C v Police HC Rotorua CRI 2007 470 25

[2007] NZHC 1109

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007 470 25

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         19 October 2007

Counsel:         P G Mabey QC and G Miller for Appellant

S Bridges and C Harold for Respondent

Judgment:      19 October 2007

ORAL JUDGMENT OF RONALD YOUNG J

[1]      In March 2005 the Bay Car Rally was held in the Gisborne area.  Mr C   was  an  assistant  clerk  of  the  course.    During  the  rally  he  was  asked  by  rally organisers to check a 19 kilometre stretch of road for damage before the commencement of Special Stage 6.  While doing so, he came over the brow of a hill and collided head-on with another car driven by Mr Coker.  Mr Coker was injured in the collision suffering a broken pelvis.

[2]      Mr C   was charged with careless driving causing injury to Mr Coker and after a defended hearing he was convicted.  He appeals that conviction.  He says the

Judge drew conclusions that were not available from the evidence, gave little or no

C V NEW ZEALAND POLICE HC ROT CRI 2007 470 25  19 October 2007

weight to the unchallenged evidence for the defence, and reached conclusions on which the verdict was based which were wrong.

Facts

[3]      During  19  March  2005  the  Bay  Rally  was  underway  around  Gisborne. Special Stage 6 was on a 19 kilometre stretch of Rukaka Road.  The stage was due to be driven starting in the afternoon.   Mr C  , the appellant, was asked by rally organisers to inspect the road covered by the special stage prior to the race.  That section of roadway had been used earlier in the day as Stage 3 of the rally.

[4]      Mr C   was at the starting end of the special stage.  He said in evidence he thought the road he was to inspect was a closed rather than a public road.  This belief seems to have been based on two pieces of information.  When preparing for a car rally it seems that two relevant documents are prepared with respect to the organisation; the control manual and the safety plan.  Before Mr C   drove down Stage 6 he checked with the control manual which he said told him the road was to be closed from 12.15 p.m. that day some 40 minutes before his departure.  Secondly, as he reached the start of the stage he saw a “road closed” sign on the side of the road leaning against a vehicle.

[5]      There was dispute about whether the appellant was entitled to rely upon the control manual and whether indeed the “road closed” sign was displayed in any event.  There was dispute about whether in fact the appellant himself believed the road was closed.  As to this, the District Court Judge concluded:

[38]Without dismissing the unsettled feeling that the road was still open, the Court proceeds for arguments sake on [Mr C  ’s] assertion that he believed the road was closed.

[6]      Although  worded  somewhat  diffidently  I  assume  the  Judge  found  the appellant honestly believed the road was closed and had been closed at 12.15 p.m. that day 40 minutes before his departure.

[7]      At the other end of the 19 kilometre section of roadway on that day Mr Coker had been helping out at the rally by manning one of the radios and, if needed, was available for recovery of vehicles.   He believed he road was to be closed at 1.25 p.m.  At about 1.00 p.m. he entered the 19 kilometre stretch of road heading back to his position at Rukaka station.   He was therefore heading towards the start of the

19 kilometre special stage.  He was heading in the opposite direction to Mr C  . Both Mr C   and Mr Coker were driving four wheel drive vehicles.  As they both came to the brow of a hill they collided head-on.   As I have said, Mr Coker was injured in the crash.

[8]      The road was narrow and windy.  It had a gravel surface.   It was common ground that neither driver could see over the apex of the hill before the collision. Mr Coker said he was driving as far to the left as he possibly could on the road as he came over the brow of the hill and the collision occurred before he had any time to take evasive action.

[9]      Mr C   said that this was a narrow road with a single two-wheel track in the middle on which he was driving.  He said he was carrying out his check on the

19 kilometre section of the road as he was requested to on the basis that no other vehicles would be on the road travelling in the opposite direction to him.  He said, as he came to the brow of the hill Mr Coker’s vehicle appeared and that he had no time to react before the collision.  He estimated his speed at 60 kilometres per hour. At the commencement of the hearing the prosecution nominated the position of driving on the road and the appellant’s speed as the two aspects of carelessness to support the charge.

Judgment appealed from

[10]     Turning now to the judgment appeal from.   The Judge concluded that the appellant had driven on the road as if there would be no-one else coming the other way.  This, he concluded, was not justified in the circumstances.  He said that the appellant was not entitled to assume the road was free of traffic.  He concluded that before the appellant could assume the road was free of other vehicles, at least he

was required to check with rally organisers that he was the only vehicle on the road and to cross-check with the safety manual.  The Judge took into account what he said was  the  appellant’s  long  experience  in  rallying  and  concluded  that  he  was  not justified in assuming that no other vehicles were on the road, in particular he said at [49]

[49]In this rallying circumstance, and generally, the defendant had a responsibility and the sources of information available to check if the road was closed and therefore properly assess the likelihood that it would be clear of motor traffic.  He had the  opportunity  to  modify  his  driving  conduct  where  he could not be sure that no traffic would be on that road.  He did  not  discharge  that  responsibility  to  any  reasonable degree in that circumstance.  Rather, he entered on the road, by inference with assumptions about its traffic conditions, and took no sufficient thought for the reasonably foreseeable risks.   He therefore failed to make the reasonable risk assessment objectively required of him in the circumstance, required of every driver to ensure the safety of him and others on a motor vehicle journey.

[49](sic)         Those assumptions, the conditions of that road, his speed, his position on the road at collision, together, all enable the Court to conclude that the driving of the defendant on that road at the time of the accident fell below the standard of the reasonably competent and prudent driver in the circumstances.

[11]     The Judge said, therefore, that Mr C   should have approached his driving that  day  assuming  that  the  road  was  not  clear  of  other  traffic.     In  those circumstances,  given  the  condition  of  the  road  the  Judge  said,  “his  speed,  his position on the road at collision” enabled the Judge to conclude that the appellant had driven carelessly.  The Judge’s decision, therefore, came down to the proposition that a prudent driver would have assumed the road was an open road, and in those circumstances, given this was a winding gravel road, given the appellant’s speed and driving position on the road at collision his driving fell below the standard of a prudent driver.  As a result the accident occurred which in turn caused the injury.

Grounds of appeal

[12]     The appellant’s essential submission is that the evidence did not justify the

Judge’s conclusion that the appellant should have assumed the road was open.  Nor,

the  appellant  said,  did  the  evidence  justify  the  conclusion  that  he  had  driven carelessly that day.

[13]     Firstly, I consider whether the actions of the appellant in assuming the road was closed fell below the standard of a prudent driver in the circumstances as the Judge found.  This sounds to me a central point in this case.  It is common ground that  I should  approach  this  question  by taking the  factual  circumstances  as  the appellant believed them to be, unless that belief was itself carelessly based, and then applying an objective test, given those subjective circumstances, as to whether the appellant’s driving below the standard of a prudent driver.  In this case his decision to drive assuming the road was closed.

[14]     As I have said, the Judge accepted the appellant honestly believed the road was closed at 12.15 p.m. Given the sign at the commencement of the stage said “road closed” he proceeded to drive up the road on the assumption that the road had been closed for approximately 45 minutes prior to his driving.  The appellant called as a witness Mr Murray Stance who was an executive of Motor Sport New Zealand which licenses the running of rallies in New Zealand.  He had been on the executive committee of that organisation for five years.  He had been involved in the rallying organisation since 1977.  He was an A-grade rally “clerk of course”.  It seems that although the control book for the rally had 12.15 p.m. at the top of the page when the road would be closed for Stage 6 (which Mr C   read) the latter half of the page said 1.25 p.m. and apparently the safety manual said the road closure time was also

1.25 p.m.

[15]     It was the prosecution case that Mr C   should have more carefully read the  control  book,  and  that  he  should  also  have  consulted  the  safety manual  to confirm the time the road was to be closed for this stage.  Mr Stance said that he thought it was reasonable to consult the control manual to check the time closure of the road in these circumstances.  He did not consider it was necessary or common practice to consult both the control manual and the safety manual on road closure times.    He  said  in  evidence  that  20  minutes  would  be  ample  time  to  clear  a

19 kilometre section of road after the road closure sign had been displayed.  He also considered in the circumstances faced by Mr C   that it was reasonable for him to

proceed at 12.55 p.m., 40 minutes after he believed the road had been closed on the basis that there would be no other traffic on the road travelling in the opposite direction to him.

[16]     As to Mr Stance’s evidence the Judge said:

[37]On a personal credibility level, Murray Stance, the Executive of Motor Sport New Zealand, seemed unwilling to make a particular concession where it was due over reliance on sources of safety information.  He was clear that it was the practice, and believed it acceptable, for rally officials to rely for start times on the Rally Control Manual without further inquiry.   He maintained that view despite his own experience, and that the Manual is regarded as possibly untrustworthy and to be treated with caution, and especially in  the  face  of  serious  possible  consequences.    He  saw  nothing illogical and unsafe in that position or practice.  The Court finds his position on that matter difficult to reconcile.  It is difficult to see that he would believe that that was not a most unsafe practice.   Either that or he was giving evidence to serve the defendants interests first. As to his story, for like reasons, it struggles for a ring of truth. Despite accepting that the Rally Control Manual had obvious and not unexpected mistakes and inconsistencies in it, and that the overriding Rally Safety Plan would be right,  he  saw it  as  quite acceptable and unnecessary for the defendant to cross check with the latter.  That ring of truth diminishes further when the risks inherent in rallying and recent history of fatalities from safety mistakes (of which the defendant and Mr Stance must surely be aware) are considered. Where risk information is known to be and is obvious to the prudent to be unreliable, and where the related consequences likely are dire, any claim of honest belief that it is not necessary to refer to other available more reliable sources of pivotal safety information must be questioned.  If there is such a belief, does the consequent practice of it leave any driver driving carelessly who drives in reliance on known possible suspect information about the risks of that journey, and drives then as if that risk potential does not exist?

[17]     Mr Stance was not cross-examined by the Crown.  Nor did the Crown call any evidence which could have be seen to have contradicted what Mr Stance said. He was questioned briefly by the Judge about any explanation he had for the time differences between the two documents (the control book and safety manual) and the appearance of the “road closed” sign.   Unsurprisingly, Mr Stance had no real explanation other than his speculative answers.   Mr Stance was not present at the time of the rally, and understandably all he could offer, as explanation, was some form of human error.

[18]     It is difficult, therefore, to understand the Judge’s remarks about Mr Stance’s evidence.    He  was  obviously  well  qualified  to  express  a  view  about  what  the standard typically applied in such  circumstances  given his long experience  at  a senior level in rally organisation.  His evidence was unchallenged.  Despite what the Judge said at [37] the witness was not asked to make concessions about reliance on safety  information.    He  identified  as  established  practice  of  race  officials  the reference to the control manual as the source of stage start times.   Nor were the Judge’s observations expressed at [37] put to this witness.  The Judge referred to the dangers of rallying and later to the “recent history of fatalities from safety mistakes” although no such evidence had been given at trial.  Nor did the witness say, as the Judge mentioned, that the manual was possibly untrustworthy or that the risk information was unreliable.

[19]     While a Judge is not obliged to accept the evidence of a witness which is unchallenged by the opposing side, in this case the basis for rejecting the witness’ evidence as unreliable was not justified, in my view, on the evidence.  Mr Stance’s evidence  was  unchallenged,  detailed  and  based  on  30  years  of  experience  and without evidence to contradict him.  In my view, on the evidence in this case, there appeared to be no basis for the Judge to reject it.

[20]     The  other  aspect  of  Mr  Stance’s  evidence  was,  that  which  might  be reasonable in the circumstances for Mr C  , was not within common knowledge. This is not a road accident where a Judge’s own daily experience of driving on the road could fairly be part of his decision making.  This case involved a special and unusual situation.  Once the Judge concluded that the appellant had honestly (and not imprudently) believed the road was closed and had been closed for up to 45 minutes before his journey some expert evidence was clearly going to be necessary to inform the Judge as to what the standard typically was in those circumstances.   The only such evidence, as to this, was from Mr Stance.

[21]     The other aspect of significance is that the standard applicable to careless driving is that of a prudent driver.  It is not a standard of perfection.   In a perfect world the appellant would have seen the second and different entry as to start times. He would have made telephone calls, he would have treble checked as suggested by

the Judge.  However, in this case, the appellant effectively double-checked that the road was closed, once using the manual which on the face of it he was entitled to assume was accurate, and the second by confirmation through his observation of the “road closed” sign.

[22]     Finally, there is the evidence that, once the road is closed, the only traffic allowed is in the direction of the stage flow, the direction in which the appellant was travelling.  I note the evidence of Ms Rachael Harris, called for the prosecution who was an assistant clerk of the course.  She confirmed Mr Stance’s evidence that once a road is closed given sufficient time after closure it would be safe to assume there will be no traffic against the flow of the stage.

[23]     In my view, therefore, given this evidence, the logical conclusion on the facts was that the prosecution had not proved a prudent driver would assume there was oncoming traffic, that is would assume that the road was open.   The appellant’s driving, therefore, needs to be judged against this background and finding, that the appellant was entitled to assume that only vehicles travelling in the same direction as him would be on the road.

[24]     The District Court Judge’s findings considered the appellant’s driving on the special stage based on his conclusion that he should have assumed oncoming traffic. In those circumstances his conclusions, given the evidence of the expert witness for the defence, which effectively concluded neither driver was able to stop on the visible road ahead, was inevitable.

[25]     However, the position is now quite different given my findings.   In these circumstances,  the  prosecution  properly,  in  my  view,  accepted  the  appellant’s driving could not have been careless.  If he was entitled to assume there would be no oncoming traffic then his speed and position on the road would not be imprudent nor could the collision be seen to be his fault in the circumstances.   There was no suggestion that either car could have evaded the accident given their speed and lack of visibility.   The evidence given by the expert called by the defence, effectively unchallenged by the prosecution, was that the roadway where the collision occurred

was  simply  too  narrow  for  two  vehicles,  of  the  size  of  those  involved  in  the collision, to pass.

[26]     I am therefore satisfied that the prosecution did not prove beyond reasonable doubt that the appellant’s standard of driving fell below that of a prudent driver in the circumstances as he believed them to be.  Given that conclusion the appeal must be allowed, the conviction and penalty quashed, and a finding of not guilty substituted.

……………………………

Ronald Young J

Solicitors:

Crown Solicitor, Tauranga