Wu v Auckland Transport

[2013] NZHC 142

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-000248 [2013] NZHC 142

ZHIMIN WU

Appellant

v

AUCKLAND TRANSPORT

Respondent

Hearing:         4 December 2012

Counsel:         Appellant in person

V Clements for Respondent

Judgment:      8 February 2013

JUDGMENT OF ASHER J

This judgment was delivered by me on Friday, 8 February 2013 at 4.30pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Simpson Grierson, DX CX 10092, Auckland. Email:  [email protected]

Copy to:

Z Wu, 19 Cambridge Terrace, Lower Hutt, Wellington. Email: [email protected]

WU V AUCKLAND TRANSPORT HC AK CRI-2012-404-000248 [8 February 2013]

[1]      On 22 December 2011 the appellant Zhimin Wu arrived at the Pullman Hotel at approximately 10.30 pm, where he was staying for the night.  He was a visitor in Auckland.  He parked in the hotel drive and checked in.  He then drove out of the drive into Waterloo Quadrant and observed the parking area in front of him on the other side of the road.  After turning into the road he saw a parking sign on a pole positioned approximately two car lengths in front of him on the side of the road. The sign said in a box on the left “Pay and Display area”, in a box on the right “P 90”, and in a separate box “Mon–Sat”.  Underneath the sign with this information there was another smaller sign or box saying “Other Times”.

[2]      It is clear from his evidence that Mr Wu is a careful man.  He wished to act within the law.  He was aware of the general rule that parking signs applied between

8 am and 6 pm each day, other than public holidays.1     So he did not go to the

machine to get a parking coupon.  Rather, the next day at 8 am he went out to put money in the Pay and Display machine to obtain the coupon which he would display in the window.   However, on his arrival he found that he had a ticket on his car alleging that he had been parked contrary to “Clearway” signs, in breach of r 6.4(1) of the Land Transport (Road User) Rule 2004, a rule made pursuant to ss 152, 153 and 157 of the Land Transport Act 1998.  This was an offence under s 40 of that Act. The infringement fee was $60.

[3]      Mr Wu examined the situation further and took photographs.  He found that behind a branch that hung over the pole, hiding anything above the Pay and Display signs already mentioned, was a Clearway sign.  Unlike the Pay and Display sign that faced out onto the road, the Clearway sign faced up the road and on a right angle to it.  The Clearway sign had beneath it a warning red and blue cross and the numerals and words “7–9am 4–6pm Mon–Fri”.  There were other Clearway signs further back

down the road behind where his car had been parked.

1      New Zealand Transport Agency “Parking signs” (19 October 2012) The official New Zealand

road code < nzta.govt.nz/resources/roadcode/about-driving/parking-signs.html>.

[4]      Mr Wu defended the charge in court.  In an oral decision on 16 July 2012 he was convicted by Justices of the Peace.

The decision

[5]      After summarising Mr Wu’s evidence the Justices of the Peace noted that the car was undoubtedly parked in a clearway area.   The prosecution’s reliance on Shaw v Auckland City Council2  was referred to, as was Sharma v Auckland City Council.3    They noted that it would never be sufficient for a person charged with a parking offence to say “I did not see the sign”.  They considered that it was a strict liability offence.  It was held:4

It is the duty of the motorist to be observant and to comply with signs duly and properly erected, but it is a different matter if the sign imposing the prohibition is placed or located in such a way that it cannot be seen.  In those circumstances, no matter how observant, the motorist will be unaware that there is any parking restriction.

Mr Wu was fined $60 together with a towage fee of $53.60 and court costs of

$132.89.

The issues

[6]      The issues as I see them are:

(a)       Was the Clearway sign so hidden by the branch that a reasonable motorist would not have appreciated that there was a Clearway area?

(b)      If the answer to the first issue is affirmative, does that mean that

Mr Wu has a good defence to the charge?

2      Shaw v Auckland City Council HC Auckland CRI-2006-4040-287, 8 February 2007.

3      Sharma v Auckland City Council HC Auckland AP120/98, 11 August 1998.

4      Auckland Transport v Wu DC Auckland CRI-2012-004-1955, 16 July 2012 at [8].

[7]      The Justices of the Peace appear, for reasons that I will set out in more detail, to have accepted Mr Wu’s evidence.  I am, therefore, in as good as a position as they were to assess the evidence and then apply it to the law.  While appreciating that the Justices of the Peace have expertise in dealing with these types of charges, I must in the end form my own view on the correct outcome.5

[8]      The alleged breach of the rule was an offence of strict liability.  The sorts of actions prohibited by r 6.4(1) are not truly criminal actions, and the offences are not truly criminal offences.  Rather, these types of rules are enacted to place duties on members of our community to take all reasonable steps to observe the rules of the

road.   To do so, as was observed by Brewer J in Cooke v Auckland Transport,6

increases efficiency in the public transport sector.

[9]      The clearway process ensures that the parking facility offered on roads is available out of peak times, but at peak times when traffic is heavy those areas are kept clear so that the traffic can move more efficiently.

[10]     Liability for a breach of the bylaw does not require mens rea or a guilty mind in the criminal sense.  This offence is a strict liability offence in the way that phrase is understood following the decision of Millar v Ministry of Transport.7    This conclusion has been reached by a number of Judges in these sorts of cases.8

[11]     However, equally this is not offending of absolute liability.   If a defendant can show a complete absence of fault there is no reason why that defendant should be convicted.   Indeed, to do so would be contrary to the public interest because it would mean that law abiding citizens who have acted entirely reasonably would find

themselves subject to convictions for breaches of the law.  This would bring the law

5      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

6      Cooke v Auckland Transport HC Auckland CRI-2010-404-454, 20 June 2011.

7      Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 668.

8      See Cooke v Auckland Transport above n 6; Parlane v Hamilton City Council HC Hamilton

CRI-2010-419-74, 8 December 2010; O’Byrne v Police HC Christchurch CRI-2010-409-164,
27 May 2011 and Trust Shop Ltd v Auckland City Council HC Auckland CRI-2009-404-250, 23
February 2010.

into disrepute. There are of course cases where absolute liability can be justified, but they are rare.9

[12]     In  relation  to  parking  signs  the  position  was  summarised  by  Giles  J  in

Sharma v Auckland City Council:10

It will never be sufficient for a person charged with a parking offence to say “I did not see the sign”.  It is the duty of the motorist to be observant and to comply with signs duly and properly erected.  But it is a different matter if the sign imposing the prohibition is placed or located in such a way that it cannot  be  seen.    In  those  circumstances,  no  matter  how  observant,  the motorist  will  be  unaware  that  there  is  any  parking  restriction.    In  that situation the prosecutor must be able to establish that the sign is properly erected, i.e. according to law.  Once that is done all that need be provided is the actus reas ingredients of the offence.

This offending

Was the Clearway sign visible?

[13]     Rule 3.1 of the Land Transport Rule: Traffic Control Devices 2004 (“TCD Rule”) provides:

3.1  General safety requirements for traffic control devices

Traffic  control  devices,  whether  used  singly  or  in  combination,  must contribute to the safe and effective control of traffic, and must:

(a)   be safe and appropriate for the road, its environment or the use of the road; and

(b)   not dazzle, distract or mislead road users; and

(c)   convey a clear and consistent message to road users; and

(d)   be placed so as to:

(i)    be visible to road users; and

(ii)  be legible to road users, if of a type that includes written words or symbols; and

(iii) allow adequate time for the intended response from road users; and

9      For example, s 209(1)(a) of the Customs and Excise Act 1996: Boyes v New Zealand Customs

[2005] DCR 330 (HC); Zheng v New Zealand Customs HC Auckland CRI-2009-404-132, 27

August 2009.

10     Sharma v Auckland City Council, above n 3, at 5.

(e)   comply with the relevant requirements in Schedules 1, 2 and 3; and

(f)   be maintained in good repair.

[14]     The first question is, was the sign visible to road users in terms of r 3.1(d)(i)? To put it another way, should a careful and observant motorist in Mr Wu’s situation have noted the Clearway sign, or been alerted to the fact that he should check further to see if there were any qualifications relating to the Pay and Display area?

[15]     The Justices of the Peace stated:11

In cross-examination, we did note that a tree branch was or may have been obscuring one of the signs, so as in all cases, it is upon the prosecution to prove beyond reasonable doubt certain elements of each case.  In this case, there is no dispute that it was your car that was parked on that road in what is now known as the Clearway area on that date.

[16]     I interpret the phrase “… was or may have been obscuring …” as indicating that given the general burden of proof, the Justices of the Peace considered it made out that the clearway part of the sign was obscured by the branch.  I interpret this paragraph as indicating an acceptance of Mr Wu’s evidence that he could not see the Clearway sign as he parked the car.

[17]     I have examined the photograph produced by Mr Wu taken shortly after the offending, which shows the sign obscured by the branch. The Council cut the branch shortly after this offending and Mr Wu has produced a photograph showing the sign as it would have appeared to him without the branch present.  The Clearway sign is, now the branch has been removed, entirely visible.

[18]     It is possible from Mr Wu’s photographs of the sign at the time taken in broad daylight, to see a glimpse of a further sign behind the branch.   I accept Mr Wu’s submission that such a glimpse could not be seen at night and I note that the Justices

of the Peace accepted that the sign was obscured.

11     Auckland Transport v Wu, above n 4, at [6].

Was there an absence of fault?

[19]     I am satisfied that Mr Wu, an honest man anxious not to break the law, was not alerted to a Clearway sign when he looked ahead and saw the sign.  I also accept that Mr Wu knew that the parking obligation to pay of this type did not arise until

8am the next morning.  That is what the regulations say, and it is in the Road Code. The provision that Mr Wu relies on reads:12

All other parking signs apply  between 8am and 6pm, other than public holidays covered by section 44(1) of the Holidays Act 2003 (Christmas Day, Boxing Day, Good Friday, etc.) unless other times are shown.

[20]     Should he have looked further?  If he had gone to the parking ticket machine he would have noted words that are part of the display on the screen saying that there is a Clearway area.  He would have also noted that there was a partly ripped sign on the machine stating “Warning – Tow away area” between certain times on certain days and stating “please check tariff label”.

[21]     The sign he did see included the words “Other Times”.  Ms Stevens for the Council pointed out that r 6–32 in Schedule 1 of the TCD Rule indicates a parking limit for the balance of standard hours not covered by another parking sign at the same location.  Rule 6–3 in Schedule 1 of the TCD Rule provides:

Supplementary description which:

-      If used on a sign which normally applies 24 hours a day every day (e.g. a bus stop), means all such other times not covered by any other signs for the same location which describe specific periods other restrictions apply.

-      If used on a sign which normally applies 8 am to 6 pm every day except public holidays (e.g. a P60), means all such other times within those periods not covered by any other signs for the same location which describe specific periods other restrictions apply.

[22]     She submits that as the words “Other Times” indicate, the Pay and Display sign must be read in conjunction with other signage applicable to the same location in  order to  determine the relevant  hours of  application  of the Pay and  Display

restriction.

12     New Zealand Transport Agency, above n 1.

[23]     If the Pay and Display sign in place at the relevant time had not contained the words “Other Times” but was otherwise the same as the sign actually in place, then the sign would have been an r 6–30 sign and would have applied from 8 am to 6 pm on days other than public holidays.  However, the Pay and Display sign in place was in fact an r 6–32 sign containing the words “Other Times” in accordance with the TCD Rule regime.  As a result, the standard hours of 8 am to 6 pm on days other than public holidays were not necessarily the hours of application of the Pay and Display controls, and the Pay and Display sign did not indicate that parking was permitted except during standard hours.

[24]     The result of this obscurely worded provision at r 6–32 is that the sign “Other Times” means that the parking situation is more complex, and that there is more than just a restriction on parking between 8 am and 6 pm.  It indicates that there are other restrictions.   The Road Code says the same thing.   There is a tension  between Mr Wu’s reliance on the Road Code to assert that he knew that obligations do not generally arise until a certain time, with his reliance on not knowing what “Other Times” meant under the TCD Rule.

[25]     I have reached the firm view that a reasonable and prudent motorist having seen the “Other Times” sign should have investigated further.   Mr Wu was faced with a sign that indicated that there were other relevant signs (the “Other Times” sign).  If he was, as he says, relying on his recollection of the Road Code, the Road Code warned him that the “Other Times” sign meant that there were other additional restrictions to the sign shown.   This should have prompted him to check further. Common sense also required him to try to find out what the “Other Times” were and meant.

[26]     There were three actions he could have taken.  He could have gone up to the sign and looked up to see if there was a further sign (although I appreciate that this would have been difficult at night).   He could have looked at the nearby parking ticket machine that bore a sign on it stating that there was a clearway area and a tow away area between certain times on certain days.  That sign also stated for motorists to “Please check tariff label”.  Finally, he could have walked up the road to look at

the other signs that clearly showed there was a clearway area at certain times.  He did none of these things.

[27]     I have sympathy for him.  He would have been tired, it was night time and there was nothing on the sign that he saw to tell him expressly about the details of the clearway.  But drivers cannot be excused from guilt because of sympathy.  Our parking restriction systems are important to the free flow of traffic, and can only work if drivers take all reasonable steps to discern the correct position.   Mr Wu should have followed up the signals that indicated there were restrictions at other times, rather than just settle for what he could immediately see.

Other authorities

[28]     The Justices of the Peace, purporting to follow Sharma stated that “… it will never be sufficient for a person charged with a parking offence to say ‘I did not see the sign’”.13    That is not right.   If the authorities have allowed a sign to become entirely obscured so that it cannot be seen by a reasonable motorist, and there are no other words indicating other restrictions, it can be sufficient to say “I did not see the sign”.  However, the Justices of the Peace went on to state that it was the duty of a motorist to be observant and to comply with signs, and that is so.  Mr Wu was not as observant as he could have been, and did not follow up the signal of “Other Times”.

[29]     The Justices of the Peace relied on Shaw v Auckland City Council.  In Shaw the  Justices  of  the  Peace  having  looked  at  the  photographs  concluded  that  the signage was in fact clear.14   The sign was not hidden by the tree or the branches.  The Judge who considered the appeal from their decision was not persuaded that that view of the facts was wrong.   The Judge observed as an aside that it was the combined effect of the traffic control devices that was relevant.15    So here it is the combined effect of all the words that could be seen on the traffic control device that

are relevant, including the words “Other Times”.

13     Auckland Transport v Wu, above n 4.

14     Shaw v Auckland City Council, above n 2 at [6].

15 At [21].

[30]     I have in this case referred to the Road Code and some photographs handed up to me by Mr Wu in the course of this appeal.  There was some objection to this on the part of the Council.   However, the photographs produced only showed from different perspectives what was already shown in other photographs produced at the hearing.  The Council cannot complain about a reference to the Road Code when it undoubtedly reflects the law, and is a document in common usage, mastery of which is a requirement for a driver’s licence.  In any event, the Road Code does in fact set out requirements reflecting the law which show that Mr Wu should have checked further.

Result

[31]     The appeal is dismissed.

……………………………..

Asher J