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 press release which stated that the speed limit for  the  area  he  was  driving  through  when  stopped  by  Constable  Thow  was  70 kilometres per hour at times when the roadworks site was unattended. The limit was reduced to 50 kilometres per hour when the site was attended. The appellant gave evidence that on the day when he was issued with the infringement notice, the       50 kilometre per hour speed limit sign was present, despite it being a Sunday and despite the site being unattended. He argued  that  in  those  circumstances  the  speed limit was actually 70 kilometres per hour.

[8]    The Justices of the Peace expressed some sympathy for the appellant’s position. They noted, however, that they were bound to apply the law. They noted that the posted speed limit was 50 kilometres per hour and found that was the speed limit that all road users, including the appellant, were required to comply with.3 The Justices concluded their decision by commenting:

[7] As a side note, it is disappointing that roading contractors throughout New Zealand are very lax in the management of their safety plans. We all know of experiences when signs have been left up when they are not applicable, but unfortunately until somebody takes something against the contractors to do their jobs properly, we all suffer and we have a lot of sympathy for your position, unfortunately, it cannot be that way in law.

Appeal to the District Court

[9]    The appellant’s appeal to the District Court was heard by Judge Thomas on 16 February 2022. In support of his appeal the appellant argued that the Justices had erred in their decision by failing to take proper account of the fact that the roadworks

3      Police v Gambhir, above n 1, at [5].

were unattended and that the posted speed limit should have been 70 kilometres per hour. He produced a traffic management plan for the site which stated that the speed limit when the site was unattended was 70 kilometres per hour.

[10]   However, Judge Thomas found that the appellant had not shown that the Justices had misinterpreted the word “unattended”. He said:4

… “Unattended” can mean many different things. It can mean that there are no works going on at the site. It can mean that there are no works going on that day at the site. It can mean that there are no works going on at that particular moment because everybody is having a coffee break. It could mean all sorts of things.

[11]   Although the Judge accepted that the contractors had confirmed to the appellant that there may not have been anybody on site that day, he found that the appellant was nevertheless unable to prove “that [meant] that the site was unattended from a legal point of view”, and that in turn meant that the appellant was unable to demonstrate that the Justices had erred.5 The Judge said that in any event there could be no miscarriage of justice because the appellant had been driving at 75 kilometres per hour prior to being stopped and at that speed he was exceeding the 70 kilometre per hour speed limit he said applied.6 Judge Thomas accordingly dismissed the appeal.7

Leave decision

[12]   On 5 July 2022 Moore J granted leave to bring a second appeal against conviction.8 He considered that the appellant’s argument raised a matter of general importance insofar as it concerned the interpretation of the Land Transport Rule: Setting of Speed Limits 2017 (the Rule).9 The interpretation of the Rule has implications for the safety of all motorists who travel on roads in New Zealand and for road controlling authorities and contractors tasked with carrying out functions

4      Gambhar v Police, above n 2, at [4].

5 At [5].

6 At [6].

7 At [8].

8      Gambhir v Police [2022] NZHC 1582.

9      As the Judge acknowledged at [17], the Rule has been subsequently superseded by the Land Transport Rule: Setting of Speed Limits 2022. However, the Judge considered that the wording of both iterations is sufficiently similar that the interpretation from the previous iteration will inform that of the most recent.

under the Rule.10 The interpretive exercise was not undertaken by the Justices or the District Court Judge and a miscarriage of justice could occur if the argument was not fully argued and determined.11

[13]   Moore J further considered that the appellant’s argument should not be determined at the application for leave to appeal stage.12 In relation to the issue to be determined on appeal, he said:

[21] The issue on appeal will be whether the Justices erred in their interpretation of the Rules by finding that the 50 kilometre per hour temporary speed limit was effective at the time Mr Gambhir infringed that limit. Whether that temporary speed limit was validly set and effective at the time of the alleged infringement is a question of law. …

Fresh evidence on appeal

[14]   At Moore  J’s  suggestion,13  the  appellant  subsequently  submitted  an agreed summary of facts for appeal.

[15]   New evidence may be admitted on appeal where it is fresh, credible and cogent. The Court is required to determine whether there is a real risk of a miscarriage of justice if the evidence is not admitted.14 The information set out in the agreed summary of facts directly relates to the alleged offending and was either not disclosed to the appellant or disputed by the respondent until after the first appeal in the District Court. The agreed summary of facts settles the points that that:

(a)the registered speed limit for the relevant area is 80 kilometres per hour;

(b)a traffic management plan was in place during the period the work was being undertaken which provided for temporary speed limits;

(c)the traffic management plan provided that “a 50km/h [temporary speed limit]            will    be    in    place    during    active    work    periods.      The

10     At [15][16].

11     At [21][23].

12 At [19].

13 At [20].

14     Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].

[temporary speed limit] must be returned to 70km/h when the site is left unattended”; and

(d)the road contractors confirmed on the morning of Sunday 13 December 2022 the site was unattended as no work was being carried out on the site.

[16]   I am satisfied that it is in the interests of justice for the agreed summary of facts for appeal to be admitted as fresh evidence for the purposes of the appeal.

Submissions

The appellant

[17]   Mr Harder, for the appellant,  submits  that  the  clear  direction  in  the  traffic management plan that the temporary speed limit “must be returned to 70km/h when the site is left unattended” means the 50 kilometre per hour speed limit only applied during periods of active work. When no active work was underway, including when the appellant drove through on a Sunday morning, the limit had to be returned to the ordinary speed limit.

[18]   As to the interpretation of the Rule, Mr Harder relies on r 6.2(6), that a temporary speed limit sign must be removed “as soon as the person is satisfied that the reason for the temporary speed limit no longer applies”. He also relies on r 6.3(2), that a temporary speed limit may apply for the period during which there is physical work occurring. The appellant acknowledges these rules and the traffic management plan conflict with r 6.2(3) that states a temporary speed limit ceases to apply when the temporary speed limit signs are  removed  or  when  12  months  lapse.  However, Mr Harder maintains the applicable speed limit was not the 50 kilometre per hour speed limit because the signs were not removed in accordance with r 6.2(6) and the traffic management plan. He says if r 6.3(3) were held to be operative in this case it would mean a temporary speed limit applies whenever a sign is erected and displayed, the display of a sign creating an offence in itself. He says this interpretation would be inconsistent with the rule of law, the Land Transport Act 1989 and the Rule.

[19]   Finally, Mr Harder submits there has been an error by the Justices and the District Court Judge, because the onus was placed on the appellant to ascertain the applicable speed limit. And he submits that a miscarriage of justice occurred as a result of the finding  that  the  appellant  exceeded  the  applicable  speed  limit  of  70 kilometres per hour in any event.

The respondent

[20]   Mr Mortimer-Wang for the respondent submits the essential challenge by the appellant relies upon establishing a legal error by the roading contractor, who was under an obligation to remove the 50 kilometres per hour speed limit signs and failed to do so. The respondent says this constitutes a collateral challenge that is not appropriate in this case as the Court is not in a position to find error on the part of the roading contractor who was not called to give evidence, and as there is insufficient evidence on which to make a finding of legal error. Moreover, natural justice concerns arise because the roading contractor has not been given any opportunity to be heard.

[21]   As to the interpretation of the Rule, Mr Mortimer-Wang says that nothing the roading contractor did or omitted to do after installing the temporary speed limit signs affected the legal validity and enduring effect of the signs. The installation of the signs established a lawful speed limit, and r 6.2(3) makes it clear that the limit remains in force until the signs are removed.

[22]   Further, the respondent says non-compliance with the traffic management plan is not enough by itself to establish unlawful non-compliance with r 6.2(6). That rule does not expressly link the removal of a temporary speed limit sign to compliance with the traffic management plan. The respondent says that the Rule sets out a number of factors in r 6.3(1) that the roading contractor must consider when setting a temporary speed limit when there is physical work occurring on or adjacent to a road in order that the road is safe and appropriate for road users.

[23]   Mr Mortimer-Wang submits that r 6.2(6) means that a contractor authorised to install a temporary speed limit sign must remove it as soon as they are satisfied that the reason for the temporary speed limit no longer exists. And r 6.3(2) provides that a

temporary speed limit set in accordance with r 6.1(2)(b) may apply for the period during which there is physical work occurring on or adjacent to the road that impacts the function of the road. It does not require the removal of a temporary speed limit sign at times when active physical work on the roadway is not being carried out, and without taking other considerations such as the impact of the work on the functioning of the road. The respondent submits that this interpretation is consistent with the objective of the Land Transport (Road User) Rule 2004 and road transport law in general that the safe and efficient operation of roads is reliant upon consistent and predictable responses by all road users.

The appeal

[24]   A second appeal court must allow the appeal against conviction if it is satisfied that, in the case of a judge-alone trial, the judge erred in their assessment of the evidence to such an extent that a miscarriage of justice occurred or if a miscarriage of justice has occurred for any reason.15 A miscarriage of justice means any error, irregularity, or occurrence affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial, or a trial which is a nullity.16

Discussion

Was the 50 kilometre per hour temporary speed limit validly set?

[25]   The Rule confers power on a road controlling authority to set a temporary speed limit.17 A road controlling authority may do so if it considers that there is a risk of danger to a worker or the public, or a risk of damage to a road due to physical work occurring on or adjacent to a road that impacts the function of the road (including an ongoing work site outside the hours of work), or the presence of an unsafe road surface or structure, or a special event.18 Rule 6.2(1) provides that a temporary speed limit “is set by installing signs in accordance with s 919 and a traffic management plan approved

15     Criminal Procedure Act 2011, ss 240 and 232(2).

16     Section 232(4).

17     Land Transport Rule: Setting of Speed Limits 2017, r6.1(1).

18     Rule 6.1(2)(a).

19     Section 9 of the Rule is headed “Signs and road markings” and sets out requirements regarding the placement of and specifications for signs and road markings.

in writing by the road controlling authority.” There is no suggestion that the signage in place on the road where the appellant was stopped for the speeding infringement did not comply with the requirements of s 9 of the Rule.

[26]   The relevant traffic management plan in respect of the roadway where the appellant was stopped, provided that: “A [temporary speed limit] of 50km/h will be in place during active works periods. The [temporary speed limit] must be returned to 70km/h when the site is left unattended”.

[27]   This is consistent with r 6.3(2)(b), which applies to the setting of a temporary speed limit when there is physical work occurring on or adjacent to a road. It states that a temporary speed limit may apply for specified times during the period in which there is physical work occurring on or adjacent to a road that impacts the function of the road.

[28]   The appellant submits that the prosecution failed to discharge the burden of proving that the time of the alleged offence was an “active work period” during which the 50 kilometre per hour temporary speed limit was the applicable speed limit. As I understand the appellant’s submission, it is that the 50 kilometre per hour temporary speed limit in place did not comply with the traffic management plan because the incorrect speed limit was displayed during a time when the site was unattended. The appellant says that this means that the temporary speed limit of 50 kilometres per hour was not “set” because the road controlling authority did not meet the r 6.2(1) criteria for setting it.

[29]   However I do not accept that to be correct. The sign designating a temporary speed limit of 50 kilometres per hour clearly complied with the traffic management plan at the time it was placed on or beside the roadway. There was an active work period where the site was attended by contractors. At this point the temporary speed limit was “set”, within the meaning of r 6.1.

Was the 50 kilometre per hour temporary speed limit effective at the time of the infringement?

[30]   It is agreed that the roading contractors left the sign in place while the site was unattended. I accept that the sign ought to have been removed in accordance with the traffic management plan. The Rule requires a person authorised to install a temporary speed limit sign placed in accordance with a traffic management plan, to remove the temporary speed limit signs and equipment used to install or support the signs as soon as the person authorised to do so is satisfied that the reason for the temporary speed limit no longer applies.20 However, I consider that the failure of the roading contractor to remove the 50 kilometre per hour speed limit sign does not “unset” a temporary speed limit that had been validly set at the time the sign was installed.

[31]This interpretation is supported by r 6.2(3) which provides:

6.2(3) A temporary speed limit–

(a)     applies from the point on the road at which a temporary speed limit sign is installed to the point on the road at which the sign indicates that a different speed limit applies; and,

(b)    applies from the time a temporary speed limit sign is installed; and

(c)    ceases to apply when the temporary speed limit signs are removed; and

(d)    may apply for no longer than 12 months.

[32]   In my view r 6.2(3) makes the position quite clear. A temporary speed limit applies from the time a temporary speed limit sign is installed, and it ceases to apply when the temporary speed limit signs are removed. The effect of sub-rule (c) is that it is the physical removal of the sign which has the effect of changing the applicable speed limit.

[33]   I reject the appellant’s submission that such an interpretation would mean that a speeding offence will be committed whenever a driver exceeds the speed indicated on a temporary speed limit sign, irrespective of whether or not it had been lawfully installed. As I have explained, to constitute a valid and enforceable speed limit a temporary speed limit must be set in accordance with the Rule and applicable traffic

20     Rule 6.2(6).

management plan. A temporary speed limit sign installed by someone who was not authorised to do so would be invalid and of no legal force or effect. However, once a temporary speed limit has been validly set in accordance with the Rule, r 6.2(3)(c) provides that it remains in force until it is removed by or on behalf of the person who was authorised to install it.

[34]   By providing that a temporary  speed  limit  cannot  apply  for  longer  than 12 months, r 6.2(3)(d) creates something of a ‘backstop’. Temporary speed limits are obviously described as “temporary” because they are intended to have a temporary effect of reducing the otherwise appropriate and applicable speed limit for that section of the roadway. It appears that the purpose of this sub-rule is to ensure that temporary speed limits do not remain in place for extended periods and continue to have long-term effect without further consideration by the relevant road controlling authority regarding the need and justification for a temporary speed limit. In my view r 6.2(3)(d) supports the interpretation that the temporary speed limit will continue to apply until the sign is removed.

[35]   Significantly r 6.2(3) does not provide for a temporary speed limit to cease to have effect where the set speed limit no longer complies with the traffic management plan. In my view this promotes road safety and accords with common sense. Road users can be certain that they will be complying with the law if they drive at speeds at or below the speed limit specified on the roadside sign. Drivers can also expect other motorists to see and comply with the temporary speed limit signs. It is clearly in the interests of public safety that all drivers are subject to the same maximum speed when passing along a section of roadway.

[36]   Mr Harder noted that r 6.3(2) specifies that a temporary speed limit set due to physical work occurring on or adjacent to a road may only apply for “the period during which there is physical work occurring on or adjacent to a road that impacts the function of the road”. He submits that this rule would be of no effect if temporary speed limits continued to apply during periods when road work sites were unattended and no physical work was ongoing.

[37]   However in my view that would be an unrealistic interpretation of the Rule clearly intended to enable a road controlling authority to impose a temporary speed limit to apply for “the period during which there is physical work occurring”. Road works often take extended periods of time to be undertaken and completed. Inevitably during the period when work is being carried out there will be times where a site is left unattended and no road workers are present carrying out physical work on the site. In my view that does not mean that “physical work” as that phrase is used in r 6.3(2) is not occurring. The physical work will often be left in an incomplete state which calls for a temporary speed limit. All that is necessary is that there is a continuous period where physical work is being done and will continue to be done to the site. In simple terms, “the period during which there is physical work occurring” continues from the commencement of the work until that work is concluded. A temporary speed limit may be set even when a site is unattended, as is evident from the facts of this case.

[38]    While the risk to the safety of roading contractors and their employees does not arise when employees are not on site and active work on the road is not being carried out, there are other safety considerations related to the safety of road users which will nevertheless often justify temporary speed limits continuing to apply. The effect of road works being conducted and specifically their temporary effect on the road surface, or lane realignments may have an impact on the functioning of the road, and require the setting of a temporary speed limit to apply during periods when active work is being conducted and also when it is not.

[39]   In my view the interpretation of the Rule suggested by the appellant is inconsistent with road safety considerations and objectives. The appellant’s interpretation would enable motorists to lawfully drive at speeds above a posted speed limit if they happened to know the speed limit provided by the relevant traffic management plan, and chose to disregard the temporary speed limit signage. Such an interpretation of the Rule would inevitably cause confusion amongst road users and risk road safety.

[40]   It follows that if a temporary speed limit is set in accordance with the Rule, that speed limit will continue to apply until the temporary speed limit sign is removed by the person who was authorised to install it, or a period of 12 months elapses.

[41]   This interpretation of the Rule means that the Justices of the Peace did not shift the burden of proof onto the appellant. The temporary speed limit that applied at the time the appellant was stopped on SH 1 on Sunday morning 13 December 2020, is that which was displayed on the sign. There is no dispute that the sign indicated a speed limit of 50 kilometres per hour, and also no dispute that the appellant drove in excess of the speed limit by travelling at 75 kilometres per hour prior to being stopped by Constable Thow.

[42]   I accordingly find that the Justices did not err in their reasons for finding the offence proved, and find there has been no miscarriage of justice. I need not determine the issue of the otherwise applicable speed limit suggested in the District Court to be 70 kilometres per hour.

[43]   For these reasons I reject the appellant’s submissions as to the correct interpretation of the Rule.

Result

[44]The appeal against conviction is accordingly dismissed.

Paul Davison J