Taiupu v Police

[2013] NZHC 2369

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-155 [2013] NZHC 2369

BETWEEN  KURIPITONE TATUPU Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   10 September 2013

Counsel:                  PQC Stokes for Appellant

RE Savage for Respondent

Judgment:                11 September 2013

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 11 September 2013 at 3.00 p.m., pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Meredith Connell, Auckland

TATUPU v POLICE [2013] NZHC 2369 [11 September 2013]

Introduction

[1]      After a defended hearing before Justices of the Peace in the North Shore District Court, Mr Tatupu was convicted of failing to stop at a yellow traffic signal, contrary to s 40 of the Land Transport Act 1998, r 4 of the Land Transport (Offences and Penalties) Regulations 1999 and rr 3.1(1) and 3.2(4) of the Land Transport (Road User) Rules 2004 (the Rules).   He was ordered to pay a fine of $150 and Court costs of $132.89.  He appeals against conviction.

Background facts

[2]      The driving in question occurred on 10 October 2012 at the intersection of Lake Road and Onewa Road, Takapuna.   A police officer, Sergeant Kieran McGonigle, had stopped in Lake Road, in the middle of three lanes, waiting to turn left into Onewa Road.  A video camera mounted on the dashboard of his car was operating.  He observed a Nissan stationwagon driven by Mr Tatupu pass through the intersection proceeding along Lake Road in an easterly direction just as the light controlling his left-hand turn changed to green. That indicated to him that Mr Tatupu had entered the intersection as the lights controlling his vehicle were about to change to red.

[3]      Sergeant McGonigle pursued the Nissan and asked Mr Tatupu why he had not stopped.  Mr Tatupu told him that it was not safe to do so.  He was then issued with an infringement notice.

[4]      Sergeant McGonigle said the weather at the time was good.  The road was dry and the road surface in good condition.   He estimated that Mr Tatupu was travelling at about 50 kilometres per hour.  In cross-examination by Mr Tatupu (who represented himself in the District Court), he said at the time the light turned yellow Mr Tatupu’s car would have been at least 20 metres from the intersection.

[5]      Sergeant McGonigle produced four still photographs that he had obtained from the video  camera footage.   The first, which recorded  a time of 20:15:07, showed the lights controlling Mr Tatupu’s vehicle to be yellow.   The second still shot, timed at 20:15:11, showed the lights had turned red.  The third shot, timed at

20:15:12 and also showing the lights red, showed Mr Tatupu’s vehicle about to enter the intersection.  The fourth photograph, also timed at 20:15:12, showed the Nissan passing through the intersection.

[6]      Mr Tatupu gave evidence.  He said that on the night in question he was taking his son to the gym.   He said he was travelling at 50 kilometres an hour as he approached the intersection.  When the lights turned yellow, he believed he was too close to stop his vehicle safely.  He referred to three schools of thought as, I infer, affecting his thinking when approaching the intersection.  The first was the risk of giving his son a whiplash injury if he braked suddenly and without warning.   The second was to gradually apply the brakes “and end up somewhere in the middle of the intersection”.  The third school of thought he identified was to continue through the intersection at a safe speed.  He said he takes these risk assessments seriously.

[7]      In cross-examination Mr Tatupu confirmed that he was travelling at 50 kilometres per hour and that he was approximately 20 metres away from the intersection when the lights turned yellow.  In response to a question from the Court, he said that he saw the lights change to red as he proceeded through the intersection.

Justices’ decision

[8]      After reviewing the oral evidence of Sergeant McGonigle and Mr Tatupu, the Justices referred to the photographs produced in evidence.   They said the fourth photograph showed that Mr Tatupu’s car was not in the middle of the intersection, even at the point when the lights turned red which was five seconds after they turned yellow. The decision continued:1

[17]      At 50k per hour, in five seconds you travelled 70 metres.  We can only take it that this photograph is accurate in terms of scale.  There was no evidence produced that it is not or it was not challenged at all, and in our view looking at the photos plus doing the measures on here, in our view you were 40 to 50 metres from the limit line when that light turned yellow.

[18]     Now, it is a simple case of arithmetic on there.  You admitted you were 50 k’s or thereabouts.  You travelled 70 metres in that time.  You were in the middle of the intersection or probably at the leading edge of the intersection, but let us say for the sake of argument you were in the middle

of the intersection and we accept that, then you were well clear of those limit lines when the orange lights showed up.

[19]      And the phasing of these lights is a matter of traffic engineering which is determined what is reasonable in terms of stopping distances, et cetera, to ensure that the people have an opportunity to stop if they were travelling at the speed limit and to be able to do so safely within the prescribed distance.

[20]      There was no evidence given that you had someone right up your tail that caused you to be anxious about stopping and in the view of the Court you did have a reasonably opportunity to stop and you should have taken it. It is based purely on the evidence that was given to us today.

[21]      So we find the matter proven.

Grounds of appeal

[9]      In her careful and comprehensive submissions, Ms Stokes put forward three grounds of appeal:

(a)       The Justices erred in concluding that Mr Tatupu was 40 to 50 metres from the intersection when the lights turned yellow.

(b)      The  Justices  gave  insufficient  weight  to  the  reasons  given  by

Mr Tatupu before deciding not to stop.

(c)      The Justices incorrectly applied the (subjective) legal test by failing to

give due weight to Mr Tatupu’s belief.

Decision

Error of fact

[10]     Ms Stokes pointed out that, as the photographs do not record fractions of seconds, the Justices’ conclusion that five seconds had elapsed between the first photograph (when the lights show as yellow) and the fourth (when Mr Tatupu’s car is shown driving through the intersection), could have been just over four seconds.  She said that if, for example, photograph one was taken at 15.07.99 and photograph four at 15:12:01, the time difference would be only 4.02 seconds.  On that basis, the total

distance Mr Tatupu would have travelled2  would have been 55 metres.   As the Justices  found  he  had  travelled  30  metres  into  the  intersection  as  shown  in photograph   four,   it   followed   that   when   the   lights   turned   yellow   he   was approximately 25 metres away from the intersection.

[11]     At  first  sight,  the  argument  is  attractive  but  it  does  not  withstand  close analysis.  The photographs are consistent with Sergeant McGonigle’s evidence that the  yellow  phase  of  the  lights  at  the  intersection  is  of  four  seconds  duration. (Ms Stokes questioned whether he was qualified to give such evidence but it is plainly a factual matter coming within his knowledge as a police officer familiar with the area.)  It follows that at 20:15:11, when the light was red and Mr Tatupu’s stationwagon had yet to enter the intersection, the yellow light would have been visible  to  him  for  four  seconds  or  a  distance  of  some  55  metres  before  the intersection.

[12]     Ms Stokes’ argument assumes that the Justices found as a fact that Mr Tatupu had travelled about 30 metres into the intersection in photograph four.  That was put forward by the Justices “for the sake of argument”; they said at this point the vehicle was probably at the leading edge of the intersection.  That coincides with my own assessment of the photographic evidence.  However, the point remains that, as shown by photograph three, the lights had turned red at or very close to the point at which Mr Tatupu entered the intersection.   It necessarily follows that he had first been confronted with the yellow light at least four seconds or 55 metres before reaching the intersection.

Legal test

[13]     It is convenient to consider the second and third grounds of appeal together as both involve a consideration of the legal test the Justices were required to apply.

[14]     Rule 3.2(4)(a) of the Rules provides:

While a steady yellow signal in the form of a disc is displayed –

(a)       a driver facing the signal must not enter the controlled area while the signal is displayed unless the driver’s vehicle is, when the signal first appears,  so  close  to  the  controlled  area  that  it  cannot  safely  be stopped before entering the area:

[15]     Ms  Stokes  submitted that  the  question  of  whether,  when  the  signal  first appears, the vehicle is so close to the controlled area that it cannot safely be stopped before entering the area, is a subjective one.   She relied on the following passage from the judgment of Goddard J in Kendall v Police:3

[16]     Directly  relevant  to  Mr  Kendall’s  belief  that  he  entered  the intersection on a yellow light and not a red light, is his view that he could not have safely stopped before the limit line once the light turned yellow and was therefore legally justified in proceeding through the intersection.  Such situations,  when  they  arise,  are  necessarily  a  matter  of  split-second judgement at the time and clearly contain an element of subjectivity.

[16]     In  my  respectful  view,  Goddard  J  was  quite  right  to  say  that  a  driver confronted with a yellow light makes a split-second judgment that is subjective in nature.  I very much doubt, however, that she intended to be understood as saying that the legal test of whether a vehicle can or cannot safely be stopped when a driver is faced by a yellow light is a subjective one.

[17]     The words of r 3.2(4)(a) clearly indicate otherwise.  The rule is not directed to the state of mind of the driver but to whether the vehicle can safely be stopped. That plainly requires an objective evaluation, taking into account all of the circumstances bearing on the decision at the time it had to be made.  They would include the speed of the vehicle, the distance between the vehicle and the controlled area when the yellow light first appears, road and driving conditions, and any other factors which could fairly and reasonably have a bearing on whether the vehicle can safely be stopped.

[18]     Ms Stokes complained that the Justices failed  to give due weight to the reasons given by Mr Tatupu before deciding that he could not stop safely before the intersection.  She said they failed to give reasons why they rejected his evidence and, in the absence of challenge, his belief must be accepted as genuinely held at the time.

[19]     In  my  view  the  Justices  gave  appropriate  weight  to  Mr  Tatupu’s  stated reasons for acting as he did.  They fairly reviewed the explanations he put forward, including his concern that his son could have suffered a whiplash injury.   They directed themselves appropriately as to the critical issue, stating:4

[15]      The issue for us is really down to what the road rule requires is [sic] that you stop unless it is unsafe for you to do so.  You made a judgment call which you thought was reasonable.  Obviously the police feel that in all the circumstances it was not a reasonable call and you should have stopped.

[20]     The Justices then concluded, on the basis already set out5 that, having regard to the time available to him, Mr Tatupu had a reasonable opportunity to stop and should have done so.  That conclusion was clearly available to the Justices on the basis of incontrovertible evidence.

Result

[21]     The appeal must fail and is dismissed.

4      Police v Tatupu, above n 1.

5      At [8] above.