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IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY CRI-2009-485-44 PAUL MCBRIDE v WELLINGTON CITY COUNCIL Hearing: 28 July 2009 Appearances: Ms Brown and Ms Thistle for Mr McBride Mr Quinn for Wellington City Council Judgment: 5 August 2009 at 2.15 pm JUDGMENT OF MALLON J Contents Introduction.......................................................................................................................................... [1] The facts .............................................................................................................................................. [4] Procedural issue ................................................................................................................................... [6] The law ........................................................................................................................................... [6] What occurred here ....................................................................................................................... [10] Submissions .................................................................................................................................. [14] My assessment .............................................................................................................................. [16] Substantive issues .............................................................................................................................. [25] The issues......................................................................................................................................[25] Parking meter ................................................................................................................................ [27] "At, or adjacent to" ....................................................................................................................... [31] Compliance with Rule 12.5(1)(a)..................................................................................................[38] Do the Rules' sign requirements apply in any event? ................................................................... [43] Costs .................................................................................................................................................. [45] PAUL MCBRIDE V WELLINGTON CITY COUNCIL HC WN CRI-2009-485-44 5 August 2009 Introduction [1] Parking tickets are frustrating, and potentially costly, particularly where one has endeavoured to comply with whatever is required of them to park in the space. It is therefore important that parking restrictions are clear so that those parking in the spaces to which restrictions apply know what is required of them if they are to park there. Rules issued under the Land Transport Act 1998 and bylaws issued by local authorities are in place to achieve this. [2] In this case Mr McBride took the view that it was not clear that a parking space in Cable Street in Wellington in which he parked required him to display a "pay and display" ticket. He was issued with an infringement notice for this. Undeterred, and apparently taking the view that no pay and display ticket was required for this space despite having already received one infringement notice, he continued to park in the same space without displaying a pay and display ticket and received 14 further infringement notices. [3] Mr McBride sought to challenge the infringement notices, but the District Court upheld them. Mr McBride now appeals to the High Court. He says that: a) the District Court erred by allowing the Wellington City Council ("the Council") to call further evidence after the evidence had closed and he had made his closing submissions; and b) the District Court erred in finding that the parking restriction, metering and signage complied with the Council's bylaws and the Land Transport Rule: Traffic Control Devices 2004 ("the Rules"). The facts [4] The parking space at issue is on the north side of Cable Street and, at the time the infringement notices were issued, was the last of 12 car parks commencing eastwards from the Cable Street/Chaffers Street intersection. Immediately to the east of the parking space was a bus stop. At the relevant time, a sign was attached to a pole positioned on the footpath alongside the parking space, approximately one metre within the western boundary line of the parking space (which was measured at 5.4 metres in length). The sign stated as follows: Pay and Display Parking 2 hours maximum Pay at machine [5] A pay and display machine was located 24.2 metres to the west of the parking space. The arrow on the sign pointed in this direction. There were four other complete parking spaces between that pay and display machine and the parking space at issue, and the pay and display machine was located on the footpath alongside the fifth such space. Procedural issue The law [6] The parties agree that, even if the evidence is not rebuttal evidence, the Court has a discretion to allow the prosecution to call further evidence after it has closed its case. They differ as to when it is appropriate to exercise the discretion. [7] The overriding principle is the interests of justice: Murray v Ministry of Transport CA 113/83 1 March 1984 at 17. There is no inflexible rule as to the circumstances in which, and up to what stage, a court should exercise its discretion: Murray at 17. [8] Examples of where it may be appropriate to exercise the discretion include: a) where the prosecution seeks to produce formal evidence to repair an omission after the prosecution's case has closed and before the evidence has been given for the defendant: Murray at 17; b) where the matter has only been put in issue in the defendant's evidence and the prosecution has been taken by surprise, particularly on a formal point: Murray at 17; c) where the case had proceeded on the basis of agreed facts with the intention that the Court was only to determine the proper application of the law to those facts and a defendant seeks to take opportunistic advantage of the absence of a record of a fact: Wellington City Council v McBride HC WN CRI-2007-485-33 22 August 2007 ("McBride (No. 2)") at [43] and [44]; and d) where a question arose in cross-examination about the operation of a device (for testing the proportion of alcohol in the breath of the driver of a motor vehicle), the significance of which was unclear and which the Judge wished to clarify, and there was no unfair prejudice to the defendant because the defendant was able to reopen its case and call such further evidence as he wished: Minifie v New Zealand Police HC AK A206/00 26 February 2001. [9] Conversely, in Savage v The Police HC CHCH AP207/97 16 October 1997 the High Court Judge (John Hansen J) considered the District Court Judge was in error in exercising his decision. However, it appears that the High Court was not referred to Murray (a Court of Appeal decision) and in Savage the defendant had not been given the opportunity to make further submissions. Justice John Hansen reached the same conclusion in Farry v Police HC DUN AP46/00 19 December 2000, (in which Murray was referred to the Judge), in circumstances where the prosecution ought to have been aware that the evidence was required and where the District Court had granted leave four and a half months after the hearing. His Honour commented that if the leave had been granted sooner he might have reached a different view. What occurred here [10] In this case the parties filed an agreed summary of facts before the hearing in the District Court. The agreement as to those facts was expressly "[w]ithout limiting the duty on the informant to establish all necessary facts, and without limiting the right of either party to call evidence as to facts". In that document the parties agreed that the parking space at issue "[c]ommences approximately 85 metres east from the intersection of Chaffers Street". That document also attached the Council resolution, issued under the relevant bylaw, which designated the area of the relevant parking restriction as "commencing 9.5 metres east of its intersection with Chaffers Street and extending in an easterly direction following the northern kerbline for 72 metres". In other words, the parking restriction began 9.5 metres from the intersection and ended 81.5 metres from the intersection. Consistent with this resolution, another resolution stated that a bus stop commenced at 81.5 metres east of the Cable Street/Chaffers intersection. [11] The matter was first heard by the District Court on 11 March 2008. The Council called evidence from a Mr Carmichael, to produce photographs of the parking spaces and showing the location of the pay and display machines. Mr Carmichael's evidence did not address the issue of whether the park was within the restricted area, nor why that was so when the agreed statement of facts referred to the distance from the intersection to the parking space being approximately 85 metres, whereas the resolution said that the restriction applied up to 81.5 metres from the intersection. He was cross-examined but not on the issue of the location of the parking space from the intersection nor whether the park was within the restricted area. After the completion of Mr Carmichael's evidence the Council closed its case. Mr McBride did not call evidence. In closing submissions Mr McBride submitted that, as the park was approximately 85 metres from the intersection, it was outside the parking restriction in terms of the resolution. On this basis he submitted that the Council had failed to prove the offences. [12] Over Mr McBride's objection, the District Court Judge adjourned the hearing to give the Council the opportunity to provide further evidence on this point. Counsel were invited to confer on the matter with a view to agreeing on any necessary amendments to the agreed summary. [13] The Council measured the distance from the intersection to the parking space, determining that it was 75.7 metres at the western end of the parking space and 81 metres at the eastern end. This measurement was not accepted by Mr McBride. Therefore, when the hearing resumed, Mr Carmichael was recalled and he gave further evidence as to this measurement. He was cross-examined by counsel for Mr McBride. The cross-examination included questions about the point at which the measurement was taken and in particular whether it took into account kerb extensions. After this evidence each party presented further submissions. In deciding in favour of the Council on the fifteen infringement notices, the Judge accepted Mr Carmichael's further evidence and rejected the submissions for Mr McBride as to the point under the bylaws from which the measurement should be taken. Submissions [14] Mr McBride says that the Court's discretion as to whether to permit the Council to call further evidence should have been exercised against the Council. He says it was for the Council to establish the charges and it had failed to do so at the point that closing submissions were made. Mr McBride says that there was no reason why the Council was unable to call the evidence in the first place. He distinguishes McBride (No 2), which the District Court Judge said he relied on in deciding to provide the Council with the opportunity to call further evidence, on the basis that that case proceeded entirely on an agreed statement of facts, whereas the agreed summary here expressly did not limit the Council's duty to establish all of the necessary facts. [15] In oral submissions Mr McBride also said that he was prejudiced by what occurred. First it is said that there was prejudice because it was not until the defence submitted that informations had not been proven that the Court permitted the further evidence to be called. As I understand it the prejudice is that this enabled informations to be proven after a defence which showed that they had not been proven had been raised. Secondly it is said that prejudice arose because Mr McBride says he was not given the opportunity to call evidence. Mr McBride says that his evidence would have been directed to establishing that if the measurement was taken from the correct place it would have shown that the space was outside the 81.5 metre restriction. Mr McBride does not say that he would have decided against challenging the infringement notices if Mr Carmichael's later evidence had been given in the first place. My assessment [16] I accept that it is relevant that there was no reason why the Council could not have called evidence from the outset to establish that the park was within the restricted area. I also accept that there was a difference in the present case from that in McBride (No. 2) because in the present case there was an express statement that the agreed summary did not limit the Council's duty to establish all necessary facts. However the question is whether it was in the interests of justice for the further evidence to be called. Relevant to this question is how the issue arose, the nature of that issue and whether the further evidence gave rise to unfair prejudice to Mr McBride. [17] It is unclear on the evidence whether Mr McBride was initially confused about whether the Council intended the relevant park to be a restricted parking area and as to the risk of an infringement notice if he did not display a "pay and display" ticket and, if so, what gave rise to that confusion. If he was initially confused it seems less likely that he could have remained confused when he parked in the same space another 14 times, each time receiving an infringement notice. It appears that from an early stage Mr McBride considered there to be some technical errors in the Council's method of restricting the park although it is not clear what Mr McBride initially considered those errors to be. [18] I am told that after the infringement notices were issued and before the informations were laid Mr McBride had written to Council "providing a photograph of the Cable Street car park and setting out the issue". The letter is not before me and so it is unclear which particular issue was pointed out to the Council. The previous cases (McBride v Wellington City Council [2006] DCR 452 ("McBride (No. 1)") and McBride (No. 2)), where Mr McBride has represented someone with the same surname (whom I am told is his brother) who has challenged parking infringement notices on various grounds, were not on the ground that the park was a distance from the intersection that was outside the area referred to in the restriction. On the material before me, there was therefore nothing in the history to alert the Council that there was an issue as to whether the park was within the area restricted by the resolution. Nor is there anything in the agreed statement of facts to alert the Council that this was being put in issue. [19] So while I accept that from the outset the Council could have produced accurate evidence of the distance of the park from the intersection rather than agreeing to the park being approximately 85 metres from the intersection, it was not so obvious an omission in the evidence as to be inexcusable. In this case Mr McBride has apparently seized upon the Council's error in agreeing that the park was approximately 85 metres from the intersection. It was a technical point which he had kept up his sleeve, and in respect of which further evidence was readily available which might show that the point was without merit. I consider that the Judge was not wrong to allow the further evidence to be called providing it did not unfairly prejudice Mr McBride. [20] I consider that the first matter relied on by Mr McBride does not give rise to prejudice. Allowing the further evidence merely served to establish the relevant facts so that the defence that Mr McBride had raised could be considered against those facts. The Council retained the obligation to prove the information beyond reasonable doubt on the basis of the facts. [21] The second matter relied on by Mr McBride could amount to prejudice if it were established. However, Mr McBride did not ask to call evidence. In the absence of a request to do so it is wrong to say that he did not have the opportunity to call evidence and that prejudice arose because of this. Further, Mr McBride was able to and did cross-examine Mr Carmichael. This cross-examination included cross-examination as to where the measurement was taken from and whether it took into account kerb extensions. [22] Mr McBride was also permitted to and did make further submissions after Mr Carmichael's further evidence had been given. The submission referred to an alleged uncertainty about the point at which the measurement was to be taken. In considering this submission the District Court Judge considered the definitions of "intersection" and "roadway" in the bylaw and whether it could be said that the beginning of the intersection was at the point after the parking space that abutted the kerb line. He rejected this interpretation concluding: The evidence given by Mr Carmichael as to his own common sense interpretation of that term, which he said relied upon the practical advice of city engineers, did not leave me in any doubt as to his methodology nor as to the precise points from which his measurements had been taken. That interpretation was entirely consistent with the wording of the relevant resolutions which express dimensions commencing from an intersection and following a kerbline for a specified distance. [23] Therefore even if Mr McBride had given evidence on the measurement of the intersection to the parking space it would have made no difference. The Judge was satisfied that Mr Carmichael's methodology was correct and the park was within 81.5 metres from the intersection. [24] In these circumstances, I am not persuaded that there was any prejudice arising to Mr McBride in the lower court's exercise of its discretion to hear further evidence from Mr Carmichael. I consider it was in the interests of justice that the Council was given the opportunity to clarify the distance between the intersection and the end of the park. I therefore find against Mr McBride on this ground. Substantive issues The issues [25] Where a road controlling authority has imposed a restriction on parking by designating an area of road to be time restricted, it must indicate that area by providing signs in accordance with, amongst other things, r 12.5 of the Rules. For present purposes the relevant requirement is r 12.5(1)(a) which states that these parking signs must be provided "at each end of the section of roadway affected" and "if appropriate, with arrows or supplementary notices, defining their area or time of application". This is subject to r 12.5(3) which provides that the authority does not have to provide signs to indicate a parking restriction "if parking is controlled by parking meters that are located at, or adjacent to, each parking space". [26] The Judge found that the pay and display machine was a meter and was adjacent to the relevant park. The consequence of these findings was that there did not need to be signs which complied with r 12.5(1)(a). At issue on appeal, as clarified in oral submissions, is whether the pay and display machine is a "parking meter" and whether it was "at, or adjacent to" the parking space. If not, the issue is whether the sign complied with r 12.5(1)(a). If the pay and display machine is a parking meter and is at or adjacent to the parking space, the issue is whether the Council nevertheless needed to comply with r 12.5(1)(a) because it chose to erect a sign. Parking meter [27] Mr McBride submits that a pay and display machine is not a "parking meter" within the meaning of the term used in r 12.5(3). [28] This Court considered whether a pay and display machine is a parking meter in McBride (No 1) at [19] to [26]. Counsel in that case had argued that a "meter" carried the implication that it measured time which a pay and display machine does not. Justice Gendall considered that meters are things or instruments which measure or record a quantity of something. His Honour said that a pay and display machine registers the time within which a motorist may legally park in a designated space as measured or fixed against the amount of money paid. He said that it regulates the length of time a vehicle may be parked and is activated by the insertion of money by the motorist. He therefore held that the "plain and ordinary meaning" of parking meter encompassed such a machine (at [26]). [29] McBride (No 1) was decided under the Traffic Regulations 1976 which preceded the Rules. Mr McBride submitted that the decision could therefore be distinguished. He noted that the 1976 Regulations were passed before pay and display machines were invented or in use. He also referred to the definition of "parking" in the Rules as referring to "parking meters or vending machines" and to R6-59 of Schedule 1 which sets out detailed sign specifications for "vending machine zones". He says that these references show that the Rules differentiate between pay and display machines and parking meters. [30] I consider that the two references to vending machines in the Rules are insufficient to indicate that the Rules intend that pay and display machines are not parking meters. The term "vending machine" is not defined in the Rules Mr McBride has not provided any analysis of the Rules to indicate where the "parking" definition applies, nor whether parking meters and vending machines are referred to separately in the Rules and, if so, in what context. Nor has he pointed to anything else in the Rules which necessitates or justifies distinguishing pay and display machines from timed meters. In these circumstances there is no reason why Gendall J's reasoning as to the meaning of "parking meter" under the 1976 Regulations, which applied the plain and ordinary meaning of "meter", does not apply equally to the meaning of parking meter in the Rules. I therefore find that pay and display machines are parking meters for the purposes of r 12.5(3). "At, or adjacent to" [31] Here Mr McBride submits that the pay and display machine was not "at, or adjacent to each parking space". [32] This court (Gendall J) dealt with the meaning of "at, or adjacent to" as used in r 12.5(3) in McBride (No 2). In that case the pay and display machines were 36 metres apart. In between were six spaces, the furthest park from the meters (the middle one) being 18 metres away from each of the two machines. Justice Gendall referred to the wider meaning of "adjacent" as being "near to in the vicinity or neighbourhood of" (at [27], quoting The Mayor, Councillors, and Burgesses of the Borough of Lower Hutt v The Mayor, Councillors, and Citizens of the City of Wellington [1904] 23 NZLR 519 (CA) at 525). His Honour considered that in this context, "`adjacent to' must mean `near', `close' or `neighbouring', and something more than `at'" (at [30]). He noted that the purpose of the Rules was to ensure that motorists using a parking space are advised of any parking restrictions, and that the Rules appear to be concerned with "the degree of notification that is reasonably required" (at [38]). He considered that it was a matter of degree as to whether parking spaces were sufficiently proximate to a parking meter to be within the meaning of "adjacent to". He concluded that the machines were "adjacent to" or "nearby" the parking spaces because any person parking within that group of parking spaces could be expected to have seen the machines. [33] Mr McBride sought to distinguish this decision because in this case the nearest pay and display machine was 24.2 metres away from the parking space (ie. a distance further than in McBride (No.2)), there was only one machine (compared with the two observable from any space in the parking area in McBride (No. 2)) and here there was an arrow on a sign within the parking space but which pointed away from the majority of that space. Mr McBride submitted that this combination of differences from McBride (No. 2) meant that the parking meter was not "at, or adjacent to" the parking space. [34] On this appeal Mr McBride has not contested the finding made by the District Court Judge that the pay and display machine is clearly observable (as shown in a photograph which was produced as an exhibit). The District Court Judge also referred to the unbroken sequence of marked parking spaces from the intersection at the one end until the bus stop at the other end of Cable Street; and that there was a specific sign immediately beside and within the marked area of the parking space used by Mr McBride which drew the driver's attention to the designation of the area and the location of the machine. [35] As to that sign I agree with the District Court Judge that the sign draws the driver's attention to the designation of the area and the location of the machine. In my view it does not matter that the sign pointed in a direction away from the majority of the space. The sign was located approximately one metre within the 5.4 metre parking space and so, as the photograph of the space also shows, it was clearly within the park. I consider that the other differences relied on by Mr McBride to distinguish McBride (No. 2) are immaterial also. [36] In my view, a motorist parking in that space had notice that it was governed by the pay and display machine. Therefore, if the McBride (No. 2) purposive interpretation of the term "adjacent" as used in r 12.5(3) were to be taken, the pay and display machine was a parking meter adjacent to the parking space and the sign would not need to comply with r 12.5(1)(a). [37] In oral reply submissions Mr McBride submitted that if McBride (No. 2) was not distinguishable on the facts, it was wrong in any event and should not be followed. This submission was not advanced with any analysis. The written submissions said that emphasis should be placed on the requirement that the sign be adjacent to "each" parking space. It was also said that the determinative factor was not whether the pay and display machine was observable. The submissions were not expanded upon to explain why this meant that McBride (No. 2) should not be followed. In the absence of analysis, and because I consider that the sign complied with r 12.5(1)(a) in any event (as discussed below), I do not need to consider this submission further. Compliance with Rule 12.5(1)(a) [38] On this appeal Mr McBride raised two issues with the sign: namely that the sign was not placed at the end of the section affected by the restriction because it was not at the (eastern) end of the last parking space (but instead was located towards the beginning of that space); and secondly that the arrow on the sign here pointed towards the west, away from the majority of the parking space. Mr McBride submitted that it was relevant that the Council had subsequently shifted the position of the sign to the end of this parking space. [39] Dealing with that last point first, I consider that it does not matter that the Council has subsequently moved the sign to the eastern end of the last parking space. Such a move was warranted to avoid the cost of defending any similar challenge in the future. [40] Rule 12.5(1)(a) requires signs to be located "at each end of the section of roadway affected". I consider that the words "at each end" do not mean that the sign must be positioned exactly on or just past the far boundary of the last parking space affected. The words do not say that. A sign clearly within the last parking space to which the restriction applies is in my view a sign at the end of the section of roadway affected. Such a sign achieves the purpose of clarity (recognised in Kelly v Wellington City Council [1995] 3 NZLR 750 at 760) as to the area of the parking restriction. [41] Rule 12.5(1) also requires, if appropriate, arrows defining the area or indicating the direction of the application of the parking restriction. In my view, the fact that the arrow here points away from a substantial portion of the parking space is not reasonably construed as indicating that the parking restriction does not apply to the parking space, or that it only applies to the rear or western part of that space. The latter certainly can not have been the case because the parking space is delineated by the marking on the road and it would be odd, to say the least, for the Council to seek to restrict a portion only of a marked parking space and not the balance (particularly when all the other spaces between the intersection and the bus stop were restricted). I consider it would be clear to a motorist who parks in that space that the arrow indicates both that this space and others in the westward direction are covered by the restriction and also the direction in which the pay and display machine can be located. [42] For these reasons, I find that the sign here does comply with the requirements of r 12.5 of the Rules. Do the Rules' sign requirements apply in any event? [43] Mr McBride submitted that even if r 12.5(3) applies (on the basis that the pay and display machine is a parking meter and was located at or adjacent to the parking space), in circumstances where the Council chooses to erect a sign, as here, that sign must comply with the requirements for parking signs in r 12.5(1)(a). There is nothing in r 12.5 which supports Mr McBride's submission. Rule 12.5(1) is expressly stated to apply "[e]xcept as provided in r 12.5(3)". Rule 12.5(3) provides an exception to the general requirement that road controlling authorities install regulatory signs in accordance with the Rules to indicate requirements, restrictions or prohibitions on road users. The reason for the exception is presumably because a parking metre at or adjacent to a parking space is sufficient notice to a motorist that a parking restriction applies. [44] Where the requirements of the Rules as to the signs do not apply Bylaw 18.2.2(d) requires that the "limits of parking meter areas controlled by multiple parking meters shall be indicated by signs". For the reasons already given I consider that the sign here did indicate the limits of the parking meter area. In any event, even if the requirements of r 12.5(1)(a) applied, for the reasons given above, I am satisfied that the sign complied with those requirements. Costs [45] Both parties, if successful, sought costs under the Costs in Criminal Cases Act 1967. Mr McBride accepted before me that costs in accordance with the scale should be ordered in the event that he was unsuccessful in his appeal. Mr McBride has been unsuccessful. Accordingly I order costs in accordance with the scale against Mr McBride. Mallon J Solicitors: R Brown, John Miller Law, Wellington (email: info@jmlaw.co.nz) S Quinn, DLA Phillips Fox, Wellington (email: stephen.quinn@dlaphillipsfox.com)
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