H v Police HC Christchurch CRI 2008-409-139
[2008] NZHC 1580
•9 October 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2008-409-000139
H
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 9 October 2008
Counsel: Appellant appears In Person
K Basire for Respondent
Judgment: 9 October 2008
ORAL JUDGMENT OF PANCKHURST J
The charge
[1] The appellant was charged that on 27 February 2008 at Christchurch he did drive a vehicle on a road following behind another vehicle so as to be unable to stop short of that vehicle in the event of a sudden stop. This charge was pursuant to s40 of the Land Transport Act 1998, reg 4 of the Land Transport (Offences and Penalties) Regulations 1999 and r 5.9(3) of the Land transport (Road User) Rule
2004.
[2] One might wonder why reference was necessary to the Act, regulations and rule. Section 40 provides that the contravention of ordinary rules constitutes an
H V NEW ZEALAND POLICE HC CHCH CRI 2008-409-000139 9 October
2008
offence if such is prescribed by regulation. Regulation 4 does so prescribe with reference to r 5.9(3), which is named in Schedule 1 as the offence of “driving too close to the vehicle in front” which carries a penalty of $1,000 on summary conviction and $150 by way of infringement fee. This explains the complicated legislative references of the charge.
The factual background
[3] The complainant, Mrs Barrett, was proceeding in a generally northerly direction on Linwood Avenue. At the intersection of Linwood Avenue and the thoroughfare formed by Avonside Drive and Woodham Road, she stopped at a give way sign. There were two motorists across the thoroughfare in the extension to Avonside Drive who were apparently waiting to execute right-hand turns to proceed towards the city (see the aerial photograph annexed). Mrs Barrett intended to turn left to also proceed towards the city. She said in evidence that one of the vehicles from the other side effected a right-hand turn and she waited for it. She then moved away from the give way sign in the course of turning left, but stopped a metre or two into the turn. This she did because the second vehicle waiting across the road to turn right proceeded to do so.
[4] The appellant was in a 1959 Morris Minor immediately behind Mrs Barrett. He observed the two vehicles across the road in the extension to Avonside Drive waiting to turn right. One did so. The second, in Mr H ’s view, had no opportunity to turn right on account of the presence of east-bound traffic proceeding along the main thoroughfare of Avonside Drive and Woodham Road. He noticed Mrs Barrett commence her left-hand turn, glanced to the right to make sure that there was no traffic to which he needed to give way, and proceeded through the give way sign, also turning left.
[5] Having moved a very short distance he then impacted into the rear of the complainant’s car. This was a low speed impact. According to Mr H the effective cause of the accident was that Mrs Barrett had stopped not only suddenly, but unexpectedly, and for no apparent reason.
The decision of the Justices of the Peace
[6] These competing accounts give rise to the first problem in relation to the appeal. The Justices of the Peace in finding the charge proved, said this:
… Mrs Barrett on 27 February was stopped at a sign, she said it was a stop sign, it is apparent it was a give way sign, in Linwood Avenue at the intersection of Woodham and Avonside Drive. She stopped and then moved forward and then stopped again to give way to another car coming from her right from Avonside Drive. That car was doing a right turn. The car behind her “went up her exhaust pipe” and then she moved out of the road and called the police.
[7] Later in the judgment the Justices said with reference to Mr H ’s evidence:
… at the time “I felt the impact, I was still looking east down Woodham Road having just a second or so earlier observed Mrs Barrett drive off and given there was no reason why she should have stopped my immediate thought was she had turned into a kerb.”
Later they added:
… he [Mr H ] considered that because Mrs Barrett had moved off that she would automatically complete the manoeuvre that she had undertaken and that was no further a danger to him. He was more interested in any other danger that might come from the right.
[8] The Justices found that Mr H was at fault in these terms:
[He] had a duty of care as a prudent driver to observe the car in front and what it might do and be aware that it could stop suddenly and I will quote from case law decision of Bisson J in Pothan v Police [High Court Rotorua,
6 June 1980] in which it is said, “He is not entitled to rely on the expected. He must guard against the unexpected and that is the standard required of a
reasonable, prudent driver.”
In this case it was unexpected and that car was there to be seen that it had stopped and in this case unfortunately Mr H did not see the vehicle stop and hit the back of it. We find the charge proven.
[9] On the face of the decision there is, it would seem, a finding concerning the difference between the two key witnesses as to the relevant events. But that is not in reality the situation once one looks at the evidence as well as the decision. In the first place Mrs Barrett’s evidence was led in this way:
Q. Can you recall moving forward but having to stop to give way to a car. A. Yes sir.
That was the extent of the evidence which she gave describing the crucial sequence of events. Not only was her evidence elicited by a grossly leading question, but unfortunately she was not cross-examined by Mr H (who defended himself) and his version of events was not put to her.
[10] Then, when he came to give evidence, he relevantly said:
Mrs Barrett gave way to the first of these [motorists waiting to turn right], the one remaining car was unable to move as traffic heading east on Avonside Drive onto Woodham Road prevented this, then [I] moved off.
He then described how, unbeknown to him, Mrs Barrett stopped for no apparent reason and while his attention was to his right-hand side he impacted the rear of her car. Regrettably Mr H was not cross-examined as to his version of events either. Such cross-examination as there was, was limited to the fact that he was glancing to the right, looking for traffic coming from that direction.
[11] Although I have mentioned this problem with the evidence and the decision of the Justices, it is not in fact the basis of the appeal. Mr H , who also appeared for himself in this Court, advanced three grounds.
The grounds of appeal
[12] His first argument was that it was not established that he was travelling at either excessive speed or too close to the vehicle in front at the time of the mishap. A second and related argument was that he was not following Mrs Barrett’s vehicle. The third contention was that the Justices erred in that they failed to consider a defence of total absence of fault.
[13] I can deal with the second proposition immediately. In my view it is untenable. In moving off, to execute a left-hand turn immediately after Mrs Barrett, the appellant was following her vehicle. Therefore this ground of appeal must be rejected at the outset.
[14] The first ground of appeal, although simply expressed, raises an issue which is of some importance and which is also quite contentious. This is the proper interpretation of r 5.9(3). I will turn to this in a moment. To my mind this question of interpretation will be determinative of the case. As will become apparent the further question concerning whether the defence of total absence of fault was considered, is dependent upon the answer to the prior question.
What is the proper interpretation of r 5.9(3)?
The rule provides:
Stopping and following distances
(1) A driver must not drive a vehicle in a lane marked on a road at such a speed that the driver is unable to stop in the length of the lane that is visible to the driver.
(2) A driver must not drive a vehicle on a road that is not marked in lanes at such a speed that the driver is unable to stop in half the length of roadway that is visible to the driver.
(3) A driver must not drive on a road a vehicle following behind another vehicle so that the driver cannot stop the driver’s vehicle short of the vehicle ahead if the vehicle ahead stops suddenly.
(4) No driver may drive a motor vehicle on any road following behind another vehicle at a distance behind that vehicle of less than –
(a)16 m, if his or her speed is 40 km an hour or more but less than 50 km an hour; or
………………
(f) 36 m, if his or her speed is 90 km an hour or more.
Sub-rule 4(b) to (e) prescribe other following distances for various speeds.
[15] Ms Basire also helpfully drew my attention to Schedule 1 to the Land
Transport (Road User) Rule:
1 Objective of rule
(1) This rule establishes the rules under which traffic operates on roads.
Most of the existing legal requirements are contained in regulations in
Pars 2, 3, 4, and 6 of the Traffic Regulations 1976. The rule applies to all road users, whether they are drivers, riders, passengers, pedestrians,
or leading or droving animals.
(2) The rule covers the requirements road users must adhere to when using the road network that are broadly encompassed by the term “traffic law”. It does not cover driver and vehicle licensing, roadworthiness,
vehicle standards, licence carriage, driver hours or logbooks, or major offences such as drink driving. These matters are addressed in the Transport Act 1962, the Land Transport Act 1998, or in other Land Transport Rules.
(3) Traffic law promotes the safe and efficient operation of roads by providing a legal framework to support consistent and predictable responses by road users. Traffic law can be characterised as fulfilling the following functions:
(a) resolving conflicts (for example, giving way):
(b) prescribing behaviour (for example, keeping left):
(c)prohibiting detrimental behaviour (for example, driving on a footpath):
(d) defining the meaning of, and required response to, traffic control
devices (for example, stopping for red traffic signals).
(3) This rule largely consolidates requirements relating to road users in the Traffic Regulations 1976, removing ambiguities and clarifying provisions where necessary. Several areas were identified where the Land Transport Safety Authority (now Land Transport New Zealand) considered changed or new traffic provisions would contribute to improved road safety or efficiency outcomes. These are covered in clauses 2 to 5.
The further paragraphs in Schedule 1, being paragraphs 2-5, cover specific aspects of the rule. These concern driver obligations at roundabouts, pedestrian crossings and using vehicle lanes, and in using mobility devices, respectively. I need not set them out because they are not directly relevant to this case.
Four relevant authorities
[16] The predecessor to r 5.9 was reg 22 of the Traffic Regulations 1976. This regulation was likewise headed “Stopping and following distances”. The regulation was also in substantially the same terms as the present r 5.9. In the course of argument four cases were cited concerning the interpretation of reg 22. The first is a decision of Hardie Boys J in Parsons v Ministry of Transport (High Court Christchurch, AP16/89, 13 April 1989). The case concerned the interpretation of reg 22(1). In the course of the decision the Judge said:
The regulation does not impose an absolute obligation to stop: but rather an obligation to maintain a relationship between speed and distance that enables one to stop. The fact that one does not stop may often be strong evidence that the obligation has not been met, but it may also be the case that it results from other factors. The accident was caused, not by Mrs Parsons travelling too fast in the circumstances, but by her failing to keep a proper lookout. It was not that her speed was such that she could not stop in time: but that she could not stop because she was not looking where she was going.
In that case Hardie Boys J concluded that the charge had been wrongly laid pursuant to reg 22(1) since the case was not one which concerned driving too close to, or at an excessive speed behind, another vehicle, but rather the failure to keep a proper lookout.
[17] The second case is Negomireanu v Police (High Court, Auckland A159/01,
15 November 2001), a decision of O’Regan J. The case concerned a charge laid pursuant to reg 22(3) being the predecessor of the rule under which the present charge is laid. The Judge said this:
[13] The key legal issue which arises is the appropriate interpretation of regulation 22(3). Counsel for the Crown argued that it should not be interpreted as relating only to distance and speed, but rather as covering any aspect of the conduct of the driver, leading to a situation where he or she cannot stop the vehicle short of the vehicle ahead. The fact that the appellant was glancing around to check traffic from the other direction was a factor relating to his driving which led to him not being able to stop his vehicle short of the vehicle ahead, and therefore a breach of the regulation occurred.
[14] While the wording of regulation 22(3) taken in isolation can be interpreted as broadly as Crown counsel contended, that interpretation appears to me to ignore the context in which the provision appears. In particular, as already noted, the heading of regulation 22 is “Stopping and following distances”, and headings can now be used in aid of interpretation under s 5 of the Interpretation Act 1999. Sub-clauses (1) and (2) of regulation 22 refer to speed, while sub-clause (4) refers to distance. In the context in which it appears, therefore, regulation 22(3) should be interpreted as dealing with the combination of speed and distance, rather than any other driving elements.
[15] If that were not the case, it would mean a breach of regulation 22(3) would occur automatically if a vehicle failed to stop short of a vehicle in front, unless it could be established there is some completely independent action of a third party or similar intervening action. If the drafter of the regulation had intended to render such conduct unlawful, it would seem more likely the regulation would say that where a driver of a motor vehicle following behind another motor vehicle fails to stop his vehicle short of a vehicle ahead, then there is a breach of the regulation.
[16] I therefore reject the contention by Crown counsel and find the more limited interpretation suggested by counsel for the appellant is the correct interpretation of regulation 22(3). In the circumstances I am satisfied that the Justices were in error in effectively equating the failure to stop with a breach of the regulation. The evidence does not establish beyond reasonable doubt that the appellant’s vehicle was either travelling too fast or was too close to the vehicle in front to mean he could not stop his vehicle short of the vehicle in front, and therefore the appellant has established his appeal should be allowed.
[18] The facts of this case I note are very similar to the present. The appellant was the third car at an intersection waiting to turn right. The first car effected the right- hand turn and then stopped with the result that although the second care in the line was able to stop, Mr Negomireanu was unable to do so and there was an impact. As in the present case the real issues were not in relation to speed or distance when following the vehicle in front, but related to keeping an adequate lookout as to what was occurring immediately in front of the appellant’s own vehicle. In light of the conclusions which he had reached concerning the proper interpretation of reg 22(3), O’Regan J concluded that the proper charge was one of careless use and on this basis the appeal was allowed and the conviction quashed.
[19] The third case is Smith v Police (High Court Auckland, A64/03, 12 August
2003), a judgment of Baragwanath J. This case concerned a mishap on the open road. The appellant encountered a road works truck which was in a dip in the road and at a time when a number of other motorists had encountered the same obstruction with the result that a multiple pile-up occurred. Again, Baragwanath J was satisfied that the case was not one where the focus was upon the speed of driving or the distance between the appellant’s vehicle and that which was immediately in front of him. Rather, the case concerned whether Mr Smith was keeping an adequate look-out. The Judge adopted the reasoning of O’Regan J and therefore concluded that the proper charge was one of careless use. The appeal was allowed and the conviction quashed.
[20] That said, Baragwanath J immediately considered an application for leave to appeal pursuant to s144(2) of the Summary Proceedings Act 1957. He granted leave in relation to this question:
Whether the expression in Regulation 22(3) of the Traffic Regulations 1976
… he cannot his stop his vehicle short of the vehicle ahead in the event of a sudden stop by the latter.
imports only inability by reason of speed or failure to maintain an adequate distance from the vehicle ahead; or whether it embraces also failure to maintain a proper lookout and other factors.
Despite the grant of leave to appeal to the Court of Appeal such appeal did not apparently proceed.
[21] The fourth case is Kohunui v Police (HC Wellington, CRI-2004-485-139, 11
November 2004), a decision of Gendall J. In this instance the complainant reversed out of an angle park in a shopping area. The appellant was proceeding down the roadway, glanced towards the shops in question and in doing so failed to observe the reversing motorist with the result that an impact occurred. Gendall J, confronted with O’Regan J’s decision in Negomireanu, found in relation to it:
[11] Respectfully, I have come to a different view to that expressed in Negomireanu v New Zealand Police (supra). Of course the view expressed in Parsons v Ministry of Transport (supra) is inapplicable in my opinion to a charge under reg 22(3). Obviously subclauses (1) and (2) relate to the speed at which a vehicle is being driven. Subclause (4) relates to not just distance but both speed and distance. Subclause (3) applies “notwithstanding subclause (4)”. I do not see anything in subclause (3) which would require an interpretation that the prosecution must prove that the failure to stop was caused by a combination of excess speed and failing to maintain sufficient following distance. To introduce the words “at either a speed or a distance” after the words “following behind another vehicle” in subclause (3) is not justified in my view on a plain reading of the subparagraph. What must be proved is that an offender’s vehicle followed behind another vehicle and further that he could not stop his vehicle short of that ahead in the event of a sudden stop by the latter.
That said, the Judge added that it did not follow that liability was absolute. In his view a defence of total absence of fault remained available. If an appellant could point to intervening actions, for example a bee sting or a coughing fit beyond his control or expectation, then a defence of absence of fault may be available.
[22] I should also note that this aspect of the judgment is strictly obiter. Gendall J allowed the appeal on the basis that reg 22(3) was inapt to the circumstances of the case because there was no element of following involved. Rather it was a situation of a motorist proceeding along the highway and encountering a car which reversed from an angle park into his pathway. On this basis the conviction was overturned.
[23] Unsurprisingly the appellant embraced the decisions in the first three cases to which I have referred. Ms Basire, however, preferred the reasoning of Gendall J in Kohunui.
Which approach is to be preferred?
[24] A decision on this question is pivotal to the determination of this appeal. As my reference to the Justices’ decision demonstrates they decided the case on the basis of a failure to keep a lookout. It follows that the reasoning in the various decisions to which I have referred is of direct relevance to the circumstances of the present appeal.
[25] I acknowledge at the outset that I do not find this an easy question. I agree with the reasoning of Gendall J that if reg 22(3) (now r 5.9(3)) is read in isolation, and literally, the wording can extend beyond the elements of speed and distance, such that a failure to keep a proper lookout is encompassed. But is it appropriate to read this regulation/rule in that manner?
[26] Section 5 of the Interpretation Act 1999 provides:
5. Ascertaining meaning of legislation – (1) The meaning of an enactment must be ascertained from its text and in the light of its purpose.
(2) The matters that may be considered in ascertaining the meaning of an enactment include the indications provided in the enactment.
(3) Examples of those indications are preambles, the analysis, a table of contents, headings to Parts and sections, marginal notes, diagrams, graphics,
examples and explanatory material, and the organisation and format of the enactment.
This provision to my mind indicates the approach which is required.
[27] Rule 5.9 prescribes driving standards. Part (1) of the rule concerns driving in a marked lane in which event a driver must be able to stop within the available visible distance. Part (2) concerns driving in an unmarked lane where the obligation is to be able to stop within half the visible distance. Part (3) concerns the obligation when following another vehicle in which case a driver must be able to stop, even if the other vehicle stops suddenly. Finally part (4) prescribes minimum distances which must be observed when a driver is proceeding at various speeds. Analysed in this way it seems to me that the rule must be read as a coherent whole. It prescribes various objective criteria in relation to driver conduct by reference to situation, speed and distance.
[28] In terms of the objective of the rule as prescribed in the First Schedule, these are requirements which road users must adhere to. Put another way, the rule prescribes a legal framework of obligations which are to apply in variously defined driving situations. The subject-matter of r 5.9, it seems to me, is the ability to stop and, in particular, the speed and following distances which are necessary in order to achieve that end. These are prescribed by reference to different road types and by reference to following another vehicle. In terms of r 5.9(4) the requirement is to maintain a defined distance according to speed.
[29] Regardless of which situation governs, the focus, I think, is upon speed and following distance. Reading the rule as a coherent whole I therefore prefer the view taken to its interpretation by O’Regan J in Negomireanu. Ms Basire pointed out that adoption of this interpretation would have an unfortunate consequence (my phrase, not hers). It would mean that cases like the present, where the essential failure was in not keeping a proper lookout, would need to be charged as offences of careless use, rather than as infringement offences for breach of the present rule. Careless use is punishable pursuant to s37 of the Land Transport Act. The maximum penalty is a fine of $3,000 and potentially disqualification. I accept that this may well be an unfortunate consequence of the interpretation which I have favoured, but it is a consequence of the drafting of the road user rule.
What does this interpretation mean in the present case?
[30] In my view it follows, as in three of the cases to which I have referred, that the wrong charge was brought against the appellant. I do not consider that r 5.9(3) is apposite to the present case. The findings which resulted in the charge being found to be proved were based upon failure to keep a proper lookout. Those findings, incidentally, were supported by reference to the decision in Pothan v Police which, I note, was a case of careless use causing death. The case concerned the duty to keep a lookout even in a situation which was unexpected, as where a child had run out from behind a school bus.
[31] For completeness, I note that there is no basis in considering the matter in the context of a general appeal to revisit the issues of speed and distance. Not only does
the decision contain no findings in relation to those matters, but moreover the evidence indicates that the appellant was proceeding at no more than a few kilometres per hour - at what might be termed a very low speed. With reference to the distance he was behind Mrs Barrett, there is little or nothing in the evidence which touches upon this. The fact is that the case was conducted, and ultimately decided, on the basis that the essential failing was in Mr H ’s looking to the right as he proceeded to make his left-hand turn in the belief that there was no reason for the complainant to stop when, of course, she did so unexpectedly. It may well be that Mr H was careless. I accept he had an obligation to keep a lookout and to be in a position to stop if the car in front of him did so, whether to allow another car to execute a right-hand turn or, for example, had the complainant been driving a manual car and stalled when turning. But that does not alter the fact that the charge as laid was inapt in the particular circumstances.
[32] For these reasons I allow the appeal and quash the finding of the Justices and remit the penalty of $150 which they imposed.
[33] In these circumstances there is no need for me to consider the further ground of appeal concerning total absence of fault. I merely observe that there may well have been some difficulty in dealing with that aspect given the problem in relation to
the evidence to which I referred at the outset.
Solicitors:
Appellant - Mr J C H , 318 Marine Parade, New Brighton, Christchurch 8062
Raymond Donnelly & Co, Christchurch for Respondent
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