Ranger v Police HC Wellington CRI 2005-485-132

[2005] NZHC 370

For a Court ready (fee required) version please follow this link

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2005 485 132

DIANA RANGER

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 December 2006

Appearances: Appellant in person

S Barr for Respondent

Judgment:      9 December 2005 at 11.00am

RESERVED JUDGMENT OF RONALD YOUNG J

[1]      On the 8th  of July 2002 Mrs Ranger, the appellant, drove into the car park behind the Ballroom Café in Newtown intending to park in her car park.  She had been driven to the entrance of the car park by a friend.  She drove into the car park and another car was in her allotted parking spot.  During the course of manoeuvring between her car and the other car she hit the other car.  The Police were called.  After speaking to her they discovered that she had been prohibited from driving in 2002 because she didn't have a driver's licence.  She was therefore charged with driving without an appropriate driver's licence.

[2]      She was convicted by Justices of the Peace.  Mrs Ranger appeals saying the

Justices of the Peace were wrong in law to conclude that she was driving on a road at

RANGER V NEW ZEALAND POLICE HC WN CRI 2005 485 132  9 December 2005

the time.  In addition, she says that "her rights under the Bill Rights were breached because she inadequate time to prepare for the defendant hearing" and she was "denied proper disclosure by the Police".  She also alleges what she has described as administrative errors by the prosecution, which includes an argument about whether a digital image on the motor vehicle driver’s licence is a photograph.

Background Facts

[3]      Mrs Granger accepted that she didn’t have a current motor vehicle driver’s licence.  She objects as a matter of principle to a motor vehicle driver’s licence which has in her words "a centralised computer controlled ID licence system".  And so she says that she does not drive her vehicle on the road.  She said that on the 8th of July

2002 a friend had picked her up at the Wellington Railway Station and then dropped

her and her car at the entrance to a car park where she leases one of the premises. The entrance to the carpark is off Riddiford Street, Newtown.  There is an alley way wide enough for one car through which one enters the car park and then a 90 degree turn behind a row of shops, to the parking places allocated to the tenants of the buildings.   The car park is not directly off Riddiford Street, but Mrs Ranger said about 40 metres from the Riddiford Street entrance.  It seems that the entrance to the car park was marked with a number of signs indicating no authorised parking, tow away area and the fact that it was a private parking area.  Mrs Ranger claimed that those who parked unlawfully there were towed away.

[4]      The woman who drove the other motor vehicle involved in the accident in the car park, had entered the car park to drop off someone who was employed at a café adjacent to the car parks.  There was the other evidence relating to the use of the car park from the Constable who attended the accident.  He said that from time-to-time he used the car park when he had been at the Ballroom Café, but had never had his car towed from that area.  The Constable accepted that he had seen some sign about a tow away area but could not recall whether it was on each individual car park.  I note that although the Constable initially said that there was nothing to prevent the public gaining access to the car park, he accepted that there may have been notices indicating that it was not a car parking area for the public, that it was private and was an area where people would be towed away if they parked.

[5]      The matter came before the Justices of the Peace who after recounting the definition of a road, for the purpose of the Land Transport Act, concluded that at the time the appellant was driving on a road and convicted her.

[6]      The appellant’s case with regard to this aspect of the appeal is simple and straightforward.  She says that the evidence established that this was a private car park for tenants of the commercial buildings in Riddiford Street, Newtown.  Signs at the entrance and around the car park made it clear that it was a private car park and that members of the public would be towed from it if they attempted to park there and thus the car park was not a road.

[7]      The respondent says that parking areas have long been held by the Courts to be included within the definition of a road, see Auckland City Council v Peacock [1978] 1 NZLR 771, McKee v Police HC WN AP293/01 18 December 2001 Wild J, Wikatene v Police (HC Auckland, AP3701, 6 March 2001, Wild J) and McBreen v Ministry of Transport [1985] 2 NZLR 495. They say that this car park was therefore a road in terms of the definition of "road" in s 2 of the Land Transport Act 1998.

[8]      The definition of a road provides as follows:

road includes—

(a)      a street; and

(b)      a motorway; and

(c)      a beach; and

(d)      a place to which the public have access, whether as of right or not;

and

(e)      all bridges, culverts, ferries, and fords forming part of a road or street or motorway, or a place referred to in paragraph (d):

(f)       all sites at which vehicles may be weighed for the purposes of this

Act or any other enactment.

[9]      I am satisfied that the prosecution has not established in this case beyond reasonable doubt that the car park in question was a road.  The definition of a road is intended to cover those areas where the public had access, whether as of right or not. And so it is for the prosecution to establish that the car park in question was a car

park to which the public typically had access.  Because the public are not prevented from entering the car park does not mean it is a place to which the public have access.   If that were true, most private driveways in New Zealand would qualify. This case can be distinguished from the typical supermarket type case or a car parking area of an apartment block.  There a significant section of the public do have access.   Those who wish to use the supermarket are entitled to use the car park. Those who wish to visit occupants of the apartment building will typically have access to the driveway.   This can be contrasted with the facts in the present case. Here the car park area is a private car park for tenants of the commercial buildings. Each of the car parks is expressly allocated to a particular tenant.  The entranceway and the car park area tells those who enter that this is a private car park and that they may be towed away if they park in this area.  The car park is not immediately off a public street, but down an alleyway and subject to a difficult 90 degree turn.  The entrance and exit to the car park area is through a narrow lane.   In that sense, of course, it takes some finding as far as members of the public are concerned.   It is clear that from time-to-time members of the public have used the car park to park unlawfully.  But it cannot be said that this is so well established as to convert what is clearly a private parking area into a road in terms of the definition.

[10]     I am, therefore, satisfied that the Justices of the Peace erred in concluding that this particular private car park was a road.   Mrs Ranger was charged with driving without a current driver’s licence on a road.   I therefore set aside their conviction.  I find that prosecution has failed to establish beyond reasonable doubt that the private car park was a road.

[11]     In these circumstances I do not need to deal with the other grounds of appeal save to observe:

a)       There was no legitimate complaint by Mrs Ranger about any failure by the prosecution to provide discovery, nor any legitimate complaint about lack of time to prepare for a hearing.

b)The administrative errors alleged seem to be an error in the alleged date  of  the  offence  in  some  Police  and/or  Court documents.    No prejudice was suggested by this clerical error.

c)       Mrs Ranger raised at the last moment an objection relating to the validity of the current motor vehicle driver’s licence.  She identified a distinction between a digital image and the photograph.  I did not hear those submissions in detail and do not deal with them in the circumstances.

“Ronald Young J”

Solicitors:

Crown Solicitor, Wellington, for Respondent