Everton v Police HC Masterton CRI-2010-435-12

[2011] NZHC 330

IN THE HIGH COURT OF NEW ZEALAND MASTERTON REGISTRY

CRI-2010-435-12

NORRIS BRIAN EVERTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 April 2011

(Heard at Wellington)

Counsel:         J W K Blathwayt for Appellant

K S Grau for Respondent

Judgment:      21 April 2011 at 4:15 PM

In accordance with r 11.5 I direct the Registrar to endorse this judgment with a delivery time of 4.15pm on the 21st day of April 2011.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The appellant was issued with an infringement notice alleging an offence against s 40 of the Land Transport Act 1998 involving a breach of r 4.2(3) of the Road User Rule 2004 of failing to give way to a vehicle on his right.  The appellant is a professional driver and took this matter seriously.   He elected to defend the infringement notice and the matter proceeded to a defended hearing before two Justices of the Peace on 30 November 2010.   The offence was held proven.   The

appellant now appeals against that finding.

EVERTON V NEW ZEALAND POLICE HC MAS CRI-2010-435-12 21 April 2011

[2]      On 9 March 2010 Mr Everton was driving his truck on Cornwall Road near Masterton approaching the intersection with State Highway 2, intending to turn right onto  the  highway.    There  was  a  group  of  six  cyclists  on  State  Highway  2, approaching from the direction to which Mr Everton was turning.  They intended to turn right into Norfolk Road, which is immediately opposite Cornwall Road.   A vehicle  which  was  travelling  ahead  of  Mr Everton  turned  right  in  front  of  the cyclists, Mr Everton followed. The cyclists considered that he had failed to give way to them.

[3]      The essence of Mr Everton‟s evidence was that, when he turned in front of the cyclists, he did so because of a signal which one of the cyclists had given, which Mr Everton interpreted as a waiver of their right of way by the group of cyclists. The Justices dealt with that defence in this way:

[6]       It gets down to the simple fact that you have to give way, when you are turning across a road like that, to anything that is on the right. You were saying that there was some mitigating reason why (you did not give way), because you considered that there was a signal from one of the cyclists, which was confusing.

[7]       However, the onus really is on the driver.  You were the driver of a big rig.  You had admitted that they are not easy to drive, and that is a tough corner to get across.   A sensible driver, given that set of circumstances  at  that  point,  should  have  been  careful  and  just waited.

[4]      Mr Blathwayt, in support of the appeal, states the grounds of appeal in these terms:

1.The Justices failed to give proper consideration to the proposition that in all the circumstances pertaining at the time of the incident the obligation to give way under r 4.2(3) of the Road User Rules 2004 had not arisen or alternatively had been waived.

2.        The Justices failed to give adequate reasons for the decision and

dealt with the Appellant‟s defence as if it were a “mitigating reason”.

3.The Justices failed to consider whether the Appellant had proved total absence of fault on the balance of probabilities.

4.The Justices in reaching their decision failed to consider whether r 4.2 of the Land Transport (Road Use) Rules 2004 were applicable to the driving of the Appellant at the intersection concerned.

[5]      On the first point, Mr Blathwayt submits that the obligation to give way to the right is a qualified one and does not apply when the vehicle that is coming from the right hand side of an intersection yields the right of way.  Mr Blathwayt could cite no authority for the proposition that the obligation to give way does not apply where the other vehicle waives its prior right of way.  The absence of authority is not surprising.  If the right of way has been waived, and the vehicle which prima facie must give way proceeds ahead of the other vehicle, then, the right of way having been conceded, no issue will arise.  The problem will only arise where, as here, there is a contest as to whether or not the right of way had been yielded.  Mr Everton, on his evidence, thought that it had.  The cyclists, on their evidence, thought that it had not.  The Justices accepted the cyclists‟ evidence.  They said:  “They all basically told the same story, and they gave good evidence.”  They also noted Mr Everton‟s evidence that he thought that they were waving him on.   On the facts as found, Mr Everton‟s  understanding  that  the  cyclist  had  waived  their  right  of  way  was mistaken.

[6]      Accordingly, whatever the legal position may have been if the right of way had in fact been yielded, I consider that the Justices‟ approach was correct in law, in the light of their acceptance of the cyclists‟ evidence that the right of way had not been yielded.  Mr Blathwayt accepts for the purpose of this appeal that r 4 is a public welfare regulatory type of offence to which Civil Aviation Department v MacKenzie applies.1    Total absence of fault may constitute a defence and the burden of establishing absence of fault rested on Mr Everton. Total absence of fault could have been established only if he proved that the right of way had in fact been yielded, not

merely that he thought that it had been yielded.

[7]      That conclusion is sufficient to address the first three points on appeal.  The Justices did give proper consideration to whether the right of way had been waived. Their treatment of this factor as a „mitigating reason‟ was appropriate.  Mr Everton‟s mistaken belief that the right of way had been waived was relevant to the level of his

culpability, but it did not remove that culpability.

1      Civil Aviation Department v MacKenzie [1983] NZLR 78.

[8]      The  fourth  ground  of  appeal  raises  a  point  as  to  the  wording  of  the infringement notice.  Had this been an uncontrolled intersection, the appellant would have been required to give way to the cyclists under r 4.2(3) of the Land Transport (Road User) Rule 2004.   The infringement notice alleged an offence against that provision.    In  fact,  the  intersection  of  Cornwall  Road  and  State  Highway 2  is controlled by a compulsory stop sign.   Accordingly, r 4.1, not r 4.2, applied.   It appears that was not noticed at the hearing.  Mr Blathwayt submits that the notice of hearing was defective.  He is correct in that submission.  However, the circumstances clearly fell within the power of amendment in s 43 of the Summary Proceedings Act

1957.   Had the point been picked up, an amendment would inevitably have been allowed.  I indicated to counsel at the hearing that I thought the proper course was to consider the matter, having regard to the obligations in r 4.2, as that was the way in which the case had been addressed in the District Court, but, in the event the appeal was, on that basis, unsuccessful, to deal with the matter by amendment under s 132 of the Summary Proceedings Act.

[9]      For  these  reasons,  the  appeal  is  dismissed,  but  the  notice  of  hearing  is amended by substituting an offence under s 4.1 of the Land Transport (Road User)

Rule 2004.

Solicitors:           WCM Legal, Carterton, for Appellant

Crown Solicitor, Wellington for Respondent

“A D MacKenzie J”