Larason v Police
[2021] NZCA 440
•6 September 2021 at 9 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA232/2021 [2021] NZCA 440 |
| BETWEEN | JEROME LARASON |
| AND | NEW ZEALAND POLICE |
| Court: | French, Mander and Palmer JJ |
Counsel: | C M Ruane for Applicant |
Judgment: | 6 September 2021 at 9 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
____________________________________________________________________
REASONS OF THE COURT
(Given by French J)
Introduction
Mr Larason seeks leave to appeal a decision of Doogue J in the High Court.[1] The decision concerned an infringement offence for speeding which the Judge found had been proven against him.
[1]Larason v Police [2021] NZHC 653 [High Court judgment].
Leave is required because an appeal in this Court would be a second appeal, the High Court decision being itself an appeal from a District Court decision.[2]
[2]Police v Larason [2020] NZDC 16005 [District Court judgment].
In a minute dated 30 June 2021, Collins J directed that the application for leave be determined separately from the proposed appeal and be heard on the papers.[3]
Background
[3]Larason v Police CA232/2021, 30 June 2021 (Minute of Collins J).
On 2 October 2019, Mr Larason drove a motor vehicle at a speed of 100 km/h on a stretch of Jones Road on the outskirts of Christchurch where the speed limit was 80 km/h.[4] He was observed by a police officer who issued him with an infringement notice. The District Court found the charge proven and ordered payment of the infringement fee of $200 together with court costs.[5]
[4]Near the township of Rolleston. In the District Court, Mr Larason disputed the accuracy of the device used by the officer to measure his speed but no longer pursues that argument.
[5]District Court judgment, above n 2, at [42].
At the time of the incident Mr Larason was undertaking a seven-kilometre journey on a route that did not contain any speed limit signs. The roads he was travelling on were not densely populated areas but “hedge lines, paddocks and farms with a spattering of homes”.[6]
[6]High Court judgment, above n 1, at [22]. This was Mr Larason’s description which the High Court accepted as accurate.
He contends that the absence of signage was a breach of the road controlling authority’s obligations under r 4.2 of the Land Transport Rule 54002: Traffic Control Devices 2004. He contends further that although the offence of speeding is one of strict liability, he had a good defence of total absence of fault.
The vehicle which Mr Larason was driving had earlier been left on the roadside by a family member because of a punctured tyre. His wife had driven him to the abandoned car so he could replace the punctured tyre and drive the car home. The speeding occurred on the journey home. The journey to the abandoned car had taken him past an 80 km/h sign. Because he was only a passenger at that point, he said he did not see it.
The relevant parts of r 4.2 read:
4.2 Provision of traffic signs
Regulatory signs
4.2(1)A road controlling authority must provide a regulatory sign to instruct road users of the speed at which they may travel where a speed limit changes, and at intervals within the speed limit area, as specified in section 9 of Land Transport Rule: Setting of Speed Limits 2017.
…
4.2(3)Unless specified elsewhere in this Rule, regulatory signs must be installed to instruct road users of a requirement, restriction or prohibition on traffic:
(a)at each point where the requirement, restriction or prohibition applies; or
(b)where the requirement, restriction or prohibition applies to a length of road:
(i)at the start; and
(ii)after each intersection along its length; and
(iii)at the end; and
(iv)at intervals along its length, as specified in this rule or other enactment; or
…
In Mr Larason’s submission, the effect of r 4.2(3)(b) is that the regulatory sign indicating an 80 km/h speed limit was required to be installed at the start of Jones Road, at intervals along its length as well as after each intersection along its length, and at the end of it.
In the District Court, Judge Hix considered this interpretation would produce a nonsensical result. He held that the use of the word “or” at the end of r 4.2(3)(a) indicated that r 4.2(3)(b) is designed for the specific situation where there are significant lengths of road with changing speed limits along the road. [7]
[7]District Court judgment, above n 2, at [22]–[23].
In the High Court, the Judge did not address r 4.2(3)(a) and (b) other than to record Judge Hix’s interpretation.[8] Her focus was rather on the reference in r 4.2(1) to the requirement to place speed signs “at intervals within the speed limit area, as specified in section 9 of Land Transport Rule: Setting of Speed Limits 2017”.
[8]High Court judgment, above n 1, at [14]–[15]. In his submissions, Mr Larason contends Doogue J approved Judge Hix’s interpretation but that is not made express.
Rule 9 of the Land Transport Rule 54001: Setting of Speed Limits 2017 relevantly provided:
Section 9 Signs and road markings
9.1 Requirement to provide signs at, or near, point where speed limit changes
9.1(1) A road controlling authority must install a speed limit sign on the left‑hand side of a road under its jurisdiction at or near, and not more than 20 m from, the point on the road where a speed limit changes.
9.1(2) If the estimated two-way annual-average daily traffic at the point where a speed limit changes exceeds 500 vehicles, the road controlling authority must also install a speed limit sign on the right‑hand side of the road, or on the central median where appropriate, at or near, and no more than 20 m from, that point.
9.1(3) If a road user might not easily see, or readily understand or react to, a sign that is installed within 20 m of the point on the road where a speed limit changes, a road controlling authority may, despite 9.1(1) and 9.1(2), install speed limit signs more than 20 m, but as close to it as reasonably practicable, from that point.
9.1(4) A speed limit sign may be installed otherwise than as required by 9.1(1) if—
(a) authorised under this Rule or any other enactment; or
(b) a road user might not easily see, or readily understand or react to, a sign that is installed on the left-hand side of the road; or
(c) the sign would be more effective if installed above a lane.
9.2Requirement to provide repeater signs unless nature of road makes speed limit clear to road users
9.2(1) A road controlling authority must install speed limit signs where they will be easily seen by road users and to which they may readily react, with at least one sign being installed within each maximum length of road applying to the speed limits in—
(a)Table 1 of Schedule 2 for permanent and seasonal speed limits; or
(b)Table 2 of Schedule 2 for temporary and emergency speed limits.
9.2(2) A road controlling authority is not obliged to comply with 9.2(1) in regards to any particular length of road if—
(a) the nature of the particular length of road is such that a road user would reasonably understand that the speed limit displayed on the last speed limit sign remains the speed limit throughout the whole of that length of road; and
(b) the measured mean operating speed is less than 10% above the speed limit for that length of road.
…
Doogue J accepted that although r 9.2 requires repeater signs every 2.7 kilometres, that was subject to the exception contained in r 9.2(2) which she was satisfied applied in this case. That was because on the evidence the roads travelled by Mr Larason were of the same nature as the 80 km/h roads leading into them, thereby satisfying r 9.2(2)(a). As for r 9.2(2)(b), that was also satisfied. The data from the speed indication device on two of the relevant roads showed average operating speeds of close to or less than the 80 km/h speed limit.[9]
[9]At [32]–[33].
The Judge concluded that there was therefore no legal requirement for repeater signs to be placed every 2.7 kilometres from the original 80 km/h sign that Mr Larason would have passed while his wife was driving.[10]
[10]At [34].
The Judge went on to say that even if the local roading authority had not complied with the rules, it would not have relieved Mr Larason of the obligation to make himself aware of the lawful speed limit:
[36] For the defence of absence of fault to succeed, a defendant must prove that he or she took “all reasonable care” to avoid the offence.[11] There is also no reasonable care defence available here as Mr Larason admits he was not paying attention to his surroundings when his wife was driving him to an area where he knew he would soon be driving. Knowing he would be driving imminently he should have been more cognisant of the speed limit signage.
[37] Further, he advised he was familiar with the general area in which he was apprehended. He therefore ought to have been familiar with the fact that there is a mixture of open road limit (100 km/h) and restricted speed limit (80 km/h) in the West Melton and Rolleston area. He could, in those circumstances, have travelled at 80 km/h until such time as he observed a sign indicating the applicable speed limit.
[38] I also accept the potential absurdity highlighted by Ms Lancaster that, if the Court was to accept Mr Larason’s argument, then every time a motorist got into their vehicle and began driving they would not be subject to the applicable speed limit until they passed a sign indicating the speed limit. A further absurdity is the suggestion that an individual driver can make their own assessment of the applicable speed limit by reference to their individual characterisation of the “nature of the road”.
The application for leave to appeal
[11]Stird Potential Ltd v Roycroft [2019] NZHC 429 at [15]-[16].
In order to obtain leave to appeal, Mr Larason must satisfy us that his proposed appeal involves a matter of general or public importance or that a miscarriage of justice has occurred or may occur unless the appeal is heard.[12]
[12]Criminal Procedure Act 2011, s 237(2).
Mr Ruane, counsel for Mr Larason, says the scope of the obligations of road controlling authorities, the correct interpretation of r 4.2(3) and the requirement of signage to identify the correct speed limit in force at any given point on the road must be matters of general or public importance. They impact on almost all road users. He disputes the Crown submission that the interpretation he advocates is untenable and submits that the District Court’s reliance on the word “or” was misplaced because on the facts of this case only r 4.2(3)(b) could apply. If the Judge wrongly interpreted the provision that would by definition constitute a miscarriage of justice as well as generating a question of law worthy of submission for determination by this Court.
Mr Ruane further contends that the Judges in the Courts below were also wrong to find a defence of total absence of fault was not available to Mr Larason. In the absence of signage and any other indication to the contrary, it was, he says, reasonable for Mr Larason to assume the applicable speed limit was the open road limit. The only other way he could have ascertained the speed limit would have been to search the internet which is not practical. Accordingly, in Mr Ruane’s submission, regardless of which interpretation of r 4.2(3) is correct, there has been a miscarriage of justice.
Our view
The threshold for granting leave is a high one,[13] and in our view the proposed appeal fails to meet it.
[13]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.
We accept that the interpretation of Land Transport rules is capable of qualifying as a question of law of general importance. However, there must be a tenable argument and that in our view is lacking. Significantly, Mr Ruane’s submissions do not engage with r 9 or in any way challenge Doogue J’s application of that provision. Yet, it is the rule that specifically governs the provision of regulatory signs about speed limits and therefore must be the primary rule. In contrast, r 4.2(3) on which Mr Ruane places so much emphasis is a rule about regulatory signs generally. We would make the further point that even if r 4.2(3) were determinative (which we find it is not), it is a well-established principle of interpretation that Parliament should not be taken to have intended an absurd result.[14] Yet, as noted in the District Court, that would be the result of the interpretation advanced before us.
[14]See Frucor Beverages Ltd v Rio Beverages Ltd [2001] 2 NZLR 604 (CA) at [28].
We also reject the submission that Mr Larason had a good defence of absence of fault. The submission to the contrary omits the fact there was an 80 km/h sign for him to see on his outward journey. In our view the Judge’s reasoning quoted above at [14] was unassailable.
We conclude there has been no miscarriage of justice and no risk of one. We are also satisfied there is no reasonably arguable issue of general or public importance.
The application for leave to bring a second appeal is therefore declined. Finally, we note that Mr Larason no longer seeks to challenge his sentence.
Solicitors:
Crown Law Office, Wellington for Respondent
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