LARASON v NEW ZEALAND POLICE [2021] NZCA 440

LARASON v NEW ZEALAND POLICE [2021] NZCA 440 [6 September 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA232/2021[2021] NZCA 440BETWEEN JEROME LARASONApplicantAND NEW ZEALAND POLICERespondentCourt: French, Mander and Palmer JJCounsel: C M Ruane for ApplicantP D Marshall for RespondentJudgment:(On the papers)6 September 2021 at 9 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Larason seeks leave to appeal a decision of Doogue J in the High Court.1The decision concerned an infringement offence for speeding which the Judge foundhad been proven against him.1 Larason v Police [2021] NZHC 653 [High Court judgment].[2] Leave is required because an appeal in this Court would be a second appeal,the High Court decision being itself an appeal from a District Court decision.2[3] In a minute dated 30 June 2021, Collins J directed that the application for leavebe determined separately from the proposed appeal and be heard on the papers.3Background[4] On 2 October 2019, Mr Larason drove a motor vehicle at a speed of 100 km/hon a stretch of Jones Road on the outskirts of Christchurch where the speed limit was80 km/h.4 He was observed by a police officer who issued him with an infringementnotice. The District Court found the charge proven and ordered payment of theinfringement fee of $200 together with court costs.5[5] At the time of the incident Mr Larason was undertaking a seven-kilometrejourney on a route that did not contain any speed limit signs. The roads he wastravelling on were not densely populated areas but "hedge lines, paddocks and farmswith a spattering of homes".6[6] He contends that the absence of signage was a breach of the road controllingauthority's obligations under r 4.2 of the Land Transport Rule 54002: Traffic ControlDevices 2004. He contends further that although the offence of speeding is one ofstrict liability, he had a good defence of total absence of fault.[7] The vehicle which Mr Larason was driving had earlier been left on the roadsideby a family member because of a punctured tyre. His wife had driven him to theabandoned car so he could replace the punctured tyre and drive the car home.The speeding occurred on the journey home. The journey to the abandoned car hadtaken him past an 80 km/h sign. Because he was only a passenger at that point, hesaid he did not see it.2 Police v Larason [2020] NZDC 16005 [District Court judgment].3 Larason v Police CA232/2021, 30 June 2021 (Minute of Collins J).4 Near the township of Rolleston. In the District Court, Mr Larason disputed the accuracy of thedevice used by the officer to measure his speed but no longer pursues that argument.5 District Court judgment, above n 2, at [42].6 High Court judgment, above n 1, at [22]. This was Mr Larason's description which the High Courtaccepted as accurate.The relevant parts of r 4.2 read:4.2 Provision of traffic signsRegulatory signs4.2(1) A road controlling authority must provide a regulatory sign to instructroad users of the speed at which they may travel where a speed limitchanges, and at intervals within the speed limit area, as specified insection 9 of Land Transport Rule: Setting of Speed Limits 2017.4.2(3) Unless specified elsewhere in this Rule, regulatory signs must beinstalled to instruct road users of a requirement, restriction orprohibition on traffic:(a) at each point where the requirement, restriction or prohibitionapplies; or(b) where the requirement, restriction or prohibition applies to alength of road:(i) at the start; and(ii) after each intersection along its length; and(iii) at the end; and(iv) at intervals along its length, as specified in this rule orother enactment; or[8] In Mr Larason's submission, the effect of r 4.2(3)(b) is that the regulatory signindicating an 80 km/h speed limit was required to be installed at the start ofJones Road, at intervals along its length as well as after each intersection along itslength, and at the end of it.[9] In the District Court, Judge Hix considered this interpretation would producea nonsensical result. He held that the use of the word "or" at the end of r 4.2(3)(a)indicated that r 4.2(3)(b) is designed for the specific situation where there aresignificant lengths of road with changing speed limits along the road. 77 District Court judgment, above n 2, at [22]–[23].[10] In the High Court, the Judge did not address r 4.2(3)(a) and (b) other than torecord Judge Hix's interpretation.8 Her focus was rather on the reference in r 4.2(1)to the requirement to place speed signs "at intervals within the speed limit area, asspecified in section 9 of Land Transport Rule: Setting of Speed Limits 2017".[11] Rule 9 of the Land Transport Rule 54001: Setting of Speed Limits 2017relevantly provided:Section 9 Signs and road markings9.1 Requirement to provide signs at, or near, point where speed limitchanges9.1(1) A road controlling authority must install a speed limit sign on theleft-hand side of a road under its jurisdiction at or near, and not morethan 20 m from, the point on the road where a speed limit changes.9.1(2) If the estimated two-way annual-average daily traffic at the pointwhere a speed limit changes exceeds 500 vehicles, the roadcontrolling authority must also install a speed limit sign on theright-hand side of the road, or on the central median whereappropriate, at or near, and no more than 20 m from, that point.9.1(3) If a road user might not easily see, or readily understand or react to, asign that is installed within 20 m of the point on the road where aspeed limit changes, a road controlling authority may,despite 9.1(1) and 9.1(2), install speed limit signs more than 20 m, butas close to it as reasonably practicable, from that point.9.1(4) A speed limit sign may be installed otherwise than as requiredby 9.1(1) if—(a) authorised under this Rule or any other enactment; or(b) a road user might not easily see, or readily understand or reactto, a sign that is installed on the left-hand side of the road; or(c) the sign would be more effective if installed above a lane.9.2 Requirement to provide repeater signs unless nature of roadmakes speed limit clear to road users9.2(1) A road controlling authority must install speed limit signs where theywill be easily seen by road users and to which they may readily react,with at least one sign being installed within each maximum length ofroad applying to the speed limits in—8 High Court judgment, above n 1, at [14]–[15]. In his submissions, Mr Larason contends Doogue Japproved Judge Hix's interpretation but that is not made express.(a) Table 1 of Schedule 2 for permanent and seasonal speedlimits; or(b) Table 2 of Schedule 2 for temporary and emergency speedlimits.9.2(2) A road controlling authority is not obliged to comply with 9.2(1) inregards to any particular length of road if—(a) the nature of the particular length of road is such that a roaduser would reasonably understand that the speed limitdisplayed on the last speed limit sign remains the speed limitthroughout the whole of that length of road; and(b) the measured mean operating speed is less than 10% abovethe speed limit for that length of road.[12] Doogue J accepted that although r 9.2 requires repeater signs every2.7 kilometres, that was subject to the exception contained in r 9.2(2) which she wassatisfied applied in this case. That was because on the evidence the roads travelled byMr Larason were of the same nature as the 80 km/h roads leading into them, therebysatisfying r 9.2(2)(a). As for r 9.2(2)(b), that was also satisfied. The data from thespeed indication device on two of the relevant roads showed average operating speedsof close to or less than the 80 km/h speed limit.9[13] The Judge concluded that there was therefore no legal requirement for repeatersigns to be placed every 2.7 kilometres from the original 80 km/h sign that Mr Larasonwould have passed while his wife was driving.10[14] The Judge went on to say that even if the local roading authority had notcomplied with the rules, it would not have relieved Mr Larason of the obligation tomake himself aware of the lawful speed limit:[36] For the defence of absence of fault to succeed, a defendant must provethat he or she took "all reasonable care" to avoid the offence.11 There is alsono reasonable care defence available here as Mr Larason admits he was notpaying attention to his surroundings when his wife was driving him to an areawhere he knew he would soon be driving. Knowing he would be drivingimminently he should have been more cognisant of the speed limit signage.9 At [32]–[33].10 At [34].11 Stird Potential Ltd v Roycroft [2019] NZHC 429 at [15]-[16].[37] Further, he advised he was familiar with the general area in which hewas apprehended. He therefore ought to have been familiar with the fact thatthere is a mixture of open road limit (100 km/h) and restricted speed limit(80 km/h) in the West Melton and Rolleston area. He could, in thosecircumstances, have travelled at 80 km/h until such time as he observed a signindicating the applicable speed limit.[38] I also accept the potential absurdity highlighted by Ms Lancaster that,if the Court was to accept Mr Larason's argument, then every time a motoristgot into their vehicle and began driving they would not be subject to theapplicable speed limit until they passed a sign indicating the speed limit.A further absurdity is the suggestion that an individual driver can make theirown assessment of the applicable speed limit by reference to their individualcharacterisation of the "nature of the road".The application for leave to appeal[15] In order to obtain leave to appeal, Mr Larason must satisfy us that his proposedappeal involves a matter of general or public importance or that a miscarriage of justicehas occurred or may occur unless the appeal is heard.12[16] Mr Ruane, counsel for Mr Larason, says the scope of the obligations of roadcontrolling authorities, the correct interpretation of r 4.2(3) and the requirement ofsignage to identify the correct speed limit in force at any given point on the road mustbe matters of general or public importance. They impact on almost all road users.He disputes the Crown submission that the interpretation he advocates is untenableand submits that the District Court's reliance on the word "or" was misplaced becauseon the facts of this case only r 4.2(3)(b) could apply. If the Judge wrongly interpretedthe provision that would by definition constitute a miscarriage of justice as well asgenerating a question of law worthy of submission for determination by this Court.[17] Mr Ruane further contends that the Judges in the Courts below were also wrongto find a defence of total absence of fault was not available to Mr Larason. In theabsence of signage and any other indication to the contrary, it was, he says, reasonablefor Mr Larason to assume the applicable speed limit was the open road limit. The onlyother way he could have ascertained the speed limit would have been to search theinternet which is not practical. Accordingly, in Mr Ruane's submission, regardless ofwhich interpretation of r 4.2(3) is correct, there has been a miscarriage of justice.12 Criminal Procedure Act 2011, s 237(2).Our view[18] The threshold for granting leave is a high one,13 and in our view the proposedappeal fails to meet it.[19] We accept that the interpretation of Land Transport rules is capable ofqualifying as a question of law of general importance. However, there must be atenable argument and that in our view is lacking. Significantly, Mr Ruane'ssubmissions do not engage with r 9 or in any way challenge Doogue J's application ofthat provision. Yet, it is the rule that specifically governs the provision of regulatorysigns about speed limits and therefore must be the primary rule. In contrast, r 4.2(3)on which Mr Ruane places so much emphasis is a rule about regulatory signs generally.We would make the further point that even if r 4.2(3) were determinative (which wefind it is not), it is a well-established principle of interpretation that Parliament shouldnot be taken to have intended an absurd result.14 Yet, as noted in the District Court,that would be the result of the interpretation advanced before us.[20] We also reject the submission that Mr Larason had a good defence of absenceof fault. The submission to the contrary omits the fact there was an 80 km/h sign forhim to see on his outward journey. In our view the Judge's reasoning quoted above at[14] was unassailable.[21] We conclude there has been no miscarriage of justice and no risk of one.We are also satisfied there is no reasonably arguable issue of general or publicimportance.[22] The application for leave to bring a second appeal is therefore declined.Finally, we note that Mr Larason no longer seeks to challenge his sentence.Solicitors:Crown Law Office, Wellington for Respondent13 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.14 See Frucor Beverages Ltd v Rio Beverages Ltd [2001] 2 NZLR 604 (CA) at [28].