B v Police HC Auckland CRI 2008-404-66

[2008] NZHC 2477

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-0066

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 August 2008

Appearances: F Hogan for the appellant

A Longdill for the respondent

Judgment:      4 August 2008

(ORAL) JUDGMENT OF STEVENS J

Solicitors/Counsel:

F Hogan, Dykes Road, Karaka, R D 1 Papakura 2580

Crown Solicitor, PO Box 2213, Shortland Street, Auckland 1140

B V NZ POLICE HC AK CRI 2008-404-0066  4 August 2008

Introduction

[1]      The  appellant,  B  ,  has  appealed  against  a  conviction  for dangerous driving contrary to s 35(1)(b) of the Land Transport Act 1998.  Following a trial in the District Court at Auckland on 5 March 2008, he was convicted by Judge Field.  The appellant was fined $750 and ordered to pay Court costs of $130.  He was disqualified from driving for a period of six months.   He has not appealed against the sentence imposed.

[2]      The  sole  point  raised  on  appeal  is  that  the  evidence  adduced  by  the prosecution  in  the  District  Court  was  insufficient  to  prove  the  elements  of  the offence of dangerous driving beyond reasonable doubt.

[3]      Mr  Hogan,  appearing  for  the  appellant,  filed  comprehensive  and  helpful written  submissions  in  which  he  identified  those  parts  of  the  transcript  of  the evidence dealing with the dangerous driving charge.  He also dealt with the powers of the High Court on appeal.

Approach to general appeal

[4]      The appeal is brought pursuant to s 115 of the Summary Proceedings Act

1957.  It is a general appeal and is by way of rehearing based on the record of the proceeding in the District Court: see s 119 of the Summary Proceedings Act.  The powers of the High Court are set out in s 121.

[5]      Mr Hogan referred to the decision of Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141, which sets out the principles that apply to general appeals. Elias CJ, delivering the judgment of the Court, stated at [16] that:

[16]  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.

[6]      With respect to those observations, according to the Court of Appeal in Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 1990 an appellate Court should not review a factual finding unless compelling grounds can be shown for doing so. However, this may now be regarded as too broadly stated a principle. The Supreme Court in Austin Nichols was careful to limit the deference advocated in Rae to instances where findings of fact were credibility dependent. The Supreme Court stated at [13] that:

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.

[7]      Accordingly, in 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.

Legal principles

[8]      Section 35(1)(b) of the Land Transport Act provides:

35   Contravention of section 7, or section 22 where no injury or death involved

(1)   A person commits an offence if the person—

…

(b)Drives or causes a motor vehicle to be driven on a road at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person;

[9]      In R v Seymour CA75/97 11 June 1997 the Court of Appeal quoted with approval from a judgment of the English Court of Appeal, 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.

…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.

[10]     In Stratford v Ministry of Transport [1992] 1 NZLR 486, Eichelbaum CJ

summarised the position regarding proof of dangerous driving as follows:

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.

District Court decision

[11]     Two Police witnesses were called at the trial in the District Court, they were

Constables McRae and Corley.  The appellant elected not to give or call evidence.

[12]     The  facts  are  that  the  appellant  was  stopped  by Police  at  approximately

4.30am on 3 March 2007 at a breath testing checkpoint on Tamaki Drive.  He was heading away from the city.   Constable McRae asked him to undergo a passive breath test.  The appellant responded that his driver was in the vehicle behind him. Constable McRae repeated her request to the appellant that he undergo a passive breath test.

[13]     The  appellant  indicated  that  he  would  pull  into  the  side  of  the  road, whereupon Constable McRae directed the appellant to pull into a spot about 20 metres ahead on the lefthand side of the road.   The appellant chose to ignore this direction and commenced driving away from the Police Officer.

[14]     At this point, a further Police Officer, Constable Tatai, became involved in what was happening.  He, like the other officers, was wearing full uniform with a reflectorised jacket and was carrying a flash light.  It is accepted that there is some variation between the evidence of the two Police witnesses as to the precise location from which Constable Tatai came.  However, they both agree that Constable Tatai was in front of the appellant’s vehicle for a matter of seconds.   During this time Constable Tatai, as well as Constables McRae and Corley, were yelling at the appellant to stop his vehicle.  The appellant’s window was down.

[15]     Despite having been directed by Constable McRae to pull over, and despite being yelled at by a number of officers (including Constable Tatai) to stop, the appellant continued on his way.

[16]     The appellant was eventually stopped some 1500 metres along the waterfront after a Police vehicle pursued him.  He was observed to be intoxicated with a flushed face, smelling strongly of alcohol, eyes bloodshot and glazed over.

[17]    After hearing the evidence, Judge Field delivered an oral judgment and commented at [5] and [6]:

I  am  satisfied  that  on  Constable  McRae’s  evidence  and  indeed  on  the evidence of Constable Corley, who was called on this point, that Constable Tatai did in fact move to the front of the vehicle.  The vehicle did not stop, it kept going and showed no signs of stopping or moving to the left.   The inference is, that the driver did not intend at any time to stop and this is amply borne out by the fact that he did continue and was apprehended some hundreds of metres further along Tamaki Drive.

The  offence  is  one  of  driving  in  a  manner  dangerous.    The  test  is  an objective one.  Is the driving viewed objectively, dangerous or might it be dangerous to the public or any person?  I take the view that indeed it might have been.   The driver was in a situation where he had been requested to stop and required to stop by the police.  He deliberately refrained from doing so in my view.  He continued on his way, notwithstanding the efforts of the officers to stop him.  Constable Tatai was in immediate danger as a result of this  manoeuvre.    It  could  not  be  said  that  the  driver  was  unaware  of Constable Tatai’s presence, on the facts as I find them to be, whether or not he in fact pounded on the bonnet as observed by Constable McRae,  or merely attempted to attract the attention by shouting.   Either way, he was there in front of the vehicle to be seen.  The vehicle did not slow or stop and the officer was in my view, exposed to real danger.

Appellant’s submissions

[18]     Mr Hogan’s central point was that the elements of the charge of driving in a dangerous manner were not made out on the evidence adduced.  He accepted that the relevant test to a charge of driving in a dangerous manner is whether the driving was objectively dangerous, or “might be dangerous”: see 35(1)(b) of the Land Transport Act.  Mr Hogan properly accepted that it was the standard of a prudent driver that should be applied and no allowance should be made for the appellant’s intoxicated state.

[19]     Counsel developed a careful submission based on the limited amount of time in which this whole incident took place.   His key argument was that proceedings, from the point when the appellant took off from a stationary position until the moment Constable McRae formed a view that he was not complying with the direction to pull over involved the passage of time.  Further time would have been required for Constable McRae to yell out to pull over and stop.  Then, there would

have been reaction time involved for Constable Tatai to hear the call and decide to take action and to run in front of the vehicle.

[20]     Mr Hogan submitted that, until Constable Tatai moved in front of the vehicle, the appellant would have had a clear pathway in front of him.  He submitted that the question for the Court was: what was the distance between the vehicle and Constable Tatai when Constable Tatai moved in front of it?   He submitted that there would have been insufficient time for a reasonably prudent driver to perceive that there was a danger, to take his foot off the accelerator, to apply the brake and to bring the vehicle to a stop.  Mr Hogan helpfully provided various time estimates within which all of these various reactions might have taken place.   He submitted, in summary, that whatever took place must have been constrained by the time involved.  I accept this submission as a general proposition, but I also recognise that the Court, both at first instance and on appeal, is entitled to take into account the context of events as they are unfolding.

Respondent’s submissions

[21]    Ms Longdill submitted that the evidence established that the offence of dangerous driving was proved beyond reasonable doubt.  Counsel drew attention to the context and the background  facts, including the fact that all of the officers concerned were wearing reflector vests and had clearly visible flash lights on their person.  The appellant was subject to a direction to move to the side of the road.  He chose to ignore that direction and in his intoxicated state he also chose to ignore the shouts of the officers to stop.

[22]     Ms Longdill referred to the fact that Constable Tatai, wearing his reflector jacket and carrying his flash light, came to be in front of the vehicle.  He was there, as the District Court Judge found, in front of the vehicle and able to be seen.  The appellant chose not to stop and thereby placed Constable Tatai in danger.

Discussion

[23]     There is no doubt that Judge Field applied the correct test to the charge he was required to determine.  He then proceeded to draw an inference that the conduct of the appellant, viewed objectively, might in all the circumstances have been dangerous.

[24]     In terms of the primary facts from which this inference was drawn, Judge Field observed that the appellant had been requested at the checkpoint to stop by Constable McRae.   He was then required to stop for further processing by being directed to pull over to the side of the road 20 metres ahead.  It is obvious from the events that followed, even though they took place within a relatively narrow timeframe,  that  the  appellant,  in  his  intoxicated  state  deliberately  chose  not  to comply with the requirement of the Constable.

[25]     When the appellant’s intention to drive off became apparent, three Constables endeavoured, through a combination of words and frantic actions, to have him stop the motor vehicle.  In the course of doing so, Constable Tatai came in front of the appellant’s motor vehicle.  Mr Hogan accepted that in doing this he was carrying out his duty of requiring the appellant to comply with the direction he had just been given.   But the appellant did not do so.   The question is whether, applying the standard of a reasonably prudent driver, there was an opportunity for the appellant to react by slowing down, applying the brakes and stopping his vehicle; indeed, complying with the direction that he had been given before continuing on his way.

[26]     In order to assess this submission, I have carefully considered the various passages of the evidence which speak of the way in which Constable Tatai came to be in front of the vehicle.   Constable McRae makes the point that he did not just move directly in front of the vehicle, but was jumping backwards and moving in line with it as it continued to accelerate.   In terms of how long Constable Tatai might have been in front of the vehicle, Constable McRae indicated that it was “a matter of seconds, maybe less than ten seconds”.  Constable McRae also gave evidence that Constable Tatai tried to pound on the bonnet of the vehicle before he had to move out of its way.

[27]     So far as Constable Corley is concerned, his evidence was that he noticed Constable Tatai move in front of the vehicle and emphasised that the vehicle was required to stop.   At that time, he said, the vehicle actually gained speed forcing Constable Tatai to have to literally dive out of the path of the vehicle to avoid being struck by it.  In terms of how long Constable Tatai may have been in front of the vehicle, he indicated that it was “only a matter of seconds as the vehicle has been moving pretty much continuously”.

[28]     I am in no doubt that, by being in front of the motor vehicle in the manner which was described by the witnesses and in the passages to which I have referred, and through the words and accompanying actions of the officers, the appellant would inevitably have been aware that the Constable was in the path of the vehicle.  In my judgment he would have had time to react, as judged from the perspective of a reasonably prudent driver.  Indeed, he should have reacted other than by accelerating towards Constable Tatai and forcing him to dive out of the way.   I agree with the conclusion of Judge Field when he said, “it could not be said that the driver was unaware of Constable Tatai’s presence, on the facts as I find them to be.”

[29]     Despite the submissions from Mr Hogan dealing with time estimates, the appellant has not established that the District Court Judge was wrong.   On the contrary, I conclude from my review of the evidence and taking into account the careful and comprehensive submissions of Mr Hogan, that the Judge was correct.

Result

[30]     Accordingly, the appellant was properly convicted of the charge of dangerous driving.  The appeal is dismissed.

[31]     I direct that the disqualification imposed in the sentence of Judge Field shall commence at midnight on 4 August 2008.

Stevens J