A driver convicted of speeding through a roadworks site with a temporary speed limit in place has won the right to appeal the decision for a second time on a technicality.

On December 13, 2020 Vipul Gambhir was clocked travelling at 75km/h, by a police radar, through a stretch of State Highway 1 in Dome Valley, between Warkworth and Wellsford, when signs displaying a temporary speed limit of 50km/h were in place.

Gambhir was issued a $170 ticket and 35 demerit points.

Despite paying the fine and acknowledging he was doing 75km/h he went to court to challenge it saying the speed limit varied depending on whether the roadworks were attended or not.

He provided an NZTA press release for the area, stating the speed limit was 70km/h when the site was unattended but it reduced to 50km/h when the site was attended.

Gambhir gave evidence he received the ticket on a Sunday when no workers were onsite.

While the JPs hearing his case were sympathetic to his argument, they noted they had to apply the law and "rightly or wrongly" the speed limit was 50km/h.

While Gambhir paid the fine he appealed the decision in the district court arguing the JPs failed to appreciate the site was unattended and therefore the speed limit should have been 70km/h.

Judge Evangelos Thomas ruled Gambhir couldn't demonstrate the JPs had misinterpreted the word "unattended".

" 'Unattended' can mean many different things. It can mean that there are no works going on at the site. It can mean that there are no works going on that day on the site. It can mean that there are no works going on at that particular moment because everybody is having a coffee break. It could mean all sorts of things," the judge ruled.

Although contractors confirmed there may not have been anybody on site that day Judge Thomas said Gambhir couldn't prove "the site was unattended from a legal point of view".

He ruled there could be no miscarriage of justice as Gambhir was travelling at 75km/h which was above the 70km/h and the appeal was dismissed.

The decision didn't deter Gambhir who then applied to the High Court to bring a second appeal against the sentence.

His lawyer Justin Harder argued the case was a matter of public importance as it concerned the meaning of "applicable speed limit" and a miscarriage of justice had occurred because the JPs failed to determine whether the temporary speed limit was "right or wrong".

In doing so they failed to determine whether an essential element of the offence was proved and the burden of proof was wrongly shifted onto Gambhir, Harder submitted.

For the Crown Alexander Gee submitted Gambhir failed to raise a tenable argument that the posted speed limit was inoperative and he could not establish there was miscarriage of justice.

Justice Simon Moore, however, was not satisfied Gambhir's argument should be discounted.

He said the issue on appeal would be if the JPs erred in their interpretation of the rules by finding the 50km/h temporary speed limit was effective at the time.

Whether that temporary speed limit was validly set and effective at the time of the alleged infringement was a question of law and the answer involved a reasonably complex exercise of interpreting the rules and had a direct bearing on the risk of a miscarriage of justice, Justice Moore said.

"Neither the Justices nor the District Court Judge appears to have undertaken this interpretative exercise.

"The inescapable conclusion is that this important question did not receive the attention and scrutiny it deserves."

He said the case concerned a matter of public importance and had not yet been fully argued and determined.

"If Mr Gambhir is correct but leave is not granted, a miscarriage of justice will have occurred."

Leave was granted for the second appeal.

- Leighton Keith, NZ Herald