N v Police HC Napier CRI 2007 441 13

[2007] NZHC 623

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2007 441 13

N

Appellant

v

POLICE

Respondent

Hearing:         9 July 2007

Counsel:         Appellant in person

D M O’Connor for Respondent

Judgment:      9 July 2007

[ORAL] JUDGMENT OF WILLIAMS J

Appeal dismissed against conviction for failing to give way at a Give Way sign. Appeal allowed by substituting a fine of $150 in lieu of $300.00

Solicitors:

Crown Solicitor, Napier

Copy for:

Mr K K J N 

Justices of the Peace

N V POLICE HC NAP CRI 2007 441 13  9 July 2007

[1]      On 8 February 2007 the appellant, Mr N  , was convicted by Justices of the Peace on one charge of failing to give way at a Give Way sign and was fined

$300 and Court costs $30.00.  He acted for himself, both in the District Court and on this appeal.

[2]      The evidence from a Constable Evans was that he was travelling north along Taradale Road about 10:45am on 18 October 2006, slowing down to turn right into Tom Parker Avenue.  Two vehicles were approaching the constable travelling in the opposite direction.  He looked to his right into Tom Parker Avenue and saw a person on a motor bike which turned out to be the appellant, approach the intersection and turn to his left into Taradale Road.   The intersection from Tom Parker Avenue to Taradale Road is controlled by a give-way sign.   The officer said “when the motorbike pulled onto Taradale Road the yellow car hit the brake to avoid colliding with the motor cycle”.  The yellow car was the car in the lane closest to the footpath.

[3]      Mr N  , when spoken to by the Police said there was enough room for him to turn to the left.   He gave the same explanation to the Justices and showed them some photographs of the intersection which showed that to the immediate left of the Tom Parker Avenue intersection there is a parking area of some considerable length.   Mr N   said that he turned into the parking area in order not to inconvenience the vehicles coming from his right, and in fact did not, he thought, inconvenience them.  That somewhat contrasts with the constable’s evidence that he saw one car at least brake, perhaps only as a precaution, to avoid possible collision or interference from the appellant’s motor cycle.

[4]      The Justices of the Peace made clear that Mr N  ’s obligation under the Traffic Regulations at a give-way sign is to give way to any traffic which may be approaching and that the use of the parking area as a merging lane, if there had been a failure to give way, still exposed the appellant to conviction.   They said “the parking lane is not a designated roadway or a merging lane.   While it is used by cyclists to avoid merging traffic and for parking, it is not a short-cut for other vehicles.”  They said that they had taken into account the fact that Mr N   had

never previously been fined for traffic offences and imposed the fine earlier mentioned.

[5]      Shortly after the conviction was entered, Mr N   was sent what is called an “Infringement Detail Report” from the Ministry of Justice which said that the failure to give way occurred at “Tom Pearse Avenue” on 18 October 20067 at

11:45am.  As a result of that, Mr N   lodged his notice of appeal saying that he knew of no avenue called “Tom Pearse Avenue” and at 11:45am was in fact outside the Napier Courthouse for a period.

[6]      It  is  clear  that  whoever  prepared  the  Infringement  Detail  Report  either misread or was simply unaware of the circumstances of the offence.   The Infringement Offence Hearing Notice simply gave the date of the infringement, but it is clear from Constable Evans’ evidence that the offence took place at 10:45am on

18 October and it was at the intersection of Taradale Road and Tom Parker Avenue so there was a simple error on the part of whoever prepared the Infringement Detail Report.

[7]      That notwithstanding of course it is the evidence on which Mr N   was convicted in the District Court which was the important issue.   That evidence correctly dated and timed the offence.

[8]      As a matter of law, however, the Justices of the Peace were correct.   The obligation of a motorist coming to a Give Way sign is to give way to any traffic in order not to impede or inconvenience the traffic.   Mr N   may not have done so, although the constable thought he did, but he used the parking area to his left in effect as a merging lane and it seems at least open to conjecture that there was some minor inconvenience to one of the approaching vehicles.

[9]      That   said,   however,   as   Mr   O’Connor   for   the   Police   responsibly acknowledged, for such a minor matter it does seem unfair that the infringement fee of $150.00 was effectively doubled by the Justices of the Peace in imposing the fine of $300.00.  After all, Mr N   was doing no more than exercising his rights and, although that may be a standard fine for all the Court knows, in the circumstances

of at worst a minor inconvenience to another motorist a fine of $300.00 or double the infringement fee seems excessive.

[10]     Accordingly the appeal against conviction will be dismissed.   The appeal against sentence will be allowed to the extent of substituting a fine of $150.00 for the fine of $300.00.  The Court costs remain.

………………………………..

WILLIAMS J.