Police v Howell

[2009] NZCA 336

IN THE COURT OF APPEAL OF NEW ZEALAND

CA81/2009
[2009] NZCA 336

BETWEENNEW ZEALAND POLICE

Appellant

ANDJONATHAN CHARLES HOWELL

Respondent

Hearing:1 July 2009

Court:O'Regan, Ellen France and Baragwanath JJ

Counsel:C L Mander and B C L Charmley for Appellant

A N D Garrett and K H Cook for Respondent

Judgment:3 August 2009 at 10.30am

JUDGMENT OF THE COURT

A        WE ANSWER THE QUESTION AS STATED IN [1] OF THE REASONS OF THE COURT.

B        The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

[1]       This appeal by leave of the High Court concerns the question of law:

Whether in its regulatory context the expression in r 5.9(3) of the Land Transport (Road User) Rule 2004:

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

imports only an inability by reason of speed or failure to maintain an adequate distance from the vehicle ahead; or whether it embraces also failure to maintain a proper lookout and other factors.

For the following reasons we answer the question no.

[2]       The respondent, Mr Howell, was charged with driving a vehicle behind another vehicle so that he was unable to stop when the vehicle ahead stopped suddenly.  The charge was laid pursuant to r 5.9(3) of the Land Transport (Road User) Rule 2004 (“the Rule”), s 40 of the Land Transport Act 1998 and reg 4 of the Land Transport (Offences and Penalties) Regulations 1999.

[3]       In the District Court, two Justices of the Peace found that the respondent had failed to stop short because he was paying insufficient attention to the car in front of him.  They found his failure to stop short amounted to a breach of r 5.9(3) of the Rule and convicted him.

[4]       The respondent appealed.  On 9 October 2008, Panckhurst J held he had not breached r 5.9(3) because his failure to stop short was not caused by excessive speed or inadequate following distance.  He allowed the appeal.

[5]       Panckhurst J granted the Crown’s application under s 144(2) of the Summary Proceedings Act 1957 for leave to appeal.

Background

[6]       This is the third case in which the High Court has considered r 5.9(3) or its predecessor, reg 22(3) of the Traffic Regulations 1976, which was in essentially similar terms.  Since two of the judgments were delivered by members of this Court as at present constituted, a pre-trial conference was convened to determine whether the parties preferred that the Court be reconstituted, in which event an adjournment would be required, or would elect to retain the fixture.  They adopted the latter course and the hearing proceeded accordingly.

[7]       In Negomireanu v Police HC AK A159/01 15 November 2001, O’Regan J, the appellant was convicted by two Justices of the Peace of breach of reg 22(3).  The appellant’s vehicle was the third in the line of vehicles endeavouring to turn right from St Lukes Road, Auckland, into New North Road.  The first vehicle stopped suddenly.  A second stopped behind it and the appellant’s vehicle crashed into the second.  The driver of the second vehicle deposed that the appellant had been driving at about 5 kph and appeared to be travelling at a speed appropriate to the circumstances and at a suitable distance back from his vehicle. 

[8]       A police constable with experience in traffic law enforcement gave evidence that the stopping distance for a vehicle travelling at 5 kph would be some one to two metres.  The Justices made no specific factual findings but recorded the appellant’s evidence that he was glancing around the intersection at the time to ensure that the way was clear to proceed.  They said it was notable that the second vehicle was able to stop after the first stopped but the appellant did not do so.  That, they found, entailed breach of the regulation.

[9]       The appellant appealed to the High Court.  Counsel for the appellant argued that the Justices were wrong to conclude that the appellant’s failure to stop his vehicle short of the vehicle ahead of him constituted breach of reg 22(3).  He submitted that the regulation concerned whether the vehicle could stop short of the vehicle ahead, not whether it did stop, and that this was an error of law.  He cited the decision of Hardie Boys J in Parsons v Ministry of Transport HC CHCH AP16/89 13 April 1989 dealing with reg 22(1) (now the subject of r 5.9(1) ([34] below)), which made it unlawful to drive a motor vehicle on a road at such a speed that the driver is unable to stop in the length of the lane visible to him.

[10]     O’Regan J cited Parsons as showing that, while the fact that a driver did not stop will often be strong evidence of breach of reg 22(1), which deals with speeding, it is also possible that the failure to stop could result from other factors.  Hardie Boys J said at 7 - 8:

The regulation does not impose an absolute obligation to stop; but rather an obligation to maintain a relationship between speed and distance that enables one to stop.  The fact that one does not stop may often be strong evidence that the obligation has not been met, but it may also be the case that it results from other factors. …

… [T]he accident was caused not by Mrs Parsons travelling too fast in the circumstances but by her failing to keep a proper lookout.  It was not that her speed was such that she could not stop in time; but that she could not stop in time because she was not looking where she was going.

[11]     O’Regan J stated that the key legal issue was the appropriate interpretation of reg 22(3).  Crown counsel had submitted it should not be interpreted as relating only to distance and speed, but rather as covering any aspect of the conduct of the driver which results in an inability to stop the vehicle short of the vehicle ahead.

[12]     O’Regan J allowed the appeal.  He reasoned:

[14]      While the wording of regulation 22(3) taken in isolation can be interpreted as broadly as Crown counsel contended, that interpretation appears to me to ignore the context in which the provision appears.  In particular, as already noted, the heading of regulation 22 is “Stopping and following distances”, and headings can now be used in aid of interpretation under s 5 of the Interpretation Act 1999.  Sub-clauses (1) and (2) of regulation 22 refer to speed, while sub-clause (4) refers to distance.  In the context in which it appears, therefore, regulation 22(3) should be interpreted as dealing with the combination of speed and distance, rather than any other driving elements.

[15]      If that were not the case, it would mean a breach of regulation 22(3) would occur automatically if a vehicle failed to stop short of a vehicle in front, unless it could be established there is some completely independent action of a third party or similar intervening action.  If the drafter of the regulation had intended to render such conduct unlawful, it would seem more likely the regulation would say that where a driver of a motor vehicle following behind another motor vehicle fails to stop his vehicle short of a vehicle ahead, then there is a breach of the regulation.

[16]     I therefore reject the contention by Crown counsel and find the more limited interpretation suggested by counsel for the appellant is the correct interpretation of regulation 22(3). …

[13]     O’Regan J concluded at [16] that the Justices had erred in effectively equating the failure to stop with breach of the regulation.  While the fact that the appellant’s vehicle hit the vehicle ahead was potentially relevant to the consideration of reg 22(3), and in some cases might be a strong indicator of breach of that subclause, he was satisfied that this was not such a case.  The evidence did not establish beyond reasonable doubt that the appellant’s vehicle was either travelling too fast or was too close to the vehicle in front such that “he could not stop his vehicle short of the vehicle in front”.

[14]     In Smith v Police HC AK A64/03 12 August 2003, Baragwanath J was satisfied that the prosecution could not establish either excessive speed or following too closely, save in conjunction with a failure to maintain a proper lookout, the element which O’Regan J had excluded from the rubric of reg 22(3).  He allowed an appeal against conviction.  He noted that the Crown preferred the “alternative and attractive argument”, identified by O’Regan J, that the general language of subclause (3) embraces the totality of the driver’s conduct.  However, the Crown did not contend that the reasoning of O’Regan J entailed an obvious error.  Baragwanath J considered it inappropriate, sitting alone, to furnish an inconsistent High Court construction of the regulation (at [7]).  He held that while in terms of speed and distance from the vehicle ahead the appellant could have stopped his vehicle short, he did not, and the collision resulted from failure, given his speed and distance from that vehicle, to keep a proper lookout.  He accordingly found that the appellant did not fall within the language of reg 22(3).

[15]     In the same judgment Baragwanath J granted leave to the Crown to appeal in terms similar to those recorded in [1] above, but the Crown did not pursue an appeal.

[16]     In Kohunui v Police HC WN CRI-2004-485-139 11 November 2004, Gendall J obiter disagreed with the decision in Negomireanu followed in Smith.  He stated at [11]:

I do not see anything in subclause (3) which would require an interpretation that the prosecution must prove that the failure to stop was caused by the combination of excess speed and failing to maintain sufficient following distance.  To introduce the words “at either a speed or a distance” after “following behind another vehicle” and subclause (3) is not justified in my view on a plain reading of the subparagraph.  What must be proved is that an offender’s vehicle followed behind another vehicle and further that he could not stop his vehicle short of that ahead in the event of a sudden stop by the latter.

(Emphasis in original)

[17]     Gendall J recognised that liability is not absolute: a total absence of fault, for example, unconscious distraction by a bee sting or sneezing, is a defence: Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA). But, in his view, if an accident is caused by failure to keep a proper lookout or inattention, the regulation will be breached if impact occurs after following behind another vehicle in the event of its sudden stop (at [12]). The appeal against conviction was allowed but on other grounds.

Facts of this case

[18]     On 27 February 2008, the respondent was travelling behind a vehicle along Linwood Avenue in suburban Christchurch.  The vehicles came to an intersection at which there was a give way sign.  The driver in the vehicle in front commenced a left turn but, after moving forward a metre or two, realised there was a car coming from her right and stopped suddenly.

[19]     The respondent saw the driver in front commence her left-hand turn and then checked to his right to see if any vehicles were coming from that direction.  It was while the respondent was looking to the right that the driver in front stopped suddenly.  As the respondent’s attention was not focussed on the front vehicle, having assumed it had continued with its turning manoeuvre, his vehicle collided with the back of the car at low speed.  The driver in front informed the police and the respondent was issued with an infringement notice under r 5.9(3) of the Rule.

The decisions below

[20]     The District Court found the respondent was not driving at excessive speed or failing to observe an inadequate following distance.  But, the Justices of the Peace found fault in these terms:

Mr Howell had a duty of care as a prudent driver to observe the car in front and what it might do and be aware that it could stop suddenly and I will quote from case law decision of Bisson J in Pothan v Police dated 6 June 1980 High Court Rotorua in which it is said, “He is not entitled to rely on the expected.  He must guard against the unexpected and that is the standard required of a reasonable, prudent driver.

In this case it was unexpected and that car was there to be seen that it had stopped and in this case unfortunately Mr Howell did not see the vehicle stop and hit the back of it.  We find the charge proven.

[21]     The respondent appealed on three grounds.  First, as it was not established that he was travelling at excessive speed or too close to the vehicle in front of him, he had not breached r 5.9(3).  Secondly, he was not following the vehicle of the driver in front.  Thirdly, the District Court failed to consider a defence of total absence of fault.

[22]     Panckhurst J considered that the appeal turned on the first ground of appeal, the correct interpretation of r 5.9(3).  At [25] he accepted that the correct interpretation of r 5.9(3) was not straightforward and noted that, when read in isolation and literally, “the wording can extend beyond the elements of speed and distance, such that a failure to keep a proper lookout is encompassed”.  But he considered that r 5.9(3) must be read in context and held:

[28]     … [T]he subject matter of r 5.9, it seems to me, is the ability to stop and, in particular, the speed and following distances which are necessary in order to achieve that end.  These are prescribed by reference to different road types and by reference to following another vehicle.  In terms of r 5.9(4) the requirement is to maintain a defined distance according to speed.

[29]     Regardless of which situation governs, the focus, I think, is upon speed and following distance. …

[23]     Panckhurst J accepted that an “unfortunate consequence” of that interpretation is that a person who fails to stop short because they have not kept a proper lookout must be charged with careless use of a vehicle (under ss 8 and 37 of the Land Transport Act 1998) which, in turn, could result in a conviction.  Nonetheless, the Judge considered that it was the correct interpretation and therefore held that r 5.9(3) had not been breached by the respondent.  The appeal was allowed.

Submissions

The Crown

[24]     The Crown submitted that Panckhurst J erred in reading a requirement for excessive speed or inadequate following distance into r 5.9(3).  Rule 5.9(3) simply creates an offence of failing to stop short, irrespective of the cause of that failure.  Implicit in the failure to stop short of the vehicle ahead is a failure to maintain an adequate following distance, having regard to the operation of the vehicle at the time.  Panckhurst J’s interpretation may have led to impractical and unfortunate consequences.

[25]     In the Crown’s submission, the material element of the offence is that the driver drives in a manner that results in him or her being unable to stop short of the vehicle in front.  There is nothing in r 5.9(3) that suggests the driver’s failure must be identified as having been caused by either excessive speed or inadequate following distance.  Drivers, when operating their vehicles, may make judgments that result in insufficient allowance being made for the unexpected.  Such behaviour may cause them to be unable to stop short of a vehicle in front.

[26]     The Crown submitted in the alternative that, in operating the vehicle in the way the respondent had, the following distance was inadequate in the circumstances to prevent a collision.  Demonstrably, by choosing to drive his vehicle forward at the same time as looking to the right without waiting to ensure that the vehicle ahead had completed its turning manoeuvre, an adequate following distance was not maintained so as to stop short of the vehicle in front if required to do so.  The speed and following distance were inappropriate having regard to the way in which the vehicle was driven in the circumstances.

[27]     The statutory context, in the Crown’s submission, does not require a more restrictive approach to r 5.9(3).  The three other sub-clauses of r 5.9 (r 5.9(1), 5.9(2) and 5.9(4)) create infringement offences that expressly incorporate an element of speed or inadequate following distance.  Rule 5.9(1) and r 5.9(2) state that drivers must not drive “at such a speed” that they cannot stop in the length of land/road that is visible to them.  Rule 5.9(4) states that drivers must not drive at less than the specified distance behind the car in front of them, the distance corresponding to the driver’s speed.  However, there are no such requirements in r 5.9(3).  That is, the rulemaker intended that r 5.9(3) encompass all behaviour that results in a failure to stop short.

[28]     Section 5 of the Interpretation Act 1999 states that, in ascertaining the meaning of an enactment, assistance may be gained from the heading of the section containing the provision in question.  The heading of r 5.9 is “Stopping and following distances”.  While “… following distances” implies the rule involves adequate following distances as directly addressed in r 5.9(4), there is nothing in “Stopping…” that imputes any particular reason for stopping or failing to stop.  Although r 5.9(1) and r 5.9(2) clearly relate to speed and a driver’s ability to stop, under r 5.9(3) a driver can fail to stop for a number of reasons, one of which is because he or she was not paying sufficient attention to the car in front or was attempting a driving manoeuvre which eliminated the opportunity to stop short of the vehicle in front should something unanticipated occur.  The title of the section does not exclude that.

[29]     The Crown argued that the restrictive approach adopted by Panckhurst J leads to inconsistent results.  As he acknowledged, if a failure to stop short for any reason other than excessive speed or inadequate following distance is not captured by r 5.9(3), the police have only three enforcement options available to them: the police can do nothing at all; they may issue a warning; or they may charge the driver with careless use under the Land Transport Act.  A driver’s failure to stop short because of insufficient attention is as culpable as failure to stop short for any other reason and should therefore incur the same penalty.  Whatever the reason for a failure to stop short, the result in all cases is the same: a collision.  Paying insufficient attention may involve as much culpability as excessive speed or failing to observe an appropriate following distance. 

[30]     As the present case illustrates, identifying the primary driving fault to the exclusion of what may be a combination of factors may not result in an accurate assessment of culpability.

[31]     It is also inconsistent and unreasonable only to issue an infringement notice to a driver whose failure to stop short is due to excessive speed or inadequate following distance, but to charge a driver who fails to stop short because of apparent insufficient attention with careless use.  A person who is guilty of an infringement offence may be ordered to pay a fine and/or costs, but the court is not able to convict that person.  An infringement offence will not be recorded on a person’s criminal record.  By contrast, liability for careless use results in a conviction.

[32]     Inclusion under r 5.9(3) of all failures to stop short does not create a category of careless driving that is less culpable than other types of careless driving.  Rather, the police simply have a choice about which enforcement option is appropriate in the circumstances.

The respondent’s submissions

[33]     The respondent’s argument is sufficiently covered in the following discussion.

Discussion

[34]     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.

[35]     The rules are “regulations” and therefore “enactments” within the meaning of the Interpretation Act 1999.  By s 5, the meaning is to be ascertained from the text in the light of its purpose.  Further, in ascertaining the meaning of an enactment “the indications provided in the enactment” may be considered, including headings to parts and sections, explanatory material, and the organisation and format of the enactment.

[36]     The statutory setting of r 9 is Part 5 of the Land Transport (Road User) Rule 2004, which is headed “Limits”.

[37]     An explanatory note states that Part 5 sets out provisions about speed limits and other limits.  The eight headings preceding r 5.9 all concern speed limits.

[38]     There are three potential elements which may cause, either separately or together, a nose to tail collision (leaving aside the condition of the following vehicle, the road conditions and extraneous events such as a bee sting, sneeze or heart attack): speed, distance, and proper look out.  The elements of speed and of distance fall fairly within the rubric of “Limits” with which Part 5 deals.  “Proper look out” does not fall comfortably within that concept. 

[39]     It is true, as Mr Mander submitted for the Crown, that r 5.6 states:

5.6 Speed limits relating to school buses

(1)       A driver, when meeting or overtaking any stationary school bus stopped for the purpose of discharging or embarking school children, must—

(a)       drive with due care for the safety of the children; and

(b)       while passing any part of the school bus, not drive at a speed exceeding 20 km per hour.

…

There, however, the reference to “due care” is explicit.  There is no equivalent reference in r 5.9(3).

[40]     Rule 5.9(3) prohibits the driver of a following vehicle from driving behind another vehicle:

… so that the driver cannot stop the driver’s vehicle short of the vehicle ahead if the vehicle ahead stops suddenly.

The adverb “so” is defined by the Oxford English Dictionary (2008) as meaning: “in such a way…”.

[41]     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.

[42]     The respondent submitted that the effective re-enactment of reg 22(3) in r 5.9(3) entailed legislative endorsement of the earlier decisions.  Burrows & Carter Statute Law in New Zealand (4ed 2009) at 195 acknowledge that sometimes there is still room for this presumption in a particular instance but note the increasing tendency to regard it as unreliable.  But the fact of the presumption is a further pointer supporting the view indicated by both the text and the context.

[43]     It follows that the appeal is dismissed.  If any question of costs arises, we will receive memoranda.

Comment

[44]     We comment that there are problems with r 5.9 that may warrant consideration.  Subclauses (1) and (2) give quite different messages: if the vehicle is in a marked lane, the driver’s speed must be such that the vehicle can be stopped in the length of the visible lane ahead.  Subclause (2), the case where there are no marked lanes, requires the ability to stop at half that distance.  Contrary to what may be a common assumption, neither subclause says anything about traffic on the road ahead.  That topic is dealt with only in subclauses (3) and (4).  On their face, they rather appear to assume an empty road.

[45]     It would be possible to impose the strict liability for which the Crown contends by rewording subclause (3) to read something like “so that the driver fails to stop the driver’s vehicle short of the vehicle ahead” and deleting the final six words.  But such surgery goes beyond the limited judicial authority to construe legislation and thereby legislate interstitially.  We make no comment as to whether such a course would be desirable. 

[46]     We note that the relevant Australian rule is to different effect.  It states:

126. Keeping a safe distance behind vehicles

A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.

[47]     It is part of the Australian Road Rules 1999 which generally apply in all States and Territories. 

[48]     The United Kingdom Highway Code states:

126

Stopping Distances. Drive at a speed that will allow you to stop well within the distance you can see to be clear. You should:

·leave enough space between you and the vehicle in front so that you can pull up safely if it suddenly slows down or stops. The safe rule is never to get closer than the overall stopping distance (see Typical Stopping Distances PDF below)

·allow at least a two-second gap between you and the vehicle in front on roads carrying faster-moving traffic and in tunnels where visibility is reduced. The gap should be at least doubled on wet roads and increased still further on icy roads

·remember, large vehicles and motorcycles need a greater distance to stop. If driving a large vehicle in a tunnel, you should allow a four-second gap between you and the vehicle in front

If you have to stop in a tunnel, leave at least a 5-metre gap between you and the vehicle in front.

[49]     Breach of the code is not an offence but may be evidence of breach of the three driving offences under the Road Traffic Act 1988: careless and inconsiderate driving, reckless driving, and reckless driving causing death.

Solicitors:
Crown Law Office, Wellington for Appellant