Larason v Police
[2024] NZHC 2164
•2 August 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2023-409-200
[2024] NZHC 2164
BETWEEN JEROME WALTER JUNIOR LARASON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 1 August 2024 Appearances:
C J Lange for Appellant
W J S Mohammed for Respondent
Judgment:
2 August 2024
JUDGMENT OF CHURCHMAN J
Introduction
[1] In an oral judgment delivered by Judge Duggan on 22 August 2023,1 the appellant was found guilty of driving in excess of the applicable speed limit2 and received a fine of $700 as well as a requirement to pay court costs of $130.
[2]The appellant now appeals his conviction and sentence on the grounds that:
(a)there was an absence of fault on his part;
1 Police v Larason [2023] NZDC 19510.
2 Land Transport Act 1998, s 40; Land Transport (Offences & Penalties) Regulations 1999, regs 3– 4; and Land Transport (Road User) Rules 2004, r 5.1(1) — maximum penalty of $1,000 fine.
LARASON v NEW ZEALAND POLICE [2024] NZHC 2164 [2 August 2024]
(b)errors said to have been made by the Judge resulting in the appellant not having a fair hearing; and
(c)The fine was excessive.
The Offending
[3] At around 2.00 pm on 4 March 2021, a white car was detected by a police officer to be travelling at around 80 kilometres per hour on Hoskyns Road near Rolleston, Canterbury. The police officer then activated his red and blue lights and had the white car, which at that point had been identified as a Nissan Leaf, pull into a BP Service Station nearby on State Highway 1. The appellant was found to be the driver and only occupant of the vehicle.
[4] The police officer informed the appellant that his speed had been checked at 80 kilometres per hour, and wrote up an infringement notice.
District Court Decision
[5] In her oral judgment, Judge Duggan accepted the evidence of the Senior Constable that the appellant’s car had been accurately recorded by the police car radar as travelling at 80 kilometres per hour. She also noted the evidence of the appellant that he rarely used Hoskyns Road and that after the infringement notice was given he returned to Hoskyns Road and saw that the speed limit signs were turned about, and that the front of the speed signs were not visible to the appellant and so he did not know Hoskyns Road had a reduced speed limit.
[6] The Judge found she was satisfied that based on the Senior Constable’s evidence the appellant was travelling at 80 kilometres per hour on Hoskyns Road subject to a 50 kilometres per hour speed restriction. The Judge stated the appellant’s defence required him to prove not only that he did not know the speed limit, but that there was no way he could have known and that he took all reasonable care to avoid travelling in excess of the speed limit. The Judge found the number of speed limit signs on Hoskyns Road satisfied the requirements of the Land Transport Act, and that even if two of the signs were facing the wrong way, she was not satisfied the appellant
took all reasonable care to avoid driving in excess of the speed limit. The Judge determined she was satisfied the offence for which infringement notice had been issued was proven.
[7] In respect of sentencing, the Judge noted that the police prosecutor sought a driving disqualification and fine greater than $230 be imposed on the appellant, and the appellant’s submission that a fine was appropriate and that he should not be disqualified. The Judge determined a fine of $700 was appropriate and declined to impose a driving disqualification.
Approach to appeal
[8] In a first appeal against conviction, the Court must allow an appeal if it is satisfied that the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred or where a miscarriage of justice has occurred for any reason.3 The Court must dismiss the appeal in any other case.4 If the appeal is allowed, the conviction must be set aside.5 The Court may direct a judgment of acquittal be entered, direct a new trial be held, or substitute a conviction for a different offence or make any other order it considers justice requires.6
[9] A miscarriage of justice is any error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected or has resulted in a unfair trial or a trial that was a nullity.7 A real risk that the outcome was affected exists where there is a reasonable possibility that a not guilty or more favourable verdict must have been delivered it nothing had gone wrong.8 An unfair trial exists when errors are prejudicial or unacceptably give rise to the appearance of unfairness,9 although not every departure from good practice renders a trial unfair.10 For a miscarriage to be found, the errors or irregularities must depart
3 Criminal Procedure Act 2011, s 232(2)(b)–(c).
4 Section 232(3).
5 Section 233(2).
6 Section 233(3).
7 Section 232(4).
8 R v Sunsuwan [2006] 1 NZLR 730 (SC) at [110].
9 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78] citing with approval Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
10 Matenga v R [2009] NZSC 18 at [30].
from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate Court must condemn the trial as unfair and quash the decision.11
[10] An appeal against sentence is an appeal against discretion and must only be allowed if the Court is satisfied that, for any reason, there was an error in the sentence imposed and a different sentence should have been imposed.12 The Court must dismiss the appeal in any other case.13
Submissions
Appellant’s submissions
[11] Mr Lange for the appellant submits that the District Court erred in finding that the speed limit was a matter of law, and that this was in fact a matter of law and fact. He refers to Rolinson v Police14 in which it was stated that whether speed signs provide sufficient and proper warning to motorists is a question of fact.
[12] Mr Lange contends that the road signs were facing the wrong way on 4 March 2021, likely due to wind, and thus there was no sign to provide sufficient and proper notice to the appellant of the speed limit. He submits that drivers make themselves aware of speed limits by road signs and previous awareness, and states the signs were turned around, and the appellant did not drive often on that road and so was not aware of the 50 kilometre per hour speed limit.
[13] Mr Lange also submits the appellant’s conduct of the defence case was subject to numerous interjections by the Judge and Police prosecutor. He states the obligation to ensure a fair trial is heightened when a defendant is unrepresented as in this case, and that while some interjections were justified, others were not. Mr Lange further submits that the Judge limited the appellant’s questioning and evidence to 4 March 2021, but did not do so for the respondent who was able to produce a map of speed indication sign locations prepared two to three months after 4 March 2023. He
11 R v Condon, above n 9, at [78], citing with approval Randall v R, above n 9, at [28].
12 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]–[27].
13 Criminal Procedure Act, s 250(3).
14 Rolinson v Police HC Wellington CRI-2005-485-74, 6 September 2005 at [12].
argues the appellant was prevented from cross-examining the prosecution witness on photos taken as they had not been produced as exhibits, and was further prevented from producing them as exhibits through the prosecution witness, despite him being able to do so.
[14] Additionally, Mr Lange submits the Judge erred in preventing the appellant from cross-examining the prosecution witness about the calibration of the speed detection device on the grounds that they were irrelevant.
[15] With regard to the sentence appeal, Mr Lange submits that there were no aggravating features of the driving, and notes the standard infringement fee was $230, with the fine imposed being three times more and 70 per cent of the maximum fine. He argues the fine was excessive and in error, and that a fine should not be used as a de-facto costs order. He submits that a fine of no more than $300 would be appropriate if the conviction appeal is not allowed.
Respondent’s submissions
[16] Mr Mohammed for the respondent submits that there was no error in how the Judge dealt with the issue of the speed limit. He notes that the authorities relied on by the appellant as authority for the proposition that questions of a speed limit are of both fact and law do not bind the Court as they are High Court decisions, with Hollander also predating modern strict liability law. Mr Mohammed asks that the Court restate the law in this area and construe issues as to the suitable visibility and placement of signs as falling within the category of “absence of fault” rather than as a question of fact and law to be determined by reference to the applicable speed limit and its signage.
[17] Mr Mohammed submits that the evidence satisfies the elements of the infringement, and that it falls to the appellant to prove the defence of absent of fault. He argues the appellant did not give evidence as to why he thought the posted speed limit was in excess of 50 kilometres per hour, and did not give any evidence as to what he thought the speed limit was and why he defaulted to the speed that he did.
[18] He argues a reasonable person would have recognised they were in a vulnerable position if they were uncertain of the speed limit, and would have used
their mirrors or other measures to read the speed signs. Mr Mohammed raises floodgates concerns around the Court recognising departures from speed limits as reasonable. He submits that drivers are expected to appraise themselves of the relevant speed limit, and that the appellant’s efforts did not reach that level.
[19] It is overall submitted that the appellant has failed to establish the defence of absence of fault on the balance of probabilities and that no miscarriage of justice occurred.
Analysis
Conviction appeal
[20] I do not accept the submission of Mr Lange that the speed limit is a mixed matter of law and fact. The issue of what the speed limit is for a particular stretch road is a question of law. The question of fact, as indicated in Rolinson v Police, is whether the speed signs placed provide sufficient and proper warning to motorists, when considering whether a defence of total absence of fault can be raised.
[21] In Rolinson it was noted that speed signage is advisory and does not alter the legal speed limit in an area.15 I accept the submission of Mr Mohammed that a construction of the speed limit as being a matter of law and fact would result in there being no speed limit where there is insufficient signage, which runs counter to the purpose of the Land Transport Act to “promote safe road user behaviour and vehicle safety”.16 The Judge did not err in her finding that the speed limit was a matter of law.
[22] I accept that, during the hearing, there were some differences in the treatment of the appellant and the respondent. However, I do not consider this amounted to a miscarriage of justice. The Court did regularly interrupt during the appellant’s cross-examination of the prosecution witness and in his submissions, but these interruptions were necessary to ensure the appellant was questioning and submitting on relevant matters and to ensure the hearing remained on track.
15 Rolinson, above n 14, at [13].
16 Land Transport Act, long title.
[23] In respect of the photos of other road signs the appellant sought to question on, the Judge rightly considered these to be of little relevance given they did not concern the road on which the appellant was found to be speeding. The Judge permitting the respondent to produce a map of the location of the speed signs prepared two to three months after the date of the offending, was not inconsistent with the treatment of the appellant. That evidence was differentiated from what the appellant sought to question on by the fact it concerned Hoskyns Road, and thus had clear relevance to determining whether there was sufficient signage. The Judge did not err in allowing the respondent’s map in but not the appellant’s questions around photos of other roads.
[24] I accept the submission of Mr Lange that in certain circumstances, including those which prevailed here, an exhibit can be produced by the defence through a prosecution witness in cross-examination. The Judge erred in informing the appellant that he could not produce the photos taken by the prosecution witness on the grounds that the appellant was not giving evidence at that moment. However, that ruling did not have any material effect on the appellant’s ability to run his defence. The Judge did not err in refusing to allow the appellant to question the prosecution witness about previous calibrations or the time of the calibration of the radar unit on 4 March 2021. The Judge rightly considered this was not a relevant line of questioning, given the prior prosecution evidence which proved that the radar unit had been calibrated the morning of 4 March 2021.
[25] The few irregularities that occurred cannot be said to have departed from good practice in a manner so gross, persistent, prejudicial or irremediable that the trial can rightly condemned as unfair. The appellant was able to run his defence, with the interventions largely being for his benefit in requiring him to focus on the real issues.
[26] The refusal to allow certain lines of questioning or the production of exhibits also did not affect the outcome of the trial. Driving over the speed limit is a strict liability offence,17 with the only defence available being a total absence of fault.18 For this defence to be made out, the defendant must establish that they did what a
17 Mercer v Police [2019] NZHC 1957, (2019) 29 CRNZ 193 at [9];
18 Larason v Police [2021] NZHC 653 at [30] citing Alexander v Police HC New Plymouth AP25/00, 13 September 2000 at [9].
reasonable person would have done,19 in that they took “all reasonable care” to avoid the offence.20
[27] As submitted by Mr Mohammed, even if it was established by the appellant that the speed signs had been turned by the wind which meant he was not able to see the speed displayed on the sign as he was approaching them, this would not have established the defence of absence of fault. The obligation on anyone driving on a road is to ascertain the speed limit on that road. If a driver does not know what the maximum speed permitted on a road is, they have an obligation to find out. If they see a speed sign which has been turned around so that it faces the opposite direction, they cannot assume that it allows them to drive at 80 kilometres per hour or any other speed. If in doubt, they could stop and read the sign from the other direction. They could look in their rear-view mirror. There is no evidence to suggest that the appellant took any steps to ascertain what the speed limit displayed on the sign actually was. The evidence of the prosecution witness was that other cars travelling along the road that day were detected travelling at 50 kilometres per hour. A reasonable driver could have compared their speed with those of other cars around them. The standard of total absence of fault is a high one. It has not been reached in this case.
Sentencing appeal
[28] Mr Mohammed properly concedes that the fine imposed of $700 could be regarded as stern. In the absence of any aggravating features, a fine of $700 where the standard fine is $230 is manifestly excessive in these circumstances. Fines are not to be used as a defacto costs order, regardless of the amount and time resources spent on conducting defended hearing. The appellant was driving some 30 kilometres per hour in excess of the speed limit in driving 80 kilometres per hour. His counsel suggests that a fine of $300 would be appropriate. I agree.
Conclusion
[29] The appellant has failed to demonstrate that Judge erred in a way that raised any risk of a miscarriage of justice having occurred.
19 Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA) at 81.
20 Stird Potential Ltd v Roycroft [2019] NZHC 429 at [15]–[16].
[30]The conviction appeal is dismissed.
[31] I am satisfied that the sentence imposed of $700 was manifestly excessive. The sentence appeal is allowed. The sentence is set aside and a fine of $300 is imposed. The requirement to pay $130 Court costs is undisturbed.
Churchman J
Solicitors:
Raymond Donnelly & Co, Christchurch for Respondent
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