A careless driving case was thrown out of the Oamaru District Court yesterday, after it was determined that the road on which it occurred, was not actually a road.
Charles David Ryan, pleaded not guilty to a charge of careless driving after the front right of his vehicle was struck by a north-bound train on a private access road off Waimoutu Rd in Maheno.
The issue for determination in the Oamaru District Court yesterday, was whether the driving, which it accepted was careless, occurred on a road as is determined by the Land Transport Act 1998. If it did not occur on a public road, it would not be an offence.
About 7.30am on August 25, 2011, Ryan drove his Toyota Hilux ute on a private access road, part of a property known as Punchbowl Farm. The private road is about 1.6km long and provides access to four dwellings.
Ryan was travelling towards the farm cottages and as he approached the railway crossing, he prepared to stop to look for trains.
He stopped with the front of his vehicle partially across the line.
As he looked north he heard a loud train horn coming from the south and tried to reverse.
Ryan suffered minor injuries as the front of his ute was struck by the train and pushed off the line.
Defence counsel Michael de Buyzer said the accident was on a driveway, not a place which the public resort as a matter of course.
Section 2 of the Land Transport Act 1998 defines a road as a place to which the public have access, whether as of right or not, on foot or by motor vehicle.
Judge Maze said she had to conclude that the driveway in question was not a road.
She said it was private land and people were warned by a sign saying that they were entering the private property.
"Mr de Buyzer said quite correctly, there's no evidence that this driveway is where the public have access," she said.
"The evidence makes clear that this is not a road."
There was some suggestion that there was an annual event during which time the public could come and go from the property, but that in itself could not satisfy the test, Judge Maze said.
"The prosecution must fail," she said.