Legal Lines

Last month I set out the circumstances in which motorcyclists are permitted to lane split in the context of the overtaking rules as found in the Land Transport (Road User) Rule 2004. Following on from our discussion about when it’s safe to complete a passing manoeuvre, I wanted to share with you an interesting case that touches on this area of the law. In Mercer v Police

[2019] NZHC 1957, Mercer successfully appealed against an infringement notice that was issued for driving a vehicle on a road at a speed exceeding the 100kph speed limit, while overtaking.

No dispute about speed

Mercer did not dispute that he had exceeded the applicable speed limit. His case was that he had no choice. He gave evidence that a car he was passing increased its speed towards the end of the passing area and he decided that the only safe course of action was to exceed the speed limit so as to complete his overtaking manoeuvre safely.

Exceptions for offences

The judge in the District Court acknowledged Mercer’s argument but he did not address it. He found that the offence had been proven but did not give reasons for rejecting Mercer’s argument. That was unfortunate, because although exceeding the speed limit is a strict liability offence, there are legal defences prescribed in the Land Transport (Road User) Rule 2004. One of the general exceptions set out at subsection 1 in Rule 1.8 is as follows:

A person is not in breach of this rule if that person proves that:

(a) the act or omission complained of took place in response

to a situation on a road; and

(b) the situation was not of the person’s own making; and

(c) the act or omission was taken:

(i) to avoid the death or injury of a person; or

(ii) if the act or omissions did not create a risk of death or injury or greater damage to any property, to avoid damage to any property.

Miscarriage of justice

A judge has to justify their findings. How a decision is reached and what was taken into account and what was not, is of importance. If the analysis or reasons are deficient, the conclusion is flawed and unsubstantiated. In this case the High Court was unable to determine why the District Court judge found the speeding infringement proven and this resulted in a miscarriage of justice. The High Court then had to decide whether a conviction could stand in the absence of reasons by the first judge for his decision.

The evidence

Mercer gave an explanation for why he had exceeded the speed limit and denied that there was plenty of room to allow him to merge with the cars he was overtaking that would have rendered it unnecessary for him to complete the overtaking manoeuvre. In the transcript of his evidence recorded in the District Court, Mercer said: “I had to make a snap decision so I’d rather take the safe option which results in no one dying than, yeah, having an accident.”

The police officer who issued the ticket was reluctant to speculate on Mercer’s suggestions as to the dangers of him braking hard instead of speeding up, but otherwise did not refute Mercer’s case. Mercer’s credibility was not challenged and the High Court accepted both witnesses’ evidence as being reliable and credible.

Analysis of rule

The High Court accepted that Mercer exceeded the speed limit to overtake a car that increased its speed. His actions were in response to a situation on a road, which is in accordance with Rule 1.8(1)(a). It was also accepted that the requirement in Rule 1.8(1)(b) was satisfied because the situation was not of Mercer’s making. It involved the unexpected increase in speed of the lead vehicle that Mercer was overtaking.

Justice Brewer noted that driving is a dynamic activity. Conditions can change suddenly, and drivers have to react to them suddenly. Rule 1.8 recognises this and excuses exceeding the speed limit so long as the person charged proves the criteria in the sub-clauses. However, if a person’s driving during their response to the situation is unlawful and falls outside the scope of the Land Transport (Road User) Rule 2004 then it cannot be excused by operation of Rule 1.8. In other words, Rule 1.8 cannot save a person from a charge of careless or dangerous driving. Alternatively, if the situation responded to was one of the person’s making, such as misjudging the speed necessary to complete an overtaking manoeuvre safely, then the excuse will not be available to them either.

Appeal granted

Mercer’s evidence was that he exceeded the speed limit to avoid death or injury. There was no evidence to the contrary. It was not necessary for Mercer to prove his act was objectively necessary to avoid death or injury, just that his act was taken to avoid death or injury. The District Court judge erred in not giving reasons as to why Mercer’s explanation did not amount to a defence to the infringement notice and this led to a miscarriage of justice. Accordingly, the appeal was allowed and the infringement notice was dismissed. □

Please note that this article is not a substitute for legal advice and if you have a particular matter that needs to be addressed, you should consult with a lawyer. Danielle Beston is a barrister who specialises in transport law and she can be contacted on (09) 379 7658 or 021 326 642.