GAMBHIR v NEW ZEALAND POLICE [2022] NZHC 1582

GAMBHIR v NEW ZEALAND POLICE [2022] NZHC 1582 [5 July 2022]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000095[2022] NZHC 1582BETWEEN VIPUL GAMBHIRAppellantAND NEW ZEALAND POLICERespondentHearing: 28 June 2022Appearances: Justin Harder for the AppellantAlexander Gee for the RespondentJudgment: 5 July 2022JUDGMENT OF MOORE J[Application for leave to bring a second appeal against conviction]This judgment was delivered by me on 5 July 2022 at 3:00 pm.Registrar / Deputy RegistrarDate:Introduction[1] Vipul Gambhir disputed an infringement notice alleging that he had exceededthe applicable speed limit on a highway in Dome Valley. The dispute was heard beforeJustices of the Peace. The Justices found that the infringement was proved and finedMr Gambhir $170.[2] Mr Gambhir paid the fine but nevertheless appealed to the District Court. On16 February 2022, Judge E M Thomas dismissed the appeal.1[3] Mr Gambhir now seeks leave to bring a second appeal against conviction.The infringement[4] On Sunday, 13 December 2020, Mr Gambhir was driving on State Highway 1in Dome Valley. Road workers had previously demarcated a stretch of the highwaywith signs displaying a temporary 50 kilometre per hour speed limit. The temporaryspeed limit was originally imposed as road works were being conducted.[5] Constable Thow was on duty conducting speed enforcement in the area. Hisradar measured Mr Gambhir's vehicle travelling at 75 kilometres per hour. He pulledMr Gambhir over. He then issued Mr Gambhir a fine of $170 and 35 demerit points.Hearing before Justices of the Peace[6] Mr Gambhir disputed the infringement before the Justices. He accepted thatConstable Thow recorded his car travelling at 75 kilometres per hour.[7] Mr Gambhir's case was that the applicable speed limit varied depending uponwhether the road works were attended or unattended. He cited an NZTA press releasefor the area which stated that the applicable speed limit was 70 kilometres per hourwhen the site was unattended. The limit reduced to 50 kilometres per hour when thesite was attended. He gave evidence that on the day that he was issued the fine the50 kilometres per hour speed limit sign was present, despite it being a Sunday and the1 Gambhar v Police [2022] NZDC 2522. The intituling of the judgment misspells Mr Gambhir'ssurname so is cited with that error.site being unattended. His argument was that the speed limit was actually70 kilometres per hour.[8] While the Justices expressed some sympathy with Mr Gambhir's position,they noted that they were bound to apply the law. They found that, rightly or wrongly,the posted speed limit was 50 kilometres per hour and that was the speed limitMr Gambhir was required to follow. The Justices concluded by commenting that:"[7] As a side note, it is disappointing that roading contractors throughoutNew Zealand are very lax in the management of their safety plans. We allknow of experiences when signs have been left up when they are notapplicable, but unfortunately until somebody takes something against thecontractors to do their jobs properly, we all suffer and we have a lot ofsympathy for your position, unfortunately, it cannot be that way in law."Appeal to the District Court[9] Mr Gambhir appealed to the District Court. He argued that the Justices failedto appreciate that the site was unattended and that the posted speed limit should havebeen 70 kilometres per hour. He produced a traffic management plan for the site whichstated that this was the speed limit when the site was unattended.[10] Judge Thomas considered that Mr Gambhir was unable to demonstrate that theJustices had misinterpreted the word "unattended". The Judge explained:"[4] 'Unattended' can mean many different things. It can mean thatthere are no works going on at the site. It can mean that there are no worksgoing on that day on the site. It can mean that there are no works going on atthat particular moment because everybody is having a coffee break. It couldmean all sorts of things."[11] Although contractors confirmed that there may not have been anybody on sitethat day, the Judge considered that Mr Gambhir was unable to prove that "the site wasunattended from a legal point of view". In any event, the Judge found that there couldbe no miscarriage of justice because Mr Gambhir was driving at 75 kilometres perhour, which exceeded the 70 kilometre per hour speed limit he argued for. His appealwas dismissed without any further legal analysis.Application for leave to bring a second appeal[12] Mr Gambhir now applies for leave to bring a second appeal againstconviction.2 Leave must not be granted unless the appeal involves a matter of generalor public importance, or that a miscarriage of justice may have occurred, or may occurunless the appeal is heard.3 The threshold for granting leave is high, particularlybecause not every error will carry with it a risk of a miscarriage of justice.4Should leave to appeal be granted?[13] Mr Harder, for Mr Gambhir, seeks leave to appeal on two bases. The first isthat Mr Gambhir's appeal involves a matter of general or public importance insofar asit concerns the meaning of "applicable speed limit" under the Land Transport Rule:Setting of Speed Limits 2017 ("the Rules"). He submits that the proper interpretationhas broad implications for road safety. He further submits that allowing the appealwould signal to the relevant authorities the need for greater care when managingtemporary speed limit signage.[14] The second is that a miscarriage of justice has occurred because the Justicesfailed to determine whether the temporary speed limit was "right or wrong" and indoing so failed to determine whether an essential element of the offence was proved.Mr Harder submits that the burden of proof was wrongly shifted onto Mr Gambhir.[15] The interpretation of the Rules is capable of qualifying as a question of law ofgeneral importance.5 Their general importance is reflected in their purpose, whichincludes giving effect to a nationally consistent and evidence-based approach to speedmanagement and deciding which speed limit is safe and appropriate for roads.6 TheRules apply to every motorist who travels on roads in New Zealand. A decisionclarifying the interpretation of the Rules will therefore have implications for the safetyof all of those motorists.2 Criminal Procedure Act 2011, s 237(1).3 Section 237(2).4 McAllister v R [2014] NZCA 175 at [38]. See also Larason v Police [2021] NZCA 440 at [18].5 Larason v Police [2021] NZCA 440 at [19].6 Land Transport Rule: Setting of Speed Limits 2017, r 1.3.[16] Such a decision will also have implications for road controlling authorities andcontractors tasked with carrying out functions under the Rules. The Justices tooknotice of the common experience among New Zealanders encountering road worksites that are mismanaged by roading contractors. The essence of Mr Gambhir's caseis that mismanagement of that kind has legal implications under the Rules. If he iscorrect, those implications would be of public importance and would no doubt be takeninto account by the relevant authorities.[17] I acknowledge that the Rules were superseded by a more recent iteration thisyear. In my view the wording of both iterations is sufficiently similar that theinterpretation of the previous iteration will inform that of the most recent.[18] For the Crown, the thrust of Mr Gee's opposition to the application is that evenif a proposed appeal concerns a question of general importance, it must neverthelessraise a tenable argument.7 He submits that Mr Gambhir fails to raise a tenableargument that the posted speed limit was inoperative. It follows, in his submission,that Mr Gambhir cannot establish that there was miscarriage of justice.[19] I am not satisfied that Mr Gambhir's argument should be discounted at thisstage. The following facts appear to be accepted for the purpose of the argument:(a) that there was a 50 kilometre per hour speed limit sign installed on therelevant part of the highway in Dome Valley;(b) the sign related to road works being undertaken on that stretch of road;and(c) the construction area was unattended at the relevant time, in the sensethat there were no workers or others connected to the road works onduty or in the vicinity.7 Larason v Police [2021] NZCA 440 at [19].[20] This final point was seemingly contentious in the District Court, but clarifiedat the leave to appeal hearing. With the Crown's consent, Mr Harder produced anemail in response to an Official Information Act 1982 request in which Waka Kotahiconfirmed that there was no one working on the site on the relevant day,. Thisdocumentary record corroborates Mr Gambhir's evidence to the same effect.Although the facts will ultimately be a matter for the appellate Judge, it would bepreferable for the parties to file an agreed statement of facts setting out what appearsto be common ground relevant to the issues.[21] The issue on appeal will be whether the Justices erred in their interpretation ofthe Rules by finding that the 50 kilometre per hour temporary speed limit was effectiveat the time Mr Gambhir infringed that limit. Whether that temporary speed limit wasvalidly set and effective at the time of the alleged infringement is a question of law.The answer turns upon a reasonably complex exercise of interpreting the Rules. Italso directly bears upon the risk of a miscarriage of justice.[22] Neither the Justices nor the District Court Judge appears to have undertakenthis interpretative exercise. The Justices accepted that it "could well have been thecase that there was no work being carried out at the particular time" but relied uponthe posted speed limit. The District Court found that Mr Gambhir failed to establishthat the site was "unattended" in a legal sense. I make no criticism of either approach.Mr Gambhir was previously self-represented and is only represented by counsel in thisCourt. The inescapable conclusion is that this important question did not receive theattention and scrutiny it deserves.[23] The consequence is that the arguments signalled by Mr Gambhir on thisapplication concern a matter of public importance and have not yet been fully arguedand determined. If Mr Gambhir is correct but leave is not granted, a miscarriage ofjustice will have occurred. It follows that a grant of leave is necessary to enable fullargument.Result[24] The application for leave to bring a second appeal against conviction isgranted.Moore JSolicitors:Mr Harder, AucklandCrown Solicitor, Auckland