K v Police HC Whangarei CRI 2008-488-51

[2008] NZHC 1808

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2008-488-51

BETWEEN  K

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         19 November 2008

Counsel:         Mr K  , in person, Appellant

K R Thomas for Respondent

Judgment:      20 November 2008

JUDGMENT OF HEATH J

This judgment was delivered by me on 20 November 2008 at 11.30am pursuant to

Rule 540(4) of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, PO Box 146, Whangarei
Copy to:

Appellant in person

K V NEW ZEALAND POLICE HC WHA CRI 2008-488-51 20 November 2008

[1]      Mr K   appeals against a finding that he committed a traffic offence and the penalty imposed in consequence of that finding.

[2]      Mr K   was issued with an infringement notice arising out of an incident that occurred on 17 April 2008 at Whangarei.  He requested a hearing in the District Court.  The notice of hearing described the alleged offence as “being the driver of a vehicle on a road having made a right turn encroached on any lanes not available to” Mr K  .  The notice of hearing stated that the prosecution relied on r 2.5(2)(a) of the Land Transport (Road User) Rules 2004.

[3]      Rule 2.5(2) provides:

2.5   Changing direction

(2)A driver intending to turn to enter another roadway or a vehicle entrance to the right must-

(a)  move as far as practicable to the right without encroaching on any lanes that are unavailable to the driver (or, in the case of a roadway not marked in lanes, without encroaching over the middle of the roadway) before reaching the point at which the driver intends to turn; and

(b) turn as directly as possible to a similar position on any roadway the driver enters.

[4]      The two parts of r 2.5(2) contemplate different situations.   Rule 2.5(2)(a) focuses on any encroachment onto a wrong side of the road that occurs before the point at which the driver intends to turn.   Rule 2.5(2)(b) is concerned with encroachment onto the roadway into which the vehicle turns.  For obvious reasons, there is no rule prohibiting encroachment into the opposite lane while the turning manoeuvre is effected.

[5]      The uncontested evidence is that Mr K   undertook a turning manoeuvre from Old Onerahi Road, right into Sunnyside Road on the day in question.   Old Onerahi Road is the roadway to which r 2.5(2)(a) refers; r 2.5(2)(b) is referable to Sunnyside Road.

[6]      Mr K   attended the District Court at Whangarei on the appointed day. The Police prosecutor sought leave to amend the charge to rely on r 2.5(2)(b).  That was consistent with the words of the charge as stated in the notice of hearing, but was inconsistent with the rule on which reliance was placed in that document.

[7]      The  transcript  of  proceedings  in  the  District  Court  at  Whangarei  on  24

September 2008, makes it clear that Mr K   was taken by surprise at the amendment.   It is evident that he became frustrated, flustered and confused.   That state continued during the hearing.

[8]      A lawyer reading the notice of hearing would have focussed on the words of the charge before considering the provision under which the charge is brought.  In the event that the rule did not match the charge, either further information would be sought or an  assumption would be  made  that  the  charge  was  under  a  different provision.

[9]      However, a lay person cannot be expected to undertake the same analytical approach.  To the lay person, the rule on which reliance is placed might easily be seen as more important than the words of the charge.

[10]     Mr K   honestly believed that he was being charged with encroachment over the centreline on the road from which he was turning.  The amendment required him to face a charge that he encroached into the wrong lane after entering the road into which he was turning.

[11]     From that point, the hearing miscarried.   It is plain that Mr K   was focussing on what he believed was an inappropriate amendment rather than on the continuing course of conduct involved in the turn.

[12]     The first issue raised by Mr K  ’s appeal is whether the hearing was unfair because of the change in nature of the charge.  If a lawyer had been acting, I would have no hesitation in saying that the amendment was appropriate and that it was  competent  to  proceed  with  the  hearing.     However,  given  the  anxiety demonstrated on Mr K  ’s behalf and the way in which he had read the notice

containing the charge, I do not consider he had an adequate opportunity to put his case.

[13]     I do not criticise the Police prosecutor or the presiding Justices of the Peace for what occurred.  The transcript makes it clear that they all took time and care in an endeavour to ensure Mr K   was treated fairly; to the point that he was referred to a Duty Solicitor to seek some advice before deciding whether to give evidence.

[14]     Nevertheless, in the circumstances disclosed by the transcript, objectively I consider the hearing was unfair to Mr K  .   Admittedly with the benefit of hindsight, Mr K   should have been given an opportunity for an adjournment to collect his thoughts, to reflect on the wording of the rule on which the amended charge was based and to decide whether he still wished to defend the infringement notice.

[15]     Having  reached  that  conclusion,  it  is  unnecessary for  me  to  address  the substantive question whether a traffic offence was committed.  I express no view on that issue.

[16]     The appeal is allowed.   The finding that the infringement notice had been proved  is  set  aside,  as  are  the  infringement  fee  and  Court  costs  ordered  in

consequence.  No re-hearing is required.

P R Heath J

Delivered at 11.30am on 20 November 2008