BETWEEN HIRENDRA SINGH Appellant AND NEW ZEALAND POLICE Respondent

[2024] NZHC 2581

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000307

[2024] NZHC 2581

BETWEEN

HIRENDRA SINGH

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

19 August 2024

Counsel:

TD Clee for Appellant

AF Mackenzie for Respondent

Judgment:

10 September 2024

JUDGMENT OF DOWNS J

This judgment was delivered by me on Tuesday, 10 September 2024 at 10 am.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. TD Clee, Auckland.

SINGH v POLICE [2024] NZHC 2581 [10 September 2024]

The case

[1]    Hirendra Singh was convicted of dangerous driving and failing to stop following a Judge-alone trial. Mr Singh appeals conviction. The appeal must be allowed if the Judge erred in her assessment of the evidence to such an extent a miscarriage of justice has occurred, or a miscarriage has occurred for any other reason.1

Background

[2]The facts are simple.

[3]    On 28 April 2023, Constable  Sarah  Hayman  was  driving  from  the Harbour Bridge  towards  an  accident  on  the   motorway   near   Puhinui.  Constable Hayman was in what is sometimes described as a marked Police car.    She had activated its lights and sirens. Traffic was “incredibly heavy”.

[4]    Constable Hayman encountered Mr Singh in his Tesla, driving in the same direction as she was. What happened in the next five minutes or so is captured by Judge K Lummis’ decision:2

As Constable Hayman approached Mr Singh’s vehicle, her evidence was that he failed to move out of the way. She pulled up alongside his vehicle and tried to get his attention. She toggled the siren, playing it at different frequencies and used an airhorn and the standard car horn to try and attract Mr Singh’s attention. In doing this, she realised she herself was potentially creating something of a spectacle which could cause danger. She therefore dropped back behind Mr Singh and continued behind him for some time.

Constable Hayman said that while she was driving beside Mr Singh she observed him in a very reclined position in his seat. His right arm was back behind his head and his head was facing towards her. From her observation point, she believed Mr Singh’s eyes were closed and that he was asleep or unconscious.

Her evidence was that she was beside Mr Singh for around two minutes and behind him for a further three minutes before he finally pulled over. The question I need to consider is whether Mr Singh’s driving was dangerous.

1      Criminal Procedure Act 2011, s 232(2).

2      Police v Singh [2024] NZDC 13623 at [4]–[6].

[5]    Constable Hayman said Mr Singh’s seat was almost fully reclined. Mr Singh denied  that;  he  said  it  was  reclined  approximately  45  or  55  degrees.  Constable Hayman said Mr Singh’s eyes were closed. Mr Singh denied that. Constable Hayman said, essentially, Mr Singh failed to let her pass for approximately five minutes. Mr Singh denied that too. He said he was driving normally — and safely — then “all of a sudden I heard this honking sound”. Mr Singh said he realised there was a Police car behind him and pulled over when “it was safe to”.

The decision

[6]    The Judge concluded Mr Singh’s evidence “was not convincing, credible or reliable, particularly given its contrast with the independent evidence of the footage”.3 The last observation reflects that at least some of the incident was captured by closed-circuit television footage.

[7]    The Judge then turned to whether Mr Singh had been asleep, as the Constable’s evidence implied:4

In the end, it is my view I do not need to reach a conclusive view as to whether Mr Singh was in fact asleep or not. I do not need to understand exactly the level of driver assist being operated in the Tesla that day. The vehicle was clearly travelling with some form of assistance from its automated driver assist features. The evidence I have before me is that Mr Singh travelled a considerable distance continuing to negotiate bends on the motorway while failing to recognise a police car blearing its lights, sirens, horns and airhorn beside him.

I find that there was evidence of a lack of awareness of the road conditions by failing not only to hear but also to see Constable Hayman when the police car was  to  the  side  and  right  behind  Mr  Singh’s  Tesla.   I  accept   Constable Hayman’s evidence of the actions she took in that regard. I found her a careful witness. She was willing to make some concessions, while she may have dug her toes in somewhat about the CCTV images, in my view, she was a conscientious witness who was willing to make some concessions during cross-examination such as acknowledging that  she  could  not  see Mr Singh’s hands and that he could have been controlling the vehicle because she could not see his hand.

The enlarged images from the CCTV did appear to possibly show Mr Singh reclining  and  could   generally   be   considered   consistent   with Constable Hayman’s evidence. However, they were captured from a distance

3      Police v Singh, above n 2, at [23].

4      At [28]–[31] (footnote omitted).

and not overly easy to make out, so I do not place great weight on what was said about Mr Singh’s body position in that footage.

Accepting Constable Hayman’s evidence, I find that Mr Singh was driving in an almost fully reclined position and that his driving fell below the standard, care and skill of a competent and reasonable driver. By placing his seat in a position that was reclined to the point that he  [was]  not  aware  of  Constable Hayman, in my view demonstrates that he did not maintain appreciation and focus on the road to the extent that he should have. I also take into account that Mr Singh was driving in the reclined position for a considerable period of time.

[8]The Judge addressed whether Mr Singh’s driving was dangerous:5

The prosecution submit that the driving created a dangerous situation in several ways:

(a)Predominantly, that Mr Singh was not alert enough to be reacting to changing road conditions or any unexpected events. The prosecution case included evidence that there were various overbridges  with  changeable  signage  that  Mr Singh would have been unaware of.

(b)Further that Mr Singh’s driving was dangerous to those involved in the emergency that Constable Hayman was attempting to get to.

Someone who is unable to respond appropriately to the level of noise and attention seeking behaviour from a proximate police car, in my view, is a situation which is dangerous to the public or to any person given an unexpected event could happen at any moment. A driver needs to be alert and responsive and able to react to any changes in road conditions. In my view, Mr Singh was not able to do that.

I note also, Constable Hayman gave evidence that Mr Singh appeared to her to be startled and sleepy, looking like he was waking up when she stopped him so it may well be that he had been dozing in some form as he was travelling along the motorway with one hand still on the steering wheel. His fault was to recline his seat to a point placing him in that situation whereby he may [doze] or be unable to see and respond to what was going on to the side and behind him. In my view, that caused the dangerous situation and accordingly I find Mr Singh guilty of the charge of dangerous driving.

[9]Finally, the Judge considered the allegation Mr Singh failed to stop:6

I then turn to the charge of failing to comply with the lawful requirement to stop being followed by flashing red and blue lights and siren. Given Constable Hayman’s evidence which I have accepted, in my view, that charge is also made out. Mr Singh did eventually pull over but that was some significant distance along the motorway. When we re-watched the video

5      Police v Singh, above n 2, at [36]–[38].

6      At [39]–[40].

during Mr Singh’s evidence he accepted that had he heard the siren earlier there were lots of available places to pull over, not only at the side of the motorway but actually what looked like at least two parking bays that were passed over in the footage we watched this afternoon.

I, therefore, find Mr Singh, that the charge of failing to stop has been proven beyond reasonable doubt. I find Mr Singh guilty of both charges before me.

Grounds of appeal

[10]Mr Singh advances four grounds of appeal:

(a)The summons was a nullity.

(b)His “driving” might have been involuntary, and therefore not culpable. Expressed directly in terms of the facts, Mr Singh contends if he was asleep or might have been asleep, he could not be guilty of dangerous driving unless there had been antecedent fault on his part. No such fault existed.

(c)Even if his driving was voluntary, it was not dangerous.

(d)The  offence  of  failing  to  stop  has  a  mental  ingredient   the  Judge overlooked.

[11]   As in the District Court, Mr Singh does not contend he had enabled his Tesla’s self-drive functionality, or that functionality has significance to any issue. So, this appeal does not raise any issue about the compatibility of self-drive functionality with New Zealand law.

Analysis

Was the summons a nullity?

[12]   This point was not raised in the District Court. Mr Clee, Mr Singh’s counsel, acknowledged this was an “oversight”.

[13]   Section 28 of the Criminal Procedure Act 20117 provides a constable may issue and serve a summons if they have good cause to suspect a person has committed an offence and the officer has filed, or intends to file, a charging document in respect of that offence. Section 30 of that Act provides:

30     Provisions relating to summons issued under section 28 or 29

(1)A summons under section 28 or 29 must require the person to appear on a day not later than 2 months after the date of the summons at the court where the charging document has been or is to be filed.

(2)The summons must contain—

(a)     the particulars of the defendant; and

(b)     the particulars of the charge; and

(c)     the court and date and time at which the defendant is required to appear; and

(d)     any other information required by rules of court.

[14]   Mr Singh’s summons was issued by Constable Hayman on 10 June 2023. The summons directed Mr Singh to appear in the District Court on 15 August 2023. As will be apparent, that appearance was five days beyond the two-month period permitted by s 30(1). Mr Clee contends this, without more, means the summons was a nullity.

[15]Section 379 of the Act governs this contention:

379     Proceedings not to be questioned for want of form

No charging document, summons, conviction, sentence, order, bond, warrant, or other document, and no process or proceeding may be dismissed, set aside, or held invalid by any court by reason only of any defect, irregularity, omission, or want of form unless the court is satisfied that there has been a miscarriage of justice.

7      The Act.

[16]   The leading decision on s 379 remains that of the  Supreme  Court  in  Dotcom v Attorney-General, which considered the approach to the section’s similarly worded predecessor, s 204 of the Summary Proceedings Act 1957:8

In summary, the authorities to date have held that full effect should be given to the ordinary and natural meaning of the language of s 204. The authorities accept that some defects are so serious that the document or process concerned must be treated as a nullity and outside the scope of s 204, this conclusion is one which courts should be slow to reach. The court’s approach should not be a technical or mechanical one, and even relatively serious defects may receive the protection of s 204. Where a court concludes that the relevant document or process is not a nullity on account of the particular defect(s), the question whether s 204’s protective effect is available depends on whether that will involve a miscarriage of justice. That will be determined by whether or not the particular defect has caused significant prejudice to the person affected.

[17]   Also relevant is Holley v Police.9 Mr Holley was convicted of driving with excess breath alcohol as a third or subsequent offence. Mr Holley was issued with the wrong summons: he was summonsed to appear pursuant  to  s  19A  of  the  Summary Proceedings Act 1957, which deals with arrest without warrant, rather than s 19B of that Act, which deals with summonses following a positive evidential breath test. Courtney J held use of the wrong summons procedure did not constitute a nullity.

Rather, the irregularity was curable by s 204.10

[18]   As Courtney J observed, a summons “is merely a vehicle to secure the attendance of the defendant at court”.11 The summons in question achieved that purpose: Mr Singh was informed about when he was required to attend Court (and why he was required to do so). Dotcom is clear a technical or mechanical approach should be eschewed in this context. Moreover, a date error in relation to a summons is plainly of a different nature or order to that, for example, which arises when the prosecution fails to obtain the consent of a Law Officer before commencing a prosecution.12 All of which is to say the error does not constitute or give rise to a

8      Dotcom v Attorney-General [2014] NZSC 199, [2015] 1 NZLR 745 at [129] per McGrath, William Young, Glazebrook and Arnold JJ.

9      Holley v Police [2012] NZHC 3431.

10 At [28].

11 At [28].

12  In Narayan v R [2022] NZCA 527 the Court of Appeal set aside a conviction for offending against s 11(1)(b) of the Aviation Crimes Act 1972 because of the prosecution’s failure to obtain the consent of the Attorney-General before laying the charge.

nullity. It follows s 379 applies, and the only issue is whether Mr Singh has suffered “significant prejudice”.13

[19]   Mr Singh contends such prejudice resulted from the delay as he was not able to retrieve Tesla records older than 90 days. This exchange occurred (during cross-examination) in the District Court:14

Mr Singh:I just want to add one more thing here, sir.  So, if I knew about this – that there will be a question about expert opinion about the Tesla and stuff, before I engaged my lawyer about this, I would have – in Tesla, every movement, even a – if you are just a seat, it gets recorded into the memory. Every movement you do, it gets recorded. And at the time when this whole thing happened, if somebody would have asked us, or you guys had asked me to get anything like that, we would have got three months of data.

Q:                  Well, you had a long time to get that data.

Mr Singh: Yeah, but I was not sure, I was not being charged of anything.

It went two and a half months later.

Q:                  So, you brought no records, either. Mr Singh: I was never asked.

[20]   I am unpersuaded of significant prejudice. The summons-infringing delay was five days only, and no expert evidence regarding the Tesla’s data or features was offered in the District Court. It follows a miscarriage of justice has not occurred and the error is cured by s 379.

Involuntary driving?

[21]   This contention rests on Johnson v Police and the criminal law’s insistence upon voluntary acts or omissions as founding liability for an offence.15

[22]   In Johnson, Mander J quashed a conviction for dangerous driving as it rested, exclusively, on Mr Johnson having fallen asleep while driving.16 Critically, no evidence of antecedent fault by Mr Johnson, such as failing to pull over despite

13     Dotcom v Attorney-General, above n 8, at [65] citing R v Sanders [1994] 3 NZLR 450 (CA) at 462.

14     Notes of evidence, p 76, li 31–32 and p 77, li 1–11.

15     Johnson v Police [2022] NZHC 266.

16 At [22].

drowsiness, was  available.     That meant Mr Johnson had not voluntarily driven dangerously.

[23]   No such difficulty arises here. The Judge did not find Mr Singh drove dangerously merely because he fell asleep or might have done so. Rather, Mr Singh’s fault was to “recline his seat to a point placing him in that situation whereby he may [doze] or be unable to see and respond to what was going on to the side and behind him.”17 That antecedent act (or omission) caused the danger, and it, plainly, was a function of agency.18

Was Mr Singh’s driving dangerous?

[24]   Driving is dangerous if it is at a speed or manner which, having regard to all the circumstances, is or may be dangerous to any person.19 Unsurprisingly, the offence encompasses hypothetical members of the public who may be endangered.20

[25]   Mr Clee contends Mr Singh’s driving was not dangerous as Mr Singh was not speeding and remained within his lane. Consequently, the Judge was wrong to find his driving was or might have been dangerous.

[26]   As observed earlier, Constable Hayman  followed  (and  drove  alongside)  Mr Singh for approximately five minutes. When Mr Singh did not pull over, the officer tried to get his attention through various methods, including “toggling the siren”, playing the siren at different frequencies, use of an airhorn, and use of a standard car horn.   That Mr Singh did not notice any of this for approximately     five minutes implies, as the Judge found, that Mr Singh was unaware of what was going on around him, an inherently dangerous situation, particularly as Mr Singh was driving on a motorway in heavy traffic.

17     Police v Singh, above n 2, at [38].

18 At [38].

19     Land Transport Act 1998, ss 7(1) and 35(1)(b).

20     McCoy v Police [2022] NZCA 617 at [15].

Did the Judge overlook an ingredient of the offence of failing to stop?

[27]   Mr Clee contends the Judge approached the charge of failing to stop as a strict liability offence when it requires mens rea: “a guilty mind”. Mr Clee contends the offence requires proof (beyond reasonable doubt) Mr Singh knew of the demand to stop, hence Police presence.

[28]   The contention is (strongly) supported by authority. In Tibble v Ministry of Transport,21 Henry J quashed a conviction for failing to stop pursuant to s 66(1) of the Transport Act 1962, the predecessor to s 114(2) of the Land Transport Act 1998.   Mr Tibble did not know he was being signalled to stop as he was distracted by a conversation within his car. Henry J held the s 66(1) offence required mens rea; it would be inappropriate for the “penal provisions” of s 66(1) to be imposed on a person of whom knowledge had not been established.22 Henry J held the offence was not a public welfare offence of the type referred to in Civil Aviation Department v MacKenzie.23

[29]   On behalf of the respondent, Mr Mackenzie contends the s 114(2) offence should be distinguished from its predecessor, hence Tibble’s reach:

It seems unlikely Parliament intended that a driver could escape liability under s 114(2) if their failure to notice the red and blue flashing lights was caused by their own irresponsible actions. That would be inconsistent with other offences in the Land Transport Act 1998, such as dangerous driving above, where the defendant’s state of mind is irrelevant and they are liable if the danger was due to their fault. Here, Mr Singh’s failure to stop was clearly due to his own fault.

[30]   It is unnecessary to determine the point because on the Judge’s  findings,    Mr Singh failed to stop even after appreciating he was required to do so by Constable Hayman:24

When we re-watched the video during Mr Singh’s evidence he accepted that had he heard the siren earlier there were lots of available places to pull over, not only at the side of the motorway but actually what looked like at least two parking bays that were passed over in the footage we watched this afternoon.

21     Tibble v Ministry of Transport HC Gisborne M 35/85, 28 August 1985.

22     At 3.

23     At 3 citing Civil Aviation Department v MacKenzie [1982] NZLR 78 (CA).

24     Police v Singh, above n 2, at [39].

[31]It follows Mr Singh had “a guilty mind” in the sense discussed above.

Result

[32]The appeal is dismissed.

……………………………..

Downs J