Speeding infringement overturned on appeal

This is an interesting case where a judgment found it proven that a Mr Mercer drove a vehicle on a road at a speed exceeding 100 km/h, but on appeal the infringement notice was dismissed after Mr Mercer argued that when two cars he was passing at a passing lane sped up his safest option was to exceed the speed limit to complete the massing manouvre before the passing lane ran out.

[1] Mr Mercer, who represents himself, appeals a decision of Judge CS Blackie finding proved that he drove a vehicle on a road at a speed exceeding 100 km/h, which was the applicable speed limit. This is an infringement offence.

[2] Mr Mercer did not dispute in the hearing before Judge Blackie that he exceeded the speed limit of 100 km/h. His case was that he had no choice. Mr Mercer said in evidence that a car he was passing increased its speed towards the end of the passing area and he decided the only safe course of action was to exceed the speed limit so as to complete his overtaking manoeuvre safely.

This sort of scenario will be familiar to many people. It is common for slow cars to speed up when they get to passing lanes, and for cars in the slow lane to speed up when being passed.

[7] Mr Mercer’s argument is to the effect that the Judge should have accepted his evidence about his reason for exceeding the speed limit and discharged him accordingly. Mr Mercer, not being a lawyer, advanced his argument on a common sense “it is just not right” basis.

[8] Judge Blackie acknowledged Mr Mercer’s argument, but he did not address it. By his decision the Judge rejected the argument, but he gave no reasons for doing so. That is unfortunate because there is at law a legal exception to the prohibition on exceeding a speed limit which might have applied to Mr Mercer.

[19] Mr Mercer’s relevant evidence-in-chief was:

A. There were two cars in front of me and I was driving along, I was behind them, yeah, obviously, they were mainly about 70 kilometres an hour and both, all of us were in the slow lane so I indicated right, wait for at least three seconds, went straight, I went 100 kilometres an hour and I should have easily overtaken them and then the – it appeared that the front car had accelerated at the last second so I believe I was going to hit that car.

Q. Yes?

A. If I slowed down I could’ve been stuck between those two cars which could’ve caused an accident as well. If I were to slam the brakes my car could’ve spun around into the traffic from the other direction, because of that I had to accelerate to make sure I got through uninjured or, there’s no accident …

[20] In cross-examination Mr Mercer said that when the passing lane was reached “a lot of the other cars took off, I just stayed behind the other two slow ones and then realised that they were going too slow so I just decided to go in the overtaking lane and pass them”

[21] Mr Mercer denied there was plenty of room to allow him to merge with the cars he was overtaking so it was unnecessary for him to complete the overtaking manoeuvre. The cross-examination ended with this exchange:

Q. And what I’m saying to you is that there’s plenty of room there?

A. 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.

[32] …Mr Mercer’s evidence was he acted (by exceeding the speed limit) to avoid death or injury. There is no evidence to the contrary. It is not necessary for Mr Mercer to prove his act was objectively necessary to avoid death or injury, just that his act was taken (in that he took it for the purpose) to avoid death or injury.


[33] Judge Blackie erred in not giving reasons as to why Mr Mercer’s explanation did not amount to a defence to the infringement notice. In light of my analysis of the evidence I have concluded that led to a miscarriage of justice.

[34] The appeal is allowed. The infringement notice is dismissed.

So a successful appeal that shows there is a defence against exceeding the speed limit for the purposes of avoiding death or injury.

It doesn’t say whether Mr Mercer had legal advice, but he successfully appealed acting for himself.

The full decision: MERCER v POLICE [2019] NZHC 1957 [13 August 2019]


Leave a comment


  1. Kitty Catkin

     /  20th August 2019

    The people who crawl along at 4 miles a fortnight then speed up with the obvious intention of not letting one pass are the bloodiest fools. We have all had this happen !

  2. Alan Wilkinson

     /  20th August 2019

    I had two of these cretins on my last ute trip down to Auckland. I miss the old S4 though – it was past the idiots before they had time to dribble over their steering wheel.

    I’ve noticed the perpetrators are more often than not female victims of colonialism. Seem afflicted with passive aggressive syndrome.

    Good to see the appeal court being sensible and, even better, setting a sensible precedent.

    • I’ll just leave this link here for the hot heads who think that the consequences of speeding are trivial.


      • Alan Wilkinson

         /  21st August 2019

        The usual moronic generalisations and platitudes from one of the most incompetent bureaucracies in this country.

      • Ismael, I have no sympathy at all for leadfoots who are caught and whine about it.I was nearly killed by one, spent three weeks in hospital where I cost the taxpayer about $100,000 and still feel the effects (as well as having the scars). I am still in pain quite often. Speeders needn’t complain to me about being fined. User pays.

        But this man was avoiding a crash, and while he was technically speeding, he didn’t have much option.

      • Kitty Catkin

         /  22nd August 2019

        The best one is the one with the invisble driver, the others were less convincing and the music in the second one made it all but impossible to hear the man speaking.

        The acting in the invisible driver is really good; their expressions are very acurate portrayals of unease.

  3. patupaiarehe

     /  22nd August 2019

    I’ve always had the philosophy that the safest way to overtake involves spending the minimum amount of time possible on the wrong side of the road. Good to see common sense prevailing in this case. The problem is that most victims of revenue gathering behaviour such as this are too busy to fight it in court, & just pay up. I wonder how much more than the original fine it cost this guy to successfully defend himself…

    • I used to come back from university by a back road. One day a maniac in a maroon BMW raced past me…on the inside. My instinct was to pull over, of course, and I nearly went into the BMW. Not long afterwards, I was with two other people on the same road and the same maniac passed us on the inside, nearly causing a crash as the driver of the car I was in also automatically swerved and just managed to avoid the lunatic in the BMW. I couldn’t guess how fast he was going and wonder if he did it once too often. The stupid thing was that in a crash HE would have been hit.

  4. Corky

     /  8th October 2022

    Hey, Lurchy! Are you still around, son?


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