Lance v The Police HC Christchurch Ap37/01

[2001] NZHC 384

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH
REGISTRY AP37/01

BETWEEN PAUL MICHAEL LANCE
Appellant

AND THE POLICE
Respondent

Date of Judgment: 17 May 2001

Counsel: A.J. McKenzie for Appellant
A. Toohey for Respondent

ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN

[1] The appellant, Mr Lance, appeals against his conviction by the Justices for exceeding the 50km speed limit. He was clocked by a speed camera doing 71km per hour.

[2] The appeal is advanced on a number of different grounds. Firstly, that the sign in question was not a legal sign and had no force or effect. Secondly, that the Justices failed to consider the appellant’s alternative defence, that the sign was not duly erected and did not conform with the description contained in the Traffic Regulations, which, in essence, overlapped with the first matter. Thirdly, as a result of the matters above there was not a fair hearing, as entitled by law.

[3] Mr McKenzie has referred me to Appendix “A” of the Regulations, and highlighted the differences between the sign in question, and what are the legal dimensions. He submits that, looked at cumulatively, the sign does not substantially comply with the Regulations, as required by Regulation 129(7).

[4] It is apparent that at the hearing the appellant, when he appeared in person, effectively advanced two defences. The first was that the sign was not visible, that a lamp-post and other things impeded his view. The second was the sign was not of the legal dimensions.

[5] The justices rejected the first defence advanced, as they were entitled to on the evidence before them. Unfortunately, they did not address the second defence at all, although the notes of evidence make it apparent that Mr Lance did raise this in front of the Justices.

[6] The sign in question is not the standard rondel attached to a lamppost or a pole. It is a tombstone shaped sign, which is covered by Appendix “A”. Appendix “A” requires that to be a rectangle 1900mm wide and 2700mm high. In fact, it is not a rectangle, it has a curved top. It is 3200mm high so it exceeds the requisite height, but is only 1560mm wide so it does not comply there. It is supposed to be on a green background, and although white lettering on a green background appears below the sign stating “Hornby” “Reduce Speed”, there is not a green background. As well the rondel does not comply. It is supposed to be 1300mm in diameter, it was, in fact 900mm. The figures “50” are supposed to be 400mm high by 62mm wide. They are, in fact, 300mm x 50mm.

[7] Mr McKenzie has also referred to the Regulation stating that such signs are minimum sizes, so the responsible authority can have bigger signs.

[8] Ms Toohey, on behalf of the Crown, has submitted that one must look at the purpose of the signs which are to advise drivers they are leaving one speed zone and entering another, whereby they have to reduce speed. She says the important part of the sign, that is the circle containing the figure “50” is clearly visible, clearly coveys the message to the average driver, and is only slightly smaller than the requisite sign.

[9] I do not think this case requires a determination whether such a sign complies substantively, or not. It can be decided, simply, on another basis. I am not avoiding the issue, but I think it is better that it comes up in a case more worthwhile than this for a considered view.

[10] The simple fact is that this defence was advanced by Mr Lance. The Justices, for reasons that are not apparent, simply ignored it. In those circumstances, the defence of Mr Lance was not properly considered, and he could not be said to have obtained a fair hearing.

[11] On that basis, the appeal must be allowed and the conviction quashed. Giving this is a speeding matter, which is now over 10 months old, it would be inappropriate to remit it for rehearing.

[12] There will be no order for costs.