Babbage v Police [2012] NZHC 3602 (18 December 2012)

Last Updated: 3 February 2013

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2012-443-47 [2012] NZHC 3602

BETWEEN KERRY JOHN BABBAGE Appellants

AND THE POLICE Respondent

Hearing: 18 December 2012

Appearances: Appellant in person

N L Elliott for Crown

Judgment: 18 December 2012

_{JUDGMENT OF ALLAN J}

Solicitors/party:

K Babbage, PO Box 8349, New Plymouth 4342

Crown Solicitor New Plymouth

BABBAGE V THE POLICE HC NWP CRI-2012-443-47 [18 December 2012]

[1] This is an appeal by Mr Babbage against his conviction on a charge of proceeding through an intersection governed by a yellow light at a time when it was safe for him to bring his vehicle to a halt without entering the intersection.

[2] The charge is laid under s 40 of the Land Transport Act 1998 and Rules

3.1(1) and 3.2(4) of the Road User Rules 2004.

[3] Mr Babbage was also convicted of an offence under the Road User Charges

Act 2012 but there is no appeal against that conviction.

[4] The evidence fell within a very narrow compass. On Thursday, 31 May

2012, Constable Lawn and Snr Sgt O’Keefe were in a police patrol vehicle, stationary at the intersection of Devon Street West and Dawson Street, in the northern lane on Dawson Street. That intersection was controlled by traffic light signals. From his position, Constable Lawn, who was the driver, could observe the traffic light signals, and noticed that the lights controlling the west side of the Devon Street intersection had changed from green to yellow.

[5] The two police officers observed a white vehicle driven by the appellant proceed through the intersection travelling in an easterly direction. They say that, as the vehicle entered the intersection, the traffic signal controlling the Devon Street West lanes turned red. By that time the vehicle was approximately half way through the intersection. Constable Lawn activated the patrol vehicle’s red and blue lights and stopped the vehicle, driven by the appellant.

[6] The hearing took place before Justices of the Peace in the District Court at New Plymouth on 23 October 2012.1 The police officers and Mr Babbage gave evidence. At the conclusion of the hearing, the Justices delivered an oral decision.

[7] The present offence was dealt with relatively shortly. After reciting the facts as set out above, the Justices said:2

Mr Babbage essentially – I am choosing my words carefully – did not deny the charge but rather claimed that he had insufficient time to brake.

[8] A little later when speaking of what they regarded as a police discretion not to charge a motorist who had failed to comply with the directions given by traffic lights, they said:3

... they could have exercised their discretion but they, I think, absolutely correctly in the circumstances, charged you with a lesser offence, even though the light had turned red at the crossing – that would have been wrong for them.

[9] Finally and crucially, they said:4

I think you made the breach when the yellow was in front of you however short the distance might have been.

[10] Regulation 3.2(4)(a) of the Land Transport (Road User) Rules 2004 provides that 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.

[11] The decision of the Justices gives rise to a real concern that they have simply misunderstood the legislation. I have set out above certain passages from their oral decision. In the first of them they say Mr Babbage did not deny the charge but rather claimed that he had insufficient time to brake. But of course that was his defence to the charge. The relevant Rule forbids a driver from entering a controlled area unless his or her vehicle is so close it cannot safely be stopped before entering the area. On the basis of that passage alone, it seems the Justices may have misunderstood the ingredients of the offence.

[12] Second, I do not understand their reference to a police discretion, although on one reading and possibly the best reading, it seems they considered the police had a discretion in the circumstances to charge Mr Babbage with driving through a red light, because the light had turned red while he was still in the controlled area.

[13] The passage concerned is somewhat confusing. Read alone it would not necessarily have given rise to the decision that I consider is inevitable, namely that the appeal must succeed.

[14] The crunch passage is, however, the third extract which I have set out above. In it the Justices find that Mr Babbage was in breach when the yellow light was in front of him “ ... however short the distance might have been”. That is simply not right. If the Justices were correct, then there would be no need for the Rule to provide that it is a defence to a charge of this character that the vehicle could not safely be stopped before entering the controlled area at the time at which the yellow signal was first displayed.

[15] On a reading of the passages to which I have referred, I conclude that the Justices must have misconstrued the legislation, or that at least there is a very serious risk that they did. There is nothing else in their decision to suggest that they did indeed understand the ingredients of the offence.

[16] In those circumstances it would be unsafe to uphold the conviction and the appeal must succeed.

[17] I have considered what the ultimate fate of this charge should be. One option would be to permit the parties to argue the appeal on the papers as they stand. But in my view that would not be right because the outcome turns essentially on the evidence of the two police officers on the one hand and Mr Babbage on the other. The question whether the vehicle could safely be stopped in the end turns on matters of opinion. It is therefore crucial that the Judge determining the case actually sees and hears the witnesses. That would suggest the case ought to be remitted to the District Court for retrial, as usually occurs in such circumstances. But here the charge was a minor one. There is no suggestion that road safety was imperilled. Mr Babbage’s car and the police car were the only vehicles within material range. The ends of justice do not require the case to be remitted to the District Court for retrial.

[18] For these reasons the appeal is allowed. There is to be no new trial.

C J Allan J