Hibbs v Police
[2013] NZHC 1279
•22 May 2013
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2013-409-00005 [2013] NZHC 1279
ARTHUR WALLACE HIBBS Appellant
v
POLICE Respondent
Hearing: 22 May 2013
Counsel: Appellant in Person with McKenzie Friend, Mr D McLaughlin
D J Orchard for Respondent
Judgment: 22 May 2013
JUDGMENT OF WHATA J
[1] Mr Hibbs was convicted of failing to give way at an intersection with a Stop sign. He was ordered to pay a fine of $300. He now appeals against that conviction and fine on the basis:
The policeman namely Constable Dene Miller misinformed the Court in his statement of facts, his brief of evidence, and also on the stand. This can be clearly established after the event.
Background facts
[2] An infringement notice was served on Mr Hibbs alleging that on 22 June
2012 at Selwyn, he committed an offence against s 40 Land Transport Act 1988 and r 4 (Land Transport Offences and Penalties) Regulations 1999 and r 4.1(1)(b) Land Transport (Road User) Rule 2004 in that he drove at an intersection controlled by a
Stop sign, and failed to give way to another vehicle.
HIBBS v POLICE [2013] NZHC 1279 [22 May 2013]
[3] A photograph of the intersection is reproduced as an attachment to this judgment for ease of reference.
[4] The District Court1 observed:
In summary, the defendant and the prosecution witness both confirm the defendant stopped at a stop sign, waiting about a minute, and then moved left onto the shoulder of the highway, which the defendant terms a merging lane, travelling north and merging into a busy line of traffic some way north of the stop sign. The defendant’s own evidence, as in the photos, confirms that there is no marked merging lane. This was again confirmed by Senior Constable Miller in his evidence.
[5] The Court therefore found the charges were proven.
Mr Hibbs’ argument
[6] Mr Hibbs did not elaborate on his claims or grounds of appeal until hearing. At hearing his representative, Mr McLaughlin, claimed in summary, the traffic officer:
(a) Incorrectly stated his distance from the intersection when he was viewing Mr Hibbs;
(b) Did not have an uninterrupted view of Mr Hibbs’ vehicle;
(c) Was not in a position to judge whether there was a gap and erroneously said there was no gap; and
(d) Underestimated the distances from the intersection.
[7] Mr McLaughlin also submitted that Mr Hibbs pulled into a merging lane and that the Land Transport Act confirms to him that the purpose of the yellow markings on the shoulder was to prevent vehicles stopping in what they call a discretionary merging lane. He also submitted that such a merging lane was necessary to enable
the efficient use of the intersection and the roadway.
1 Police v Hibbs DC Christchurch CRI 2012-009-010101, 7 December 2012 at [5], per Justices of the Peace R McGregor and P Acton-Adams.
[8] Ms Orchard for the respondent replied that:
(a) Evidence was given by Constable Dene James Miller that a Toyota vehicle (driven by Mr Hibbs) approached the Main South intersection along Kirk Road. His evidence was that Mr Hibbs indicated his intention to turn left onto the North bound lane of Main South Road. He said that Mr Hibbs stopped at the intersection for about a minute and then moved off the stop sign, turned left into Main South Road and drove along the shoulder of the road, straddling the broken yellow lines which marked the edge of the road and driving parallel to traffic heading in the same direction. His evidence was that this caused traffic travelling in the same direction to move right towards the centre roadway to avoid collision;
(b) Mr Hibbs challenged the officer’s account and whether he had a clear
view; and
(c) The thrust of Mr Hibbs’ defence was that he had not failed to give way and that he treated the shoulder of Main South Road as a merging lane.
(d)The Justices of the Peace found on the facts that there was no lane which could properly be regarded as a merging lane, and in that regard she refers to r 1.6 of the Land Transport Road User Rule 2004 where a lane is defined, namely:
(a) Means a longitudinal strip of roadway intended for the passage of vehicles or a specific class of vehicle that is separated from other parts of the roadway by a longitudinal line or lines of paint or raised stud; and
(b) Includes –
(i) a cycle lane; and
(ii) a lane for the use of vehicular traffic that is at least
2.5 metres wide; and
(iii) a lane of a two-way road divided by a centre line.
(e) She also refers to r 2.3(2):
A driver, when driving on a road marked in lanes, -
(a) Must drive as far as practicable entirely within a lane except when complying with sub-clause 2.1(2) or when changing lanes.
[9] She therefore submits on behalf of the respondent that this collection of rules makes it clear that the only lane which was available to Mr Hibbs to turn into and onto Main South Road was the lane in which the line of North bound traffic was travelling. She therefore says that the decision of the District Court was the correct one.
My assessment
[10] This is not the first occasion on which this particular intersection has come before the Court. In Larason v Police2 the Court had to address whether or not Mr Larason failed to stop at the same intersection, and apparently he used the same shoulder to merge with traffic. The High Court affirmed the finding of the District Court in that case in the following way:
[34] As the second photo shows [dealing with the same intersection at the same location], the hard shoulder or fog lane forms part of the State Highway, not Kirk Road. The geography is such that it was impossible for Mr Larason to have driven round the corner without crossing the double yellow limit line marking the end of Kirk Road. He entered the State Highway.
[35] In those circumstances, in my view, it defies common sense to contend that Mr Larason did not enter the path of any possible vehicle flow. Significantly, the wording is “any possible vehicle flow” (emphasis added). This conclusion is reinforced by the dotted yellow line indicating no stopping in the hard shoulder or fog lane.
[11] Mr McLaughlin indicated that French J’s observations in this regard were mistaken in light of the discussions with the Land Transport authorities. I accept that there is some commonsense to his suggestion that this part of the road used by Mr Hibbs can be used to merge if that can be achieved safely. But whether it is in fact a merging lane proper is something that needs direct and I think expert evidence.
Until such time as there is such evidence I think it is important that this Court
2 Larason v Police HC Christchurch CRI 2010-409-000244, 21 October 2011.
delivers a consistent approach to the facts as presented which are similar, if not exactly the same, as the facts presented to French J in the Larason case.
[12] That being the case, I propose to follow the decision of French J in Larason and accordingly Mr Hibbs’ claim that he was lawfully entitled to “merge” into the traffic via the shoulder is wrong. I gave some consideration as to whether I should seek evidence from the New Zealand Transport Agency, but an appeal to this Court is not the proper place to first ventilate this issue. Any such evidence would need to be properly considered in the context of the full evidence given at a first instance hearing which would also be tested under cross-examination in the usual way.
[13] With respect to Mr Hibbs’ concerns about the officer’s evidence, that is not a matter that can be sensibly revisited by me in the context of this appeal. The long and short of it is that Mr Hibbs used the shoulder for the purposes of joining the traffic flow. He accepts he did so when there was traffic immediately opposite the intersection so that the roadway was not clear at that point. Accordingly, when he crossed the stop lines, he breached the various traffic rules, including r 4.1(1)(b).
[14] The appeal is accordingly dismissed.
Addendum
[15] I do note that some thought should be given by the police to liaise with the New Zealand Transport Agency as to its understanding as to the proper usage of this part of the roadway.
Solicitors:
Raymond Donnelly & Co, Christchurch
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