Larason v Police
[2021] NZHC 653
•29 March 2021
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2020-409-000127
[2021] NZHC 653
BETWEEN JEROME WALTER LARASON
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 25 March 2021 Appearances:
Appellant in person
W Taffs and J E Lancaster for Respondent
Judgment:
29 March 2021
JUDGMENT OF DOOGUE J
This judgment was delivered by me on 29 March 2021 at 4.00 pm
Registrar/Deputy Registrar Date:
LARASON v NEW ZEALAND POLICE [2021] NZHC 653 [29 March 2021]
Introduction
[1] On 2 October 2019 Mr Larason was issued an infringement notice for travelling 100 km/h in an 80 km/h area in Rolleston. District Court Judge Hix found the infringement offence to be proved and the infringement fee was accordingly payable.1 Mr Larason now appeals that decision.
[2] To put Mr Larason’s appeal in context, he says he is motivated by public interest. I can do no better than to quote from his submissions to explain why:
3. This case is clearly in the public interest. They need to believe in a credible justice system. Road users need to know the rules they are required to follow and the rules the Police need to follow are fair and balanced and even more so that they will both apply reasonably and clearly.
4. They rely on proper signage to be able to know the specific rules in place at any given time. If road signs are not as they should be, the understanding generally, and the ability to follow those rules specifically, is completely undermined.
[3] Mr Larason appreciates that if he is unsuccessful in his appeal against conviction it follows, in a case such as this, that a discrete appeal against sentence is not appropriate.
Facts
[4] Mr Larason was issued an infringement notice alleging that on 2 October 2019 he drove a vehicle at a speed of 100 km/h, exceeding the 80 km/h speed limit. A police officer saw Mr Larason driving down Harewood Road and estimated he was driving over the 80 km/h speed limit. The police officer’s equipment recorded a speed of 100 km/h.
[5] Prior to the driving in question Mr Larason had been dropped off at a car that had been abandoned on the side of a road earlier by a family member. His wife had driven him to the car so that he could replace a punctured tyre and take the car home.
1 Larason v Police [2020] NZDC 16005.
Principles on appeal
[6] An appeal against the finding that an infringement offence has been proven is to be treated as if it were an appeal against conviction pursuant to the Criminal Procedure Act 2011.2 The appellant may bring an appeal against conviction as a matter of right.3
[7] This Court may only allow an appeal against conviction if the Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”.4 A miscarriage of justice is defined as any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.5
[8] The appeal proceeds by way of rehearing.6 If this Court reaches a different view on the evidence, it follows the trial Judge necessarily will have erred and the appeal must be allowed.7 The onus is on the appellant to show that an error occurred.
District Court decision
[9] Mr Larason represented himself at hearing. He accepted he had been driving at 100 km/h but advanced two defences. First, he argued he had been driven into the 80 km/h area by his wife and was not aware what the relevant speed limit was. Second, he said from the point that he started driving to the end of his journey there were no 80 km/h signs to inform him he was driving in an area to which the restricted limit applied, and by law the roading authority should have installed them at 2.7 kilometre intervals. Third, Mr Larason argued the speed camera device used by the police officer was not operated correctly.
2 Criminal Procedure Act 2011, s 375(2); Summary Proceedings Act 1957, s 21; and Warren v Police
[2014] NZHC 2258 at [9].
3 Criminal Procedure Act, ss 229(1) and 230.
4 Section 232(2).
5 Section 232(4).
6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
7 At [38].
[10] In his 6 August 2020 decision the Judge referred to the general background of Mr Larason’s study of speed cameras, and his previous interaction with the courts in two cases relating to speeding tickets.8
[11] Turning to the matters relevant to this case, the Judge found the elements of the offence had been made out. He noted Mr Larason’s acceptance that he was travelling at 100 km/h and found this was over the relevant speed limit of 80 km/h.
[12]The Judge then set out Mr Larason’s case:
[17] I now turn to discuss the concern I have, Mr Larason. The concern I have is that it seems at least to me on the information that has been filed and the history of the cases that have come before the Court that there seems to be a pattern developing here where at least at a first view of it you are continually engaging in conduct where you are coming before the Court for the same reason, that is a public safety issue, ie speeding. I have not got to the point yet because I do not know whether there are other occasions where you have come before the Court on similar charges just of the four I am aware of, the two I have just dealt with in 2008 and 1998. But if there is a pattern of continually coming before the Court on these types of charges then that would be of a concern to me. In my view the Court does have a responsibility to protect the public from people who some might argue are deliberately speeding in an effort to come before the Court to essentially advocate a position they wish to take and that is at least from your perspective wanting to see significant change in the operation of the speed camera system in New Zealand.
[13] First the Judge dealt with Mr Larason’s interpretation of r 4.2(3) Land Transport Rule 54002: Traffic Control Devices 2004 to support his argument. Rule 4.2(3) provides:
4.2(3) 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
8 Police v Larason District Court Dunedin 7 August 1998; and Larason Junior v Police CR-2007- 409-006 [13 March 2008].
(iii) at the end; and
(iv) at intervals along its length, as specified in this rule or other enactment; or
(c)where the requirement, restriction or prohibition applies to a zone restriction at:
(i) each entry point to the zone; and
(ii) intervals within the zone, as specified in this rule; and
(iii) each exit point from the zone.
[14] This rule relates to the installation of signs regulating speed limits. The Judge understood Mr Larason to be suggesting every road in New Zealand must have speed signs at the start and end of every road, at every intersection and at every 2.8 kilometre interval along the course of an individual road. The Judge found this interpretation was “nonsensical”.
[15] The Judge preferred the interpretation offered by the police, namely that the word “or” at the end of r 4.2(3)(a) indicates that the purpose of the rule is that signs must be installed at the entry points to an area and they are sufficient to designate the area to which the speed limit applies.
[16] The Judge then considered Mr Larason’s defence that because he was dropped off by his wife after entry into the area in which Harewood Road is located he did not see the speed limit signs at the entry to the area in which he commenced his journey. The Judge held this directly related to ignorance of the law and was not a valid defence.
[17] Lastly, the Judge considered Mr Larason’s contention the speed camera device was not operated correctly by the police officer and discussed some of the more technical issues surrounding this. The Judge found this argument was not relevant to this case as Mr Larason accepted he was travelling at 100 km/h on that stretch of road (so the method used by police to measure speed was irrelevant). This aspect of the Judge’s decision is not on appeal before this Court.
[18] The Judge concluded the offence was proved and the infringement fee was payable by Mr Larason accordingly.
Application to adduce fresh evidence
[19] Mr Larason applied to adduce fresh evidence, which is an email from a Mark Chamberlain, Team Leader Transportation at Selwyn District Council. Ms Lancaster did not oppose its admission but did point out that it was not strictly “fresh”. The evidence is credible, and given the reliance placed on it is critical to Mr Larason’s case I allow the application to admit it for the purpose of proof of its contents.
Appellant’s submissions
[20] The crux of Mr Larason’s case is that there was not a single speed sign in the 7 kilometre length of the trip he took that informed him of the 80 km/h speed limit, and that there ought to have been. Further, he says he had a total absence of fault as a result.
[21] I have reviewed the video Mr Larason produced documenting his route and it is clear that he is correct in the assertion that there were no speed limit signs at any point along his route. I also note that four signs indicating an 80 km/h speed limit have subsequently been erected along the route.
Land Transport Rules
[22] Mr Larason relies on an interpretation of r 4.2 to establish that the legal requirement for signage in the area had not been met, which meant that he had no way of knowing that the speed limit on the roads he travelled was 80 km/h. He relied on the nature of the roads, and the fact that they were clearly open roads visually indicating to him that the limit would have been 100 km/h. (No exception can be taken with his description of the roads as appearing to be nothing but hedge lines, paddocks and farms with a spattering of homes.)
Respondent’s submissions
[23] Ms Lancaster, for the respondent, notes driving over the speed limit is a strict liability offence. She submits the elements of the offence are made out and no defence of total absence of fault is available on these facts.
[24] In doing so, Ms Lancaster submits Mr Larason’s failure to realise the applicable speed limit was 80 km/h is a mistake of law rather than a mistake of fact. She submits ignorance of the law is not a defence.
[25] Ms Lancaster submits that even if this mistake is one as to fact, it would not be a reasonable mistake for the purpose of showing absence of fault. She highlights Mr Larason’s admitted lack of attention to his surroundings while his wife was driving, despite his knowledge that he would be driving himself imminently to retrieve the abandoned car.
[26] Ms Lancaster submits the lack of speed signs in the 7 kilometre journey made by Mr Larason is not a defence to the strict liability offence. For completeness, Ms Lancaster argues the local council was not obligated to install repeater speed limit signs on this stretch of the road.
[27] She submits no miscarriage of justice has occurred and the appeal against conviction should be dismissed accordingly.
Analysis
[28] Mr Larason accepted that he was driving at 100 km/h at the place and on the date as set out in the infringement notice.
[29] I agree with the Judge in his assessment that the elements of the offence were satisfied here as Mr Larason was driving a vehicle on a road at a speed which was exceeding the applicable speed limit of 80 km/h.9
[30] Driving over the speed limit is a strict liability offence.10 This means it is irrelevant whether Mr Larason intended to break the speed limit or not. The only defence available is total absence of fault.11 His own individual assessment of the road visually being in the nature of an open road is irrelevant.
9 Larason v Police, above n 1. Land Transport Act 1998, s 40; regs 3 and 4 Land Transport (Offences and Penalties) Regulation 1999; and r 5.1(1) Land Transport (Road User) Rule 2004.
10 Mercer v Police [2019] NZHC 1957, (2019) 29 CRNZ 193 at [9].
11 Alexander v Police HC New Plymouth AP25/00, 13 September 2000at [9].
[31] The rule relied on, the Land Transport Rule: Setting of Speed Limits 2003, was revoked in September 2017 and replaced by Land Transport Rule: Setting of Speed Limits 2017. What was s 8 of the 2003 Rule is now s 9.
[32] Section 9.2(1) of the Land Transport Rule: Setting of Speed Limits 2017 provides that a road controlling authority must install at least one speed limit sign within each maximum length of road. The maximum length of road between repeater signs for permanent 80 km/h areas is 2.7 kilometres.12 However, s 9.2(2) then provides:
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 length of road; and
(b) the measured mean operating speed is less than 10% above the speed limit for that length of road.
[33] In his email Mr Chamberlain accepts that the route taken by Mr Larason did not include any 80 km/h speed signs, and that s 9.2 requires repeater signs every
2.7 kilometres, except as stated in s 9.2(2). Mr Chamberlain then goes on to explain that the exclusion in s 9.2(2) applies in this case, because:
(a)The roads travelled by Mr Larason were of the same nature as the 80 km/h roads leading into them, satisfying s 9.2(2)(a); and
(b)The data from the Speed Indication Device on two of the relevant roads shows average operating speeds of close to or less than the 80 km/h speed limit, which is less than that required by s 9.2(2)(b).
[34] The exclusion in s 9.2(2) therefore means there was 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.
12 Schedule 2, table 1. Note that the 2.8 kilometres referred to by Judge Hix and Mr Larason derives from the revoked 2003 Rule.
[35] The Land Transport Rules have been adhered to by the local roading authority. Even if they had not been, it would not have relieved Mr Larason of the obligation to make himself aware of the lawful driving 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.13 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”.
Conclusion
[39]The Judge did not err in finding the infringement offence proven.
13 Stird Potential Ltd v Roycroft [2019] NZHC 429 at [15]-[16].
Result
[40]The appeal against conviction is dismissed.
Doogue J
Solicitors:
Crown Solicitor’s Office, Christchurch
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