Lucas v Police

[2012] NZHC 767

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000062 [2012] NZHC 767

BETWEEN  PATRICIA ROSE LUCAS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         24 April 2012

Appearances: G Newell for Appellant

R Savage for Respondent

Judgment:      24 April 2012

ORAL JUDGMENT OF VENNING J

Solicitors:           G Newell, Auckland

Copy to:            Crown Solicitor, Auckland

LUCAS V NEW ZEALAND POLICE HC AK CRI-2012-404-000062 [24 April 2012]

[1]      The appellant Ms Lucas appeals against conviction and sentence for an infringement offence of driving at a such a speed that she was unable to stop her vehicle within half the length of roadway visible to her.  The appeal is advanced on the ground the Justices of the Peace in the District Court misapplied the law as it relates to r 5.9(2) of the Land Transport (Road User) Rule 2004.

[2]      The infringement offence occurred on 31 August 2008.  The complainant, a Mr Titford, a farmer had parked his tractor in the middle of unsealed country road, as he moved his cattle across it.  His tractor had its lights on.  It was early evening but after sunset and the appellant collided with a wheel of Mr Titford’s tractor.   The lights on the tractor are set against the radiator or front of the tractor and the wheels were protruding outside those lights.   The appellant says the  collision occurred because she assumed that the lights she saw were those of an oncoming vehicle and that there would have been room for her to continue driving past it on the left hand side of the road.

[3]      The offence was found proven at a hearing in the District Court in May 2010. Ms Lucas appealed to this Court.  On 13 October 2011 Brewer J directed a rehearing and remitted the matter back to the District Court for reasons it is unnecessary to go into.  The matter was reheard on 31 January this year and the Justices of the Peace again found the offence proved.  Ms Lucas was fined $150 and ordered to pay Court costs.

[4]      She now appeals on the ground the Justices of the Peace erred in law.  The wording of the offence that the appellant was charged with is important to determination of this appeal.  Rule 5.9 states:

Stopping and following distances

(1)       A driver must not drive a vehicle in a lane marked on a road at such a speed that the driver is unable to stop in the length of the lane that is visible to the driver.

(2)       A driver must not drive a vehicle on a road that is not marked in lanes at such a speed that the driver is unable to stop in half the length of roadway that is visible to the driver.

(3)       A driver must not drive on a road a vehicle following behind another vehicle so that the driver cannot stop the driver's vehicle short of the vehicle ahead if the vehicle ahead stops suddenly.

(4)       No driver may drive a motor vehicle on any road following behind another vehicle at a distance behind that vehicle of less than—

(a)      16 m, if his or her speed is 40 km an hour or more but less than 50 km an hour; or

(b)      20 m, if his or her speed is 50 km an hour or more but less than 60 km an hour; or

(c)      24 m, if his or her speed is 60 km an hour or more but less than 70 km an hour; or

(d)      28 m, if his or her speed is 70 km an hour or more but less than 80 km an hour; or

[(e)     32 m, if his or her speed is 80 km an hour or more but less than 90 km an hour; or]

[(f)     36 m, if his or her speed is 90 km an hour or more.]

[5]      In their decision the Justices of the Peace made a number of observations concerning the circumstances leading to the accident:

[4]       ... You made an assumption as to what that set of lights was.  That assumption as it turned out was not correct.  Nonetheless you assumed that it was  a  vehicle  approaching  you.     You  assumed  it  was  a  motor  car approaching  and  you  assumed  that  you  had  sufficient  room  on  the  left because you could not see anything to the contrary.  ...

[5]       The Court understands that you may not have been able to determine what was on the right-hand side of that set of lights.   The Court quite understands that you may not have understood that there was anything.  You assumed there was nothing.  You did not make the necessary step to see that there was nothing.  Clearly, there was something.

[6]       So again the Court needs to identify that the actual speed you were doing was not particularly relevant to the conclusion the Court came to, because the Court did accept that your speed may not have been excessive for what you assumed and your ability to stop also was based on what you assumed, neither of which were correct.  Clearly what should have happened was that you came to a stop to determine what you were facing actually, rather than assumed.    You  did  not  do  that.    You  carried  on  with  your assumption and a collision occurred.

[7]       ... Even if you are doing one kilometre and hit the tractor it was still too fast for what was visible to you as a driver, which was virtually nil because of either the brightness of the lights you were facing or the fact that your lights did not show you the road in front of you to proceed.  ... Your evidence did not indicate you had any regard for what your headlights were telling you.  You just assumed that because those lights were there, what was

approaching you was this and you did not know for sure.  That is the nub of what the decision of this Court is;  that you did not ensure the visibility to you  allowed  you  to  do  the  speed  that  you  did  to  get  by  that  obstacle. Because of that this Court finds the case against you has been proven.

[6]      In support of the appeal Mr Newell referred to and relied on the Court of Appeal  decision  of  Police  v  Howell.[1]    In  that  decision  the  Court  of  Appeal considered, by way of case stated, an interpretation of r 5.9(3).  Mr Howell had been charged with driving a vehicle behind another vehicle so that he was unable to stop when the vehicle ahead stopped suddenly.  He had been found guilty in the District Court.  On appeal Panckhurst J held Mr Howell had not breached r 5.9(3) because

his failure to stop short was not caused by excessive speed or inadequate following distance.  Rather, if anything, it was carelessness.  Mr Howell had followed a car that had turned left from a give way and had noticed it move off.  He had followed it and had not noticed that it had stopped to give way to another vehicle.   A collision occurred.

[1] Police v Howell [2009] NZCA 336.

[7]      In the Court of Appeal the Court stated:[2]

The phrase “the driver cannot stop the driver’s vehicle short of the vehicle ahead” naturally refers to the driver’s capacity or ability to stop rather than whether he or she actually manages to do so. Mr Mander found it necessary to submit that “cannot” is synonymous with “does not”, but that is not the language employed. A driver who is not travelling too fast and who is not too close to the vehicle ahead can stop by focusing on what is happening and applying the brake. The other subclauses in r 5.9 and the earlier rules in Part 5,  apart  from  r 5.6(1)(a),  are  concerned  with  speed  and  following distances as distinct from careless inattention.

[2] At [41].

[8]      Interestingly, towards the conclusion of their judgment the Court noted that there were problems with r 5.9 that might warrant consideration and said:[3]

... Contrary to what may be a common assumption, neither subclause [5.9(1) or (2)] says anything about traffic on the road ahead. That topic is dealt with only in subcll (3) and (4). On their face, they rather appear to assume an empty road.

[3] At [44].

[9]      It does not appear that any attention has been given to the matter by the relevant authorities following delivery of that decision.

[10]     Mr  Newell’s  short  point  in  support  of  the  appeal  is  that  the  same consideration discussed by the Court of Appeal in Howell as applied to r 5.9(3) applies to r 5.9(2) in this case.   It is not so much the case that the appellant was unable to stop.  Rather, because of her misunderstanding of the circumstances she did not stop.  If, leading up to the incident she had understood the circumstances, she would have been able to stop.

[11]     Ms  Savage  sought  to  distinguish  Howell  from  the  present  case.    While accepting that the focus of r 5.9 was on excessive speed and following distances she submitted the fact of failing to stop in the present case could provide an evidential inference the appellant was driving at an inappropriate speed and further that the question of inappropriate speed must be considered in the context of the appellant’s visibility.

[12]     The principal consideration of r 5.9(2) is whether the speed the driver is driving at is such that the driver is unable to stop in half the length of roadway visible.  As the Court of Appeal noted that seems to contemplate a clear length of roadway.  In any event there is focus upon the speed at which the driver is driving. In their decision the Justices of the Peace have effectively rejected consideration of speed.  The wording of the decision is entirely consistent with a finding the appellant was careless but has little, if anything, to do with the speed the appellant was driving at.

[13]     Ms Savage sought to submit that the speed had to be considered in relation to visibility but the issue in r 5.9(2) is not visibility as such.  Visibility is relevant only because it determines the length of roadway that the driver must be able to stop within half the length of.

[14]     In the present case the appellant saw an object in front of her.   On her evidence, if she had braked she would have been able to stop.  Again, when responding to a question as to the speed she was travelling at she said her speed so was so slow she could easily have stopped.

[15]     There is no suggestion that the appellant did not see the tractor in front of her. The problem was that she misunderstood what it represented.

[16]     Ms Savage also submitted that at a certain point the appellant must have become unable to stop in half the length of road way visible to her because she actually hit the tractor. That underlies the decision of the Justices of the Peace.

[17]     But as the Court of Appeal said the focus of r 5.9 is on the ability to stop rather than whether or not a driver in the appellant’s position actually does stop.  As the Court of Appeal noted the language employed is directed at ability rather than whether the driver did stop or not.   The inability to stop is even more express in r 5.9(2) than in 5.9(3).

[18]     The short point is that the evidence before the Justices of the Peace could not support the conclusion that the appellant was driving her vehicle at such a speed that she was unable to stop in half the length of roadway visible to her.  It may well have supported a finding of careless use of a motor vehicle but that is not the charge the appellant faced.

[19]     Despite Ms Savage’s earnest endeavours there is no basis upon which the Court of Appeal decision of Howell can be distinguished.  In the circumstances the appeal must be allowed and the conviction quashed.

[20]     Ms  Savage  suggested  that  the  matter  be  remitted  for  a  rehearing  in  the District Court.  As noted above this case has already been the subject of a remission to the District Court for a rehearing.  The initial incident goes back to 2008.  In the circumstances I am satisfied the interests of justice do not require the matter to be

taken any further.  I decline the application for rehearing.

Venning J