[1] On 26 June 2007 a police officer observed Nigel Dawson driving through an intersection in downtown Wellington on an amber light. As a result he was charged and summarily convicted after a hearing before Justices of the Peace on one charge of failing to stop at a yellow traffic signal.[1] He was fined $50 and ordered to pay court costs of $30. Mr Dawson unsuccessfully appealed to the High Court against his conviction.[2] Mr Dawson subsequently sought leave from the High Court to appeal to this Court. In a decision delivered on 28 April 2009, MacKenzie J declined to grant leave.[3]
[2] Mr Dawson now seeks special leave to appeal under s 144(3) of the Summary Proceedings Act 1957.[4]

Basis of proposed appeal

[3] Mr Dawson wants to argue, first, that what he did was not unlawful. He says his actions were lawful as he was able to drive safely through the intersection to clear it whilst the light was still amber. Secondly, Mr Dawson seeks to appeal on the basis that the police officer made a procedural error when giving evidence before the Justices of the Peace.

Discussion

[4] Special leave under s 144(3) can only be granted if there is a question of law that is of general or public importance or which for some other reason ought to be submitted to this Court. The Court has emphasised the importance of these requirements and the reasons for them.[5]
[5] Taking first Mr Dawson’s proposed argument about the lawfulness of his actions, cl 3.2(4) of the Land Transport (Road User) Rule 2004 provides as follows:

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.

...

[6] Joseph Williams J in dismissing Mr Dawson’s appeal set out the basis of the conviction. His Honour noted that the Crown relied on the evidence of Sergeant Moodie. He was observing the intersection at the time. Sergeant Moodie said that Mr Dawson’s vehicle had accelerated just as the light was turning yellow when, in the Sergeant’s view, it was safe to stop. Sergeant Moodie considered there were no following vehicles to make a braking manoeuvre risky. As Joseph Williams J noted, Mr Dawson’s evidence was that the light was green and that he had accelerated “either slightly before” or at the same time as the light turning yellow and that he had no “safe choice but to continue into the intersection”.[6]
[7] Joseph Williams J noted that the Justices of the Peace preferred Sergeant Moodie’s evidence and there was no basis to take a different view of the facts. The Judge put it in this way:[7]

Whether [Mr Dawson] accelerated once the light had turned yellow or whether he was completely committed to entering the intersection before the light change was a matter carefully considered by the Justices of the Peace. They appeared clearly to prefer Sergeant Moodie’s evidence to that of [Mr Dawson]. While I accept that these are often split-second decisions, and while I acknowledge that many of us have made choices in those circumstances that have taken us into intersections when they probably should not have, nonetheless the best judges of the facts of this case have to be those who heard the evidence at first instance, rather than me at this distance.

[8] Whether there was a breach of the rule was a question of fact which is not appropriate for a second appeal.
[9] The procedural error relied on by Mr Dawson was made by Sergeant Moodie. When the Sergeant gave evidence of the car registration number, he got the third letter on the registration plate incorrect, describing it as a “C” rather than an “L”.
[10] This mistake was corrected immediately by Mr Dawson in the course of the hearing. The error does not give rise to any question of law. As MacKenzie J in declining leave observed, “There was no dispute that the relevant vehicle was that driven by [Mr Dawson]”.[8]
[11] Mr Dawson feels strongly his case has not been treated justly. But we are satisfied that none of the matters he has raised give rise to a question of law in terms of s 144 of the Summary Proceedings Act.

Delay in filing the application

[12] Mr Dawson’s application for leave to appeal was filed more than 10 months out of time. In the absence of any explanation for the delay, the respondent opposed an extension of time. Mr Dawson’s explanation at the hearing for the delay essentially appeared to be that he was distracted by other matters. None of the matters raised were such as to explain the delay. In these circumstances, we decline to grant an extension of time.

Disposition

[13] The application for an extension of time to file the application for special leave is declined and the application for special leave is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] Regulation 3(1) of the Land Transport (Offences and Penalties) Regulations 1999 and cl 3.2(4)(a) of the Land Transport (Road User) Rule 2004.
[2] Dawson v Police HC Wellington CRI-2008-485-139, 25 February 2009.
[3] Dawson v Police HC Wellington CRI-2008-485-139, 28 April 2009.

[4] The provisions of the Summary Proceedings Act apply here by virtue of s 21(8)(d)(i) of that Act.
[5] R v Slater [1997] 1 NZLR 211 (CA).
[6] At [3].
[7] At [4].
[8] At [3].

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/303.html