A v Police HC Palmerston North CRI-2010-454-38

[2010] NZHC 2273

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2010-454-38

A

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         13 December 2010

Counsel:         P Coles for the appellant

B D Vanderkolk for the respondent

Judgment:      16 December 2010

JUDGMENT OF CLIFFORD J

An appeal against conviction and sentence

[1]      On 9 September 2009, a Ford Falcon utility motor vehicle being driven by the appellant, Mr A  , struck and killed an elderly pedestrian on Reid Line East, near Bunnythorpe.   Reid Line East is a rural road with a maximum lawful speed of 100 kilometres per hour.

[2]      Mr A   was charged with careless driving causing death.  He pleaded not guilty.  His trial took place in the District Court before a Judge alone over three days

in July 2010.

A V POLICE HC PMN CRI-2010-454-38 16 December 2010

[3]      The District Court found Mr A   guilty.   He now appeals against that conviction, and also against certain aspects of the sentence imposed upon him.

[4]      Mr A   should not have been driving on that day.   His licence had been suspended because of an accumulation of demerit points, principally for speeding infringements.   Mr A   was also charged with driving whilst disqualified.   He pleaded guilty to that charge, and was sentenced to six months’ disqualification and a fine of $250.  He does not challenge that sentence.

Facts

[5]      At approximately 8.30am on 9 September 2009, Mr A   was driving in a westerly direction along Reid Line East. At a certain point there are three letterboxes on the side of the road.  Opposite that point a number of driveways join the highway. The letterboxes are on the left hand side of the road travelling in a westerly direction. The driveways are on the right hand side of the road.   At a distance of some 90 metres from those letterboxes Mr A   observed a person checking his mail.  That person was Mr Jack McMurtrie, who was 84 years old.  Mr McMurtrie had his back to Mr A  , as Mr A   approached in his vehicle.

[6]      In his statement to the Police (he did not give evidence at trial) Mr A   stated that he was travelling at approximately 70 to 80 kilometres an hour.  When he saw the person checking his mail he steered into the right hand lane to give that person more room.  It was accepted at the trial, and not disputed before me, that that was a safe manoeuvre as the road ahead was visible and clear.

[7]      As Mr A   approached the letterboxes, Mr McMurtrie in Mr A  ’s words “ran” across the road into the path of his vehicle.  Mr A   said he braked heavily but could not avoid a collision.  The front left hand side of Mr A  ’s vehicle hit Mr McMurtrie, propelling him into the air.   Mr McMurtrie came to rest on the ground some metres away.

[8]      After Mr A  ’s vehicle came to a stop, he got out.  He called 111, and was put through to the ambulance service.  By that time, at least one and perhaps more motorists had stopped and other people in the vicinity had arrived on the scene.

Mr A   stated that he checked on Mr McMurtrie’s condition.  Mr A   then went to move his vehicle to make it easier, he said, for the ambulance to get close to Mr McMurtrie.  In the course of doing that, and in what he described subsequently in his statement to the Police as involving him “freaking out”, he decided to drive home.   When he arrived home his partner told him that he had to get hold of a lawyer.  Mr A   subsequently contacted a lawyer, and with that lawyer attended the Feilding Police Station later that day, at approximately 1.00pm.  Mr A   offered to go with the Police to the scene of the accident. The Police did not take up that offer.

[9]      As I understand it, Mr McMurtrie was taken from the scene of the accident, still alive, to Palmerston North Hospital.  Tragically, Mr McMurtrie died later that day.

The District Court hearing

[10]     The Crown’s case against Mr A   was essentially a simple one: Mr A   should have slowed down so as to be able to avoid colliding with Mr McMurtrie.  By not doing that, effectively as evidenced by the fact that Mr A  ’s vehicle had collided with Mr McMurtrie as a result of which Mr McMurtrie had died, Mr A   had failed to exercise the standard of care and attention that a reasonable and prudent driver would have exercised in those circumstances.   It was Mr A  ’s case, in defending the charge of careless driving, that his action of steering his vehicle onto the right hand side of the road was the response of a reasonable and prudent driver. Moreover, he had been unable to avoid the accident because Mr McMurtrie had unexpectedly  run  across  the  road  oblivious  –  it  would  appear  –  to  Mr A  ’s approaching  vehicle.    Mr  A    simply  could  not  avoid  the  accident  that  had occurred.

[11]     The presentation of the Crown case against Mr A   faced a number of difficulties.

[12]     There was  one eye  witness,  Mr McMurtrie’s  daughter.    Mr McMurtrie’s daughter, however, suffers from an intellectual disability and was not able to give any evidence at all.

[13]     Two people in the vicinity had heard or observed Mr A   driving along Reid Line East, and had not regarded his driving as being in any way exceptional. They were not, however, able to provide any further evidence of material assistance to the Court.

[14]     The  Police  officer  who  originally  attended  the  scene  for  the  purpose  of preparing   the   crash   investigation   report,   and   who   made   all   the   relevant measurements and observations, died before the case was held.   That report was therefore  finalised  by  a  Constable Stone  on  the  basis  of  measurements  and observations made by that other officer.  That, inevitably, affected the quality of the report.

[15]     Because Mr A   had left the scene, and the stopping point of his vehicle on the road had not been identified, and moreover because there were no eye-witnesses, the Police were unable to identify with any certainty the point at which Mr A  ’s car and Mr McMurtrie collided. Essentially because of that it was also not possible to determine with any precision the speed at which Mr A   was driving nor when his vehicle hit Mr McMurtrie,

[16]     Based on the original observations made, Constable Stone had nevertheless endeavoured to provide answers to those questions. At the trial, and in summary, his evidence-in-chief was, if Mr A   had been travelling at the speed he said he was, by braking hard he should have been able to pull the vehicle up short of the area of impact.   By Constable Stone’s calculations, Mr A   in fact had been travelling faster than he said, and perhaps as fast as 123 kilometres.  Those calculations were, however, also affected by a further error discovered during the course of the trial. There were three letterboxes at the side of the road.  Constable Stone had assumed that  Mr  McMurtrie  had,  before  he  started  to  cross  the  road,  been  positioned alongside the central letterbox.   Mr McMurtrie was in fact standing alongside the letterbox the furthest along Reid Line East travelling west.   This affected the calculations of how far Mr McMurtrie may have been thrown by the impact with Mr A  ’s vehicle.  That, in turn, affected the calculation of the speed at which the vehicle might have been travelling, and how quickly or otherwise it might have slowed under breaking.  All of that was relevant to the key question of when and

how quickly or otherwise, Mr A   may have reacted to Mr McMurtrie’s movement

across the road.

[17]     For  all  those  reasons,  it  was  accepted  by  both  the  appellant  and  the respondent that the Judge had been correct when he had concluded that the expert scientific evidence was not of great assistance to him.  Both the appellant and the respondent accepted that was the position I was in as well.   It was therefore not submitted that I should review that expert evidence in great detail, and neither had the Judge done so in the District Court.

[18]     The core of the Judge’s reasoning as regards the finding of guilt is found in the following passages:

I have considered the calculations in respect to the estimate of the pedestrian speed, based on senior citizen gait speed, but even taking that into account, allowing time to cross the first half of the road (3.7 metres) and to step out onto  the  second  half,  in  which  the  utility  was  travelling,  is  of  less significance to me in light of the test which I have to apply to the defendants driving, and the burden of proof in respect of that test.  And, clearly here, from a distance of 100 metres away, on his own admission, and certainly no less than 90 metres away, on the police measurement, the defendant has been on notice of a hazard on the side of the roadway ahead which might affect his forward progress in some way.  Whatever the speed at which the victim crossed the road, in the time which it took for the defendant’s vehicle to move from the position where he first saw the victim with his back to the road, likely clearing the letterbox at that stage, until the time of impact, the defendant had covered that distance.  The victim has turned around, crossed the first half of the road, and then impacted with the defendant.  Whether he ran,  walked  quickly,  or  otherwise,  is  and  must  remain  a  matter  of conjecture...

The defendant explained to Constable Green what he had done when he saw the potential hazard – to give him a wider clearance as a courtesy.   Here, seeing the hazard in time and reacting to it, is entirely appropriate.  At that point, and immediately, there could not be said to carelessness as in the reduction of the driving standard of a prudent and reasonable motorist. However, at all time subsequently until the impact itself, the victim was there to be seen and his placement on the road to be observed, and taken into account, and there was no impediment to this occurring.   It would be the expectation   that   a   prudent   and   reasonable   motorist   would   take   the movements of the pedestrian into account.   It is always possible after the event on reflection with the benefit of hindsight to say that more might be done.   In my view, in this case though, more could and should have been prudently done save to move to the right to give the pedestrian a wide berth. That in itself failed to take into account the likelihood of another continuing movement.  We will never know whether the victim heard the approach of the defendant’s vehicle.  It is not known if he was wearing his hearing aid at the time.  But there was no evidence, for example, of the defendant tapping his horn as a reasonable warning of his approach, or for that matter flashing

his headlights in order that his vehicle might better bet seen.   More importantly, perhaps, is that the defendant’s declaration, when combined with the change in vehicle placement on the road to the oncoming lane, should have taken place sooner than it did.  The evidence before the Court was that braking and steering can occur at the same time with a vehicle equipped with ABS brakes.   Nor was there evidence or indication that the defendant, in response to the perceived hazard, changed down a gear using the six speed manual gearbox with which the utility was equipped.  There was no reference as to what gear the defendant was in, in any event.  This too would have allowed for earlier deceleration than that promoted by the defendant with the harsh application of his brakes by which time the impact was all but inevitable.

The  lapse,  then,  and  reduction  in  driving  standard  on  the  part  of  the defendant here, is his failure to reduce speed sufficiently, or sufficiently in time, to be able to brake and if necessary come to a halt before reaching the victim.  If this is based on an error of judgment and assuming the pedestrian would stop and give way to the approaching motor vehicle, then that assumption was one that a reasonably prudent driver would not have made. A reasonably prudent driver would satisfy himself about the intentions of a pedestrian before a collision became inevitable if the pedestrian did not stop.

[19]     The Judge then referred to the cases of Cordes v Police and Terini v Police.1

With reference to those cases, and his earlier identification of Mr A  ’s failure as being that he did not reduce speed sufficiently, or sufficiently in time, to be able to break  and  if  necessary  come  to  a  halt  before  reaching  the  victim,  the  Judge concluded that Mr A   had not met the standard of a reasonably prudent driver.

Nature of this appeal

[20]     Under s 119 of the Summary Proceedings Act 1957 appeals such as the present are to be by way of rehearing.  The general approach on such appeals is now settled by the Supreme Court decision in Austin, Nichols and Co Inc v Stichting Lodestar.2    That is, the appellate Court is to come to an independent conclusion in the proceedings.  There is, therefore, no presumptive level of deference to the first instance decision.  Nevertheless, and as White J stated in Timoti v Police:3

This Court is required to reach its own view on the merits of the appeal. In deciding whether it has been persuaded that the decision under appeal is wrong, this Court must form its own opinion as to the acceptability and weight to be given to the evidence. In  forming its own opinion on the

1      Cordes v Police HC Whangarei CRI-2006-488-26, 7 September 2006 and Hirini v Police HC Napier AP27/03, 10 December 2003.

2      Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103.

3      Timoti v Police HC Auckland CRI-2009-404-320, 17 December 2009 at [19].

evidence, this Court may recognise the advantage that a District Court Judge had in seeing and hearing the witnesses when an issue of credibility arises and may hesitate to conclude that the Judge’s findings of fact or fact and degree were wrong.

Basis of appeal

[21]     On appeal Mr A  ’s case was – as it had been in the District Court – that it was  not  open  for  the  Court  on  the  basis  of  the  available  evidence  to  reach  a conclusion of guilt on the charge of careless driving.  Mr A   had, by steering into the right hand lane, taken a prudent and reasonable approach to avoiding any risk associated   with   Mr McMurtrie’s   presence   at   the   side   of   the   road.      That Mr McMurtrie had, in Mr A  ’s evidence, unexpectedly run across the road thus causing the collision was not something for which Mr A   was responsible.

Careless driving

[22]     Careless driving is prohibited by s 8 of the Land Transport Act and s 38 of that Act creates the offence of careless driving causing death.  The maximum penalty is three months imprisonment or a $4,500 fine.   The defendant must also be disqualified from driving for six months.  Careless driving means driving that falls below the standard of care and attention that a reasonable and prudent driver would exercise in the circumstances (see Williams v Police).4   The standard is an objective one, impersonal and universal, fixed in relation to the safety of other users of the road and governed by the essential needs of the public on the road (see Police v Chappell).5   Generally speaking, errors of judgment amount to careless use (Taylor v

Rodgers)6   though  there  may  be  some  scope  to  argue  that  that  does  not  apply

universally in New Zealand (Baugh v MOT).7

Discussion

[23]     For Mr A  , Mr Coles emphasised a number of aspects of the evidence that had been before the District Court.  In addition to noting the uncertainties affecting

4      Williams v Police HC Christchurch AP 89/95, 3 August 1995.

5      Police v Chappell [1974] 1 NZLR 225.

6      Taylor v Rodgers [1960] 124 JP 217.

7      Baugh v MOT HC Wellington AP 147/90, 1 August 1990.

the expert evidence called by the Police, Mr Coles noted that the expert witness called for Mr A  , Mr Bass, said that his analysis of the available information supported the factual explanation provided by Mr A   in his statement to the Police.   In addition, Mr Coles drew to my attention medical evidence relating to Mr McMurtrie’s  dementia,  and  the  effect  this  could  have  on  the  quality  of  his decision-making.  Moreover, and contrary to the Judge’s observation, it was known that Mr McMurtrie was not, on the day, wearing the two hearing aids he normally did.  Further, and of relevance to Mr A  ’s statement that Mr McMurtrie had run across  the  road  into  the  path  of  his  vehicle,  the  medical  evidence  was  that Mr McMurtrie was a physically fit and agile 84 year old.  Moreover, because of his dementia, Mr McMurtrie had a tendency to sudden, impulsive, actions.

[24]     In all the circumstances, it was Mr Cole’s overall submission that the finding of  careless  driving  would  make  it  impracticable  for  motorists  to  drive  along  a highway whenever pedestrians were present.  Drivers would have to slow down to meet the standard implicit in that finding whenever a pedestrian was present so as to be sure they could avoid hitting that pedestrian if they suddenly and unexpectedly walked onto the highway.

[25]     The Police case was, as in the District Court, that it had not been sufficient for Mr A   to move over into the right hand lane when he had first observed Mr McMurtrie at a distance of some 90 metres.  He should also have slowed, so that he could have avoided hitting Mr McMurtrie as he crossed the road.   The central submission for the Police was, therefore, that Mr A   had sufficient time and space to avoid Mr McMurtrie.   Moreover in failing to react, within the time and space available, to Mr McMurtrie’s action in crossing the road, and thereby failing to avoid a collision with Mr McMurtrie, Mr A   drove carelessly.

[26]     The  difficulty  the  Police  case  faces  is  reflected  in  what  I  think  was  a responsible concession made by Mr Vanderkolk during the hearing of this appeal. When  I  asked  Mr Vanderkolk  upon  what  evidence  that  central  proposition  was based, he was – particularly by reference to the uncertainty surrounding the expert scientific evidence – unable to identify any such specific evidence.  He endeavoured to support the District Court’s conclusion more generally by pointing to the accepted fact that Mr Allen was driving on the right hand side of the road and to Mr A  ’s

statement that Mr McMurtrie had – and in a manner that I accept is more than a little difficult to conceptualise – virtually run into the path of his vehicle.

[27]     I  am  unable  to  conclude  that  such  a  general  proposition  is  sufficient  to provide for a finding beyond reasonable doubt that Mr A   drove carelessly.

[28]     I accept it may be that if, in addition to moving into the right hand lane, Mr A   had immediately braked heavily he could have stopped before the point at which he collided with Mr McMurtrie.  To conclude, however, that it was careless for him not to have done so involves a conclusion that, on observing Mr McMurtrie standing at the side of the road by the letterboxes, Mr A   should immediately have slowed below the speed of approximately 80 kilometres an hour at which he would appear to have been travelling.  Moreover, he should have slowed so completely that he could have stopped  within the 90 metres distance he  approximately covered before hitting Mr McMurtrie.   Yet, in the District Court, and before me, it was accepted that Mr A  ’s immediate reaction, of moving into the right hand land, was that of a prudent and careful driver.  I think it would be setting the standard too high to say that, at virtually the same time as taking that responsible action, Mr A   should have started to slow his vehicle sufficiently rapidly to have stopped before he reached  Mr  McMurtrie,  it  being  accepted  that  the  point  of  impact  between  his vehicle and Mr McMurtrie was in the right hand lane approximately opposite the letterbox where Mr McMurtrie had been standing.

[29]     Beyond that, the scientific evidence was unable to establish that, reacting to Mr McMurtrie’s action in actually stepping into the left hand lane to cross the road, Mr A   could indeed have brought his vehicle to a stop before the collision.

[30]     In my judgment, both of those considerations weigh against a finding of guilt on this charge of careless driving.

[31]     I turn now to the authorities considered by the Judge.

[32]     The cases cited by the Judge were Cordes v Police and Hirini v Police.8

8      Cordes v Police HC Whangarei CRI-2006-488-26, 7 September 2006; Hirini v Police HC Napier AP27/03, 10 December 2003.

[33]     In Cordes, a woman was crossing the road.  The car in front of the defendant, which pulled into the right hand lane, slowed down to let her pass in front of him. The defendant was driving in the right hand lane.  The defendant assumed that the woman would stop between the left and right hand lanes, and therefore did not stop his car.  By the time he realised that she was not going to stop between the lanes, but had kept on walking, he did not have time to stop.  He hit her and she later died.  He was convicted of careless driving causing death and that conviction was upheld on appeal.

[34]     There are, in my judgment, important differences between the facts involved in Cordes and those relating to this accident.  In Cordes, the pedestrian struck and killed was already moving across the road when the defendant made the decision not to slow down or stop.  Therefore, the assumption that the driver made was that the pedestrian  would  stop  walking  across  the  road.    Here,  the  implicit  assumption Mr A   would appear to have made when he first observed Mr McMurtrie, who at that point in fact had has back to the road apparently checking his mail, was that by moving into right hand lane to in effect give Mr McMurtrie a clear berth was a sufficient response to the risk to safety occasioned by Mr McMurtrie’s presence at the side of the road.  In my view it is one thing to require drivers to slow down, and be ready to stop, when someone is already in the process of crossing a road against a flow of traffic and into the lane in which the accused driver is driving.  It is quite another to require a driver on a rural road, when there is a person standing on the side of the road engaged in some activity, and who has made a prudent response to that person’s presence by giving that person a wide berth, to also immediately slow down sufficiently to be able to stop if that person suddenly and unexpectedly crosses the road into that right hand lane.

[35]     Similar facts to those in Cordes arose in Hirini.  In that case the defendant was driving a truck.  He saw the victim from a distance of about 150 metres, looking like he was going to cross the road.  He tooted his horn, but the victim continued to walk onto the road.  The defendant continued to toot, assuming that the victim would either stop or speed up, thereby avoiding a collision.  The victim continued walking and the defendant started to brake, but it was too late, and he was unable to brake hard due to weight of the truck.   He was found guilty of careless driving but not guilty of dangerous driving.  There the carelessness was obviously the defendant’s

actions in only tooting at the victim, rather than taking the obvious and available step of slowing down where the victim was on the road ahead of the defendant.

[36]     Overall, I do not think that the failure to slow down before Mr McMurtrie showed any indication  that he was moving onto the road was careless.   While Mr A   could have slowed down, I do not think that a reasonable and prudent driver, who had already reasonably and prudently responded to the risk presented by Mr  McMurtrie’s  presence  by  moving  into  the  right  hand  lane,  and  who  was travelling some 20 kilometres below the lawful speed limit, should as a matter of law be required to do so.  Carelessness is not proved by, with the benefit of hindsight, concluding that there were additional steps that could have been taken.   Rather, carelessness involves not taking steps that should have been taken in the circumstances  as  they  were  at  the  time.     In  this  case,  given  the  evidential uncertainties and the contribution that Mr McMurtrie made to the accident, I do not think that a conviction was appropriate.   I therefore allow this appeal against conviction and, accordingly, sentence as well.

[37]     I  note,  although  it  goes  without  saying,  that  Mr A  ’s  conviction  and

sentence on the charge of driving while suspended are unaffected by this decision.

“Clifford J”

Solicitors:   Peter S Coles, Palmerston North for the appellant ([email protected]) The Crown Solicitor, Palmerston North for the respondent ([email protected])