Gambhir v Police - [2023] NZHC 173

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-95

[2023] NZHC 173

BETWEEN
VIPUL GAMBHIR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 31 October 2022

Appearances:

J C Harder and M W Wright for Appellant M J Mortimer-Wang for Respondent

Judgment:

10 February 2023

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 10 February 2023 at

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, Auckland

GAMBHIR v POLICE [2023] NZHC 173 [10 February 2023]

Introduction

[1] Vipul Gambhir (the appellant) received a traffic infringement notice alleging that he had exceeded the applicable speed limit on the highway passing through Dome Valley north of Auckland. He denied the offence and his case was heard by Justices of the Peace in the District Court at North Shore on 6 July 2021. The Justices found the infringement was proved, and imposed a fine of $170 and ordered him to pay $30 in court costs.1

[2] The appellant promptly paid the fine and court costs but nevertheless appealed against his conviction to the District Court. On 16 February 2022, Judge E M Thomas dismissed the appeal.2

[3] The appellant has been granted leave to bring a second appeal against his conviction.

The alleged offending

[4] On Sunday morning 13 December 2020, the appellant was driving south on State Highway 1 in Dome Valley. Roading contractors had previously placed road signs to establish a temporary 50 kilometre per hour speed limit applicable to a section of the highway undergoing extensive road works and repair. The appellant drove through the area subject to the temporary speed limit.

[5] At that time Police Constable Thow was on duty in the area driving north on SH 1. He noticed the appellant’s Toyota vehicle travelling towards him and using his vehicle’s radar device he determined the appellant’s vehicle to be travelling at 75 kilometres per hour. He stopped the appellant and issued him with a speeding infringement notice requiring him to pay an infringement fine of $170 and receive 35 demerit points. The appellant commented to Constable Thow that as it was Sunday morning he did not think anyone would be working on the section of roadway where the 50 kilometre per hour speed limit signs were in place.

1 Police v Gambhir DC North Shore CRI-2021-044-000627, 6 July 2021.
2 Gambhar v Police [2022] NZDC 2522. The intituling of this judgment misspells Mr Gambhir’s surname and explains why is cited here with that error.

Hearing before Justices of the Peace

[6] At the hearing before the Justices of the Peace, the appellant accepted that Constable Thow had accurately determined his car to have been travelling at 75 kilometres per hour through the section of roadway with the 50 kilometre per hour signs.

[7] The appellant’s case was that the legal speed limit applicable to that section of the road varied based upon whether the road works were attended or unattended. He cited a New Zealand Transport Agency…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 173
Decision Date: 10 February 2023

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Vipul Gambhir against his conviction for speeding. Gambhir was issued a traffic infringement notice for exceeding the speed limit on a section of State Highway 1 in Dome Valley, Auckland. The speed limit was set at 50 kilometres per hour due to ongoing roadworks, but Gambhir argued that the limit should have been 70 kilometres per hour as the site was unattended at the time. The District Court dismissed Gambhir's appeal, leading to this second appeal to the High Court. The key issue before the court was whether the 50 kilometre per hour temporary speed limit was validly set and effective at the time of the infringement. The court found that the temporary speed limit was validly set when the signs were installed, and remained in effect until removed or until 12 months had passed, regardless of whether the site was attended or unattended. The court held that the failure of the roading contractors to remove the speed limit sign did not nullify the temporary speed limit. The appeal was dismissed, affirming the conviction for speeding.

Orders