Lovell v Police HC Nelson Ap6/01

[2001] NZHC 646

IN THE HIGH COURT OF NEW ZEALAND
NELSON REGISTRY AP6/01

BETWEEN KEVIN JOHN LOVELL
Appellant

AND THE POLICE
Respondent

Hearing: 16 July 2001

Judgment: 16 July 2001

Counsel: J M Fitchett for the Appellant
A Puata for the Respondent

ORAL JUDGMENT OF WILD J

Solicitors:
Rout Milner & Fitchett, Nelson for the Appellant
Crown Law Office, Wellington for the Respondent

Introduction

[1] Nothing magnifies small matters more than neighbourly disputes, and I suspect that this criminal prosecution and appeal have their genesis in a neighbourly dispute.

[2] The appellant, Mr Lovell was convicted on 23 March of inconsiderate parking contrary to Regulation 35(1)(a) Traffic Regulations 1976. He was fined $200 and ordered to pay Court costs of $125. He appeals against both his conviction and his sentence.

Background

[3] The appellant owns farmland at the head of Wainui Inlet in Golden Bay. The farmland is along the banks of the Wainui River. The complainants, Mr Mckie and Ms Hoch, own property to the south, or inland, bounding the appellant’s farmland. There was originally a right-of-way across the appellant’s farmland in favour of the complainants.

[4] Late in 1998 the Tasman District Council agreed to the complainants forming an “access track” on a legal road leading to the start of the walking track to the Wainui Falls in the Abel Tasman National Park. That legal road had previously been unformed i.e. it was a “paper” road.

[5] The formation work took place early in 1999. No resource consent had been obtained for the work before it was carried out. The Tasman District Council granted consent retrospectively on a non notified basis. The formation work included the erection at the complainants’ expense of a fence along the road bounding the appellant’s farmland. Mr Fitchett submits that that fence was constructed illegally, as the application to the Council to place the fence on the road seeks permission “to erect a fence on Wainui Falls Road fronting Section 44 Block III Totaranui Survey District - Abel Tasman Drive as shown on the attached plan”. No plan is attached to the copy of the application in the materials I have, so I am unable to say what was shown on it.

[6] Shortly before the offence in question here, the appellant was charged with intentional damage after he cut a hole in the fence on 2 July. He had apparently been attempting to gain access to his property at a point where he wanted access. That charge was subsequently heard in the District Court at Nelson on 24 November. The Judge discharged the appellant without conviction. He took the view that criminal charges were not the appropriate way of dealing with a dispute between neighbours over fencing, and in particularly the legality of a fence. The fence had been repaired by 7 July.

[7] On 7 July the complainants, who had been away in Wellington for several months, returned to their property. The evidence was that the appellant knew they had been away but did not know they were due back. They found that the appellant had left, parked partly on the road, an old farm van. With some difficulty they got around the van and continued on to their property. They complained to the Police. The police car that answered the complaint was also able to get around the parked van, but also only with some difficulty. The Constable’s evidence was that the police car “bottomed out” in the process.

[8] The appellant’s evidence was that he had been trying to take the old van to the dump at the back of his farm property to dispose of it there. He was unable to get through the gateway because it was boggy and unable to get into the paddock at any other point because of the fence. I have no evidence as to what his intentions were had the complaint not intervened or as to what ultimately happened to the van.

The law

[9] The appellant was charged with breaching regulation 35(1)(a) Traffic Regulations 1976:

“35. Restrictions on stopping or parking vehicles - (1) No person, being the driver or in charge of any vehicle, shall stop, stand, or park the vehicle -

(a) on a road, whether attended or unattended, without due care or without reasonable consideration for other persons using the road.”

The Justices’ decision

[10] At the hearing before the Justices, counsel for the appellant focused on whether, in the circumstances, the appellant could be said to have parked his van where he did without reasonable consideration for others using the road. The submission was that as he had been barred access to his property, that those issues were still being sorted out, and that he had no other option at the immediate time but to leave his vehicle there until he could get the necessary equipment. It was argued that not many other people used the road anyway, as most people walking to Wainui Falls left their vehicle in the carpark well back down the road.

[11] Counsel for the appellant also drew the Justices’ attention to the District Court’s decision last November dismissing the intentional damage charge against the appellant and submitted that this charge also should be dismissed.

[12] The Justices rejected those submissions and found the charge proved. They said:

“Your defence Mr Fitchett said that you did park inconsiderately on the said road, accepting that the said road is that of a legally constituted right of way. However Mr Lovell was prevented from entering his property because of an unlawfully erected fence along his frontage belying that of the access track. The fence obstructed legal access by Mr Lovell to his property and he was forced to park where he did. The Court has therefore considered the evidence and the submissions made to it.

Firstly the question of a previous charge of intentional damage to the fence, ruled upon by Judge Watson of November 2000. The Court believes this has no relevance to the current charges facing the Court today.

Secondly the legality of the fence that forms the barrier between the roadway and your own property beyond that of the 315 metre point. It is not for this Court to decide on the legality of that fence.

The infringement and inconsiderate offence. The Court has heard evidence that other people use the road, that the vehicle was parked in such a position that it restricted access to other road users. Evidence was given by two witnesses, that being Constable Chalmers and Mr [McKie] that difficulty was experienced in passing the parked vehicle. We accept that the fence prevented you from parking more considerately but believe there were other options. We therefore find the infringement offence proven and on that offence you are fined $200.00 with Court Costs $125.00.”

Submissions on appeal

[13] These can be summarised thus:

[a] The appellant did not park his van without due care or without reasonable consideration for others using the road. He parked it as close as he could to the fence. The evidence was that both the complainants and Constable Chalmers managed to get their vehicles past the van, albeit with difficulty.

[b] In any event the fence was illegal. The Justices accepted that the fence prevented the appellant from parking more considerately. The fence was positioned so that the road was, physically, considerably narrower than the 20 metres road reserve.

[c] The Justices wrongly recorded a concession by counsel for the appellant that the parking was inconsiderate. No such concession was made.

[d] If the appellant had wanted deliberately to inconvenience the complainants then he could have done so much more effectively by leaving the van further down the road at a point where it was narrower and would effectively have blocked vehicular access altogether. Further, the appellant did not know that the complainants were coming back that day: they had been away for several months.

[e] The appellant could not take the van further up the track and turn it round with the equipment he had and in the space available further up the track.

Submissions for the Police

[14] The nub of these submissions was that the appeal lacked any merit and was frivolous and vexatious. Further, Ms Puata submitted that it was being conducted for the collateral and inappropriate purpose of using the criminal appeal process to obtain a High Court ruling as to the legality of the fence, a ruling which the District Court had declined to make.

Decision

[15] I start with the words in Regulation 35 “without reasonable consideration for other persons using the road”. They were considered in the context of careless driving, or, more specifically, driving without reasonable consideration for other persons using the road, under s 60 Transport Act 1962 in Boyes v Transport Department [1966] NZLR 171 at 172-173:

“. . . the phrase ‘without consideration for other persons using the road’ seems to me to be a clear indication that the state of the defendant’s mind when he did the act complained of was intended to be an essential part of the offence.

That is not to say that it was necessary, in this case, to prove that the appellant deliberately acted so as to hinder the complainant in his lawful use of the road. The phrase ‘without reasonable consideration’ includes inattentive or thoughtless actions or omissions as well as deliberate ones . . .

In the result, therefore, the true construction of s 60 in relation to the offence of using a motor vehicle without due consideration for other persons using the road requires that the Court be satisfied that mens rea on the defendant’s part is proved; but the language used includes negative guilt such as inattention or thoughtlessness as well as positive intention if accompanied by acts or omissions which may be otherwise lawful but which unreasonably interfere with the lawful use of the road by other persons.”

[16] It seems to me that the Justices found the charge proved on the basis that two other cars had difficulty getting around the appellant’s parked van, but without giving consideration to the appellant’s mens rea or intent. The Justices commented on the one hand that they accepted that the fence prevented the appellant from parking more considerately, but they then went on to state that they believed there were “other options”. They did not say what those other options were and on the evidence I am not satisfied that there were other options. Under cross-examination it was put to the appellant that he could have taken the van further up the road, and he answered (p 31 transcript):

“Well I could have. I could have taken it not as far up the roadway. I could have left it anywhere on the roadway. I left it on a point of roadway it was much the same as any other point of the roadway.”

[17] The questioning continued with a suggestion being put to the appellant that if he parked the van further up the road there would have been some room for cars to pass. He pointed out that there was a sign on the side of the road a little further up which may have blocked cars had he parked further up. That sign is visible in the photographic evidence.

[18] I think the important point is that, when faced with the prospect of having to leave his van somewhere along the roadway (because I think it is implicit in the Justices’ decision that they at least accepted he could not take the van back the way he had come) the appellant left it as far off the road against the fence as he could so as to minimise difficulties to passing cars. Passing cars certainly still experienced difficulty, but I do not think it can be said that the appellant parked without due care or without reasonable consideration for other persons using the road.

Result

[19] The appeal is allowed. The conviction entered against the appellant on 23 March is quashed and with it the sentence imposed by the Justices.

[20] As I have mentioned, Ms Puata expressed concern that this appeal represents a collateral and inappropriate use of the criminal appeal process for the purpose of gaining a ruling from this Court about the legality of the fence against that concern, I end by making it clear that this judgment must not be taken as containing, expressly or impliedly, any such ruling. This appeal is indeed not the correct avenue for resolving the legality of the fence along the roadway bounding the appellant’s farmland.

Costs

[21] In his submissions Mr Fitchett sought costs if the appeal succeeded and opposed them if it failed. He has renewed that application, seeking costs of $1,000 against somewhat higher actual costs.

[22] Ms Puata opposes any award. She submits that the prosecution was in no way an unreasonable one. She reiterates her submission that the whole matter is driven by ulterior considerations, namely the issues between the two neighbours.

[23] I accept Ms Puata’s submissions, at least to the extent of accepting that the prosecution was properly brought. I do not consider this is an appropriate case for the award of costs. If the appellant has, in bringing this appeal, spent more than he has saved, then he has at least been vindicated in principle.