

[2013] NZHC 978

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-000097 [2013] NZHC 978

DALE STANTON BRODERICK

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         2 May 2013

Counsel:         R Bowden for the Appellant

DB Stevens for the Respondent

Judgment:      6 May 2013

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 6 May 2013 at 2:45 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

R Bowden, Barrister, PO Box 1862, Whangarei 0123

Crown Solicitor (Marsden Woods, Inskip & Smith), Whangarei

BRODERICK V NZ POLICE HC WHA CRI-2012-488-000097 [6 May 2013]

Introduction

[1]      Following a defended hearing before Justices of the Peace in the Whangarei District Court on 20 December 2012, Dale Stanton Broderick, a 73 year old fireplace technician, was found guilty of failing to stop at a red traffic light.  He was fined

$150.00 with Court costs of $132.89 and disqualified from driving for six months. He now appeals against the finding of guilt and the consequential orders made.

Background

[2]      The traffic lights at issue are installed at the intersection of Kamo Road, Kensington Ave and Nixon Road in Whangarei.   Kamo Road generally runs in a north/south  direction,  while Nixon Ave joins  the intersection  from  the east  and Kensington Ave joins it from the west. A significant feature of the intersection is that Nixon Road is offset from Kensington Ave so it is twice as long as it is wide.

[3]      Two Police officers were in a Police car which was waiting to turn right from Nixon Road into Kamo Road to travel north.  The appellant was travelling north on Kamo Road and entered the intersection from the south on what he said was an orange light.  Constable Rushbrook gave evidence that he saw the lights facing him change to green to enable cars travelling across the intersection from Nixon Street into Kensington Ave and turning left into Kamo Road to proceed.  He then saw the appellant about half way through the intersection travelling north on Kamo Road.

[4]      When asked to be more specific about where in the intersection he first saw the appellant, Constable Rushbrook pointed to where a white car was parked in the car park of a Countdown supermarket, which is on the corner of Kamo Road and Kensington Ave, underneath the branches of a pohutukawa tree on the kerb side and said it was in that vicinity.  That placed the appellant at least three-quarters of the way through the intersection, well past the offset Kensington Ave and past the Police car in Nixon Street waiting to turn right into Kamo Road.

[5]      Constable Rushbrook said he was able to see a small portion of the overhead light facing the appellant, which showed red.  However, he did not see it when it was

green or orange because he was not paying attention and did not see when it changed to red.

[6]      Both Police officers were asked about how long a light is orange before it turns red.   Constable Brown said three to four seconds.   Constable Rusbrook said three to five seconds.

[7]      The appellant gave evidence himself.  He said that he entered the intersection on an orange light and was travelling at about 45 kilometres per hour.  He said he did not observe any red light.  The appellant also called a traffic projects engineer who produced a controller information sheet which set out a diagram of the intersection and the sequence of the lights.

Justices of the Peace decision

[8]      In a careful decision, the Justices of the Peace reviewed the evidence of Constables Brown and Rushbrook as well as that of the appellant and the traffic projects engineer. The Justices of the Peace then stated:

[7]       We find then that both of the constables saw the green Nixon light and the car, the ute with the flames on it, still travelling northbound through the intersection of Kamo Road at the same time.

[8]       Mr   Broderick   and   the   constables   and   Mr   Tong   have   all acknowledged if a Nixon light was green, then regardless of the sequence the rest of the lights, including the northbound, must have been red or would have been completely off.

[9]       Therefore, we find that the case has been proved and Mr Broderick has been found guilty of driving through the red light.

Appellant’s submissions

[9]      Mr Bowden, on behalf of the appellant, makes two points.

(a)      The Police officers who were waiting in a Police car to turn right into Kamo Road from Nixon Street could not have seen the traffic lights facing the appellant, who was travelling in a straight line up Kamo Road and across the intersection with Nixon Street, because the traffic

lights were at an angle of approximately 70 degrees to them and were enclosed in shields.

(b)Constable Rushbrook’s evidence, that he saw the lights facing him change to green to enable cars travelling across the intersection from Nixon Street to proceed and then the appellant drive through the intersection, cannot be relied upon because his evidence is not supported by the known phasing of the lights.

Discussion

[10]     An appeal against conviction is by way of rehearing.  Section 121(2) of the Summary proceedings Act allows the High Court to confirm the conviction, set it aside or amend it.

[11]     Without going into any detail, I am satisfied that the two points raised by Mr Bowden are insufficient to overturn the decision of the Justices of the Peace. Firstly, the Police officers gave evidence that photographs seven and eight in the photograph booklet were taken from where the Police car was situated.  Although photograph seven does not show the lights, photograph eight, which is more of a close up, clearly shows a portion of the overhead red light.   I also note that the photographs were obviously taken on a sunny morning against a blue sky without any clouds.  The sunlight is quite intense.  The offence, however, is alleged to have occurred at 5.45 pm on 2 August 2012, at which time it would have been dark.   I infer that the lights would have been much more visible at that time of day.  I am therefore satisfied that the Justices of the Peace did have an evidential foundation for finding that the Police officers were able to observe the traffic lights facing the appellant  and  identify whether those  lights  were showing  green,  orange or red, notwithstanding that they were at an angle of approximately 70 degrees to them and were enclosed in shields.

[12]     As to the second point, based on the sequencing schedule produced by the traffic projects engineer, the sequence of the lights could indeed have been that

described by both the appellant and the Police officers.  The traffic projects engineer gave the following evidence:

Q.        So, for argument’s sake, if you’ve got no cars on the pressure pad on Kensington Avenue, but large volumes on all the other intersections, the computer may decide not to activate the Kensington Avenue go light?

A.        It will decide not to activate the Kensington Ave phase because it’s not been demanded and if there is substantial demand elsewhere that time, it will be reallocated.

[13]     Based on his evidence, it is then entirely possible for a green light for cars travelling north on Kamo Road to be followed by a green light for cars waiting in Nixon Road to proceed across the intersection to Kensington Ave and left into Kamo Road to travel south.

[14]     There is also then no basis for overturning the factual finding of the Justices of the Peace that while the appellant was still in the intersection, the traffic lights regulating the flow of cars travelling north on Kamo Road had turned red.

[15]     While an appeal court should pay appropriate deference to findings made by a Judge who had the advantage of hearing witnesses, it must nevertheless review the evidential basis for factual findings carefully.[1]     In my view and with respect, the Justices of the Peace failed to turn their minds to the exact wording of cl 3.2(5) of the Land Transport (Road User) Rule 2004, which provides:

[1] O’Neill v Police HC Auckland CRI-2007-404-405, 9 October 2008 at [5].

(5)      While a steady red signal in the form of a disc is displayed ...—

(a)      a driver of a vehicle facing the signal or signals must not enter the controlled area...

[16]     The controlled area is, of course, the intersection and so an offence is only committed if a motorist enters the intersection on a red light.   It is not an offence under cl 3.2(5)(a)   if, while driving through the intersection, the light turns red. Here, the appellant gave evidence that he entered the intersection on an orange light.

The Justices of the Peace did not make a specific finding as to whether or not that

was so and proceeded to make a finding on the basis, it seems, that the appellant continued through the intersection when faced with a red light.

[17]     With respect, it seems to me that no account has been taken of the significant feature of the intersection in that it is twice as long as it is wide.  At the time that the Police  officers  observed  the  red  light,  the  appellant  had  completely  passed Kensington Ave on his left.   If it were a normal intersection and not offset, the appellant would have been well through the intersection at that stage.  Both Police officers estimated that an orange light would turn to red in three to five seconds. This is consistent with the appellant entering the intersection on an orange light but because of the length of the intersection as compared to its width he was not yet through the intersection when the light turned red.

[18]     In those circumstances, because the Justices of the Peace do not appear to have addressed the issue of whether or not the lights were red when the appellant first entered the intersection, their guilty finding must be quashed.   The fine and costs imposed, as well as the sentence of disqualification must also be quashed. There will be no order for a rehearing as on the evidence at the hearing, there is a reasonable doubt that the appellant entered the intersection when faced with a red light.

……………………………….

Woolford J