P v Police HC Timaru CRI 2010-476-11

[2010] NZHC 1992

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2010-476-000011

BETWEEN  P

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         4 November 2010

Counsel:         Appellant in Person

C A O'Connor for Respondent

Judgment:      4 November 2010

ORAL JUDGMENT OF WILD J

[1]      Ms P   appeals against a finding by Justices of the Peace in the District Court at  Timaru  on  22 March  that  she had  committed  an  infringement  offence against ss 2, 6(2)(ii) and 8(1)(ii) of the Vehicle Dimension and Mass Rules 2002 and Regulation 4 of the Offences and Penalties Regulations.

[2]      At the start of this morning’s hearing I ascertained from Ms P  , who has represented herself, as she did before the Justices, that she had three points on appeal.  First, it was “marginal” – her word – “marginal” whether she needed to have hazard warning flags on the trailer she was towing, because the width of that loaded trailer was 2.7 metres and flags were only needed if the load exceeded 2.7m in width.

[3]      Secondly, the law does not specify how the flags were to be fixed.  Her point here, I think, is that it follows that it cannot be an infringement offence that they

were affixed to her trailer in the manner they were.

P V NEW ZEALAND POLICE HC TIM CRI 2010-476-000011  4 November 2010

[4]      Thirdly, any liability should be that of her employer, because it was her employer’s responsibility to supply the flags and fit them to the loaded trailer.

[5]      The background is that Ms P   was spoken to by Constable Ross at about

10.30am on 10 June 2009 at the traffic lights at the intersection of Craigie Avenue and North Street here in Timaru.  Constable Ross had noticed that Ms P   was driving without her headlights on, although her load was over-dimensional.  He had also noticed that the flags on the load were not correctly fitted because they were folded around the tie down strops attached to the curtains of the trailer.   The Constable advised Ms P   that they needed to be attached so that they flapped as flags from the side of the trailer.  She pulled over once clear of the traffic lights and attempted to alter the flags, although apparently only on the driver’s side of the trailer.

[6]      A short time later Constable Ross saw the appellant again, now driving north out of Timaru on Evans Street.   He noticed that the hazard flags were still not correctly fixed, and stopped her.  It seems that initially Ms P   got out of the cab of the Iveco truck she was driving, but then got back into the cab.  She refused to alter the flags.   With the assistance of another Police Officer, Constable Ross measured the width of the loaded trailer at 2.7m.  He then noticed that the rear lights on the trailer were white and not red.  He then told Ms P   that she could not operate the trailer on the road until the flags and the lights were fixed. Notwithstanding that, she drove on, although before doing so she had turned the headlights on the vehicle and its trailer off and the strobe light atop the truck cab on. The flags were however unaltered.  Constable Ross considered taking further action but decided against it.  Later that day he sent Ms P   notice of the infringement offence now under appeal.

[7]      I deal in turn with Ms P  ’s three points on appeal.  First, her point that hazard warning flags were not needed on her load.   I do not accept this point.  In terms of the Vehicle Dimension and Mass Rules 2002 the maximum dimension of a trailer of this type is 2.5m wide:   rule 4 and table 4.1.   However, a trailer with a divisible load of wool bales can be lawfully operated on a road with a load 2.7m wide:  rule 6.2(4).  Such an over-dimensioned load must comply with the table 6.1

requirements for hazard warning equipment:  rule 6(2) and table 6.1.  Those table 6.1 requirements include the requirement in rule 6.9 as to hazard warning flags.  Rule

6.9 provides:

6.9 Hazard warning flags

6.9(1)  Unless  6.9(4)  applies,  a  hazard  warning  flag  displayed  on  an overdimension motor vehicle as required in Table 6.l:

(a) must be attached to the vehicle or its load:

(i) on each side of an overwidth load or vehicle at its front and rear;

…

(b) must be fluorescent yellow and at least 400 mm long and at least

300 mm wide.

…

6.9(3) For the avoidance of doubt, a motor vehicle or its load may not display a hazard warning flag unless:

(a) the vehicle or its load is overdimension and is required to display the flag under Table 6.1; or

(b)  the  vehicle  has  a  load  that  extends  beyond  the  body  of  the vehicle.

…

[8]      Consequently, Ms P   is not correct in submitting to me that her trailer, loaded to 2.7m width, did not require hazard warning flags.

[9]      I turn to her second point, that the law does not specify how the flags were to be  fixed.    I accept  that  point  so  far  as  it  goes.    However,  rule  6.9  imposes  a requirement to display a hazard warning flag at the points stipulated in that rule, the flag to be of the colour and dimensions also stipulated.  A flag is a flag.  I doubt the need to resort to a dictionary to explain what a flag is, but to clear up any doubt I revert to the meaning in the Oxford English Dictionary:

Flag, n

1. a. A piece of cloth or stuff (usually bunting), varying in size, colour, and device, but most frequently oblong or square, attached by one edge to a staff

or to a halyard, used as a standard, ensign or signal, and also for decoration or display.

[10]     The law does not specify how the hazard warning flag is to be displayed because it does not need to.  The flag is not a flag unless it is attached by one edge at the point stipulated in rule 6.9.  Ms P   accepts, and the photographs that are in evidence adequately demonstrate, that the “flags” on Ms P  ’s loaded trailer were not displayed as flags.  They were looped around the tie down strops on the curtained sides of the trailer, and then fastened through the eyelets at each end.  So they were yellow loops, not flags at all.

[11]     I turn to Ms P  ’s third point, that any liability for this offence was that of her employer, and not hers.  That point is defeated by rule 8.1, which provides:

8.1 Responsibilities of operators

8.1(1)  A  person  who  operates  a  vehicle  must  ensure  that  the  vehicle complies with this rule.

8.1(2) A person who operates an overdimension motor vehicle must comply with the applicable operating requirements in section 5, or section 6 and section 7.

[12]     So the liability imposed by the rules is that of Ms P   as operator of the vehicle, not her employer.

[13]     Accordingly, none of Ms P  ’s three points succeeds, and her appeal against the Justices’ finding that she had committed the infringement offence fails, and I dismiss it.

[14]     Although Ms P   did not appeal against the amount of the infringement fee, Mr O’Connor has very properly drawn to my attention that the Justices imposed the wrong fee.  The fee they imposed was $370, the correct infringement fee for this breach is $150.  Accordingly, I quash the infringement fee imposed by the Justices and substitute one of $150.  The Court costs remain.

Solicitors:

Crown Solicitor, Timaru for the Respondent