C v Police HC Tauranga CRI-2006-463-97

[2006] NZHC 1509

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2006-463-97

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         6 December 2006

Appearances: Mr R Gowing for appellant

Mr S Bridges for respondent

Judgment:      6 December 2006

(ORAL) JUDGMENT OF LANG J

[on application for leave to appeal against conviction]

Solicitors:

Gowing & Co, P O Box 548, Whakatane

Crown Solicitor, Tauranga

C V NZ POLICE HC TAU CRI-2006-463-97  6 December 2006

[1]      On 29 July 2005 Mr C   was convicted by His Honour Judge I B Thomas in the Whakatane District Court on a charge of causing the death of Jennifer Maree Meharry by carelessly operating a motor vehicle.   He was sentenced on 8 September

2005 to 120 hours community work and was disqualified from obtaining or holding a driver’s licence for a period of nine months.

[2]      Mr C   did not file an appeal against his conviction until 11 September

2006.    Given the lateness of the appeal, Mr C   now requires leave in order to pursue the appeal.   The respondent opposes leave being given, and also opposes the substantive appeal in the event that leave is given.

The application for leave to appeal

[3]      Following his conviction Mr C   had a right of general appeal to this Court against both conviction and sentence.     However, s 116(1) of the Summary Proceedings Act 1957 (“the Act”) required him to file any such appeal within 28 days after he was sentenced.   This meant that he was required to file the appeal no later than 9 October 2005.   As a result, Mr C   has filed his appeal approximately

340 days out of time.

[4]      Under s 123 of the Act this Court has the power to grant an extension of time for filing a notice of appeal.     Mr Bridges for the respondent referred me to the decision of Thorp J in Cleggs v Department of Internal Affairs HC AK M1032/84 5

September 1984.   In this case Thorp J had this to say regarding the manner in which s 123 should be applied:

While there are no fixed criteria to determine how that discretion should be exercised, the authorities cited establish:

(i)       that the onus is on the applicant to show special circumstances why the decisions and sentences should not stand;

(ii)      that the discretion is given essentially for the purpose of avoiding miscarriages to justice;

(iii)     that all the circumstances of a particular case should be considered in deciding whether sufficient grounds have been shown; but

(iv)     that one of the matters that must be established is that there is a real likelihood that an appeal would succeed if leave is granted, some of

the authorities going to the stage that the likelihood must extend to the point of establishing a probability of success.

[5]      In the present case Mr C   has filed an affidavit in which he confirms that he instructed his solicitor to appeal immediately after he was convicted.    He says that he contacted his solicitor on numerous occasions thereafter to enquire as to progress.   He believes that the delay in filing the appeal is the result of his solicitor not attending to matters promptly when requested to do so.

[6]      I agree with the respondent that the delay in the present case is such that the Court is entitled to be sceptical regarding the vigour with which Mr C   has pursued this matter.    Nevertheless, in the interests of justice I propose to consider the merits of the appeal.    If I am satisfied that there is a real likelihood that the appeal  could  succeed,  I will  grant  leave to  appeal  and  will  then  determine  the substantive appeal.

[7]      In order to understand the issues raised on appeal it is necessary to have regard to the factual background against which the charge was laid.

Factual background

[8]      On the late afternoon of 27 October 2004 Mr C   was driving a Nissan

Navara utility on State Highway 34 between Kawerau and Rotorua.

[9]      On the same afternoon Mrs Meharry had set out on a training ride on her mountain bike from her home in Lambert Road, a country road some distance out of Kawerau.   She was wearing colourful training apparel, gloves, a helmet, sunglasses and a Walkman.

[10]   At approximately 5.30 pm Mr C   approached a corner prior to the intersection of State Highway 34 and the Rotorua/Whakatane highway.    There his vehicle struck Mrs Meharry’s mountain bike from behind, causing her to be thrown into the windscreen of his vehicle and thereafter over the top of his vehicle.    The collision also caused her mountain bike to be pulled under the wheels of his utility. Mrs Meharry died as a result of the injuries that she suffered in the collision.

[11]     The collision occurred near the end of a straight section of highway.   By the time he reached the site of the collision Mr C   had travelled 530 metres in a virtually straight line from the previous corner.   He had approximately 24 seconds whilst travelling down the straight section of highway to observe the road ahead of him.

[12]     There were no other vehicles on that section of the highway at the time of the collision.    Mr C   was therefore the only person able to provide the Court with direct evidence of what had occurred prior to the collision.   His evidence was to the effect that he never saw Mrs Meharry riding the bike on the highway prior to the point at which the collision occurred.

[13]     He said that as he approached the corner he came out of a shaded area and was coming into an area of sunlight.   In preparation for that, and in preparation for the intersection that loomed ahead, he pulled his sunglasses on.   He said that things went black momentarily and that the next thing he saw was Mrs Meharry lying on the road.

The decision in the District Court

[14]     At the beginning of his decision the Judge correctly reminded himself that the onus was on the prosecution to prove the charge beyond reasonable doubt.

[15]     He then noted (at [2]) that the issue before him was whether or not Mr C   was driving carelessly at the time of the collision.   The Judge defined “carelessness” in this context as “failing to reach the standard required of every road user of driving in a reasonably prudent manner in accordance with the circumstances as they exist at the time of the driving”.    No issue is taken on appeal with that description of the standard that was to be applied in assessing Mr C  ’s conduct.

[16]    The Judge then prefaced his discussion of this issue with the following comments:

[4]       The issue before me then is, has [Mr C  ] in any way, failed to meet the standard requirement of him as a reasonable, prudent driver.    On the face of it, it seems obvious.   He is driving on a straight road at half past

five or thereabouts and collides from behind with a bicyclist on the same side of the road as him, that is one metre from the left hand white line or less.    As a consequence the death occurs.    She was on the road plainly. She ought to have been seen.

[5]       The defendant plainly did not see her.   On that basis, the inference might be that he was failing to pay proper attention to the road ahead, because he did fail to see her and failed to take evasive action.    In those respects, one would therefore have to find that he did drive carelessly by failing to meet those standards required of him.   However it is not as simple as that, as these cases often are not.   So it does behove me to consider the evidence that has been presented.

[17]     One of the issues that the Judge was required to consider was the part that the sun may have played in reducing Mr C  ’s vision whilst driving down the straight. The Judge concluded (at [9]), however, that the sun did not seem to affect visibility. He said that although the transition from bright sunshine to shade may have caused some differentiation in the ability to see, it should not have prevented Mr C   from seeing the cyclist who was on the road at that time.   Mr C   himself accepted in his evidence that sun was not an issue so far as vision was concerned.

[18]     The Judge described the substantive defence that was advanced before him, and that is now central to the outcome of the appeal, in the following terms:

[13]      The scenario put to Mr Bedford [the prosecution’s expert witness] by Mr Gowing was if the cyclist had been for example off the road in an area near the signpost, obscured by the signpost and then got back onto the road, and then the vehicle comes along and strikes her, whether that was a possibility and Mr Bedford said it was a possibility, but of course for this Court to be satisfied it must be a reasonable possibility and on the face of it of course it is speculation because it is not at all supported by any other evidence.

…

[18]     So, as I say, the scenario put really is that Mrs Meharry must have come out onto the road and pedalled off, oblivious of him coming along there, at a time when he had his sunglasses on which he said caused things to go black and at that very point of course she was on the road, he could not see and the accident occurred, and the other aspect of that of course is that if for example the suggestion was she was around about that point, it is only one and a half seconds driving from there to the point of impact and that would have been insufficient to see her or steer clear of her.

[19]     The Judge noted (at [19]) that the scenario advanced by the defence faced two difficulties.   First, the evidence indicated that Mrs Meharry was moving in the same direction as Mr C  ’s vehicle and that she was struck from behind by Mr

C  ’s vehicle.   Although the Judge did not express it in this way, I infer that he accepted that this detracted somewhat from the theory that Mrs Meharry must have just come onto the road at the point at which Mr C  ’s vehicle collided with her.   I accept, however, Mr Gowing’s submission that this aspect of the case applied whichever scenario was adopted.

[20]     The second difficulty was that the defence asked the Judge to accept that it was reasonably possible that Mrs Meharry had come back onto the road without first checking for oncoming motor vehicles.    Although he accepted that she may have been using a walkman, the Judge noted (at [20]) that the defence theory required Mrs Meharry “not only to fail to use her hearing but also not to use her eyesight to look down the road”.   The Judge then continued:

She is on a mountain bike, she plainly goes for training runs is the inference I take.    She would be aware I am sure, of the vulnerability of cyclists on roads.    It simply does not strike me as reasonable that she is going to ride out onto the roadway without looking to see if the way was clear.   If she had looked Mr C   was there in his utility.     So it seems to me that that scenario cannot be acceptable.   If it did occur at all it must have been a long way further down the road, which meant there is a lot more time for Mr C   to have observed her on the road, which leads me back to the conclusion that he may not have been keeping proper attention.

[21]     A further telling factor for the Judge was the fact that the accident occurred at the end of a lengthy straight.     This meant that, if Mr C   was observing his surroundings in the manner that he said he did, he ought to have seen Mrs Meharry well before the point at which he collided with her.    The Judge concluded that he was satisfied that Mrs Meharry was on the road at the time of the collision and that she must have been on the road well before the point at which Mr C  ’s car collided with her.   As a result, she was there to be seen by any prudent motorist who was travelling down the straight.   Since Mr C   did not see her, it followed that he was not paying proper attention to the road ahead.   In those circumstances the Judge was satisfied beyond reasonable doubt that Mr C   had failed to meet the standard required of him as a reasonable and prudent motorist.

The issue on appeal

[22]     Mr  Gowing  contends  on  Mr  C  ’s behalf  that  Judge  Thomas  erred  in rejecting the alternative explanation of the accident notwithstanding the fact that that scenario could not be excluded as a possibility by the prosecution’s own expert witness, Mr Bedford.

[23]     Mr Gowing submitted that there were two possible scenarios as to how the collision occurred.    The first was that Mrs Meharry was riding her mountain bike along State Highway 34 and that Mr C   failed to see her and struck her bike from behind.     Under that scenario there cannot be any doubt, and I did not take Mr Gowing to dispute,  that  Mr  C   could  properly be  convicted  of  causing Mrs Meharry’s death through the careless operation of his motor vehicle.

[24]     The second scenario was that Mrs Meharry was not on the highway as Mr C  ’s vehicle approached, and that she was obscured from his vision both by the lie of the land and by a road sign.   Then, at a point when Mr C   passed from the shaded part of the highway through a shaft of light and back into the shade, and also at the point at which he put on his sunglasses, Mrs Meharry pushed off from her stationary position onto the highway to recommence her journey.   She therefore did so in circumstances in which Mr C   could not be expected to have seen her, and she was immediately struck from behind by Mr C  ’s vehicle.

[25]     Mr Gowing contends that Judge Thomas erred in reaching his conclusion that the second scenario was not a reasonable possibility.    He argued that the evidence equally supported both of the scenarios that were before the Court.   As a result, he argued  that  Judge  Thomas  was  bound  to  accept  that  there  was  a  reasonable possibility that the second scenario may have led to Mrs Meharry’s death.

Decision

[26]     I take the view that the first scenario, in which Mrs Meharry was riding along the road and Mr C   failed to see her, is supported by several aspects of the evidence.     First, it is clear that she was struck from behind and whilst she was

travelling in the same direction as Mr C  ’s vehicle.     Secondly, she was approximately a metre from the edge of the road at the point at which she was struck. These matters suggest to me that she was there to be seen and that Mr C  , for whatever reason, did not see her.

[27]     I consider that the alternative scenario advanced on behalf of Mr C   faces an immediate difficulty because it must necessarily be based on speculation.   There was no evidence before the Court at all to suggest that Mrs Meharry had ever left the road in the vicinity of the signpost.   The only witness who saw Mrs Meharry on her mountain bike that day was Senior Sergeant van der Kley.   He had been travelling in the opposite direction approximately 5 to 10 minutes before the time of the collision. He saw Mrs Meharry pedalling along the road at that time, and in his view she was pedalling “quite strongly”.

[28]     Similarly, none of the witnesses saw Mrs Meharry off to the side of the road at any stage.   Neither was there any evidence to suggest that she had just come back onto the road at the point at which she was struck by Mr C  ’s vehicle.   Mr C   himself did not see her coming back onto the road.    To that extent, therefore, the theory must be regarded as speculative.   The only factor giving it any support at all is the fact that Mr C   did not see her prior to the point at which his motor vehicle struck her.

[29]     There are two other matters that persuade me that the alternative scenario advanced by the defence faced difficulties.    The first   of these is that there is no obvious reason why, in the middle of a training ride, Mrs Meharry would suddenly stop in the vicinity of the roadsign.   It was not a picnic area or rest area or other area that might be chosen by a cyclist out on a training ride.

[30]     The  second  point  is  that  the  sign  itself,  whilst  large  at  the  top  end,  is supported by a pole that appears to be relatively small in diameter.   Although I am obviously handicapped by having to rely on the photographs, it seems to me that, even if Mrs Meharry had pulled off to the side of the road in an area by the signpost, nevertheless she still would have been visible to any motorist coming up the straight towards her.    In particular, her movement in coming back onto the road from the

side of the road would, in my view, have been picked up by any reasonable motorist travelling towards her.

[31]     For these reasons I do not see how it can realistically be said that the second scenario was, on the evidence, as equally open to the Judge as that relied upon by the prosecution.

[32]     The fact that the expert called by the prosecution could not exclude this scenario from the evidence found at the scene does not, in my view, advance matters to any great degree.   Mr Bedford made it clear that he viewed the theory as being “a scenario in speculation”, and he, too, made reference to the fact that, although the sign itself was large, the pole below it was small.

[33]     As the Judge recognised, it was not sufficient that Mr C   point to another possible cause of the collision.     It was necessary for any such possibility to be reasonable in the circumstances.   Having reviewed the evidence, I am satisfied that it was open to Judge Thomas to conclude that the defence scenario did not amount to a reasonable possibility.

[34]     It is clear from Mr Bedford’s evidence that Mrs Meharry was struck from directly behind and not from an angle, as may have been the case if she had been hit whilst rejoining the road.      The marks  made by Mrs  Meharry’s  helmet  on  the windscreen of Mr C  ’s vehicle also support the proposition that she was hit from behind and not from the side.    For this evidence to be consistent with the defence scenario, Mrs Meharry must have completed the manoeuvre of riding back onto the road surface and begun to ride in the same direction as Mr C   was travelling in before the collision occurred.

[35]     On any view of the facts, I consider that that manoeuvre must have taken at least a few seconds to complete.    I do not see how it could realistically have been completed so quickly that, even though he put on his sunglasses at around the same time, Mr C   had no time either to see Mrs Meharry or to react to her presence.   If Mrs Meharry had in fact initially been off to the side of the road and hidden from Mr

C  ’s sight, she must therefore, in my view, have been visible to him in sufficient time for him to see her and to react accordingly.

[36]     Secondly,  I  consider  that  it  was  open  to  the  Judge  to  proceed  on  the assumption that Mrs Meharry was a cyclist who could be taken to have known of her vulnerability on the open road.    Mr Gowing submits that there was no evidence before the Court to enable that inference to be drawn.   Equally, however, there was no evidence to support the defence scenario that Mrs Meharry was ever off to the side of the road, but the defence put that scenario forward as a reasonable possibility in the circumstances.

[37]     I consider that most cyclists, particularly those who are adults and who are reasonably serious about their sport, can be taken to appreciate the dangers inherent in cycling on the open road.   Mrs Meharry’s clothing and equipment mark her out as a mountain biker of at least some experience.   The fact that she was out on a training ride also suggests  that  she  took  her  sport  reasonable  seriously.     These  factors suggest to me that it was reasonable for the Judge to infer that Mrs Meharry was a person who was likely to appreciate that she was vulnerable on the open road.

[38]     I consider that it is also reasonable to assume that any cyclist, and particularly any cyclist with a reasonable amount of experience, who pulls off the road and then rejoins it will look both ways, particularly down a straight stretch of road, before coming back onto the road.   That, in my view, would be an elementary precaution for any adult cyclist with any degree of experience.   Moreover, if Mrs Meharry had in fact rejoined the road from a point behind the road sign, she would have had a clear view for approximately 530 metres down the straight along which Mr C   was proceeding towards her.    For the defence scenario to hold true, Mr C  ’s vehicle must have been virtually upon Mrs Meharry at the point at which she came back onto the road.    I consider that it is inconceivable that she did not check for oncoming traffic before riding out onto a main highway or, if she did so, that she did not see Mr C  ’s utility bearing down upon her.

[39]     Mr Gowing submitted that “the argument that it would not be reasonable for

Mrs Meharry to ride out onto the roading without looking to see if the way was clear

can equally be applied to [Mr C  ] not sighting Mrs Meharry on a straight stretch of highway in daylight, with clear visibility, and no other vehicles on the road or activity that would divert a drivers attention.

[40]     I am not sure, however, that this proposition is necessarily correct.   For Mr C  , I imagine that this particular part of his journey held no special significance. He was merely travelling down one more lengthy straight on the way home.    For Mrs Meharry on the other hand, the manoeuvre involved in getting back on the road, assuming she left the road in the first place, was one that involved a degree of danger from oncoming traffic.   I consider that she is much more likely to have been more vigilant in rejoining the road than Mr C   would have been when travelling along it in a straight line.

[41]     For  these  reasons  I agree  with  the  learned  District  Court  Judge  that  the second scenario did not amount to a reasonable possibility in the circumstances.   It is also not without significance that this particular issue was conceded to some extent by Mr C   in his cross-examination.     During cross-examination the following exchange occurred:

Wouldn’t you agree that the closer you got to the signs - as you get closer and  closer  to  the  signs,  there’s  less  possibility  that  someone  could  be standing there unobserved by you with a bicycle?    I would agree that that would not make sense.

[42]     The  only  realistic  explanation  for  the  collision,  in  my view,  is  that,  for whatever reason, Mr C   was not paying sufficient attention to the road ahead of him as he drove down the straight.     This meant that he fell below the standard required of a reasonable and prudent motorist when he approached and collided with Mrs Meharry’s bicycle.    I therefore agree with the learned District Court Judge in his conclusion that the charge against Mr C   had been proved to the required standard.

Result

[43]     Mr C  ’s application for leave to appeal against his conviction out of time is accordingly dismissed.

Lang J