C v Police HC Hamilton CRI 2006-419-73

[2006] NZHC 1306

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-419-73

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         27 October 2006

Appearances: G R Tomlinson for Appellant

C D Bean for Respondent

Judgment:      27 October 2006

JUDGMENT OF KEANE J

Solicitors

Crown Solicitor, Hamilton

Gowing & Co., Whakatane

C V NEW ZEALAND POLICE HC HAM CRI 2006-419-73  27 October 2006

[1]      On 24 May 2006 C   was convicted by Justices of the Peace after a defended hearing, at which she was not able to be present, of careless driving on State Highway 27 on 18 December 2005. She was fined $250. Her licence was not interfered with.

[2]      Ms C   appeals that decision as wrong in law. In essence she contends that the Justices did not articulate in what way she showed less than the degree of care and attention a reasonable and prudent driver should have exercised in the circumstances. It was especially important that they do so, she contends, given that she put in issue a possibility, not excluded on the police evidence, of mechanical failure leading to the accident on the strength of which she was charged with carelessness.

Evidence

[3]      The sole witness for the prosecution, Constable Ranger, confirmed that on 18

December 2005 he was called to the site of an accident at the intersection of State Highway 27 and Topp Road Patetonga. He was alerted to the accident by a tow truck driver. He found Ms C   there with another tow truck driver. Her car had departed from the road to the left of a right curving bend. It had passed through wooden barriers and ended against trees some way beyond. The distance between the barrier and the trees was 18 metres. It was extensively damaged.

[4]      The constable elicited from Ms C   that she travelled round this bend, which was, as he noted it, gradually tending to the right, at about the maximum speed limit, 100 kilometres per hour. She recalled the car crossing to the wrong side of the roadway. She tried to get back to her own side and turned the car to the left. The car spun, she said, and she crashed.

[5]      The constable inspected the road. He found it to be wet. He found nothing else that might have explained her loss of control - oil or loose metal. He inspected her car; an import in the vicinity of 15 years of age. It was registered. It had a warrant of fitness. He inspected the tyres, the state of which turned out to be an issue. He found them all to be fully inflated. He issued a traffic offence notice to Ms

C   for careless driving. His conclusion was, as appears from his evidence, that though she might have been travelling within the maximum permitted speed, that was excessive in the conditions and that was why she lost control.

[6]      The constable conceded, when cross-examined, that he had not investigated the condition of the car beyond inspecting the tyres. He could not exclude a number of mechanical reasons for her loss of control, that the throttle might have jammed, for instance, or a fault in the suspension or steering. He was pressed hard as to the state of the tyres and why he could be so confident that they were inflated. He accepted that he had not tested them. But, he said, he had inspected them at the point of the crash and on the flat deck of the tow truck. He was confident that all four were inflated fully.

[7]      Mr Tomlinson, on behalf of Ms C  , put to the Justices that there was no case to answer. In that he relied on the constable’s concession that, as between driver fault and mechanical failure, he could not point one way or the other. He had focused on factors bearing on the former only. The Justices rejected the submission. They saw the issue arising on the constable’s evidence as one of driver fault only and held that at that point in the case there was no evidence suggesting mechanical failure.

[8]      Ms C  ’s partner, Mr Green, was called on her behalf. He said that he went with her to the tow truck yard after the accident. She had, I am told, parted with the car to the tow truck operator as the price for the tow. The car apparently was a write- off. Mr Green took from the car the stereo, the car mats, battery and the like. He noted also that, in contrast to the other tyres, the front right tyre was deflated.

[9]      On the evidence as a whole, it was contended on this appeal, as it was before the Justices, that it was only open to them to conclude that Ms C   had been at fault if they could exclude the reasonable possibility that the accident may have resulted from a deflated tyre; and on the evidence they had no basis to do so.

Decision under appeal

[10]      In their decision the Justices correctly identified, at the conclusion, the issue they had to decide: whether, as a matter of fact, it had been proved, objectively and beyond reasonable doubt, that Ms C   had failed to exercise the degree of care and attention a reasonable and prudent driver would exercise in the circumstances.

[11]     The Justices concluded that Ms C   had lost control of her car because she was travelling at 100 kilometres per hour on a sweeping bend on a wet surface; and therefore implicitly, if not explicitly, that she was travelling at a speed, perhaps within the maximum speed permitted, but excessive in the conditions.

[12]     In this the Justices discounted the possibility of mechanical failure because there was nothing in what Ms C   had said to the constable, or in what he had found, to suggest that there had been any. They discounted the evidence of Ms C  ’s partner. What he said about the state of the tyres came later in time. Clearly they preferred the evidence of the constable as to what he saw at the scene.

Issue on appeal

[13]     The right of appeal is by way of rehearing but the onus rests on Ms C   to show that the decision was wrong and, while the Court must be astute to ensure that any inferences taken fairly establish the essential elements of the offence, it will be slow to differ from the Justices’ inferences unless they are insupportable.

[14]     The issue raised on this appeal is not a new one. It is whether, as is contended for Ms C  , though the Justices may have correctly identified the prosecution’s task, instead of looking to the prosecution to exclude mechanical failure, they looked to Ms C   to prove it. More abstractly, that issue is: what practical if not formal onus rests on a person charged with carelessness to displace that inference?

[15]     There can be no universal answer. What inference is fair will depend on the state of the evidence. But how the balance is to be struck is well expressed by

Randerson J in Brooks v Police (HC Hamilton A 103/01, 11 September 2002) in four propositions:

(a)The   maxum   res   ipsa   loquitur   is   not   applicable   in   criminal proceedings alleging carelessness in relation to the use of motor vehicles. On the other hand, the facts may be so strong that the only reasonably available inference is that there has been careless driving unless and until something is suggested by the defendant by way of explanation: Police v Chappell [1974] 1 NZLR 225, 227 per Roper J.

(b)It  is  not  for  the  Court  to  conjure  up  fanciful  or  improbable explanations in favour of a defendant who offers no explanation, but it is for the Court to consider reasonable possibilities: Chappell and Sanders v Hill (1964) SASR 327, 329-330 per Chamberlain J.

(c)       Ordinarily, there must be some foundation laid in the evidence to support the reasonable possibility of an accident occurring without carelessness:  R v Colgan (CA.214/87, 2 December 1987) at p 8 per Cooke P.   If it is a matter of drawing inferences from established facts, then if an inference for or against an accused is equally open, the accused is entitled to the benefit of the doubt.  On the other hand, if  an  inference  favourable  to  the  prosecution  is  so  strong  as  to warrant its acceptance beyond reasonable doubt, then of course the accused is not entitled to that benefit: Colgan at 11.

(d)In  the  end,  the  question  is  whether  the  prosecution  has  proved beyond reasonable doubt that the defendant failed to exercise that degree of care and skill one expects from a reasonable and prudent driver.   If he or she has not, the defendant will not be excused merely because the accident arises from an error of judgment: Chappell at 228 citing Simpson v Peat [1952] 2 QB 24, 27 per Lord Goddard CJ.

Conclusions

[16]     The evidence on which the Justices founded their decision is, clearly enough, that of the constable, which begins with what Ms C   said to him as to what had happened, progresses to what he then found and excluded, and culminates in his conclusion  that  Ms  C    must  have  driven,  if  only  briefly,  carelessly.  His conclusion, which the Justices accepted, was that she had been driving, within the speed limit perhaps, but at a speed unsustainable on that bend.

[17]     That conclusion was one the Justices were entitled to accept as conclusive. The state of the road offered no other. The car, to the extent that the constable inspected it, was in  good repair. His only reason  for  pause,  and  theirs  in  their

conclusion,  was  Mr  Green’s  evidence  that  the  front  right  tyre  may  have  been deflated. But it was open to the Justices to accept the constable’s contemporary account and to reject Mr Green’s.

[18]     I see no basis, therefore, to disturb the Justices’ decision on this appeal. They might perhaps have gone further and identified explicitly excess speed in the conditions as Ms C  ’s fault. That they did not do so involved no error on their part. The tendency of their judgment as a whole, which was carefully considered, is

clear. The appeal will be dismissed.

P.J. Keane  J