I v Police HC Wellington CRI-2006-485-84

[2006] NZHC 1175

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-485-84

BETWEEN  I

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 October 2006

Appearances: C Ross for Appellant

D La Hood for Respondent

Judgment:      5 October 2006

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 10.30am on the 5th day of October 2006.

RESERVED JUDGMENT OF GENDALL J

[1]      The appellant was ordered to pay an infringement fee of $150 and Court

Costs $30, after a defended hearing in the District Court at Wellington on 20 June

2006.  He had been charged with an infringement offence namely, acting in breach of r4.2(2) of the Land Transport (Road User) Rule 2004 in that being a driver of a vehicle making a turn, or about to turn at an intersection, failed to give way to a vehicle not making the turn.

Facts

[2]      The essential facts are unremarkable and not subject of any real dispute.  The appellant was travelling in an  easterly direction along Rongotai Road, Kilbirnie

intending to turn from that road to the south into a street named Mahora Street.

I V NEW ZEALAND POLICE HC WN CRI-2006-485-84  5 October 2006

Traffic travelling in a westerly direction along Rongotai Road was heavy and substantially backed up past Mahora Street by reason of the traffic signals stationed some distance to the west.   In the relevant vicinity Rongotai Road comprises two marked lanes available for traffic travelling east, with a similar width of roadway for traffic travelling west although it is not divided by any road markings.   Rongotai Road is divided in that area by a median strip with turning bays or access gaps at various points to enable access into streets which join Rongotai Road from the south. Such a turning exit is stationed approximately opposite Mahora Street.

[3]      The appellant commenced his turn from the east bound lane, intending to cross the west bound lane into Mahora Street.  When he entered the access way he stopped because of traffic built up to his left, and travelling from his left to right in a westerly direction.    He  yielded  the  right-of-way to  it.    But,  after  a  short  time, however, he proceeded into the west bound lane of Rongotai Road where he collided with a vehicle which had been travelling on the right hand side of Rongotai Road heading west.   It was legitimately passing stationary traffic on  its  inside.    The vehicle,  the  subject  of  this  collision,  was  intending  to  follow  the  west  bound Rongotai Road carriageway as it turned to the north just prior to the intersection controlled by the traffic signals.

[4]      The appellant gave evidence saying that he had stopped and was looking to his left on Rongotai Road when a driver on that road indicated that he could proceed. He contended that he was not making a turn as alleged in the infringement notice, because he had stopped and was intending to proceed forward into the intersection so as to be able to proceed to enter Mahora Street.

[5]      The Justices set out the essential facts in their decision.  They noted that the driver of the other vehicle was acting lawfully in overtaking stationary vehicles and that  the  appellant  did  not  notice  that  car  until  the  collision.    They  referred  to counsel’s submission that the other driver’s action was something that could not have been expected.  The Justices referred to the definition of “turn” being a “change of direction” and that as the appellant had not entered Mahora Street when the collision took place, in their opinion he had not completed his turn and that the case had been proven.

Submissions of counsel

[6]      In this Court in careful and able submissions Ms Ross contended that the actions of the other driver in overtaking the stationary traffic was unexpected and not something the appellant could have reasonably foreseen.   She referred to the unreported case of Lucas v Police HC AK AP52/93 22 April 1993 Thomas J, which she said  had  strikingly similar  facts.    I have  considered  that  decision  but  it  is dependent  on  peculiar  facts,  namely that  the  appellant’s  view  in  that  case  was obscured, and the other vehicle suddenly pulled out in a manner which could not have been anticipated.   In the present case the evidence was that the driver of the other vehicle had proceeded past a queue of traffic in front of him, affording ample opportunity for the appellant to observe that vehicle had he been keeping a proper look out.   The appellant’s diagram which he presented in evidence to the Justices confirms that proposition and I do not think that the case of Lucas v Police (supra) is of assistance to him.

[7]      Ms Ross further submitted that the appellant was not turning or about to turn as required by r4.2(2).  She says that the car had already changed direction and was stationary in the turning area provided for cars proceeding either straight ahead into Mahora Street or making a right turn (in essence a “U-turn”) into the west bound lane of Rongotai Road.  In its relevant part the Rule provides:

“A driver turning or about to turn must give way to any vehicle not making a turn,….”

[8]      Counsel argued that the turn was completed when the appellant’s vehicle changed direction and left the roadway marked with the lane lines, and that the appellant had entered another roadway, that is, the access way.  He was a driver at an intersection wishing to go straight ahead so that his turn was complete.   That submission would be correct if the turning exit or “bay” was another roadway and also, if the appellant was not turning or about to turn right, r4.2(3) would apply and all vehicles crossing or approaching the intersection of the turning area travelling west along Rongotai Road would be obliged to yield the right-of-way.   Yet they would not have to do so if the vehicle was making a right (or “U-turn”) into the west bound lane of Rongotai Road.

[9]      But the factual position in this case as presented before the Justices was that Rongotai Road comprised both east and west bound sections, and it included the turning access area.  Whilst it was submitted in this Court that the presence of the median strip would result in the roadway (that is east and west bound sections of Rongotai Road) being coming two roadways if the strip was more than 10 metres wide, (see definition of “Intersection” in Traffic Regulations 1976), there was no evidence as to the width of that median strip before the Justices nor before this Court.  It was submitted by counsel that it was more than 10 metres wide but it is far from  clear  on  the  photographic  evidence before  the  Court  that  such  a  claim  is correct.

[10]     There has been no application to this Court to introduce fresh evidence, nor any evidence as to the width of such median.  That being the case the short point is that  the  appellant  was  making  a  right  hand  turn  across  the  full  width  of Rongotai Road, that road travelling east and west bound, by means of using the access strip through the median, and the factual conclusion that the Justices reached, namely that the turn had not been completed, was a matter of fact open to them on the evidence.  That the appellant regarded himself as having to yield the right-of-way to vehicles approaching from his left and crossing his intended path, supported the conclusion or inference that he knew or was aware of his obligation to yield the right-of-way when undertaking the manoeuvre that he did.

[11]     This Court cannot speculate or guess upon the width of the median strip.  It is not able to accept the submission or proposition advanced in argument that, there is an intersection at the point where the east bound Rongotai Road meets the turning strip  and  a  further  intersection  where  that  turning  strip  meets  the  west  bound Rongotai Road, and yet another intersection where Mahora Street meets the west bound carriageway of Rongotai Road.

[12]     For that reason the appeal must be dismissed.  However, I suggest that the police carefully check measurements at that particular point.  If it be that the access way is a roadway, there would need to be erected a “Give Way” sign to govern flow of traffic.  If that situation should arise then the police properly should apply for a

rehearing of the infringement notice against the appellant and consent to its dismissal given the particular road user rule invoked in this case.

……………………………..

J W Gendall J

Solicitors:

John Miller Law, Wellington for Appellant

Crown Solicitor, Wellington for Respondent