C v Police HC Christchurch Cri-2007-409-64

[2007] NZHC 534

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-409-000064

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         24 May 2007

Counsel:         Appellant In Person

P J Shamy and R M Thomas for Respondent

Judgment:      24 May 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      Mr  C    appeals  against  a  finding  made  in  relation  to  an  infringement offence, namely that on 14 June last he failed to stop at a stop sign.  The case was the subject of a defended hearing before Justices of the Peace on 21 February 2007.  The Justices concluded that the infringement was proved and a fine of $150 together with court costs was imposed.

[2]      The gist of the evidence was as follows.  On 14 June Constable Martin was positioned on Cashmere Road adjacent to the T intersection of that road and Hackthorne Road.  He was parked so as to enable him to view traffic coming down

the hill and turning in either direction into Cashmere Road.  In fact he described his

C V NZ POLICE HC CHCH CRI-2007-409-000064  24 May 2007

position as about 60 metres west of the intersection.   His evidence was that the appellant  drove  slowly down  Hackthorne  Road  in  a  Holden  utility  vehicle  and continued into the intersection turning left without coming to a complete stop at any moment.  Therefore, the officer said, he pursued Mr C  ’s car, spoke to him and issued the infringement notice.

[3]      Mr  C    gave  evidence  in  the  District  Court.    That  evidence  did  not represent a direct challenge to the account of the constable.  Rather, Mr C   said that he had stopped momentarily, not at the limit line (or stop line) where the two roads intersect, but rather at the stop sign itself which is back from the intersection some distance.  The evidence indicates that the stop sign is approximately 23 metres away from  the  limit  line.    The  limit  line  is  about  eight  metres  forward  of  the prolongation line which marks the hillside boundaries of Cashmere  Road  itself. Hence, as can be seen, this is a somewhat unusual intersection in that the limit line is somewhat forward of the line of Cashmere Road and also quite some considerable distance away from the stop sign itself.

[4]      Mr C  ’s evidence continued that he rolled gently down the hill and turned left to go towards Princess Margaret Hospital along Cashmere Road without ever coming to a stop in the vicinity of the limit line itself.   There is no real conflict between the two  accounts, because the constable said  that  he  had  not  seen  the appellant’s vehicle at the earlier stage when it was adjacent to the stop sign, being the point at which Mr C   said, on oath, that he had stopped.

[5]      At this point I think it is helpful to refer to the regulatory obligation.   The infringement notice was based upon rule 4.1 in the Land Transport (Road User) Rules 2004.  That rule relevantly provides:

A driver approaching or entering an intersection on a roadway where the vehicles that are moving in the direction in which that driver is travelling are controlled by a stop sign at or near the intersection must –

(a)stop his or her vehicle before entering the path of any possible vehicle flow at such a position as to be able to ascertain whether the way is clear for the driver to proceed; and

(b)give way to any vehicles approaching or crossing the intersection from a roadway not controlled by a stop sign.

[6]      In this case it is observance with the obligations in part (a) which is at issue. There is no suggestion in the evidence that there was competing traffic and that Mr C   did not give way to it.   Rather, the charge was based on the regulatory obligation  to  stop  before  entering  the  carriageway  and  in  a  position  where  the motorist is able to ascertain whether the way is clear or not.

[7]      On analysis it seems to me that there are three aspects to the rule.  The first is a requirement to stop which may be even momentary.   The second is a temporal requirement, that is to stop  before entering the carriageway,  in  this  instance of Cashmere Road.   The third requirement is that the position where the stop occurs must enable the motorist to ascertain whether the way is clear or not.

[8]      It is interesting to note that the rule, in defining the existence of an obligation to stop, speaks of a stop sign “at or near the intersection”.   As I have already explained that is material in this instance because the evidence indicates there was a substantial  distance  between  the  sign  itself  and  the  limit  line  placed  to  guide motorists as to the point of entry onto the carriageway of the other street.

[9]      In support of the appeal Mr C   raised a number of grounds.  At the outset of their decision the Justices said it was not necessary for them to “traverse the evidence as to what happened because the issue did not arise out of that evidence”. Mr C   said this gave rise to reviewable error.   I rather doubt it.   I think the Justices’ observation was really an aside by which they were conveying that it was not a case which involved a direct conflict of evidence, rather, the need to interpret evidence which contained two rather different accounts.

[10]     The second point was that Mr C   had been denied a fair hearing because at the conclusion of his giving evidence no opportunity was given to sum up his case to the Justices.  Reference was made to the rights contained in the Bill of Rights Act, in particular the right in s25 to have a fair hearing and to present a defence.  However, the entitlement to sum up a case in a summary context is governed by s67(7) of the Summary Proceedings Act 1957.   That provision provides that “unless the Court otherwise directs, neither party may sum up his case or address the court upon the evidence given by either party”.  That is to say there is no absolute right to sum up.

It is at the discretion of the Court.  If it should be shown on appeal that the discretion has been exercised against an appellant, and that this sounded against him or her in relation to the determination of the charge, then it is open to this Court to intervene.

[11]     The third point taken by the appellant was that there appeared to be confusion on the Justices’ part with reference to the nature of the charge and, more particularly, the onus of proof.  The Justices said this:

We accept that Mr C   failed to stop at the intersection in an appropriate manner that would be expected of a reasonably prudent driver and that is the standard of proof that is required in courts in New Zealand.

It was argued that this indicated confusion as to the nature of the rule, which does not impose an objective standard fixed by reference to the standard of a prudent driver, but rather creates a regulatory obligation to stop at a defined time and place, indicating the need for a purely factual inquiry.   I confess that I do have some difficulty in understanding this sentence in the decision, but at the end of the day this is an appeal by way of rehearing on the notes of evidence and if there is a difficulty arising from this part of the decision, it is able to be addressed in the present context.

[12]     The fourth ground of appeal concerned some matters of evidence.   When Mr C   was stopped by the officer there was an exchange concerning road user charges.  Nothing came of this, yet the constable’s prepared brief of evidence, which was read to the Court, contained reference to these exchanges and in a way which did not necessarily reflect credit on Mr C  .  His complaint was that this evidence, irrelevant to the infringement notice, had the potential to have influenced the Court’s judgment.  Therefore, the argument went, it was evidence of no probative value, was illegitimately prejudicial, and should not therefore have been heard.

[13]     The second evidentiary point was that cross-examination of the constable concerning the number of infringement notices he had issued on the day was prevented, following objection by the police prosecutor.  Mr C   explained that he understood from the officer’s comments on 14 June that he was the sixth person, possibly the eighth, to receive an infringement notice that day and he wished to cross-examine on the point to demonstrate the difficulties posed by this intersection and, perhaps as well, as a matter relevant to penalty.

[14]     But the major issue raised in support of the appeal was the fifth point.  This does involve some element of difference in the evidence of the two principal protagonists, the constable and Mr C  .  It concerns whether, assuming Mr C   did stop, as he said, about one metre forward of the stop sign, he potentially thereby complied with his regulatory obligation in terms of rule 4.1.   If he stopped even momentarily that aspect of the regulatory obligation was satisfied.   Plainly, if he stopped there (adjacent to the sign), it was before he entered the carriageway of Cashmere Road.  It is the third aspect, then, which is in dispute.  At that point did he have the ability to ascertain whether the way was clear or not?  Mr C  ’s argument was directed to this aspect.

[15]     In his evidence-in-chief the constable was asked:

Q.     Had the defendant stopped his vehicle before he reached that point when he came into your view would he have been afforded a proper view of the roads that he wished to enter.

A.      No I don’t believe so.

This aspect was taken up at other points in the constable’s evidence.  At page 4 he explained that he had been back to the subject intersection on 14 November and had taken photographs in relevant positions.   However, the photographs were lost and were not available and therefore were not produced at the defended hearing.

[16]     Later still, in cross-examination the officer repeated, in answer to a question:

I’m saying that a person wouldn’t have been able to do that if the vehicle had’ve stopped um, if, if the vehicle had’ve stopped before going through that intersection I would have seen them stop.   If they had stopped in a position where they had a clear view to their right I would have seen them stop.  I didn’t see your vehicle do that.

One  can  extrapolate  from  this  answer  that  the  officer  was  saying,  in  order  for Mr C   to stop in a position where he could ascertain that the way was clear, he would necessarily have been in view.  Since such did not occur, either he didn’t stop at all or he didn’t stop in a position which met his regulatory obligation.

[17]     By contrast the evidence of Mr C   was that he did stop a metre forward of the stop sign and that at that point he had a bird’s eye view (in part because of the

elevation) in both directions on Cashmere Road.  The Justices made a finding as to this aspect.  It was as follows:

Even if we accept that Mr C   stopped one metre back from the stop sign [it should be one metre forward of the stop sign], we accept the officer’s evidence that to stop at that point would not afford a driver a clear and unobstructed view of vehicles travelling on Cashmere Road and he would be obliged to stop again before entering the traffic flow area in terms of Traffic Regulation 41(1)(a). (sic)

[18]     Mr C   confronted and challenged this factual conclusion.  The thrust of his argument was that it is a conclusion which is not open on the evidence.  The officer conceded that he had not on the day gone to the position of the stop sign and conducted a visual test.   Rather, he expressed the opinion that if Mr C   had stopped in a position where he could see adequately he would necessarily have been within the officer’s view and that did not occur.   Mr C  , of course, is equally adamant that by stopped at the sign he had a bird’s eye view and the way was clear. I should note this is an intersection that Mr C   said in evidence he was thoroughly familiar with through regular use.

[19]     To my mind this is the point which is central to the appeal.   Mrs Thomas recognised that, and when asked about it drew my attention to the photographs which were produced by Mr C   as part of his defence.   None of them are directly in point, in the sense that they seek to demonstrate the extent of the view from the stop sign.  Instead my attention was drawn to a photograph taken somewhat further down Hackthorne Road which gave an impression of the view along Cashmere  Road looking in an easterly direction.   On the basis of this photograph Mrs Thomas submitted that there was independent support for the constable’s evidence and that the finding of the Justices should be affirmed and the infringement upheld.

[20]     On the basis of all that I have heard and seen, and conscious also of the Justices’ finding, I am afraid that I disagree.  In my view there is reasonable doubt concerning what could be seen at that point.  On the one hand there is the evidence of Mr C   in which he was adamant that there is, as he puts it, a bird’s eye view from that position.  The evidence of the constable is really, I think, in the nature of opinion evidence, based not on actual observation but rather upon his reconstruction of what would be possible given his position and observations on the relevant day.

Nor do  I think that the photographs necessarily tell the  full story, in particular because Hackthorne Road at this point is relatively steep and what can be seen from the point of the stop sign is not necessarily the same as the impression one has from a photograph taken further down the hill and closer to the limit line.

[21]     For these reasons I feel I am bound to respectfully differ from the view which was reached by the Justices and therefore to intervene and allow the appeal.

[22]     Before I depart from the case there is a matter I should mention.  To my mind it is unusual to think that compliance with this rule is attained when a person has stopped such an appreciable distance back from the limit line.  I would not want it to be thought that this decision is any authority for the proposition that stopping such a distance back is typically going to meet the regulatory obligation.  That I have held it does in this instance, is a reflection of the peculiar nature of this intersection.  It is a T intersection with Hackthorne Road being steep in the vicinity of the stop sign and with the limit line positioned well across Cashmere Road, at least in terms of the line of prolongation of that road.  Hence this decision, in finding there was no breach in this instance, is of no precedent value in a general sense, given the very unusual nature of this particular intersection.

[23]     For these reasons I allow the appeal and quash the finding, the fine and the order for costs.

Solicitors:

Appellant – Mr R L C  , 49 Woodside Common, Westmorland, Christchurch 8025. Raymond Donnelly & Co, Christchurch for Respondent