IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000001 [2013] NZHC 143

BETWEEN	TIMOTHY EDWARD GEORGE KENDALL
Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	5 February 2013

Appearances: Appellant in Person
M Wilkinson for the Respondent

Judgment:	11 February 2013

RESERVED JUDGMENT OF GODDARD J

This judgment was delivered by me on 11 February 2013 at 3 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:	Crown Solicitors, Wellington
Copy To:	T Kendall, 96A Ashton Fitchett Drive, Brooklyn, Wellington

KENDALL V POLICE HC WN CRI-2013-485-000001 [11 February 2013]

[1]       Mr  Kendall  was  issued  with  an  infringement  notice  alleging  an  offence against s 40 of the Land Transport Act 1998.  The offence alleged was a breach of rr 3.1(1) and 3.2(5) of the Land Transport (Road User) Rules 2004: viz failing to stop at a red traffic signal in the form of a disc.  Following a defended hearing, Justices of the Peace found the offence proven beyond reasonable doubt.   Mr Kendall now appeals against that finding.

Background facts

[2]       On 24 May 2012, the Road Policing Group, primarily charged with traffic enforcement, was conducting an operation targeting traffic light compliance at the intersection of Willis Street and Ghuznee Street, Wellington City.   The operation, which was to be carried out during morning peak traffic flow, commenced at 7.15 am.  The supervisor and senior officer was Sergeant Patterson.  He deployed three staff members around the location and took up the role of spotter from a position on the south-western corner of the intersection.  In his evidence, Sergeant Patterson said he was able to see the lights governing the northbound traffic on Willis Street and the eastbound traffic on Ghuznee Street, which were the predominant traffic flows in the morning.  Constable Garland, another member of the operation, was deployed by the Sergeant to a position north of the intersection on Willis Street and all officers in the operation were in radio communication.

[3]       In his evidence Sergeant Patterson said that at 7.41 am he observed a cyclist northbound on Willis Street approaching the intersection and travelling at speed. There was no other traffic in his immediate vicinity.  He said:

I noted the traffic lights changed to orange when the cyclist was at least 30 metres  ...  south  of  the  intersection, proceeding north.   When the  lights changed I noted the cyclist appeared to speed up and continued to accelerate as he approached the orange light.  From my position I could see his entry into   the   intersection,   the   point   when   he   crossed   the   limit   lines. Simultaneously I could also see the lights change, and I noted the light turned to red prior to the cycle crossing the limit lines and entering the intersection.   The  cyclist  continued northwards through the  intersection, down Willis Street, where, at my instructions by radio, I observed Constable Garland step out onto the roadway and stop him.

[4]       In a further part of his evidence, Sergeant Patterson reiterated:

He was travelling at less than the 50 kilometre per hour speed limit but appeared to be travelling at quite a high speed for a bicycle.

... appeared to speed up, pedal harder when the lights changed, as if he was endeavouring to get through the intersection before it changed.

[5]       In cross-examination, Mr Kendall challenged Sergeant Patterson over his estimate of the speed at which he had been travelling and the Sergeant’s estimate of distance from the traffic light when it turned to orange.  I will return to these matters later, as they were important to Mr Kendall’s appeal.

[6]       As instructed by Sergeant Patterson, Constable Garland stopped Mr Kendall at a distance approximately 75 metres north of the intersection and spoke to him –

about a offence of going through a yellow and subsequently red light and informed him that, due to the information that I had received, I would be sending out an infringement notice for an offence of going through a yellow light.

[7]       This roadside advice to Mr Kendall was based on the radio communication from  Sergeant  Patterson,  as  Constable  Garland  had  not  himself  observed  the incident.

[8]       During that brief roadside encounter, a note of which Constable Garland recorded in his notebook, Mr Kendall was adamant that he was travelling through on a yellow light and that he could not have safely stopped before the intersection, and if he had braked he would have come off the bike and therefore he was legally justified in travelling through the intersection on a yellow light.

[9]       Subsequently, after conferring with Sergeant Patterson, Constable Garland issued an infringement notice to Mr Kendall for failing to stop at a red traffic signal, rather than at a yellow traffic signal.

Decision by the Justices of the Peace

[10]     In a reasonably comprehensive and detailed decision the Justices of the Peace traversed the evidence given for the prosecution and also by Mr Kendall in his defence.  The Justices were clearly aware of the issues raised for their determination:

viz whether the light was yellow or red when Mr Kendall proceeded through the intersection; whether he could have safely stopped on a yellow light; and also the issues of the estimated distance and speed at which Mr Kendall was travelling prior to entering the intersection.  In terms of the contested evidence as to the colour of the lights at the time Mr Kendall proceeded through the intersection, the Justices found as follows:

[11]      We have had considerable evidence presented to the Court.   The defendant has agreed he sped up to get through the lights.   At issue is whether the light was yellow or red.   The defendant claims the light was yellow when he proceeded through the intersection and, whilst the defendant may have believed the light was still yellow, the evidence presented by the prosecution stated that it had changed to red.   The further point that the defendant disputed was that the constable told him he had travelled through a yellow light and was issuing an infringement for that.   However in the evidence given by Constable Garland, he did state that the information he had received from the observer was that the cycle had travelled through yellow and red lights.

[12]      The law is quite clear, and the defence and the prosecution agreed, a yellow light means you must stop unless it is unsafe to do so. The defendant stated it was unsafe for him to stop in the situation but instead chose to speed up and, on the evidence for the prosecution, we were told that this resulted in the defendant travelling through the intersection on a red light. ...

[13]      Mr Kendall, you stated yourself you were some 20 to 25 metres away  when  you  chose to  speed up  and  continue travelling  through the intersection. We do find this matter proved beyond reasonable doubt.

The appeal

[11]     It is clear that Mr Kendall is an experienced cyclist and has been routinely cycling this particular route to work for over a decade.  He described the terrain and intersection in his evidence and his experience and practice in approaching and negotiating it.  Of this particular morning he said:

there was a car very close behind me ... I was very aware of how close it was, which caused me to look over my shoulder and actually look at it, ah, when I looked up the light had turned yellow, I was probably 20, maybe 25 metres away from the intersection at that point, um, I maybe could have stopped, but I wasn’t sure if the car behind me was going to stop, as, as it happens he did, but I wasn’t sure in the first moment if he was going to stop so I elected to continue through the intersection, ah, in accordance with the road code, which is quite clear, you must stop if it was safe to do so, um, it was a few dangers, ah, the brakes on pushbikes aren’t the best either.  The other reason why it’s a bit dangerous is the very large, rectangular-shaped piece of metal, manhole cover, right where I was riding and if I’d hit the

brakes reasonably hard, I would have been braking on that as well as the white line.  Although it was a fine day, the, the road was moist from all the dew at that hour in the morning that cars had been dropping and, um, it was slippery.

[12]     Mr Kendall further said:

I did not go through a red light.  The light did not turn red before I crossed the control line of the intersection. It had not turned red, and I was watching it.  It had not turned red by the time I exited the intersection.

...

I don’t think I was 30 metres away, I think I was closer than that, but even if I was 30 metres away I would have had to be cycling at, what, 20 something kilometres  an  hour  for  the  light  to  turn  red  well  before  I  got  to  the intersection as described by the, the sergeant.  Um, given the, the road’s a bit downhill there and given that I’d been speeding up to make sure I mo – didn’t get in anybody’s way when I changed lane, it’s not physically possible that the light could have been red, not only before I got to the intersection, it can’t have even turned red as I was going through the intersection.

[13]     Mr Kendall was critical of an alleged failure by police to have disclosed before the hearing exactly where Sergeant Patterson was positioned when he said he first sighted Mr Kendall on his bicycle and then observed him travel through the intersection on a red light.  He said that he had not been informed of the Sergeant’s exact position, despite having requested this under the Official Information Act, until Sergeant Patterson gave his evidence at the defended hearing.  Following the hearing Mr Kendall returned to the scene and stood in the position where Sergeant Patterson said he had been standing that day and submitted that it was impossible for Sergeant Patterson to have observed him from a distance of 30 metres away and also have observed the light change from this position.

[14]     Mr Kendall also pointed out that the Justices of the Peace had erred in stating that he had agreed in evidence that he “sped up to get through the lights”.   The relevant statement is the one set out at [22] above, where, if accurately put, should have stated that Mr Kendall said he had been speeding up to make sure he didn’t get in anybody’s way when he changed lane.

[15]     The  nub  of  the  appeal  is  however  the  direct  contest  between  Sergeant Patterson’s evidence and that of Mr Kendall, as to whether he crossed the limit lines of  the  intersection  after  the  light  had  turned  red.    The  issue  was  somewhat

exacerbated by Mr Kendall’s subsequent discussion with Constable Garland and the fact that Constable Garland had advised Mr Kendall that he would be issued with an infringement notice for going through a yellow light, but ultimately he was issued with an infringement notice for going through a red light.

[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.

[17]     Returning  to  the  issue  of  distance  and  the  estimated  speed  at  which Mr Kendall  was  alleged  to  be  travelling  prior  to  entering  the  intersection,  he submitted that on a simple calculation (which I note Sergeant Patterson agreed with under cross-examination) the light could not have turned to red before Mr Kendall entered the intersection, if he were travelling at approximately 50 kilometres an hour and was 30 metres or less from the intersection when the light turned to yellow.  He put it to Sergeant Patterson that even if he had been travelling at a lesser speed, of say 40 kilometres an hour, he would have covered the estimated 30 metres well short of the four seconds a traffic light remains yellow.

Notes made by the officers at the time

[18]     The  notebook  entries  made  by  both  Sergeant  Patterson  and  Constable Garland at the time are consistent with the evidence that each gave in Court and consistent with each other’s evidence.  Those notebook entries were provided to Mr Kendall  prior  to  the  hearing,  as  confirmed  by  the  Justices  of  the  Peace.    The notebook  entries  confirm that  Sergeant  Patterson,  at  the  time,  “observed  cyclist wearing black and blue go through red traffic signal” and immediately conveyed this to Constable Garland together with the advice, “yellow light and was red before limit line.  No attempt to stop”.

Discussion

[19]     Mr Kendall submitted that he was significantly hampered in his ability to defend the offence by the alleged Police failure to advise him of Sergeant Patterson’s exact position on Willis Street prior to the defended hearing.   As earlier  noted, Mr Kendall visited the site and stood in the position from which Sergeant Patterson said he was carrying out his observations that morning and argued on appeal that it would not have been possible for Sergeant Patterson to have observed him from
30 metres south along Willis Street and at the same time to have been able to see the lights change at the intersection.  Expressly, he stated:

When facing south along Willis Street to where Sergeant Patterson claims Mr Kendall was, the back of Sergeant Patterson’s head would have been toward the traffic signal.  The claim to have seen both Mr Kendall and the signal turning red “simultaneously” cannot be true.   It is of note that the evidence that Sergeant Patterson gave under oath is that Mr Kendall was a bike length back from the control line of the intersection when the light turned red.  The notes disclosed to Mr Kendall say that Mr Kendall was 0 meters from the intersection when the lights turned red.

The Police not disclosing this information prior to the defended hearing significantly hampered the ability of the defence to prepare.

[20]     In response to the allegation that not all relevant information was disclosed prior to the hearing, Ms Wilkinson advised the Court that Police disclosure had been fully complied with, as had a further request by Mr Kendall for information under the Official Information Act 1982.  In relation to a specific request by Mr Kendall for further information as to where Sergeant Patterson was standing, Ms Wilkinson said this information was not recorded, did not need to be created and was able to be tested in a defended hearing. This had been advised to Mr Kendall.

[21]     The question on appeal is whether Mr Kendall was significantly hampered in his ability to challenge Sergeant Patterson over his observations, by not having been able to conduct his own reconstruction in the exact observation spot prior to trial.  A reading of the transcript of evidence renders this inherently unlikely.

[22]     It is what Sergeant Patterson said on oath as to what he directly observed that is of critical importance.  The evidence he gave on this pivotal point was consistent

with the notes he made at the time and with the advice he immediately conveyed to

Constable Garland.

[23]     During cross-examination Mr Kendall criticised the Sergeant for being “a bit vague” about some matters: for instance, what he said Mr Kendall was wearing at the time, how fast he was going and how far away he was from the lights when first observed - but on the other hand was “crystal clear” in his memory as to exactly where Mr Kendall and his bike were when the light turned red.  This ‘vagueness’ about some details and precision about others is however explicable in the context in which Sergeant Patterson was observing.  The context was an intersection campaign at a particular intersection for the specific purpose of observing traffic movement through  that  intersection  and  ensuring  compliance.    Sergeant  Patterson  was  the spotter and leader of the operation and had three constables deployed at specific points around the intersection, awaiting his advice.  The Sergeant’s particular focus was direct observation of the intersection and the movements of traffic through it.

[24]   Rather than casting doubt on the credibility and reliability of Sergeant Patterson’s evidence, the fact that he was not categorical about matters such as speed and distance (which he could not calculate with exactitude), lends credibility to his evidence.   The Justices of the Peace  who saw and heard the Sergeant give his evidence were able to make their own collective assessment of his credibility and the reliability of what he said on oath.  In the absence of compelling evidence to indicate they should have found otherwise, an appellate Court will not interfere.

[25]     The question of impossibility raised by Mr Kendall about the estimate given by Sergeant Patterson of Mr Kendall being some 30 metres from the intersection when the light turned yellow and it changing to red before he entered the intersection and the various alternative scenarios of distance and speed put to Sergeant Patterson in  cross-examination,  did  not  detract  from  the  Sergeant’s  firm  evidence  on  the central issue.  The Sergeant was not defensive in his responses and continued to use qualified language about distance and speed.  For example:

... at least 30 metres ... south of the intersection, proceeding north.

...  less  than  the  50  kilometre  per  hour  speed  limit  but  appeared  to  be travelling at quite a high speed for a bicycle.

...

... appeared to speed up, pedal harder when the lights changed, as if he was endeavouring to get through the intersection before it changed.

...

... It presupposes that you were doing 50 kilometres per hour, which I don’t think you  were,  you  were travelling  at  speed for  a  bicycle,  on,  what’s effectively a flat road that you weren’t doing 50 kilometres per hour.

...

... I don’t think I am vague, you flashed past me at, at a reasonable speed,
you were the only bike that went through the intersection at that point.

...

... My impression as you went passed me was that you were wearing black and blue.  If your bike was blue and you say you were wearing black and white, I won’t dispute that.  If that is what you say, but that my impression was you were wearing black and blue.

[26]     The difference in Sergeant Patterson’s estimate of Mr Kendall being one bike length  away  from  the  limit  line  when  the  light  changed  red  and  the  estimated distance shown on the information of 0 metres is of no significance.  Ms Wilkinson advised that the infringement notice was completed by Constable Garland and not Sergeant Patterson and nothing turns on this.  As with all discrepancies, or alleged discrepancies, these assessment are always a question of weight for the fact finders, having regard to the totality of the evidence.

[27]     It was the clarity and firmness of Sergeant Patterson’s evidence about his direct  observations  of  Mr Kendall’s  passage  through  the  intersection  itself,  as exemplified in the following statement, which clearly impressed the Justices of the Peace:

I’ve given the evidence of, of what I saw, my impression was that you were about 30 metres from the intersection when the light turned yellow, and that at that point you sped up, and then I observed you enter the intersection after the light had turned red, if my estimate of your distance or speed a little out, I can’t, I can’t comment on that, that was my impression of your speed and the distance you were from the light, but I can categorically say that it was light, it was red when you crossed the limit lines.

[28]     This was the ultimate issue for determination and it was open to the Justices of the Peace to accept the eye-witness evidence of Sergeant Patterson on this central issue.

[29]     The appeal is dismissed.

Goddard J