Dorbu v Police
[2016] NZHC 2253
•23 September 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-268 [2016] NZHC 2253
UNDER the Land Transport Act 1998 and the
Criminal Procedure Act 2011
BETWEEN
JOHN EVANS YAWO DORBU Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 20 September 2016 Appearances:
Appellant in person
G Campbell for RespondentJudgment:
23 September 2016
JUDGMENT OF TOOGOOD J
This judgment was delivered by me on 23 September 2016 at 11:30 am
Pursuant to Rule 11.5 High Court Rules
Registrar/Deputy Registrar
Dorbu v New Zealand Police [2016] NZHC 2253 [23 September 2016]
[1] In August 2014, Mr Dorbu was involved in a minor traffic collision on the Southern Motorway. As a result, a Police Officer issued Mr Dorbu with an infringement notice for changing lanes without ascertaining that the manoeuvre could be made safely.1
[2] Mr Dorbu challenged the infringement notice in the District Court on
23 June 2015, at a hearing before two Justices of the Peace. They found the charge to be proved, and fined Mr Dorbu $150, as well as ordering him to pay costs of $55.2
[3] Mr Dorbu appealed his conviction to a District Court Judge. On 4 July 2016, Judge Ryan issued a judgment upholding the conviction.3 Mr Dorbu now seeks leave to bring a second appeal to the High Court.
JPs’ decision
[4] The driver of the other vehicle, a Mr Chauhan, was the principal witness before the Justices. Mr Chauhan gave evidence that, at around 9.17 am on
19 August 2014, he was driving north on the Southern Motorway, in the innermost lane.
[5] Mr Chauhan told the Court that he observed a vehicle enter the motorway around the Khyber Pass off-ramp, indicate, and then cross into the middle lane, either parallel to or just behind his own car. Still indicating, Mr Chauhan said the vehicle then attempted to enter the innermost lane directly in front of his car. Mr Chauhan said he braked heavily and honked his horn. The two vehicles then collided and stopped further along the motorway.
[6] The other witness was Constable Ahotalafolau, who issued Mr Dorbu with the infringement notice. He observed damage to the right side of Mr Dorbu’s car
and damage to the front left of Mr Chauhan’s car.
1 Section 40 of the Land Transport Act 1998 and r 2.32(b) of the Land Transport (Road User) Rule 2004.
2 Police v Dorbu [2015] NZDC 16161.
3 Dorbu v Police [2016] NZDC 7197.
[7] Mr Dorbu did not give evidence. The Justices of the Peace gave Mr Dorbu the opportunity to make submissions at the close of the prosecution case, but they eventually refused to hear him further on the grounds that he was beginning to make submissions based on the facts.
[8] After retiring to consider the evidence, the Justices of the Peace found the case proved and imposed the penalty.
District Court Judge’s decision
[9] Judge Ryan set out the background to the case, before listing Mr Dorbu’s
grounds of appeal:
[10] There were three grounds of appeal. The first ground was that the
Justices of the Peace made the following errors of law:
(a) They wrongly restricted Mr Dorbu’s cross-examination in the erroneous belief that he would have to give evidence himself;
(b) They breached s 92 Evidence Act 2006 (“the Evidence Act”) by interrupting his cross-examination and preventing him from properly putting his case to the police witnesses;
(c) They effectively reversed the burden of proof;
(d) They misinterpreted and misapplied s 40 of the Act and the relevant
Rules and Regulations;
(e) They wrongly prevented Mr Dorbu from summing up his case at the conclusion of the hearing.
[11] Secondly, the Justices of the Peace erred on the facts because they failed:
(a) to take into account the contradictory statements made by the complainant, the key witness for the police; and
(b) to deliver a decision consistent with the true facts.
[12] Thirdly, Mr Dorbu submitted that the decision was “wrong in law and unfair.” As the arguments in support of this ground replicated the arguments supporting the first two grounds of appeal, I have treated the appeal as constituting the two grounds summarised in paragraphs [9] and [10] above.
[10] Judge Ryan issued a comprehensive judgment which considered the notes of evidence and each of the issues Mr Dorbu had raised. Her final conclusions were:
[123] This is a strict liability offence.
[124] The police had to prove beyond reasonable doubt that Mr Dorbu was the driver of a motor vehicle, that he changed lanes in that vehicle and that he did not ascertain that the way was safe before he changed lanes. How long he indicated and whether New Zealand drivers should be polite and let others in were irrelevant considerations.
[125] The police did not have to establish whether any failure to ascertain that the way was safe occurred because Mr Dorbu did not check for Mr Chauhan’s car or misjudged its proximity or expected that it would let him in.
[126] It was open to the Court to find on the evidence presented to it that Mr Dorbu did fail to ascertain that the way was safe before moving into a lane in which Mr Chauhan had the right-of-way and in so doing, caused a collision between the vehicles.
[127] It was then for Mr Dorbu to prove that it was more probable than not that he lacked fault. In the absence of any evidence on that point, the Court, once it had found the police case proven, was drawn to an inevitable finding of guilt.
[11] Judge Ryan accordingly dismissed the appeal, finding that the Justices of the
Peace correctly applied the law and did not err on the facts.
Grounds for seeking second appeal
[12] Mr Dorbu’s application for leave to bring a second appeal rests on his
assertions that the Judge erred in the following ways:
(a) Because the Judge did not refer to s 232 of the Criminal Procedure Act 2011 (the CPA) in her decision, it should be inferred she did not take account of the statutory principles for a first appeal so that her decision is a nullity;
(b)The Judge was wrong in law to uphold the ruling of the Justices that, under cl 4.2 of the Land Transport (Road User) Rule 2004, the driver of the other vehicle had a right of way by virtue of driving in a lane;
(c) The Judge made an error of law in concluding that in a strict liability offence, a defendant must “prove” absence of fault on the balance of probabilities;
(d)The Judge was wrong to rely on the case Stewart v Police4 which is distinguishable on its facts; and
(e) In holding that the Justices did not improperly deprive Mr Dorbu of his right to make submissions to the Court in defence of the charge, the Judge overlooked the effect of s 105(5) of the CPA.
Approach to applications for leave to bring a second appeal
[13] Section 237 of the CPA precludes second appeals unless the proposed appeal involves a matter of general or public importance, or a miscarriage of justice may have occurred or may occur unless the appeal is heard. In McAllister v R, the Court of Appeal recently considered the approach to be taken when applying this test.5
[14] A proposed appeal will meet the threshold of “a matter of general or public importance” if it raises an important question of law that has broad application beyond the particular circumstances of the case.6 Mr Dorbu submits that his proposed grounds of appeal involve matters of general or public importance, namely questions of law regarding the conduct of motorists on the road under the Land Transport (Road User) Rule 2004.
[15] Mr Dorbu also suggests that a miscarriage of justice may have occurred because his right to a fair trial was breached when the Justices cut short his closing submissions and did not hear his defence in full.7
Discussion
[16] The case Mr Dorbu sought to argue before the Justices, and again before Judge Ryan on the first appeal, was that Mr Chauhan did not have absolute right-of- way when Mr Dorbu tried to move his vehicle into Mr Chauhan’s lane. Mr Dorbu acknowledged that he was under an obligation to ascertain that the manoeuvre of
changing lanes could be carried out safely, as provided in cl 2.3(2) of the rule. He
4 Stewart v Police [2007] DCR 843 (HC).
5 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
6 R v Kuru [2015] NZCA 414.
7 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730.
argued, however, that since Mr Chauhan had seen Mr Dorbu's indicator lights demonstrating an intention by Mr Dorbu to change lane, Mr Chauhan was obliged to give Mr Dorbu room to carry out that manoeuvre. In making that submission, Mr Dorbu relied on cl 3.10(3) which requires a driver intending to move to the right to signal that intention for at least three seconds. Mr Dorbu argued that, since Mr Chauhan acknowledged he had seen Mr Dorbu signalling his intention to move into Mr Chauhan's lane for longer than three seconds, he had a defence to the charge under clause 2.3(2).
[17] Mr Dorbu sought to reinforce the obligation on Mr Chauhan to give way by reliance on cl 7.17(2). That clause applies where the speed limit is more than
50 kilometres per hour, if the driver of a motor vehicle (vehicle A) is following another vehicle (vehicle B). Clause 7.17(2) has to do with following distances. It provides that the driver of vehicle A must, except when overtaking vehicle B with the intention of passing it, keep a sufficient distance from vehicle B to enable the driver of any other vehicle to overtake and pass vehicle A and then move in behind vehicle B when conditions are such that this can be done safely.
[18] Mr Dorbu's argument that the rules required Mr Chauhan to give way to him is based on a false premise, however. Clause 3.10(3) imposes a minimum signalling requirement on a driver moving to the right, but meeting the minimum requirement does not impose on any other road user an obligation to give way. The circumstances in which Mr Dorbu’s vehicle collided with Mr Chauhan’s vehicle did not engage cl 7.17(2): Mr Chauhan’s vehicle was not following Mr Dorbu’s vehicle.
[19] The question of which of the drivers was required to give way is determined by cl 4.2 of the rules. In its essential relevant parts the clause reads:
4.2Giving way where vehicles are controlled by same type of sign or in absence of signs
(1) This clause applies if both the vehicles moving in the direction in which a driver is travelling and the vehicles approaching from another direction—
(a) are not controlled by a stop sign or a give-way sign
…
(2) A driver changing lanes or about to change lanes ... must give way to any vehicle not changing lanes….
[20] The circumstances of this case came within cl 4.2(1), meaning that cl 4.2(2) was engaged. That clause required Mr Dorbu, as a driver changing lanes or about to change lanes, to give way to any vehicle not changing lanes, such as Mr Chauhan's vehicle.
[21] That conclusion means that Mr Dorbu’s intended second appeal must fail on the merits, whether or not there were any procedural errors in the conduct of the hearing by the Justices or in the District Court Judge's approach on the first appeal. On the evidence, it was inevitable that a court would conclude that the collision had occurred in circumstances where Mr Dorbu failed to adhere to the give way obligation when changing lanes. On a proper interpretation of the road user rules, he infringed against cl 2.3(2)(b) by moving from a lane before first ascertaining that the manoeuvre could be made safely.
Result
[22] It follows that there was no miscarriage of justice, and there can be no general or public interest in having the High Court address a second appeal.
[23] I dismiss the application.
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Toogood J
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