B v Police HC Auckland CRI 2008-404-377
[2009] NZHC 1679
•27 April 2009
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2008-404-000377
B
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 21 April 2009
Appearances: J Wiles for the appellant
J C Gordon SC for the respondent
Judgment: 27 April 2009
JUDGMENT OF STEVENS J
This judgment was delivered by me on Monday, 27 April 2009 at 11am pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140J Wiles, PO Box 941, Shortland Street, Auckland 1140
B V NEW ZEALAND POLICE HC AK CRI 2008-404-000377 27 April 2009
Introduction
[1] This is an appeal against conviction by Cheryl Marie B (the appellant), on two charges under s 36(1)(b) of the Land Transport Act 1998 (the Act). The appellant was convicted, following a five day defended hearing in the District Court at Pukekohe before Judge G F Hikaka, of driving a motor vehicle in a manner that, having regard to all the circumstances of the case, was dangerous to the public and caused the death of Julie Anne Smith and injury to Nicholas Le Bas. The Judge’s reasons are contained in a reserved decision dated 25 August 2008. The appellant was disqualified from driving for 1 year 6 months, ordered to pay reparation of
$5,200 and sentenced to six months’ home detention.
[2] The appellant, through her counsel Mr Wiles, has advanced various grounds contending that the decision is erroneous in fact and law. For the reasons set out below, the appellant has failed to sustain any of the grounds of appeal. The appeal must therefore be dismissed.
Factual background
[3] The charge relates to a crash that occurred on 27 October 2007. At approximately 6.30pm, Mr Le Bas was riding his Kawasaki motorcycle with his partner Ms Smith as a pillion passenger. They were riding southbound on Awhitu Road. The weather was fine and road conditions were good. On a winding part of the road, not far north of the settlement of Pollock, the motorcycle collided head on with a Honda Civic motor vehicle driven by the appellant in the southbound lane just north of the intersection with Dominikovich Road. The point of impact was entirely and well within the southbound lane, being the lane in which the motorcycle was entitled to be travelling.
[4] Ms Smith was thrown from the motorcycle and landed several metres beyond the point of impact. The injuries suffered by Ms Smith as a result of the collision were fatal. Mr Le Bas received a large laceration to the top of his left foot, an injury to his left leg and a torn shoulder ligament. Both Mr Le Bas and Ms Smith were
wearing full motorcycle protective clothing including full face helmets. Mr Le Bas was familiar with Awhitu Road.
[5] The appellant had rented the Honda Civic at approximately 4:30pm on
26 October 2007. The appellant was driving the car at the time of the collision with her two children in the car. The appellant is an American citizen who had arrived in New Zealand on 28 September 2007 to visit her partner.
[6] It was accepted by the Judge, and not disputed at the hearing of the appeal, that neither vehicle was travelling at excessive speed and both were well within the posted speed restrictions for the area. Further, neither the appellant nor Mr Le Bas were affected by alcohol. The motorcycle was close to upright if not completely upright at the point of impact. Finally, the location of the impact was at a point to the front left (passenger side) of the Honda Civic.
[7] The central issue in the appeal was whether the driving of the appellant, which caused the collision, was dangerous (as found by the Judge) or careless.
Powers on appeal
[8] The appellant has a general right of appeal against conviction pursuant to s 115 of the Summary Proceedings Act 1957. A general appeal is by way of rehearing: see s 119. The High Court’s general powers on rehearing are outlined in s 121.
[9] The Supreme Court in Austin Nichols & Co Ltd v Stichting Lodestar [2008]
2 NZLR 141 considered the principles applicable to general appeals. Giving the judgment of the Court, Elias CJ stated at [16] that:
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 appellate 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.
[10] In the case of a general appeal, the appellant has the onus of satisfying the appellate court that it should differ from the original decision. But the appellate court must come to its own view on the merits: see Austin Nichols [3]-[5]. I therefore approach the appeal on the basis that, after considering the record and the submissions made on behalf of the parties, I should make an assessment of the matters of fact and degree in the case under appeal. I should consider the reasoning of the District Court Judge in his decision in order to determine whether the appellant has established that it is wrong.
[11] No issue of fresh evidence arose in the present case. According to the Court of Appeal in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190, an appellate court should not reverse a factual finding unless compelling grounds can be shown for doing so. However, this approach needs to be read in the light of the Supreme Court decision in Austin Nichols. There, care was taken to limit the deference advocated in Rae to instances where findings of fact were credibility-dependent. The Court stated at [13]:
The appeal court must be persuaded that the decision is wrong but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial Judge turn on issues of credibility is illustrated by Rae.
[12] Therefore, although an appellate court may rightly be cautious in departing from factual findings, it is nevertheless required to form its own opinion on the basis of all the material before it. That is the approach to be applied here.
Applicable legal principles
[13] There was no dispute between the parties that the Judge applied the correct legal principles when considering whether the driving of the appellant was dangerous or careless. Mr Wiles observed that the line between the two varieties of fault can be a fine one. However, both counsel accepted that the fault associated with the driving in question will always be a matter of degree. It is therefore a
question in this appeal whether the Judge correctly applied the factual findings and reasoning to the recognised legal principles.
[14] It is convenient to summarise the principles as distilled from the cases. In R v Jones [1986] 1 NZLR 1 and R v Seymour CA75/97 11 June 1997, the Court of Appeal quoted with approved the following passage from the English Court of Appeal in R v Gosney [1971] 2 QB 674, 680:
…the offence of driving in a dangerous manner…is not an absolute offence. In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. “Fault” certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and careful driver. Fault involves a failure, a falling below the care of skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case. A fault in that sense even though it might be slight, even though it be a momentary lapse, even though normally no danger would have arisen from it, is sufficient.
[15] A charge of dangerous driving causing death was considered by Eichelbaum
CJ in Stratford v Ministry of Transport [1992] 1 NZLR 486. As stated at 490:
…it is only the elements of the offence, the essential factual components or facta probanda, which the prosecution has to prove beyond reasonable doubt. In the present case those components were the identity of the driver, that the manner of his driving was dangerous, and that it was causatively linked with the death of the deceased. By case law exposition the second element has been interpreted or expanded to mean that the prosecution must prove a situation which, viewed objectively, was dangerous, caused by the defendant driving in a manner which fell below the standard of care and skill of a competent and experienced driver: R v Jones [1986] 1 NZLR 1. This element is the only matter now requiring consideration.
[16] As to the methodology to be applied by the Judge, the Chief Justice stated at
490:
On a charge of dangerous driving causing death a finding that the defendant's driving fell below the required standard of the reasonably competent driver may be reached by more than one route. First, although the doctrine res ipsa loquitur has no application, the inference from the proved facts may be so strong as to admit of no other conclusion. For example in Police v Chappell [1974] 1 NZLR 225 (a charge of careless driving causing death) a driver proceeding in good road conditions rounded a slight bend,
and got into shingle on the side of the road, with the consequence that the car went out of control, crossed the road, and rolled over, finishing 395 feet past the point where it first entered the shingle. In the absence of any explanation amounting to a reasonable possibility it was held on appeal that he had been rightly convicted. Police v Digby [1971] NZLR 918 is to similar effect. As these decisions show, a conviction may be upheld notwithstanding the absence of identification of a specific act of the driver's which falls below the prescribed standard, such as driving at a speed excessive in the circumstances, or failing to keep a proper look out. Secondly, in other cases where the focus may be on particular actions of that kind the Court may conclude that in one or more such respects, or in a combination of them, the driving fell below the standard required by law, and created a situation of danger. It is self-evident that if the finding of dangerous driving is based upon a single such deficiency, for example failure to keep as far as practicable to the left, it must be established beyond reasonable doubt. It is equivalent to one of the facta probanda. Proof of such a fact may itself be a matter of inference from a number of circumstances. If so, in terms of Thomas v R, it is not necessary that each be established beyond reasonable doubt.
[17] There is a helpful analysis of the different types of fault in the judgment of Robertson J in Masalu v NZ Police HC AK AP253/97 21 November 1997. At 8, the Judge referred to the three elements involved in the proving of driving offences. These are:
1. The driver has fallen below the standard or care expected of a reasonable and competent driver;
2. The resulting situation is objectively dangerous;
3. The driver was aware of the potential danger and continued to act despite knowledge of the possible consequences.
If only the first element is present then a charge of careless driving is the appropriate one. If there is also evidence of the second element then a charge of dangerous driving can be proved. If all three elements are made out then a conviction for reckless driving can be maintained.
[18] In addition to the above authorities, I have also considered the cases cited by Mr Wiles: R v Seymour HC AK T305/96 11 February 1997, Robertson J and King v Police HC ROT AP77/01 12 March 2002, Ronald Young J. Further, counsel for the parties agreed that there was no need for there to be danger to any particular person: see Wagg v Shaw [1962] NZLR 498.
[19] Accordingly, the two elements that are required to establish dangerous driving are that:
a) The driving fell below the standard of care expected of a reasonable and competent driver – in other words, there was a degree of fault commensurate with carelessness; and
b) The resulting situation, viewed objectively, was dangerous.
The Judge’s decision
[20] The Judge carefully summarised the evidence of the witnesses, including the experts called on behalf of the prosecution and the defence. The Judge then summarised his findings as follows:
[92] The issue is whether the driving of the defendant was either careless or dangerous leading to the collision between her and Mr Le Bas’ motorcycle. The expert evidence provided by the prosecution was significantly undermined with respect to methodology by the expert evidence provided by the defendant. The quality and depth of analysis is perhaps understandable when it is put in the context of the time available allocated analysis by the prosecution. However prosecution relied on their expertise to conclude that either the defendant had been driving on the wrong side of the road or was cutting the corner prior to swerving to the right immediately before the collision. For the reasons already indicated the evidence of the defence expert is more thorough and comprehensive and a greater level of analysis has been applied. That evidence has raised a number of possibilities but significantly, has relied on the physical evidence available through the marks left at the scene, the various reports provided by the prosecution, the photographs provided by the prosecution, the expert’s interview with the defendant and his own scene examination.
[93] It was submitted that the recall of the eye witnesses was unreliable and should be put to the side in favour of the expert evidence. However, I consider it not only important but also of significant evidential value to consider the evidence provided by the eye witnesses.
[94] Mr Le Bas’s work history, motorcycle riding experience and hearing from him in person and observing him give evidence, I formed the view that he was a credible and reliable witness who presented the picture of being a careful, sensible, cautious motorcycle rider. That is notwithstanding that he has been issued with speeding tickets in the past. He knew this road well. His evidence of the proper way to ride this particular portion of road I found convincing. That particular aspect of his evidence was supported by the evidence of the other experienced motorcycle rider Constable Blanford.
[95] The overall circumstances for Mr Le Bas in my view were that he was applying due caution and diligence in riding on this occasion. The position he gave for his bike on the road was within his lane but more to the centre of the road rather than what I would consider ‘well within’ his lane which was the position attributed to him adopted by the defence expert in the
comparison of eye witness accounts. The police expert evidence on that point was that Mr Le Bas “riding entirely within his lane.” (sic)
[96] My view of the evidence I have read and heard satisfy me that he was positioned more in the centre of the road but to the left of the centre lane. His recollection of things just prior to impact is credible. I accept his evidence of what happened before the collision as correct.
[97] Having seen and heard from the defendant I considered her to be a considered, analytical, and (discarding any negative connotations with respect to the ‘scene of the crime’ exchange) credible witness. She displayed the confidence of someone who is accustomed to gathering and giving evidence in Court situations. She is a person who has been trained in law enforcement and authorised to carry a firearm in the course of her work. The expectation within that authorisation is of rational thought in stressful situations. I found her to be a credible witness but on account of the evidence of the defence expert regarding her post event reconstruction in my view made her evidence less reliable than that of Mr Le Bas.
[98] Mr Le Bas referred to the imminent impact, his perception of the defendant driving toward her, her vehicle having at least straddled his lane from the first time he saw it and not being able to recollect whether he braked because of the short space of time from seeing the defendant’s vehicle to impact.
[99] The defendant on the other hand referred to a series of thoughts leading to the accident which overall presented a picture of deliberation and care that the defence expert said would not have been possible in the circumstances. There was no evidence of the relative perception response times of Mr Le Bas and the defendant but the evidence of the defence expert was that the defendant would not have had time to undertake the thought processes that she gave evidence of undertaking. The defence expert stated that driver perception-response time is highly variable according to the circumstances and between individuals. …
[100] The defendant’s evidence was that Mr Le Bas’s vehicle “seemed to be in my lane” “seemed to see a bike” and again “it seemed like he was on my lane”.
[101] In this case, given my view of the evidence, in particular that Mr Le Bas remained within his land albeit close to the centre, the defendant’s perception of him being in her lane was not correct. Thus there was no sudden emergency requiring an extraordinary response. Her evidence of travelling very slowly and slowly pulling to the right of the road ie across the path of the oncoming motorcyclist, slowing all the way, braking during that process, to the point of impact well within the south bound lane, was in my view the wrong action to take in the circumstances.
[102] Even if I accepted the defendant’s faulty perception of where Mr Le Bas was on the road, the individual circumstances of this case show that she is a person whom it is reasonable to expect would apply appropriate stress reaction responses on account of her training and background. Thus, there is an expectation of opting for the correct option when given a number of competing options. Even without that expectation of the defendant as an
individual, her driving regrettably fell below the requisite standard which is the standard of the ordinary prudent driver.
[103] Her perception of the space available to her on the left side of the road was also incorrect. Her response in fact made her vehicle a complete obstruction to Mr Le Bas’ path of travel.
[104] …her driving fell below the care or skill of a competent and experienced driver in relation to the manner of driving and to the relevant circumstances of the case.
[105] A reasonable and prudent driver in these circumstances is, it goes without saying, a driver on New Zealand roads. While there may be some understanding for someone whose extensive driving history is almost exclusively what in New Zealand would be on the wrong side of the road, no weight can be attached to any implication that the defendant swerved to what in her majority driving experience, may have provided a greater number of safety options.
[106] That move to the wrong side of the road, viewed objectively, was dangerous. Even if Mr Le Bas had ridden around the defendant (which she said she hoped he would), her position in the wrong lane on that particular part of the road would have been dangerous to other approaching road users as her vehicle would not have been visible until the last moment and a collision would have been most likely- almost inevitable.
[107] Therefore the single dangerous act in this case was when the defendant crossed to the wrong side of the road. There is evidence to indicate that the defendant was either partially or completely in the wrong lane before the respective drivers perceived each other’s approach and therefore before the collision, but the benefit of the doubt with respect to that falls in favour of the defendant. I have adopted the view of events favourable to the defendant with respect to her and her expert’s evidence that is possible in my view of the overall evidence.
[21] Accordingly, the Judge was satisfied that the charges of dangerous driving causing injury and death were proven beyond reasonable doubt. The Judge dismissed the alternative charges of careless driving causing injury and death.
Appellant’s submissions
[22] The first submission was that it was not open to the Judge to exclude beyond reasonable doubt that the motorcyclist was on the wrong side of the road momentarily. This submission was premised on the fact that the Judge stated that he preferred the evidence of the defence expert Mr Marks and did not state why he did not accept the evidence of the defence expert that the motorcycle may have been on the wrong side of the road slightly when first observed by the appellant. The
appellant further submitted that at the very least there was some evidence before the Court which supported the appellant’s perception that the motorcyclist was just within the north bound lane and that her perception and action taken was neither careless or dangerous.
[23] Second, the appellant submitted that if her perception was not mistaken or even if it was, the Judge should have held that it was a mere failure to maintain the standard of a reasonably prudent driver and that it was not objectively dangerous.
Respondent’s submissions
[24] Ms Gordon SC for the respondent submitted that the Judge correctly applied the law. Counsel submitted that for dangerous driving to be established, it is necessary for there to be fault on the part of the appellant (a falling below the care or skill of a competent and experienced driver) and the resulting situation to be viewed objectively to be dangerous.
[25] Counsel submitted that the Judge was correct to find that Mr Le Bas was riding his motorcycle on the correct side of the road and that it was dangerous for the appellant to move her car to the wrong side of the road. The respondent contended that reasons were given for the Judge’s rejection of Mr Marks’ evidence that the Kawasaki motorcycle may have been just on the wrong side of the road when the appellant saw him.
[26] Counsel further submitted that the Judge was correct to find that the appellant’s act of driving her vehicle to the wrong side of the road was objectively dangerous. Counsel argued this was supported by the fact that the point of impact was within the southbound lane, Mr Le Bas had no time to take evasive action, visibility was restricted by the curve of the road, the scene was a confined and closed space and, even if Mr Le Bas had ridden around the appellant, her position in the wrong lane would have been dangerous to other approaching vehicles.
[27] Counsel also submitted that the Judge was correct to find that there was fault on the part of the appellant, which caused the dangerous situation. This is because
even if the appellant’s perception (that the motorcycle was on the wrong side of the road) was correct, there was more room to pull over on her left rather than right, the appellant’s expert Mr Marks accepted that, if the appellant had moved her car to the left, most of the car would have been on the verge.
[28] Finally, counsel submitted the appellant’s actions were dangerous, not careless and that this is not an agony of the moment situation.
Discussion
[29] The first issue relates to whether, given the Judge’s preference for Mr Marks’ evidence, more weight should have been given to the appellant’s perception that the motorcyclist was just within the northbound lane when first detected. Counsel claimed that the Judge had provided no reasons for discrediting or not accepting the defence expert evidence.
[30] However, I am satisfied that the Judge did give adequate reasons and had a proper evidential foundation for the findings which he made. Counsel referred to various parts of the transcript of the evidence and to the photographs (both prosecution and defence) produced of the scene. The evidence thus considered supports the factual findings.
[31] The Judge found at [93] that there was “significant evidential value” in the evidence of the eyewitnesses. He was fully entitled to do so. But Mr Wiles submitted that, having found the evidence of Mr Marks to be “more thorough and comprehensive and at a greater level of analysis” than the prosecution expert, the Judge should have accepted all of the opinion evidence of Mr Marks. Such a proposition flies in the face of the well established principle that it is open to a trier of fact to adopt some parts of the evidence of a witness and reject other parts.
[32] The same is true of any expert witness. It is axiomatic that the opinion evidence of the expert must be within the area of expertise and qualifications of the witness and based on proven facts. It is then for the jury or the Judge (as the case may be) to assess the weight to be given to the evidence of the expert, and to the
soundness of the factual basis of the opinion in the light of the other evidence which has been given.
[33] A similar view was expressed by the Court of Appeal in R v Flaws (1998)
16 CRNZ 216. Giving the judgment of the Court, Robertson J stated at 219 that:
Generally it will be appropriate to instruct a jury that expert evidence is an exception to the rule that witnesses must speak only as to observed facts and are not permitted to express their opinions or beliefs. We would normally expect a jury to be directed about the fact that opinion evidence is received on a subject which requires special study or experience (being beyond the ordinary experience of jurors) and that the expert witness has particular qualifications which enable that person to express an opinion. Also that the expert’s opinion to be of probative value must be based on a properly established evidential foundation.
[34] The Judge found it a fact, at [94], that Mr Le Bas was a credible and reliable witness. The Judge then determined from the evidence that on the day in question, Mr Le Bas was applying due caution and diligence in riding his motorcycle. The Judge then found as a fact that Mr Le Bas was positioned more in the centre of the road, but to the left of the centreline (see [96]) as he approached the corner and that he was not on the wrong side of the road as had been the perception of the appellant. Therefore, the Judge, relying on the evidence of an eyewitness found to be credible and reliable, rejected Mr Marks’ evidence that the motorcycle was “well within the southbound lane”.
[35] The explicit reason for rejecting Mr Marks’ evidence on this point was his preference for relying on the evidence of the eyewitnesses and in particular the credibility and reliability of Mr Le Bas. For the reasons given in the decision, the Judge gave more weight to his evidence over that of the appellant – as the Judge was entitled to do.
[36] With respect to the appellant’s evidence, the Judge considered her to be credible, but less reliable than Mr Le Bas. In fact, the Judge used part of the evidence of Mr Marks to discredit the evidence given by the appellant when she presented “a picture of deliberation care that the defence expert said would not have been possible in the circumstances”. The Judge also rejected the appellant’s evidence that Mr Le Bas was or seemed to be in her lane. Further, the Judge found
that there was no sudden emergency requiring an extraordinary response. Rather when, according to the appellant’s evidence, she travelled very slowly and pulled slowly to the right of the road, i.e. across the path of the oncoming motorcyclist, slowing all the way and braking during that process up to the point of impact well within the southbound lane, the Judge found at [101] that this was “the wrong action to take in the circumstances”.
[37] The Judge also found that the driving on this occasion regrettably fell below the requisite standard which was required of the ordinary prudent driver. Further, the appellant’s perception of the space available to her on the left hand side of the road (which from the photographs appeared to be clear and provide an alternative to the action taken) was incorrect.
[38] The Judge went on to compare the situation if the appellant had moved left with the actual option taken by the appellant. At [106] he concluded that the appellant’s move to the right side of the road, viewed objectively, was dangerous. Even if Mr Le Bas had been successful in avoiding the appellant’s vehicle, the position of the vehicle in the wrong lane on that particular part of the road would have been dangerous to other approaching road users: see Wagg v Shaw.
[39] Counsel for the appellant submitted that to turn to the left would have resulted in the appellant’s vehicle driving into a ditch. I have carefully considered the available photographic evidence and do not accept this submission.
[40] The final submission by the appellant was that the driving on this occasion was at worst careless and certainly not dangerous. I disagree. There is no doubt that the first requirement discussed at [19] above was met. The Judge found (correctly) that the driving fell below the standard of care expected of a reasonable and competent driver. In turning to the right into the path of the oncoming motorcycle and occupying that lane on the wrong side of the road, and not turning to the left and taking the option of driving onto the available grass verge, it created a situation which viewed objectively was dangerous. I agree with the Judge’s findings in this regard.
[41] I am satisfied that the factual findings of the Judge were in each respect founded on the available evidence. This is a case where, having considered all of the evidence and the appellant’s submissions, I can conclude that no error has been shown in the decision of the Judge. Indeed, I am satisfied it was not only grounded in the evidence but applied the correct legal principles and was well reasoned. The appellant has not discharged the onus of satisfying the appellate court that it should differ from the original decision.
[42] Accordingly, despite the careful and comprehensive submissions from counsel for the appellant, I can see no basis for disturbing the Judge’s findings. He had the benefit of seeing and hearing the witnesses. He articulated clear and concise reasons explaining his findings both on credibility and reliability. It is impossible to fault his decision.
Result
[43] For the reasons discussed above, the appeal must be dismissed. The appellant will now be required to serve out the balance of the sentence imposed by the Judge.
[44] With respect to costs, Ms Gordon initially sought costs but after discussion accepted that this may not be appropriate in all the circumstances. I make no order
as to costs.
Stevens J
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