Andrews v Police
[2015] NZHC 211
•19 February 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2014-409-119 [2015] NZHC 211
RONALD FALCON ANDREWS Appellant
v
NEW ZEALAND POLICE Respondent
Hearing: 12 February 2015 Counsel:
Appellant in Person
C D Newman for Respondent
Judgment:
19 February 2015
JUDGMENT OF BROWN J
[1] The appellant was charged with operating a vehicle, namely a RedBus, on a road (Athelstan Street) carelessly on 3 September 2012. His interview at the Hornby Police Station on 20 September 2012 was videoed. The appellant did not appear at the summons date of 3 October 2012 but sent an undated letter to the Court, received on 25 September 2012, which stated:
I wish to plead guilty to the offence and avoid appearing in court accordingly.
[2] On 3 October 2012 the appellant was convicted on the charge of operating a vehicle carelessly and fined $300 with Court costs of $132.89.
[3] The appellant sought a rehearing which was opposed by the police in a submission filed on 18 March 2014. The application for a rehearing was considered
by Justices of the Peace on 3 April 2014 and was declined.
ANDREWS v NZ POLICE [2015] NZHC 211 [19 February 2015]
[4] On 3 November 2014 the appellant filed a notice of appeal against his conviction. The grounds of appeal specified in the notice are as follows:
(a) the appellant requests a clean slate having served 2 years of unfair conviction;
(b)the ongoing conviction is totally out of proportion to the gravity of the offending;
(c) the appellant was denied a rehearing despite having legitimate reasons;
(d) the appellant has been treated very unfairly by the police;
(e) the conviction is causing considerable ongoing financial hardship; (f) the conviction has cost the appellant over $50,000 in lost income;
(g)the conviction is excluding the appellant from employment opportunities;
(h)the claims made against the appellant were malicious, false and exaggerated;
(i)the offence was described by the police as at the very lowest level of offending;
(j) the appellant has not had any other convictions.
[5] The notice of appeal was filed out of time on 3 November 2014. In my discretion I extend the time for the filing of the notice of appeal.
[6] On 11 December 2014 the appellant filed an application to adduce further evidence in the form of a DVD of his interview with the police on
20 September 2012. The Crown did not oppose his application, However the Crown also sought to adduce further evidence in the form of the video footage of the incident. On 14 January 2015 leave was granted by Justice Mander to both parties to adduce further evidence.
Approach on appeal
[7] The jurisdiction to hear this appeal arises under the Summary Proceedings Act 1957 (the Act) as the information was laid on 3 September 2012. An appeal against conviction is by way of rehearing. Section 121(2) of the Act allows the High Court to confirm a conviction, set it aside or amend it.
[8] The approach of the Court on a general right of appeal is as explained in
Austin, Nichols & Co Inc v Stichting Lodestar:1
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellant court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[9] For the Crown a submission was made that it is only in exceptional circumstances that an appeal against conviction will be entertained after a plea of guilty and that an appellant must show that a miscarriage of justice will result if the conviction is not overturned, citing R v Merrilees.2
[10] The Crown submitted that the present case does not fit easily into the broad situations in which it was recognised in Merrilees that a miscarriage will be indicated, namely:
(a) where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge. These are situations where the plea is shown to be vitiated by genuine misunderstanding or mistake;
(b)where on the admitted facts the appellant could not in law have been convicted of the offence charged;
(c) where it can be shown that the plea was induced by a ruling which embodied a wrong decision on a question of law.
Still a further situation involving trial counsel error is not applicable here because the appellant was not represented by counsel.
1 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
2 R v Merrilees [2009] NZCA 59 at [4].
[11] The Crown submits that the category which best aligns itself with the appellant’s situation is the first category but submits that the appellant knew the charge he was pleading to and knew the charge was serious.
[12] While the Crown submissions are not without force, having had the opportunity to hear and observe the appellant in the course of the appeal I consider that it is conceivable that, notwithstanding the terms of his letter to the Court, he may have formed the erroneous view from a statement made to him at the early stages of the interview at the Hornby Police Station, namely that the charge of careless use “carried a fine only penalty”, that a conviction would not be entered against him.
[13] Particularly having regard to the fact that applications have been granted for further evidence to be presented by both the appellant and the Crown, I consider that it is appropriate to proceed on this appeal in the manner stated in Austin Nichols by making my own assessment of the evidence including the further evidence.
The hearing of the appeal
[14] At the commencement of the hearing the appellant made an application for suppression of his name. The application was opposed by Mr Newman who noted that no such application had previously been made and hence the fact of the charge against the appellant was already in the public domain. In my view there were no grounds to support the application which was declined.
[15] In relation to the substantive appeal, the appellant’s complaint is that the
summary of facts relied upon when the appellant was convicted and fined on
3 October 2012 constituted a false account of the incident.
[16] That summary of facts stated:
INTRODUCTION
At about 5pm on Monday the 3rd of September 2012, the defendant
ANDREWS was the driver of a Man bus southwest on Athelstan Street, Barrington, Christchurch.
At the time, he had no passengers on board.
The weather was fine but overcast and the traffic flow, heavy.
CIRCUMSTANCES
After pulling away from a bus stop, the defendant drove towards its “T”
intersection with Barrington Street, intending to turn left.
Traffic signals at that intersection were green, but traffic in the left-turning lane was not moving.
The defendant drove into an incorrect lane on Athelstan Street and left around the stationary traffic, turning his bus onto Barrington Street into an oncoming lane.
As he pulled left to avoid oncoming traffic on Barrington Street, the defendant collided with the rear of a vehicle travelling in the same direction.
He then reversed in an attempt to clear his bus from the oncoming lane, but again collided with the same vehicle.
INJURIES TO VICTIM
Nil.
DEFENDANT COMMENTS
In explanation the defendant stated that he had been feeling unwell that day and was not thinking as clearly as he should have been.
The defendant has not previously appeared before the Court.
[17] The appellant’s complaints about the summary of facts appeared to be
threefold:
(a) the statement that he “collided with the rear of a vehicle travelling in the same direction”;
(b) the statement that he “again collided with the same vehicle”;
(c) the failure to state that no damage was caused to the other vehicle.
[18] So far as the first matter was concerned the appellant submitted that the wording implied that the appellant had driven into the rear of the complainant’s car with considerable force and made the incident sound much more serious than it actually was. He also appeared to take issue with the proposition that the bus and the complainant’s vehicle were travelling in the same direction, his contention being that the bus had turned left from Athelstan Street into Barrington Street. However it is quite clear that at the point when contact was made between the vehicles both were intending to progress along Barrington Street.
[19] So far as the second statement is concerned, namely that “he then reversed in an attempt to clear his bus from the oncoming lane, but again collided with the same vehicle”, the appellant described the statement as totally false and ridiculous. He explained that he reversed only because his progress was being impeded by the complainant’s vehicle. Rather than colliding again with the complainant as alleged, the appellant stated that all he did was to reverse away about half a metre so that he was no longer touching the complainant’s rear bumper with the side of the bus.
[20] At the hearing it was agreed that the footage of the incident, which was recorded by a camera mounted at the front of the bus, should be viewed first followed by the video of the appellant’s interview at the Hornby Police Station.
Footage of the incident
[21] It is apparent from the footage of the incident that the appellant’s bus was in the left-turning lane on Athelstan Street with at least three vehicles in front of him. A blue station wagon (with which the defendant’s bus subsequently came into contact) crossed the intersection from right to left. It cleared the intersection and a taxi, which was at the head of the queue in the left-turning lane in Athelstan Street, made a partial left turn through the intersection and stopped behind the blue station wagon.
[22] The appellant steered his bus into the right-turning lane on Athelstan Street, (in the process crossing the centreline). He then proceeded to the intersection and turned left into Barrington Street into the oncoming lanes of traffic, one of which was a through lane and the other was a right-turning lane into Athelstan Street. The bus came to a halt at that point because there was a queue of traffic on Barrington Street in the intended direction of travel of the bus. As a consequence of the location of the bus on the wrong side of the road, vehicles travelling in the through lane from the opposite direction were required to veer to their left and enter the space marked with a yellow line in order to pass the bus.
[23] Although the footage, which was taken through the front window of the bus, could not capture the actual occurrence of contact between the bus and the blue station wagon, that contact occurred in the course of the manoeuvre just described.
Another recording of the front entrance to the bus shows the driver of the station wagon appearing at the door of the bus and remonstrating with the appellant.
Footage of the interview
[24] The interview with the appellant was conducted by Senior Constable Martin who thoroughly explored the circumstances concerning the incident.
[25] At an early stage in the interview Constable Martin explained that the charge which was being considered was one of careless use, which it was said was the lowest available charge in the circumstances, which carried “a fine only penalty”.
[26] So far as the incident is concerned, the appellant stated that the right-turning lane in Athelstan Street was empty as was the right-turning lane from Barrington Street into Athelstan Street. The appellant stated he “made a bad decision” and pulled out past the cars waiting in Athelstan Street and used the right-turning lane in Athelstan Street to get into the right-turning lane in Barrington Street. Because there was traffic coming towards him on Barrington Street and in order to give them room, he pulled the bus to the left “sooner than I should have”. He realised that he was too close to the vehicle on his left (the blue station wagon). The bus then touched the right rear bumper of that vehicle.
[27] The appellant stated that he put the handbrake on and went to see if there was any damage to the vehicle. Having established that no damage had been caused, he suggested to the complainant that the station wagon and the bus should move to the side of the road where they could exchange details. However the other driver refused to move his vehicle.
[28] The appellant explained that he thought he could safely extract himself from the situation by reversing a small distance and he proceeded to do that. However, apparently as a result of the functioning of the brakes on the bus, the reversing manoeuvre was not as smooth as, and somewhat quicker than, he had expected. He stopped the bus again, applied the handbrake and went to see if there was any damage to the vehicle. Although the appellant could not see any damage, the other
driver said that his station wagon had moved in the course of the appellant’s
reversing manoeuvre.
[29] The Constable raised with the appellant his “bad decision” and asked whether the way in which he drove on that day (as captured on camera) was the way he would normally drive. The appellant replied no. When the Constable asked why not, the appellant responded that he had been asking himself that ever since.
Discussion
[30] In determining whether a person has operated a vehicle carelessly, the standard of driving is to be viewed objectively. A conviction requires that a person’s conduct falls below that of the reasonable and prudent driver. As Hardie-Boys J observed in McBreen v Ministry of Transport:3
That standard is an objective standard, impersonal and universal, fixed in relation to the safety of other users of the highway. It is in no way related to the degree of proficiency or degree of experience attained by the individual driver.
[31] Many of the cases concerning careless use involve driving manoeuvres such as reversing or turning a vehicle. A driver will not be excused from the standard test
– the care and attention of a reasonable and prudent driver – merely because the incident arose from an error of judgment.4
[32] The appellant contended that, with vehicles the size of the bus he was driving that day, it is necessary to swing out somewhat in order to negotiate right angle turns. He suggested that it is common place to see manoeuvres of the nature which he performed on the day in question.
[33] I accept that long vehicles are not as manoeuvrable as cars and consequently some accommodation must be allowed for their making sharp turns in the city environment. Indeed in Warrington v Police MacKenzie J held that the slight veering to the right while remaining in one’s lane before turning left, having clearly
signalled a left turn, does not constitute a failure to exercise the standard of care expected of a reasonable and prudent driver.5
[34] However I do not accept that the manoeuvre which the appellant undertook was of such a nature. The appellant did not stay within the left-turning lane but, in order to pass a number of vehicles in front of him, he moved into the right-turning lane (crossing the centre line in the process) and then executed a left turn around the outside of vehicles in the left-turning lane, inevitably finding himself stranded in the oncoming lanes of traffic in Barrington Street.
[35] In my view this was a highly unorthodox manoeuvre which I certainly would not expect to be commonplace. I agree with Mr Newman’s submission that the deliberate action of using a right-turning lane to bypass waiting traffic ahead and to turn left into an oncoming lane is highly culpable careless driving. Indeed he submits that upon review of the footage the appellant was fortunate to have only been charged with careless use of a vehicle.
[36] It is apparent from the interview that at that time the appellant himself viewed his driving as unacceptable, commenting that he made a “bad decision” and that he “obviously made a number of mistakes on the day which I don’t normally do”.
[37] The appellant is plainly aggrieved with the description in the summary of facts of the degree of contact between his bus and the complainant’s vehicle as a “collision” and he takes issue with the contention that there were two alleged collisions. There is certainly no evidence before me that there was any significant damage caused to the station wagon. However, it is not an ingredient of the offence that there should be damage or indeed even a collision. Those matters are not material to the question whether the driving manoeuvre which the appellant undertook fell below the standard of the reasonable and prudent driver.
[38] The appellant explained in some detail the effect which the conviction had had on his life. His written submissions stated:
Effect on appellant
30.As a result of the malicious and false claims made against him, the appellant lost his job, and has lost about $70,000 in income as a result.
31.The appellant is suffering financial hardship and has also used up his Kiwisaver funds and other savings, totalling $23,000 and has no other savings available.
32.The appellant has suffered unfair stress, and has trouble sleeping because of the ongoing injustice.
[39] The reference to false claims appears to relate to the references in the statement of facts to collisions and to the allegations made by the complainant to the police about the extent of damage to the complainant’s vehicle. The appellant contended that the “ongoing unfair conviction” is totally out of proportion to the gravity of the offending. In his oral submissions he said that it would be a big help to him if he could have a clean slate in order to get a reasonable income again.
[40] While noting that the Sentencing Act 2002 confers upon the sentencing Judge a discretion to discharge without conviction a person who is found guilty or pleads guilty to an offence,6 Mr Newman drew attention to the direction in s 107 which states:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[41] He also drew attention to the recent decision of DC v R where the Court of
Appeal stated:7
The inquiry is two staged. At the first stage it is necessary to consider the gravity of the offence, the direct and indirect consequences of a conviction, and whether those consequences are out of all proportion to the gravity of the offence. In a composite way, this is a jurisdictional test. The second
stage of exercising what is a residual discretion is only engaged if that jurisdiction is established.
[42] Referring to the three matters in the appellant’s written submissions,8
Mr Newman submitted that if the appellant wished to pursue that avenue he would need to file formal evidence with the Court outlining his current financial position and evidence to support the claimed ongoing stress in his life. However he submitted that in any event the conduct here involved a piece of highly culpable careless driving and a conviction was warranted in this instance.
[43] I do not have before me information as to the appellant’s employment history or the process which was engaged in which led to his loss of employment. Nor do I have evidence of the appellant’s financial situation. I ascertained that he is in receipt of superannuation, he being 67 years old. I am mindful that the appellant claims to have suffered stress from what he regards as an “ongoing injustice”.
[44] Any legitimate concern which he has in that regard relates to the conduct of the complainant after the incident and the appellant’s treatment by his employer. However the current appeal concerns the charge that the appellant drove carelessly. On that question there is no escaping the fact that the appellant’s driving was demonstrably careless, a fact which he clearly acknowledged in his interview with the police. I find that he is guilty of that offence.
[45] In the circumstances and on the information which has been placed before me I am not satisfied that the direct and indirect consequences of a conviction for careless driving in relation to this incident would be out of all proportion to the gravity of the offence.
Disposition
[46] The application for an extension of time to appeal is granted. The appeal against conviction is dismissed.
Solicitors:
Raymond Connelly & Co, Crown Solicitors, Christchurch
Brown J
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