B v Police HC Whangarei CRI 2008-488-20

[2008] NZHC 1081

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2008-488-000020

BETWEEN  B

Appellant

ANDPOLICE Respondent

Hearing:         3 July 2008

Appearances: R J Bowden for Appellant

A L Patterson for Respondent

Judgment:      10 July 2008

JUDGMENT OF COOPER J

This judgment was delivered by Justice Cooper on

10 July 2008 at 3.00 p.m., pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Date:

Solicitors:

Marsden Wood Inskip & Smith, Crown Solicitors, PO Box 146, Whangarei

Copy to:

R J Bowden, PO Box 1862, Whangarei

B V POLICE HC WHA CRI 2008-488-000020  10 July 2008

[1]      The appellant was convicted of driving a motor vehicle at a speed which, having regard to all the circumstances of the case might have been dangerous to the public.  The charge was laid under s 35(1)(b) of the Land Transport Act 1998 which provides that a person commits an offence if he or she:

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.

[2]      He  now  appeals  against  his  conviction  alleging  that  the  Judge  erred  in concluding that the driving was such as to breach the section.

Facts

[3]      The appellant was driving in a southerly direction on State Highway 1 south of Whangarei.  He was coming down the southern side of Smeaton’s Hill, just past the Maungakaramea Road turn-off.  A police officer, Constable Cullen, travelling in the opposite direction observed the appellant’s vehicle and formed the view that he was speeding.   He activated his Stalker radar which indicated that the appellant’s speed was 159 kmph.  The officer turned and pursued the appellant, who pulled over to the side of the road.  Judge de Ridder found that the radar device was properly calibrated and that it was an approved device for the purpose of recording speed. There was no challenge to the fact that the appellant had been driving at the recorded speed.

[4]      The Judge found that the driving had occurred at a point where the road is a single south-bound lane alongside two north-bound lanes, one of which is a passing lane.  The road at the time was dry and the weather clear.  On the basis of evidence given by Constable Cullen the Judge held that the traffic at the time had been of light to medium intensity, “pitched somewhere towards the lighter end”.  There had been up to three vehicles, including the constable’s, travelling in a northerly direction and two vehicles travelling behind the appellant in a southerly direction.   Those cars were in the left-hand lane, not the passing lane.  It was approximately 8.00 a.m. on a week day.

[5]      The State Highway at this point proceeds through a gentle sweeping right- hand curve before making a more pronounced turn to the left.  It was described by the Judge as well formed, properly marked and having an even surface.  He observed at [11] that:

There was nothing in the road condition itself which would make a speed of

159 kilometres inherently dangerous.

[6]      The  Judge  referred  to  a  driveway  almost  at  the  point  where  the  officer recorded the speed of the vehicle providing access to the State Highway on the south-bound side of the road (where the appellant was travelling).  The Judge found at [12] that:

That driveway is not fully visible and there is some obscuring of that driveway as one travels south in the lane that the defendant was travelling in. That is partly due to the topography of the land and also to a lesser extent some minor obscuring by bushes, but the fact remains that that is a private driveway accessing the State Highway.

[7]      The Judge found that further down the road there was another driveway which serves at least two properties accessing the State Highway on the north-bound side.  Traffic intending to proceed from that driveway in a southerly direction would be required to cross over into the south-bound lane.  The Judge also mentioned an access road to an industrial property known as the Marisumi Mill which was around the left-hand bend described by the State Highway earlier mentioned.   That entranceway would have been obscured from the appellant’s view.

The judgment

[8]      Against the background of those facts the Judge concluded that the defendant had been driving at a speed which having regard to the relevant circumstances might have been dangerous to members of the public.   The particular circumstances on which he relied were first, the speed itself.  He noted that at 159 kmph, in an area limited to 100 kmph, the speed at which the appellant had been travelling was fractionally under three-fifths above the speed limit.   It meant that the car was travelling at 44 metres per second.  He referred to the obvious implications of that

speed for a driver dealing with any emergency that might arise in terms of reaction time and stopping time.

[9]      Second, there was other traffic on the road.   Further, it being a rural area, there was the risk of stock straying onto the road although the fencing on either side of the road at this point appeared to be adequate.  Nevertheless, the Judge found that adequate fencing could not entirely eliminate the risk of stock being on the road and a driver travelling at the speed at which the appellant was travelling would face potential difficulties in avoiding stock on the road with potential risk to other road users.

[10]     Next, he referred to vehicles accessing the State Highway from the driveways which he had earlier mentioned, particularly the one immediately in the vicinity of where the defendant had been recorded travelling at the speed of 159 kmph.   The Judge observed that those other vehicles could reasonably expect traffic on the State Highway to  be  obeying  the  speed  limit  or  at  least  travelling  within  reasonable proximity of it with the result that they might under-estimate the appellant’s speed in making a decision to drive out onto the State Highway.

[11]     Finally, he referred at [17] to the fact that the appellant, on the evidence, had in fact been deliberately speeding because he was testing noise generated from a roof rack fitting on his vehicle.  Apparently the roof rack had been making an annoying noise.  The appellant had tried a variety of approaches to resolve the problem and he was testing some recent modifications made to its structure to ascertain their effect as  he  drove  at  different  speeds.    The  Judge  thought  that  this  would  be  a  less important consideration than the others he had mentioned, but observed:

Whilst he may have been paying attention to the road ahead, some of his attention and thought processes must have been focused on the roof rack noise and that elevates the risk in terms of his reaction time and dealing with any emergency.

[12]     At [18] the Judge expressed the kernel of his decision as follows:

I am quite satisfied that the combination of the speed the defendant was travelling at, the existence of that driveway to that house and driveways and access ways further down the road and the sweeping nature of the road as opposed to a straight road all combined together, to my way of thinking, to

constituting the defendant driving at a speed which having regard to all of those circumstances might have been dangerous to members of the public and therefore, I find the charge proved.

The appeal

[13]     The main argument pursued on appeal is that the Judge was incorrect as a matter of fact when he concluded that the circumstances were such that the appellant’s speed of driving might be dangerous.   The appellant accepted that the Judge had identified the relevant case law when he referred to the decisions of Tompkins J in Land Transport Department v Giles [1965] NZLR 726, Holland J in Duncan v Kelly (HC DUN AP56/88, 22 November 1988), Penlington J in Joad v Police (HC HAM AP79/94, 28 September 1994) and Hardie Boys J in Hyde v Wallis (HC DUN AP212/85, 13 December 1985).  In essence those authorities establish that there must be more than a possible risk to persons who might reasonably be expected to be on the highway, there must be a reasonable likelihood of danger to such personsand it must be reasonably foreseeable that danger may result from the defendant’s driving.

[14]     Speed alone is insufficient to establish the potential for danger;  rather, the speed has to be looked at in the context of all the circumstances.   The necessary element of danger may be the result of speed, the difference between the actual and the authorised speed, visibility, the state of the traffic, the number and location of other users of the road, presence of driveways and intersections, the physical attributes of the road and its condition, the lighting and any public works placed in the road, the condition of the driver and the condition of the vehicle.

[15]     There is no doubt that the Judge applied the approach mandated by these authorities.  The appellant, however, contends that he made errors of fact in doing so. Mr Bowden pointed out that many of the relevant considerations indicated that the driving was not dangerous.   He referred to there being excellent visibility, light traffic, dry road surface conditions, and no traffic islands or public works in the road. The appellant had not been drinking and was driving a late model Holden Commodore in good condition with current registration and warrant of fitness.  The road was well fenced with little danger of stock being on the road and there was

nothing dangerous about the appellant’s driving other than the speed itself.  On the evidence the appellant had only been speeding for a short period of time and had very soon thereafter returned to a speed of 100 kmph.

[16]     Mr Bowden focused in particular on the visibility issue.   Referring to the evidence, he submitted that there had been “200 metres plus of visibility”.  That was a reference to evidence given by Constable Cullen in cross-examination, where there was the following exchange between counsel and the witness:

Q.        The stretch of road is one which accords, what one would say is excellent visibility doesn’t it?

A.       Um, well for that 200 metre stretch yes.

[17]     Then, Mr Bowden noted the fact that there was only one close driveway on the left, a distance of some 50 metres from where the appellant’s speed had been recorded.  He pointed out that any vehicle on the driveway would be visible to traffic travelling south on the State Highway for the entire length of the driveway.  The next access road on the left road was a further 300 to 400 metres to the south.  It was well designed with excellent visibility and a turning bay.

[18]     As already mentioned, the Judge had held that the nearest driveway to where the appellant’s speed was recorded was not fully visible, there being some obscuring along its length when viewed from the State Highway by drivers travelling south. He thought that was partly due to the topography of the land and to a lesser extent because of some minor obscuring by bushes.

[19]   Mr Bowden challenged that conclusion saying it was contrary to the photographic evidence that had been produced at the hearing.  He referred me to one photograph in particular and essentially invited me to reach a different conclusion. In addition, he relied on the concession that had been made by Constable Cullen in the following exchange of evidence:

Q.        And any vehicle on that driveway is visible for the – to a vehicle coming south as we see in photo 1 for  the  entire length  of the driveway isn’t it?

A.       Yes – I – yep.

Q.       So  in  other  words  the  one  driveway  which  we  can  see  in photograph 1.

A.       Yes.

Q.       Any vehicle on that driveway is visible to a vehicle travelling south on this road (interrupted).

A.       Yes (interrupted). Q.       - isn’t it.

A.       Yes.

[20]     He  submitted  that  those  answers  given  in  cross-examination  were  to  be preferred to evidence given by the same witness in re-examination where he was asked about the trees shown in the same photograph and said in response to what was plainly a leading question that for 20 to 30 metres the driveway would have been obscured by the trees.

The respondent’s case

[21]     For the respondent, Ms Patterson argued that the Judge had correctly applied the  law  to  the  facts  of  the  case.    He  had  carefully  identified  a  number  of circumstances which taken together were sufficient to justify his conclusion that the appellant’s driving had been dangerous.

[22]     In addition to the cases which the Judge had mentioned she referred me to the decision of Randerson J in Robinson v Police (HC AK A184/00, 27 February 2001) emphasising the point made at [29] in that decision that a passenger driving in a defendant’s  car  may be  treated  as  a  member  of  the  public  for  the  purposes  of s 35(1)(b).  While I do not agree with Ms Patterson that the circumstances of this case  involve  driving  that  was  more  dangerous  than  was  before  Randerson J,  I nevertheless accept the relevance of the decision as another case which emphasises the need to consider all of the circumstances attendant on the driving in question.

Discussion

[23]     The relevant law was summarised by Penlington J in Joad v Police:

As the learned Judge rightly observed in the Court below, proof of speed alone is insufficient to warrant a conviction.

Whether or not the speed at the material time is dangerous is to be judged objectively and does not depend on the defendant’s state of mind:  R v Evans [1963] 1 QB 412; [1962] 3 All ER 1086 (CA). The danger must be more than a mere possibility. There must be proof of a reasonable likelihood of danger to persons who might reasonably be expected to be on the highway: Transport Department v Giles [1965] NZLR 726. It is not necessary for the prosecution to prove any person was actually endangered by the defendant’s mode of driving. The responsibility of the driver is not only to a definite person but also to the hypothetical member of the public who might come into the defendant’s driving: Wagg v Shaw [1962] NZLR 498. The mere fact that not many people were likely to be about at the time when the alleged offence took place is not a defence where there is still a sufficiently distinct and reasonable possibility that an accident could result: Gallagher v Police (HC AK M1264/86, 3 December 1984, Pritchard J).

[24]     The principal argument advanced by Mr Bowden was that there was nothing dangerous about the appellant’s driving apart from the speed.  Although the Judge’s decision touched on a number of circumstances other than speed, it does seem that speed was the principal factor which lay behind the decision to convict.  The speed of 159 kmph was the first factor that the Judge mentioned.  Next, he relied on the extent to which the speed was above the speed limit of 100 kmph.

[25]     Without wanting to descend into semantics it seems to me that the amount of traffic on the road could readily have been described as light rather than the Judge’s preferred light to medium.  Whichever description is used there is no suggestion that there was any aspect of the appellant’s driving which exhibited fault or posed a particular threat to the few other cars in the vicinity.

[26]     There was mention of the possibility of stock straying onto the road because it was a rural area.  That was said to be so although the Judge appeared to accept that properties on either side of the State Highway were adequately fenced.  The Judge found however that adequate fencing could not entirely eliminate a risk that stock would  be  on  the  road.     At  Mr  Bowden’s  invitation  I  examined  one  of  the photographs that had been submitted in evidence in the hearing in the District Court. Mr Bowden’s main point in referring it to me was to deal with the visibility issue to which I will shortly come.  For present purposes both that photograph and the others

to which I was referred showed the rural land in proximity to the State Highway and no stock was visible.  There was no other evidence from which it could be inferred that stock was present in the adjoining pastures.  In the circumstances, any risk posed from  the  possibility of  stock  being  on  the  road  must,  I think,  be  dismissed  as insignificant.

[27]     The combination of speed and proximity to the nearest driveway on the left- hand side of the road was plainly pivotal to the Judge’s decision.  On the basis of the photographs to which I have referred, and one assumes the evidence given in particular in re-examination by Constable Cullen, the Judge held, as has been seen, that the driveway was not fully visible from traffic travelling south.  He held that was partly due to topography and to a lesser extent as a result of the obscuring effect of bushes.

[28]     Mr  Bowden  invited  me to  take  a  different  view.    As  has  recently been clarified by the Supreme Court in Austin, Nichols & Co. Inc v Stichting Lodestar [2008] 2 NZLR 141, in the case of a general appeal the appellate court is entitled to take a different view from the court appealed from unless that court had a particular advantage which would justify reluctance on the part of the appeal court to intervene. For present purposes two aspects of the Supreme Court judgment may be mentioned. First, at [4] Elias CJ (for the Court) said:

…the appellant bears an onus of satisfying the appeal court that it should differ from the  decision  under appeal.    It  is only if  the  appellate  court considers that the appealed decision is wrong that it is justified in interfering with it.

[29]     However, as the following passage makes plain, the appeal court is entitled to decide that the court below was wrong after making its own assessment of the merits of the case:

[5]       The appeal court may or may not find the reasoning of the tribunal persuasive  in  its  own  terms.  The  tribunal  may  have  had  a  particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important). In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong.  It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand.  But  the  extent  of  the  consideration  an  appeal  court  exercising  a general power of appeal gives to the decision appealed from is a matter for

its judgment. An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result. On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.

[30]     On the visibility issue I consider there is merit in Mr Bowden’s submission that  Constable  Cullen’s  statement  in  cross-examination,  that  any vehicle  on  the driveway in question would be visible for the entire length of the driveway to a vehicle being driven in a southerly direction, should have been preferred to the different answer he gave in response to what was a grossly leading question in re- examination.    It  was  the  latter  response  that  appeared  to  justify  the  Judge’s conclusion about visibility of the driveway.  Even so, the Judge did not go so far as Constable Cullen who was led to say, that for 20 to 30 metres the driveway would have been obscured by trees.

[31]     The photograph which was produced in the District Court was relied on by Mr Bowden on appeal.  Having at his invitation myself examined it, I agree with him that the extent to which there is a shielding effect from the trees is limited.  It is only the closest of the trees which would obscure anything like the length of a motor vehicle.  There are gaps between the other trees between which a car could, in my view, clearly be seen as it passed along the driveway.  Then, as the driveway reached its point closest to the carriageway of the State Highway the view is completely unobstructed.

[32]     There  is  an  unimpeded  view  of  about  80  per  cent  of  the  length  of  the driveway from the State Highway looking in the relevant direction.  I cannot find in the photograph either any shielding due to topography which the Judge inferred from the photograph.  My own view is that a vehicle on the driveway and approaching the State Highway would have been able to be observed by the appellant from a distance sufficient for him to have taken steps to slow his vehicle down, if at that point it was travelling at anything like the 159 kmph which was clocked by the speed recording device when the appellant’s vehicle was closer to the entrance to the driveway.   I consider, conversely, that the appellant would have been aware that there was no vehicle on the driveway when making his decision to approach it at that speed.

[33]     In the circumstances I find myself unable to agree with the   key factual conclusions which led the learned District Court Judge to convict the appellant and I have reached the view that the appeal should be allowed.

[34]     That is not necessarily the end of the matter.   The fact remains that the appellant was travelling at a speed well in excess of the 100 kmph limit applicable on the State Highway at this point.   In dealing with an appeal under s 115 of the Summary Proceedings Act this Court may, amongst other things, amend a conviction and  impose  any sentence  that  the  convicting Court  could  have  imposed  on  the conviction as so amended.   Here, it is apparent that the appellant must have committed a speeding offence.

[35]     There was no issue taken in the District Court that the appellant had not been travelling at the alleged speed of 159 kmph at the time.   I accordingly amend the conviction by substituting the offence of breaching s 40 of the Land Transport Act by contravening r 5.1 of the Land Transport (Road User) Rule 2004.

[36]     Plainly, in the circumstances I have heard no submissions from counsel as to the appropriate penalty that should then be imposed.  The most expedient course to follow is to remit the matter back to the District Court for the imposition of penalty after hearing from the parties.  I make an order accordingly.