Rouse v Police

[2016] NZHC 1830

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2016-443-16 [2016] NZHC 1830

BETWEEN

PETER EDWIN JAMES ROUSE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	5 August 2016
Counsel:	Appellant in Person J E Bourke for Respondent
Judgment:	8 August 2016

JUDGMENT OF BROWN J

Introduction

[1]      Mr   Rouse   was   found   guilty   by   two   Justices   of   the   Peace   on

16 December 2015 of an offence under s 40 of the Land Transport Act 1998 and r 4.4(2) of the Land Transport (Road User) Rules 2004 (the Rules).  The offence was that, being the driver of a motor vehicle and exiting a driveway, the appellant failed to give way to a vehicle on a roadway.  Mr Rouse was fined $150 and ordered to pay court costs of $30.

[2]      On    12 April 2016,    an    appeal    against    conviction    was    heard    by Judge C D Sygrove in the District Court at New Plymouth.  Mr Rouse did not attend the appeal and it was dismissed.  He now seeks leave to make a second appeal to the

High Court under s 237 of the Criminal Procedure Act 2011.

ROUSE v NZ POLICE [2016] NZHC 1830 [8 August 2016]

District Court decision

[3]      Judge Sygrove read the evidence given at trial and noted that Mr Rouse, as a lay litigant, was given considerable latitude in the way he conducted his defence. The Judge went on to identify, as the Justices of the Peace had in their ruling, that there was considerable evidence given about whether Mr Rouse’s car was moving at the time of the accident. The Judge then said:

As the Justices say, and I agree, in paragraph 4 of their decision, “In the end the question of whether or not the defendant’s car was moving or stationary is not really the point.  The important question is was the defendant’s car so far into the roadway that Ms McLean’s car had insufficient time to stop by the time she had seen him?”

[4]      Judge Sygrove noted that the Justices had had the benefit of hearing the evidence  and  had  plainly  preferred  the  evidence  of  the  experienced  driving instructor, Mr Mills.  The Judge did not have the benefit of hearing from Mr Rouse. However the Judge concluded that, “even had Mr Rouse appeared I would have dismissed the appeal”.

The essence of the appeal

[5]      Mr Rouse  seeks  to  make  the  same  argument  that  was  made  before  the Justices of the Peace.  That is, he says that he was justified in his actions according to r 4.1(a) of the Rules.  It provides:

(1)       A driver approaching or entering an intersection on a roadway where the vehicles that are moving in the direction in which that driver is travelling are controlled by a stop sign at or near the intersection must–

(a)       stop  his  or  her  vehicle  before  entering  the  path  of  any possible vehicle flow at such a position as to be able to ascertain whether the way is clear for the driver to proceed; and

(b)      give way to any vehicles approaching or crossing the intersection from a roadway not controlled by a stop sign.

[6]      This, says Mr Rouse, made it lawful for him to stop where he did.  He says the appeal should be allowed on this basis.  Mr Rouse cites a judgment of Clifford J in 2012 where Clifford J found that the appellant could have avoided an accident by

driving forward slightly to see oncoming traffic before turning onto the road.  In that case there was a give way sign.

[7]      However Mr Rouse requires leave in order to pursue a second appeal to the

High Court.  Section 237 of the Criminal Procedure Act provides:

237     Right of appeal against determination of first appeal court

(1)       A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

(2)       The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that–

(a)      the appeal involves a matter of general or public importance;

or

(b)      a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[8]      The respondent submits that leave should not be granted because the appeal does not involve a matter of general or public importance and there is no miscarriage of justice identified by Mr Rouse.

Discussion

[9]      Mr Rouse apologised for not being present at the hearing of his appeal in the District Court.  He explained that he had been away hunting and on his return home he fell asleep and hence failed to attend the hearing.

[10]     The essence of his argument relies on a rule that applies to cars stopped at a stop sign.  That was not the situation of the appellant.  When the collision occurred he was in the process of exiting the New Plymouth District Council carpark.  He was charged under r 4.4, that being a driver exiting a driveway he failed to give way to a vehicle on the roadway.

[11]     The Justices did not accept the appellant’s argument that he was in a position that was appropriate for checking the flow of oncoming traffic.   The Justices concluded:

… on a narrow road such as Liardet Street, special care needs to be taken when you are exiting from a driveway to make sure that there are no cars coming from either direction and we are satisfied beyond reasonable doubt that Mr Rouse did not take the special care that was needed to ensure that he would not come into collision with any cars coming from the right and therefore in this case we find the defendant guilty as charged with these offences.

[12]     Mr Rouse’s argument that his appeal involves a matter of general or public importance turned on his contention that there was a public interest in understanding the nature of an obligation of a driver under r 4.1.  However the difficulty for him is that his case does not concern the scenario of a stop sign.  I am unable to discern any issue of general or public importance in the circumstance of the offence for which he was convicted which would justify the grant of leave under s 237(2)(a).

[13]     Similarly Mr Rouse was unable to identify any miscarriage of justice.   His failure to  appear  at  the  hearing before Judge  Sygrove  was  a  result  of his  own conduct.  The Judge considered the appeal fully in his absence and issued a reasoned decision.  I am not satisfied that there is any basis for concluding that the s 237(2)(b) condition is established.

[14]     Consequently  I  accept  Mr Bourke’s  contention  that  there  is  no  ground established  which  would  justify  the  Court  granting  leave  for  a  second  appeal.

Mr Rouse’s application for leave under s 237 is declined.

Brown J