Police v Whelan HC Dunedin CRI 2004-412-43
[2005] NZHC 1738
•28 April 2005
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
CRI 2004-412-000043
NEW ZEALAND POLICE
Appellant
v
MICHAEL JAMES WHELAN
Respondent
Hearing: 17 March 2005 Appearances: D P Robinson for Appellant
QJC Stratford for Respondent Judgment: 28 April 2005
JUDGMENT OF HON JUSTICE JOHN HANSEN
[1]This is an appeal by way of case stated.
[2] On 21 September last year the Respondent, following trial, was acquitted of one charge of driving with an unnecessary exhibition of acceleration contrary to ss36A(1)(a) and 22A(1) of the Land Transport Act 1998.
[3]The case stated, as settled, poses the following question:
Having held that the Respondent’s spinning of the front wheels of his vehicle was an “unnecessary exhibition of acceleration” was I correct in dismissing the prosecution on the ground that this had occurred in the period of acceleration prior to the speed limit being exceeded by which time the
POLICE V WHELAN HC DUN CRI 2004-412-000043 28 April 2005
wheels of the Respondent’s vehicle had stopped spinning and traction between them and the roadway was occurring.
BACKGROUND FACTS
[4] On Monday 12 March 2004 the Respondent was the driver of a motor vehicle in Malcolm Street, Dunedin. The time was approximately 1.15am. His vehicle was stopped at the side of the road and he was speaking to a group of youths from the driver’s seat. Two plain clothes officers, approximately eight to ten metres away from the vehicle, heard one of the group suggest to the driver that he do a “burn out”. This was denied by the Respondent. The Respondent revved the vehicle’s engine hard and accelerated away, spinning the front wheels of the front wheel drive vehicle. The vehicle’s front wheels spun for three to four seconds and left a skid mark of approximately eight to ten metres on the road. The vehicle continued to accelerate hard towards the Albany Street intersection, a short distance away, where it braked sharply for traffic lights. It was accepted that the vehicle reached a speed in excess of 50 kilometres per hour before braking to a stop at the Albany Street traffic lights.
[5] The Judge found that during the initial acceleration when the wheels were spinning the vehicle’s speed was not in excess of 50 kilometres per hour, but the vehicle continued to accelerate and after spinning of the front wheels traction occurred between the wheels and the road surface. He found that it was a point after the initial spinning of the wheels and subsequent to traction between the front wheels and the road way the speed exceeded the speed limit
THE DISTRICT COURT DECISION
[6]The Judge’s reasoning in dismissing the prosecution is as follows.
[7] He found that the Respondent, in spinning the wheels of the vehicle and driving for a distance with the wheels spinning, caused an “unnecessary exhibition of acceleration” within the meaning of s22A(1) Land Transport Act 1998. He also found that the vehicle driven by the Respondent accelerated to a speed in excess of the speed limit before stopping at the traffic lights. The spinning of the wheels
occurred during the initial acceleration, but when the vehicle exceeded the speed limit the wheels had stopped spinning and therefore the “unnecessary exhibition of acceleration” had occurred and ceased. The Judge therefore concluded that there was a defence in terms of s22A(4)(a) Land Transport Act 1998.
SUBMISSIONS
[8]Essentially the submissions were direct and to the point.
[9] The Crown’s submission was that the driving must be looked at as a continuum and not split into component parts.
[10] For the Respondent it was argued that the Judge was right, and the offence would only be committed if there was an “unnecessary exhibition of acceleration” in excess of the speed limit.
DISCUSSION
[11] The legislation being dealt with was part of a package passed to deal with perceived problems with a section of the community commonly described as “boy racers”.
[12]The relevant sections read:
22APersons not to engage in unauthorised street or drag racing, or other related prohibited activities on roads
(1)A person must not operate a motor vehicle in a race, or in an unnecessary exhibition of speed or acceleration, on a road unless the operation of the vehicle in that manner is authorised by law.
…
(4)In this section and in section 96(9), the operation of a motor vehicle in a particular manner is authorised by law if,—
(a)in the case of a race or an exhibition of speed or acceleration,—
(i)the speed of the vehicle is within the applicable speed limit or speed limits; and
(ii)the vehicle operator does not contravene any enactment other than this section that applies in relation to the operation of the vehicle; or
(b)the operation is conducted on a road that is closed for the purpose under section 319(h) or section 342 of the Local Government Act 1974, and is conducted in accordance with the conditions (if any) imposed under the Schedule 10 of that Act; or
(c)the operation is otherwise authorised by or under an enactment other than this section.
…
35Contravention of section 7, or section 22 where no injury or death involved
(1)A person commits an offence if the person—
(a)Operates a motor vehicle recklessly on a road; or
(b)Drives or causes a motor vehicle to be driven on a road at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person; or
(c)Without reasonable excuse, contravenes section 22 by failing to stop and ascertain whether any person has been injured, after an accident where no other person has been injured or killed.
(2)If a person is convicted of an offence against subsection (1),—
(a)The maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b)The court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
(3)The imposition of a mandatory disqualification under this section is subject to section 81.
..
36A Contravention of section 22A
(1)A person commits an offence if the person—
(a)operates a motor vehicle in a race, or in an unnecessary exhibition of speed or acceleration, on a road in contravention of section 22A(1); or
(b)without reasonable excuse, intentionally pours onto, places on, or allows to spill onto a road—
(i)any petrol, oil, or diesel fuel; or
(ii)any other substance likely to cause a vehicle to undergo loss of traction; or
(c)without reasonable excuse, operates a motor vehicle on a road in a manner that causes the vehicle to undergo sustained loss of traction in contravention of section 22A(3).
(2)A person commits an indictable offence if the person commits an offence against subsection (1)(a) or (c), and by that act or omission causes an injury to or the death of another person.
(3)A person who commits an offence against subsection (1)(a) or (c) that is an indictable offence is liable to the penalties set out in section 36(2), and section 36(2) and (3) apply as if the offence were an offence against section 36(1)(a) (such as operating a motor vehicle recklessly on a road, and by that act or omission causing an injury to or the death of another person).
(4)A person who commits an offence against subsection (1)(a) or (c) that is not an indictable offence is liable to the penalties set out in section 35(2), and section 35(2) and (3) apply as if the offence were an offence against section 35(1)(a) (operating a motor vehicle recklessly on a road).
(5)A person who commits an offence against subsection (1)(b) is liable to a fine not exceeding $3,000.
[13]The Select Committee report on the Bill stated at page 2:
… There are obvious safety concerns due to the nature of the activity, the large number of spectators, and the likelihood of loss of control of the road, given that the vehicles often have dangerous modifications to brakes and suspensions and that participants may pour oil and diesel on the roads. Other associated problems include petty crime, intimidation, vandalism, graffiti, drunkenness and litter. …
The report also stated at page 6:
… The main amendment specifies that street racing and related activities are illegal if not “authorised by law”. This will ensure that legitimate competitive events such as motorkhanas, time trials, fuel runs, navigational exercises, charity runs and treasure hunts are not captured by the bill if they are authorised under existing law. …
[14] During the debate in the House the Minister of Transport on 1 April 2003 (Hansard page 4548):
The select committee has recommended certain changes in order to address concerns that the bill might unintentionally apply to legitimate motoring competitions. In particular, the committee has recommended that where the activity is authorised by law, it is not an offence. In the case of races, “authorised by law” can mean that the vehicle complies with the speed limit and is operated in accordance with all other aspects of traffic law. It also includes a race on a road where it has been closed by the council for that purpose. Acknowledging that some racing activities may be authorised under the bill, the committee has also recommended the bill be renamed the Land Transport (Unauthorised Street and Drag Racing) Amendment Bill.
[15] It is to be noted that there was criticism of the Bill in the form that eventually became law. Stephen Franks, of ACT, noted:
… So, in other words, it will be perfectly permissible to continue wheelspinning away from the lights as long as one does not do it at over 50 kilometres an hour. People can wheelspin all the way to 50 kilometres an hour, or all the way to 100 kilometres an hour on the open road, and they can do a doughnut, if it does not endanger others, if it is not careless driving, and if it does not break one of the other existing laws.
[16] Essentially, the learned District Court Judge has interpreted the Act in the way Mr Franks did. However, it must be interpreted on a purposive basis. For there to be an “unnecessary exhibition of acceleration” it does not necessarily require wheel spinning as occurred in this case. Furthermore, to meet the intention of Parliament it seems to me that the driving must be viewed as one continuum.
[17] In this particular case the Respondent accelerated from a stationery position, with spinning wheels at the initial point of his driving. The Judge found that the hard acceleration continued. It is clear from the photographs that it is but a short distance from where he was parked to the traffic lights at Albany Street. Some time before that he had already reached a speed of in excess of 50 kilometres per hour, and had time to stop, albeit with heavy braking, before the lights.
[18] Parliament’s concern is evidenced by s3(a) of the Land Transport (Unauthorised Street and Drag Racing) Amendment Act 2003 which reads:
The purpose of this Act is to amend the principal Act—
(a)to include in that Act additional provisions aimed at combating the problem of unauthorised street racing, drag racing, wheel spinning,
and other stunts involving motor vehicles on roads, and the spillage of lubricants on roads without reasonable excuse;
…
[19] What is required is an “unnecessary exhibition of acceleration”. In this case the acceleration was clearly unnecessary, and “exhibition” suggests that the driver is involved in some form of viewing, displaying or “showing off” in general or to a specific audience. “Acceleration” clearly means some appreciable forward motion.
[20] In my view it is an act that cannot be viewed in isolation as the learned District Court Judge viewed it. To do so defeats the clear intention of Parliament to stop this type of exhibitionist driving.
[21] In this case there was a clear finding of an exhibition that was calculated to draw attention to the manner of the Respondent’s driving. It is also clear that he ultimately accelerated over the speed limit.
[22] Section 22A(4) states that the operation is authorised by law if it is within the applicable speed limits. It is not suggested that there were any other contraventions in this case, despite a suggestion there may be by the Judge.
[23] There will be many circumstances where the driving commences with spectacular acceleration, as here, and continues with hard acceleration. If the wheel spinning is the only part of the offence to be considered normally it will be concluded before the speed limit is exceeded. In my view that is not the intention of Parliament.
[24] I am quite satisfied that in cases like this, where the driving is over a relatively short distance, it must be looked at as a continuum. If it is, the defence available under s22A(4) disappears. It would be different if the acceleration had been hard to 50 kilometres per hour as here, and there then followed a distance of driving within the lawful speed limit, followed by new acceleration to excess of the speed limit. But that is not the situation here. The driving, from start to exceeding the speeding limit, was one act and should have been viewed as such.
[25] In those circumstances the question must be answered that the Judge was incorrect in dismissing the prosecution on the ground set out in the question.
[26] Given the circumstances of the matter and the length of time that has passed no other orders are made.
Solicitors:
Wilkinson Adams, Dunedin for Appellant O’Neill Devereux, Dunedin for Respondent CC:
Judge Macaskill
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