G v Police HC Wellington Cri-2009-485-164

[2010] NZHC 220

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2009-485-164

G

v

NEW ZEALAND POLICE

Hearing:         9 March 2010

Appearances: Mr G   appears in person

Mr Snape appears for New Zealand Police

Judgment:      9 March 2010

JUDGMENT OF MALLON J

[1]      Mr G   was apprehended by a police officer for speeding.  At a defended hearing  before  Justices  of  the  Peace  the  offence  was  found  to  be  proven  and Mr G   was fined $230 and ordered to pay court costs of $30.  He now appeals.

[2]      He raises two grounds:

a)       that  the  police  breached  a  number  of  rules  in  apprehending  him because of the location of the police officer’s vehicle when Mr G   was apprehended; and

b)        that he was not on a “road” at the time he was apprehended.

[3]      Turning to the first of those grounds, the police officer was on a motorcycle which  was  parked  on  a  painted  traffic  island  near  the  Newlands  off-ramp.

G V NEW ZEALAND POLICE HC WN CRI-2009-485-

164  9 March 2010

Mr G   says that this breached a number of rules.   He is aware that regulation

1.8(3)(a) of the Land Transport (Road User) Rule 2004 permits an enforcement officer to breach the rules if that is “necessary in the execution of the person’s duty”. Mr G   considers this to be an unfair rule.  He says that everyone should have the same rules applied to them.

[4]      Mr  G  ’s  concern  is  therefore  with  the  existence  of  the  rule  which provides an exception from the rules for an enforcement officer, rather than with whether the exception applied in the particular circumstances.  Whatever the merits of the rule which provides this exception, the rule is there.  Mr G   has not shown that the rule did not apply and so he has not made out a ground of appeal on this basis.

[5]      Turning to the second ground of appeal, Mr G   says he was not speeding on a “road” because he was on a State Highway.  Mr G   was charged under s 40 of the Land Transport Act 1998 for breaching rule 5.1(1) of the Land Transport (Road User) Act 2004.  That rule provides that a driver must not drive a vehicle at a speed exceeding the applicable speed limit.   The requirement that this occur on a “road” comes from rule 1.5 which provides that “[u]nless the context otherwise requires”  the rule  “applies  to  road  users  and  to  vehicles  on  roads” (1.5).    The definition of road is provided in r 1.6 and is in terms identical to the definition of road in s 2 of the Land Transport Act 1998.

[6]      Mr G   notes that a State Highway is not listed in the definition.  While that is so, the definition of “road” (in the rule and the Act) does not set out a finite list of the types of things that are a road.  Instead it lists a number of things that are included in the definition.  This means that something can be a road even if it is not listed in the definition.   It is a very wide definition.   A state highway is, on the ordinary and natural meaning of “road” read in light of its purpose, a road.  I note that under the Land Transport Management Act 2003 a State Highway is a “road…that is declared to be a State Highway” although that Act is concerned with management of the land transport system, rather than placing specific duties on individual drivers.  In any event the definition in the rule and the Land Transport Act

includes  “a place  to  which  the  public  have access”  which  would  cover  a  state highway.  This ground of appeal also fails.

[7]      The appeal is dismissed.

Solicitors:

Mallon J

M Snape, Luke Cunningham & Clere, Wellington, ph: 04 472 1050, fax: [phone], email: [email protected]

Copy to:

P G  , Newlands, Wellington