Gambhir v Police - [2022] NZHC 1582

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000095

[2022] NZHC 1582

BETWEEN
VIPUL GAMBHIR

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 28 June 2022

Appearances:

Justin Harder for the Appellant Alexander Gee for the Respondent

Judgment:

5 July 2022

JUDGMENT OF MOORE J

[Application for leave to bring a second appeal against conviction]

This judgment was delivered by me on 5 July 2022 at 3:00 pm.

Registrar / Deputy Registrar Date:

GAMBHIR v NEW ZEALAND POLICE [2022] NZHC 1582 [5 July 2022]

Introduction

[1] Vipul Gambhir disputed an infringement notice alleging that he had exceeded the applicable speed limit on a highway in Dome Valley. The dispute was heard before Justices of the Peace. The Justices found that the infringement was proved and fined Mr Gambhir $170.

[2] Mr Gambhir paid the fine but nevertheless appealed to the District Court. On 16 February 2022, Judge E M Thomas dismissed the appeal.1

[3]Mr Gambhir now seeks leave to bring a second appeal against conviction.

The infringement

[4] On Sunday, 13 December 2020, Mr Gambhir was driving on State Highway 1 in Dome Valley. Road workers had previously demarcated a stretch of the highway with signs displaying a temporary 50 kilometre per hour speed limit. The temporary speed limit was originally imposed as road works were being conducted.

[5] Constable Thow was on duty conducting speed enforcement in the area. His radar measured Mr Gambhir’s vehicle travelling at 75 kilometres per hour. He pulled Mr Gambhir over. He then issued Mr Gambhir a fine of $170 and 35 demerit points.

Hearing before Justices of the Peace

[6] Mr Gambhir disputed the infringement before the Justices. He accepted that Constable Thow recorded his car travelling at 75 kilometres per hour.

[7] Mr Gambhir’s case was that the applicable speed limit varied depending upon whether the road works were attended or unattended. He cited an NZTA press release for the area which stated that the applicable speed limit was 70 kilometres per hour when the site was unattended. The limit reduced to 50 kilometres per hour when the site was attended. He gave evidence that on the day that he was issued the fine the 50 kilometres per hour speed limit sign was present, despite it being a Sunday and the

1 Gambhar v Police [2022] NZDC 2522. The intituling of the judgment misspells Mr Gambhir’s surname so is cited with that error.

site being unattended. His argument was that the speed limit was actually 70 kilometres per hour.

[8] While the Justices expressed some sympathy with Mr Gambhir’s position, they noted that they were bound to apply the law. They found that, rightly or wrongly, the posted speed limit was 50 kilometres per hour and that was the speed limit Mr Gambhir was required to follow. The Justices concluded by commenting that:

“[7] As a side note, it is disappointing that roading contractors throughout New Zealand are very lax in the management…

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.

Keep reading for free

Create a free CaseChat account to read Gambhir v Police and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2022] NZHC 1582
Decision Date: 5 July 2022

CaseChat Overview and Summary

Vipul Gambhir has sought leave to appeal a second time against his conviction for exceeding the speed limit in Dome Valley. The infringement occurred on 13 December 2020, when Mr Gambhir was travelling at 75 kilometres per hour on State Highway 1 in Dome Valley, which was subject to a temporary 50 kilometres per hour speed limit due to ongoing roadworks. Mr Gambhir paid the fine but appealed to the District Court, which dismissed the appeal on 16 February 2022. Mr Gambhir now seeks leave to bring a second appeal against his conviction. The central issue is whether the court should grant leave to bring a second appeal against conviction, which requires a high threshold of showing a matter of general or public importance, or that a miscarriage of justice may have occurred. Mr Gambhir argues that the interpretation of the “applicable speed limit” under the Land Transport Rule: Setting of Speed Limits 2017 involves a matter of general or public importance and concerns the meaning of “attended” in the context of temporary speed limits. He further argues that the court failed to determine whether an essential element of the offence was proved, and as a result, the burden of proof was wrongly shifted onto him. The court acknowledged that the interpretation of the Rules is capable of qualifying as a question of law of general importance and that the arguments signalled by Mr Gambhir on this application concern a matter of public importance and have not yet been fully argued and determined. If Mr Gambhir is correct but leave is not granted, a miscarriage of justice will have occurred. It follows that a grant of leave is necessary to enable full argument.

The application for leave to bring a second appeal against conviction is granted.

Orders