C v Police HC Whangarei CRI 2006-488-26

[2006] NZHC 1003

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2006-488-26

C

Appellant

v

THE POLICE

Respondent

Hearing:         31 August 2006

Appearances: A Fairley for appellant

B M O'Connor for respondent

Judgment:      7 September 2006

JUDGMENT OF ALLAN J

Solicitors:

Thomson Wilson, Whangarei
Crown Solicitor, Whangarei

C V POLICE HC WHA CRI 2006-488-26  7 September 2006

[1]      At  about  2.15  pm  on  Friday  3  December  2004,  Mrs  Daphne  Gentry,  a pedestrian on the Victoria Bridge in Whangarei, was struck by a car driven by the appellant.  She died of injuries sustained in the accident.

[2]      The appellant  was charged with careless driving  causing  death,  and  was convicted of that offence following a defended hearing in the Whangarei District Court on 18 May 2006.  He was subsequently fined $500, with Court costs of $130, and disqualified from holding or obtaining a motor driver’s licence for a period of eight months.   He now appeals against his conviction.   There is no appeal against sentence.

The facts

[3]      Immediately prior to the accident, Mrs Gentry walked across the Victoria Bridge on its western footpath, in the direction of the central business district.  Near the end of the bridge, but some metres prior to the pedestrian crossing at the foot of the bridge, she elected to cross the carriageway from west to east.

[4]      There is evidence of the position of some five nearby vehicles at the time. Two were occupied by Ms Bainbridge-Wood and Ms Hughes respectively.   The former was in the  first  vehicle  in the  left  hand  lane in  Hatea Drive.    She was stationary at the lights prior to making an immediate left hand turn onto the Victoria Bridge.  The latter was in the vehicle immediately behind Ms Bainbridge-Wood and was also stationary.  Although each saw Mrs Gentry, neither was able to assist the Court to any degree, because neither saw the impact, nor indeed paid any great attention to traffic in the vicinity of the bridge just prior to impact.

[5]      There were three further vehicles in James Street, which terminates at its intersection with Hatea Drive.  Traffic at the end of James Street is able to traverse the intersection and proceed immediately onto the Victoria Bridge.

[6]      The relevant portion of the Victoria Bridge carries two lanes of traffic in a northerly direction.    Another  bridge carries southbound  traffic.    James Street  is likewise one way.   Ordinarily it carried three lanes of traffic.   Traffic in the right hand lane must turn right.   Traffic in the left hand and centre lanes is entitled to proceed directly across the intersection and onto the Victoria Bridge.

[7]      On the day in question however, the left hand lane was not in use.   It was required for construction purposes.  Accordingly, traffic in both the centre and right hand lanes was temporarily permitted to travel across the intersection and onto the Victoria Bridge.  Traffic in the right hand lane was obliged to veer slightly to the left as it proceeded across the intersection, in order to reach the right hand lane on the bridge.

[8]      There was evidence of the position of three cars on James Street  in the vicinity of the intersection.   In the left  hand  lane there was a Mitsubishi utility vehicle, driven by a Mr McLean.  In the right hand lane there was a Mercedes motor car.  Behind that was the motor car driven by the appellant.

[9]      The appellant’s evidence was that the lights governing James Street traffic turned green just as he approached the intersection, so that although his vehicle slowed down significantly it did not come to a complete stop at the lights.  When the lights turned green the Mercedes vehicle, positioned ahead of that driven by the appellant, proceeded across the intersection at some speed, and passed across the Victoria Bridge in the right hand lane.

[10]     Mr McLean said that he proceeded onto the intersection much more slowly because Mrs Gentry had by then commenced her traverse of the carriageway.   He drove slowly across the intersection in order to give Mrs Gentry time to clear the left hand lane.  When she had done so he drove past her.  She was then on his right hand side.

[11]     The   appellant   also   drove   onto   Victoria   Bridge,   but   a   little   behind

Mr McLean’s vehicle.  By the time the appellant’s vehicle reached Mrs Gentry she

was close to the middle of the carriageway.  Her precise position at that stage lies at the heart of this appeal and I will return to it shortly.

[12]     The appellant was unable to avoid colliding with Mrs Gentry.  She was struck by the front left hand corner of his vehicle and received severe injuries from which she died.

The essence of the appeal

[13]     Mr Fairley for the appellant submits that the learned District Court Judge failed to consider the primary submission made on the appellant’s behalf in the District Court, which was that the appellant did not have sufficient time to avoid Mrs Gentry once she became visible to him after passing in front of Mr McLean’s utility vehicle.  Instead, Mr Fairley complains, the Judge became preoccupied with the question of an assumption which he found the appellant had made, that Mrs Gentry would stop in the middle of the roadway in order to let his vehicle pass in front of her.  Mr Fairley’s submission is that any such assumption on the appellant’s part was irrelevant if, by the time he first saw her, it was impossible to avoid her if she walked out in front of his vehicle.

The District Court judgment

[14]     The first part of the judgment under appeal is taken up by a relatively detailed survey of the evidence given by each witness.  That summary includes a review of evidence given by the appellant, by his passenger, Mr Stewart, and by Mr McLean. His findings are summarised at [25]-[28] inclusive of his judgment:

[25]      It is clear that Mr McLean saw the deceased.  And he says that when the Mercedes passed her she was between a quarter and a half way through his lane.  She had been described variously as walking slowly, or hobbling. So, I find that it was taking her longer than it would take an able bodied person to cross that road.  It is clear that the defendant’s passenger saw the deceased and his evidence would tend to suggest that he saw the deceased, before the defendant.   But, I need to look at the statement  made by the defendant to the Constable.   What he said was ‘she was walking from my left to right, she was just to the left of the middle of the road, and I thought she had seen me and she was going to stop, but she didn’t’.   Now that

statement is consistent with what Mr McLean says he observed, because when the Mercedes went over the bridge he estimated that this pedestrian was between a quarter and a half way across his lane.   The defendant is describing the movement of that pedestrian a little after the Mercedes has gone past, and he has her just to the left of the middle line.

[26]     I find that the defendant did see the deceased, but that he made the tragic error of assuming that she would see him and stop.  This error was not one that a reasonable and prudent driver would make.  I accept immediately that the deceased should not have been where she was, but, that does not relieve a motorist from the responsibility of taking care.   The defendant’s responsibility was to drive in a manner which would enable him to react to the unexpected.

[27]      I find that as soon as he saw this person in the middle of the road, he should have immediately slowed his vehicle until he knew what that person was going to do.  Sadly and tragically for everybody concerned, he made the mistake of assuming that the lady would see him and stop – she did not.

[28]      I find as a fact that the defendant was not driving recklessly, I find as a fact he was not speeding.  He made an error of judgment which had tragic consequences,  but  which  was  one  that  a  reasonable  and  prudent  driver should not, and would not make.

[15]     This  is the portion of the  judgment  of which Mr Fairley  is critical.    He submits that there is no finding at all as to the position of Mrs Gentry when the appellant first saw her, or ought to have seen her, and that therefore, there is an important gap in the Judge’s reasoning process.  The assumption the appellant made, that Mrs Gentry would stop, could have been causative only if it was made at a time when it remained possible for the appellant to avoid her, Mr Fairley submits.

The law

[16]     This  Court  proceeds  on  appeal  by  way  of  rehearing:    s  119(1)  of  the Summary Proceedings Act 1957.  In doing so, the Court will consider whether the prosecution  has proved beyond  reasonable doubt that  an appellant  has  failed to exercise that degree of care and skill to be expected of a reasonable and prudent driver.  An appellant will not be excused merely because the accident arises from an error of judgment:  Simpson v Peat [1952] 2 QB 24 at 27.

[17]     Where the facts appear to be so strong that the only reasonably available inference is that there has been careless driving, then it will be necessary for an appellant to show that a foundation has been laid in the evidence to support the

reasonable possibility of an accident occurring without carelessness:   R v Colgan

CA214/87 2 December 1987.

[18]     Where  an  appellant  provides  an  explanation,  then  if  an  inference  for  or against an appellant is equally open, he is entitled to the benefit of the doubt:  R v Colgan;  Police v Chappell [1974] 1 NZLR 225 at 227.

Discussion

[19]     Mr Fairley is strictly correct when he says there is no explicit finding that the appellant did not, and could not, see Mrs Gentry until it was too late to avoid her. But, as Ms O’Connor submits, a finding to that effect is implicit in the judgment. The implication is to be derived from several passages in the portion of the judgment set out earlier.  The Judge said:

It is clear that the defendant’s passenger saw the deceased and his evidence would tend to suggest that he saw the deceased, before the defendant.  But, I need to look at the statement made by the defendant to the Constable.  What he said was ‘she was walking from my left to right, she was just to the left of the middle of the road, and I thought she had seen me and she was going to stop, but she didn’t’

I find that the defendant did see the deceased, but that he made the tragic error of assuming that she would see him and stop.  This error was not one that a reasonable and prudent driver would make.

I find that as soon as he saw this person in the middle of the road, he should have immediately slowed his vehicle until he knew what that person was going to do.   Sadly and tragically for everybody concerned, he made the mistake of assuming that the lady would see him and stop – she did not.

[20]     In  my  view  these  passages,  read  together,  amount  to  a  finding  that  the appellant did indeed see Mrs Gentry in sufficient time to have avoided her, but that he assumed she would stop;  by the time he realised his assumption was wrong it was then too late to avoid her.  The question is whether there is a proper foundation in the evidence which supports that finding.

[21]     In that respect, the evidence of Mr McLean is of some assistance.   He had slowed to permit Mrs Gentry to cross in front of him and said in evidence that he was aware that if the appellant’s car continued to accelerate up the slope of the

bridge, then it was going to hit Mrs Gentry.  He thought that because the appellant’s car came from behind him and to his right, the appellant did not see Mrs Gentry until he was about to hit her.   This latter observation was of course, based on the undisputed fact that Mrs Gentry passed in front of Mr McLean’s vehicle.  Given that Mr McLean was driving a utility vehicle with a relatively high cab, there may well have been a brief period during which Mrs Gentry was obscured from the appellant’s vision.

[22]   The crucial question is whether, despite that possibility, the appellant nevertheless had time to see Mrs Gentry and avoid colliding with her.  On that point, the  only  available  direct  evidence  is  that  of  the  appellant  and  his  passenger, Mr Stewart.   The latter gentleman plainly saw Mrs Gentry in time to ask himself whether she was going to walk out in front of the vehicle or not.  He also said he did not think the appellant  saw her, because he was rather further away.   This  last comment of Mr Stewart’s can be set to one side.  For all practical purposes he and the appellant were the same distance away from Mrs Gentry.   Indeed, it might be thought the appellant enjoyed an advantage over his passenger, in that his angle of vision would have enabled him to see Mrs Gentry as she emerged from behind the cab of Mr McLean’s vehicle, rather earlier than his passenger would.

[23]     But it is the appellant himself who, I believe, provides the key.  He said that, once his vehicle commenced the climb up the incline of the bridge, he saw Mrs Gentry no  more than a car  length away from him on  his  left  hand  side.    The undisputed evidence in the case is that he was travelling relatively slowly – of the order of 30-40 km per hour.  The appellant said in evidence he thought she would stop, as most pedestrians do.  He then said she walked straight out in front of him and he did not have time to brake or otherwise avoid her.

[24]     In the statement he gave to the police following the accident, he referred to his assumption that Mrs Gentry had seen him and she was going to stop.  He made no reference in that statement to not seeing her until it was too late to avoid her.

[25]     I accept that when the appellant gave the statement to the police he was in a state  of  considerable  shock.    But  he  was  nevertheless  able  to  give  a  coherent

explanation of what had occurred.  Had he believed he had been unable to avoid a collision with Mrs Gentry from the time he first saw her, the likelihood is he would have  given  that  explanation  to  the  police,  but  instead  he  spoke  only  of  his assumption that she would stop.

[26]     In his evidence in chief, he referred to his assumption that Mrs Gentry “ … would stop, naturally, as most pedestrians do”.   He then said she did not stop but walked straight out in front of him so he did not have time to put his foot on the brake.

[27]     On that evidence, the learned District Court Judge was plainly justified in reaching the conclusion that the appellant saw Mrs Gentry, assumed she had seen him and would stop, and proceeded accordingly;   when the appellant realised she was proceeding to cross in front of him, it was too late for him to take any effective action.

[28]     In the light of that finding, the Judge was correct to find the appellant had made an error of judgment, in that  a reasonable and prudent  driver would have satisfied himself or herself about the intentions of the pedestrian, before a collision became inevitable if the pedestrian did not stop.

Result

[29]     For the foregoing reasons, I am satisfied the District Court Judge was entitled to reach the conclusion that there had been an error of judgment on the appellant’s part, and that a reasonable and prudent driver would have avoided a collision.

[30]     The  appeal  is  accordingly dismissed.    The  order  of  disqualification  was earlier suspended pending the outcome of this appeal.   That suspension will lapse and  the order of disqualification will take effect  as from the close of Monday,

11 September 2006, that is, at midnight on that day.

C J Allan J