Larason v Police HC Christchurch CRI-2010-409-000244
[2011] NZHC 1514
•21 October 2011
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2010-409-000244
JEROME WALTER LARASON
Appellant
v
POLICE
Respondent
Hearing: 22 September 2011
Appearances: Appellant in person
N M Robson for Respondent
Judgment: 21 October 2011
RESERVED JUDGMENT OF HON JUSTICE FRENCH
Introduction
[1] Mr Larason was charged with failing to stop at a stop sign, contrary to r
4.1.1(a) of the Land Transport (Road User) Rule 2004.
[2] Following a defended hearing in the District Court, two Justices of the Peace found the charge proved.
[3] Mr Larason now appeals that decision.
LARASON V POLICE HC CHCH CRI-2010-409-000244 21 October 2011
[4] The key issues raised by the appeal are:
(i) Was the stop sign in question a lawful sign?
(ii)Did Mr Larason enter the path of any possible vehicle flow within the meaning of r 4.1.1(a)?
Factual background
[5] The stop sign at issue is located at the intersection of Kirk Road and State
Highway 1 near Templeton, south of Christchurch.
[6] Photographs of the intersection, taken after the alleged offence and produced as exhibits at the hearing, show the layout of the junction as follows:
Photo 1 (Exhibit 3):Taken on Kirk Road, looking towards the intersection in the direction Mr Larason was travelling.
Photo 2 (Exhibit 5):
Taken near the limit line on Kirk Road, looking onto State Highway 1.
[7] On the day in question, Mr Larason was driving on Kirk Road. When he came to the intersection, he turned left onto the hard shoulder or fog lane. He was pulled over by a passing police patrol car approximately 25 to 100 metres from the intersection.
[8] It was common ground that Mr Larason had not come to a complete halt on Kirk Road before turning left. The constable estimated his speed during the turning manoeuvre at 20 kilometres per hour. This was not disputed by Mr Larason.
[9] It was also common ground that at all times Mr Larason remained to the left of the straight white fog lines (also known as edge lines).
[10] In evidence, Mr Larason testified that the way was clear and that his intention in turning left onto the hard shoulder was so he could consult a map. The police officer, however, suggested his intention was to use the hard shoulder as a slip lane to merge into the carriageway without stopping.
[11] There was also a dispute in the evidence as to whether there was only one stop sign at the intersection on the day in question, or whether the right-hand stop sign shown in the first photograph in the middle of Kirk Road was also there.
[12] Mr Larason testified that on the day there was only the one stop sign, the one on the left-hand side which he did not see until after being spoken to by the officer, because it was not clearly visible. In support of his claims that the right-hand sign was not there at all on the day, Mr Larason produced a close-up photo of the right- hand sign he had taken a week or two later. The photo shows heavy scoring marks on the sign, and a make-shift base which Mr Larason said proved the sign must have been on the ground and only recently re-erected. Mr Larason also pointed to the fact that the officer‘s notes referred to a stop sign singular.
[13] The police officer, however, testified that both signs were present on the day.
[14] In their decision, the Justices of the Peace found that there were two stop signs clearly visible, and that by driving on the hard shoulder Mr Larason had entered the intersection and carriageway on State Highway 1 at or near the intersection. In their view, Mr Larason failed all three of the components to r 4.1.1
They found the charge proved beyond reasonable doubt.
[15] The Justices fined Mr Larason the standard infringement fee of $150 and also ordered him to pay Court costs.
Grounds of appeal
[16] On appeal, Mr Larason advanced a number of grounds of appeal. These may be conveniently summarised as follows:
(i)The left-hand stop sign was not a legally enforceable sign because:
1 As identified in Caird v Police HC Christchurch CRI-2007-409-000064, 24 May 2007; Ward v
Police HC Christchurch CRI-2009-409-000158, 4 November 2009.
a. the police failed to produce documentary evidence of its having been gazetted;
b. it was not clearly visible for 60 metres.
(ii)He was not required to stop, because he was not entering the carriageway and so was outside the path of any possible vehicle flow.
(iii) Police failed to comply with disclosure obligations.
(iv)The Justices erred in their analysis of the evidence in finding his testimony was inconsistent.
[17] I turn now to consider each of these grounds.
Absence of documentary evidence of gazetting
[18] At the hearing, the prosecution called the Canterbury manager of the New Zealand Transport Agency, Mr Spowart. He testified that the Agency‘s asset management database shows the intersection in question listed as a compulsory stop sign-controlled intersection and that it met the relevant criteria to qualify as such.
[19] In cross-examination, Mr Spowart acknowledged that the Agency‘s computerised list of gazetted intersections does not include this intersection, but explained the gazetting was likely to have pre-dated computer records. He also acknowledged he had been unable to find any other record, computerised or otherwise, of the gazetting, but that did not mean it had not been done. He stated ―a lot of signs‖ had been gazetted by local authorities.
[20] The police also called evidence that the reason they had been unable to produce a copy of the gazette notice was because the relevant records had been stored in a warehouse which had been destroyed by fire.
[21] In those circumstances, I consider the absence of any documentary evidence of gazetting was not fatal to the police case. The Justices were entitled to infer that all the relevant paperwork had been undertaken.
Visibility of stop sign
[22] Mr Larason submitted that a stop sign was only legally enforceable if it was visible for 60 metres. The left-hand stop sign in question was not visible for 60 metres because it was obscured by the railway sign. Mr Larason further argued that the existence of the right-hand stop sign was in itself recognition of the inadequacies of the left-hand sign, but that could not avail the prosecution in this case because the right-hand sign was not upright on the day of the incident.
[23] In submitting that the stop sign was required to be clearly visible for 60 metres, Mr Larason relied on the Manual of Traffic Signs and Markings (MOTSAM) published by the New Zealand Transport Agency (NZTA). Section 2 of that manual states:
In areas subject to a 50 km/h speed limit, the RG-5 sign should be so located that it is visible to an approaching driver for a distance of at least 60m…
[24] Mr Larason argues that the Justices of the Peace erred in interpreting this to mean that the sign need only be visible at 60 metres, as opposed to being visible from 60 metres onwards.
[25] I agree with Mr Larason that the use of the word ―for‖ at least 60 metres supports his interpretation.
[26] I also accept that on the evidence the sign at issue in this case was not visible for the whole of 60 metres.
[27] However, while stating that the stop sign ―should‖ be visible for 60 metres, the NZTA‘s Traffic Control Devices manual – which is progressively replacing the
MOTSAM – makes it clear that this is only a recommendation and not mandatory.2
2 This follows from the definition provision (paragraph 1.1 of the TCD manual) which states that the word ―should‖ indicates only a recommendation. This is contrasted with the word ―must‖, indicating something that is mandatory or required by law.
[28] It follows that visibility for 60 metres is not a legal pre-requisite for enforceability. I should add that there was evidence the sign could clearly be seen, albeit not for 60 metres.
[29] It also follows that arguments about whether or not the right-hand sign was there on the day do not assist Mr Larason. Even if the right-hand stop sign was down, the left-hand sign on its own was a lawful sign.
[30] For completeness, I should add that in any event I would not be prepared to disturb the Justices‘ finding that the right-hand sign was there on the day of the alleged offence. Unlike them, I have not had the benefit of seeing and hearing the witnesses. The Justices were entitled to prefer the evidence of the officer.
Entering the path of any possible vehicle flow
[31] Rule 4.1(1)(a) states:
4.1 Giving way where vehicles are controlled by stop sign or give- way sign
(1) A driver approaching or entering an intersection on a roadway where the vehicles that are moving in the direction in which that driver is travelling are controlled by a stop sign at or near the intersection must—
(a) stop his or her vehicle before entering the path of any possible vehicle flow at such a position as to be able to ascertain whether the way is clear for the driver to proceed;
[32] Mr Larason argues that his manoeuvre did not involve a breach of this rule. He contends that although he drove round the corner, he did not at any stage enter the path of any possible vehicle flow, and was therefore not required to stop before he did. In his submission, before he could be said to have entered the path of any possible vehicle flow, he had to enter the actual traffic lane.
[33] I disagree.
[34] As the second photo shows, the hard shoulder or fog lane forms part of the
State Highway, not Kirk Road. The geography is such that it was impossible for Mr
Larason to have driven round the corner without crossing the double yellow limit line marking the end of Kirk Road. He entered the State Highway.
[35] In those circumstances, in my view, it defies common sense to contend that Mr Larason did not enter the path of any possible vehicle flow. Significantly, the wording is ―any possible vehicle flow‖ (emphasis added). This conclusion is reinforced by the dotted yellow line indicating no stopping in the hard shoulder or fog lane.
Did police fail to comply with disclosure obligations?
[36] At the commencement of the hearing in the District Court, Mr Larason applied for the prosecution to be dismissed on the grounds of the police‘s failure to make disclosure of the gazette notice. As he told the Justices, he made a request for disclosure on 9 April 2010 specifically asking for a copy of the gazette pertaining to the stop sign location.
[37] However, as I have already mentioned, there was evidence that the information was unavailable because of a fire.
[38] Mr Larason also complained that the police had breached their disclosure obligations by failing to advise him in writing of the reason for their refusal to provide the gazette notice.
[39] However, as a letter written by Mr Larason himself, dated 18 June 2010, showed, the police had verbally informed him of this at an adjournment on 28 April
2010.
[40] In those circumstances, I agree with the Justices that the police did comply with their disclosure obligations.
Did the Justices err in finding an inconsistency in Mr Larason’s testimony?
[41] At [12] of their decision, the Justices state:
Mr Larason said that he did not see any stop signs at the intersection of Kirk Road and State Highway 1 but his evidence was somewhat contradictory when he said, ―Does not consider the stop sign on the left consistent‖. Mr Larason considered that he was within the ‗spirit of the law‘ and that he was
‗technically within the law‘.
[42] Mr Larason submitted that there had been no inconsistency in his testimony and this mistake on the part of the Justices would have unfairly coloured their assessment of his evidence generally.
[43] However, a reading of the transcript discloses that there was in fact an inconsistency in Mr Larason‘s evidence. When testifying about his conversation with the police officer after he had been pulled over, Mr Larason said:3
I was trying to explain to the policeman at the time that I hadn‘t gone out onto the road as the law requires, or that I hadn't seen these signs that were totally obscured.
(emphasis added)
[44] The inconsistency consists of the fact that in other parts of his testimony Mr
Larason was claiming that there was only the one sign.
Conclusion
[45] It follows from all of the above that I do not consider that any of the grounds of appeal have merit.
[46] The appeal against the Justices‘ finding of guilt is accordingly dismissed.
[47] The notice of appeal stated that the appeal was also an appeal against sentence. However, Mr Larason accepted that if I were to uphold the Justices‘ finding of guilt, then there could be no challenge to the sentence.
[48] It was the standard infringement fee and on no view of it able to be described as manifestly excessive. The appeal against sentence is also accordingly dismissed.
3 Notes of evidence 10 November 2010, page 82, lines 9-11.
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