Carline v Police

[2012] NZHC 1016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-64 [2012] NZHC 1016

MATTHEW STUART CARLINE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         14 May 2012

Appearances: Appellant in person

B Hamlin for the Respondent

Judgment:      14 May 2012

(ORAL) JUDGMENT OF WOODHOUSE J

Solicitors:

Mr M S Carline, Waiuku

Mr B Hamlin, Meredith Connell, Office of the Crown Solicitor, Auckland

CARLINE V POLICE HC AK CRI-2012-404-64 [14 May 2012]

[1]      Mr Carline appeals against conviction by Justices of the Peace for an offence against r 2.3(2) of the Land Transport (Road User) Rule 2004.[1]   The rule is headed “Use of lanes”.  Rule 2.3 (2) is as follows:

[1] Police v Carline DC Auckland CRI-2011-004-019140, 21 February 2012.

(2)      A driver, when driving on a road marked in lanes,—

(a)       must drive as far as practicable entirely within a lane except when complying with subclause 2.1(2) or when changing lanes; and

(b)       must  not  move  from  a  lane  until  he  or  she  has  first ascertained that the manoeuvre may be made safely.

[2]      The broad factual background is as follows.  On 14 August 2011 Mr Carline was driving a Holden Barina on Quay Street in Auckland.   This was a Sunday at around 4:00 pm.  Mr Carline was stationary in the middle of three lanes heading east, close to the intersection of Quay Street with Tinley Street.  There were several cars in each lane behind Mr Carline.  The cars were stationary at a red light.  There were two cars in front of Mr Carline.  Mr Carline indicated with the car’s indicator that he wished to move into the left hand lane.  The driver of the car more or less adjacent to him did not move forward when the lights turned green, creating a gap enabling Mr Carline to move from the centre lane to the left lane.  What Mr Carline was wanting to do was to cross the left hand lane into a petrol station on the corner of Quay Street and Tinley Street.  As Mr Carline carried out this manoeuvre there was a collision between his car and a cyclist coming along the inside of the left hand lane.   The cyclist hit the front left of Mr Carline’s car, flew across the bonnet and landed on the footpath on the other side of the car.

[3]      The essential issue is whether it was proved beyond reasonable doubt that Mr

Carline breached r 2.3(2)(b).

[4]      There  was  a  defended  hearing  at  which  evidence  was  given  by  three prosecution witnesses and three defence witnesses, including Mr Carline.

[5]      The Justices decided the case against Mr Carline essentially on the basis of the evidence of an independent witness for the prosecution.  This was Mr Kurtman, the driver of the car who left the space for Mr Carline to move from the centre lane. The Justices recorded Mr Kurtman’s evidence as follows, being in reported speech:

As the car went across he saw a bike cyclist out of the corner of his eye then collide with the defendant’s car.

[6]      After referring to the evidence for the defence, and having earlier referred to the evidence from the cyclist, the Justices said:

[11]      We listened very carefully to all the evidence in this matter.  There is no question that the defendant did cross marked lanes.  Having considered all the evidence we prefer the evidence of the independent witness when he said that he saw the bike out of the corner of his eye as the defendant’s car went across the front of his car just before impact.  The Court finds that the cyclist was there to be seen but the defendant failed to see him.

[7]      As a consequence Mr Carline was convicted.  He was fined $150 and ordered to pay costs and witnesses expenses.

[8]      Mr Carline has appeared on this appeal on his own behalf, assisted by his father as a McKenzie friend.   He has made careful and clear submissions.   The submissions  have covered  several  points.    Some of these,  as  I indicated to  Mr Carline in the course of his submissions, are not central to the decision I have to make.  The central question, as indicated earlier, is whether there is proof beyond reasonable doubt of breach of the rule.   The submissions from Mr Carline in that regard were helpful.  They included careful submissions relating to the responsibility of cyclists in circumstances such as those in this case; that is to say, a cyclist riding alongside a kerb and undertaking other vehicles.   The thrust of these submissions was that there was an element of carelessness on the part of the cyclist and that the cyclist  failed  to  comply with  guidance provided  by the Road  Code  and  advice contained in a document called “The Official New Zealand Code For Cyclists” produced by the New Zealand Transport Agency.  I will come back to those matters in a moment.

[9]      The starting point is whether the evidence relied on by the Justices was sufficient to establish beyond reasonable doubt that Mr Carline failed to make the

manoeuvre safely.  Having read the relevant evidence I have come to the conclusion, with respect, that there was not sufficient evidence to establish beyond reasonable doubt that Mr Carline did breach the rule.

[10]     I am troubled by the way in which the Justices expressed their conclusion. They said they preferred the evidence of Mr Kurtman.   There is at least some uncertainty as to whether the requisite standard of proof was applied with the burden on the prosecution.

[11]     Beyond that, having regard to the evidence, and where there was no relevant question of credibility in this regard, it is not apparent that Mr Kurtman’s evidence does demonstrate breach by Mr Carline to the requisite standard.  What Mr Kurtman said in evidence as to when he saw the cyclist is, to an extent, different from the way

in which it was recollected by the Justices. The witness said:[2]

[2] Notes of evidence p 8, l 20-25.

A.        As they [referring to the car driven by Mr Carline] came across in front of my car I saw out of the corner of my eye the bike come across down the inside of my car and collide with the bonnet of the car that was turning.

Q.        So the car that was turning, what was it doing when this happened, was it stationary or was it moving?

A.       Moving slowly.

[12]     I interpolate here, before returning to some other parts of Mr Kurtman’s evidence, that there was some difference between Mr Kurtman and Mr Carline and his witnesses as to how far the Holden Barina had travelled – whether it had got some way onto the kerb or whether it was a little short of the kerb when the collision occurred.   Mr Hamlin, for the respondent, responsibly acknowledged that if there was some basis for concluding that the Holden Barina had moved at least a short distance on to the footpath (the crossing before the forecourt of the petrol station) that would lend some weight to Mr Carline’s argument.  On the evidence there is at least a basis for reasonable doubt.  It appears not to be in issue, and as I have earlier recorded, that the cyclist flew across the bonnet and landed on the footpath.  If the car had been further back it would seem at least possible that he would have landed

on the road. These matters, perhaps, were not sufficiently explored.

[13]     Going back to Mr Kurtman’s evidence, the following is also relevant both in respect of the way Mr Carline carried out the manoeuvre and the speed of the cyclist. There is the following:[3]

[3] Notes of evidence p 10, l 2-21 and p 11, l 2-13.

A.        The car moved across, it wasn’t a speeding manoeuvre.  He was sort of turning, I don’t know, essentially right angle turn.  It wasn’t going fast.   I can’t remember whether or not there was actually a pause involved but it definitely wasn’t just a speeding manoeuvre to pull across in front.

Q.       Do you recall when the vehicle I was travelling in was side on?

Which position it was in when I was hit by the cyclist?

A.       It would’ve been if you hadn’t angled I’d say that you were coming

across at maybe 30 degrees sort of across the front of my car.

Q.        Was there some delay when I was between the cyclist hitting me and the manoeuvre into the service station?

A.       I would say that you – when the cyclist hit you you’re probably just

– you were stationary at that point.   You were stopped when the cyclist hit.

Q.        Do you recall the position of the car, was it on the road or was it on the footpath or –

A.        I’d say that maybe your tyres wouldn’t have been on the footpath but maybe the body of your car – the bumper would’ve been over the footpath.

Q.        Do you recall where the cyclist landed after the accident?  Was it on the road or on the footpath?

A.       Footpath.

…

Q.       Could you make an estimate of the speed the cyclist was travelling? A.     Um –

Q.       Was it fast, slow or –

A.        It was fast.  As I say I caught a glimpse of him out of the cor – as you were sort of pulling out and across I was sort of looking at you and I just saw the cyclist out of the corner of my eye whizz past but it was – yeah it was enough for me to think, what was that and to sort of glance.

Q.       Do you think that speed was appropriate for the traffic conditions?

A.        Um, to me I was stopped at the traffic lights and so if the cyclist had actually been in his lane he would’ve been behind me and stationary so if you’re asking if it was appropriate for the conditions well to me he overtook on the inside.

[14]     The cyclist himself said that he was travelling at about 20 to 25 kilometres per hour.  That is not slow speed in the circumstances.  In the cyclist’s evidence there was the following:[4]

[4] Notes of evidence p 5, l 1-3.

Q.        So in that case were you travelling curbside in the same lane as the cars on the road under passing?

A.        Mhm.  I would say yes, slowing down further because it was a red light.  …

[15]     There must be some doubt of the accuracy of this evidence.   There is no doubt, having regard to the evidence of Mr Kurtman and the defence witnesses, that the light had changed green by the time the collision occurred.  In consequence the cyclist was travelling at considerable speed, relative to the circumstances, on the inside  of  cars  with  those  ahead  of  him  (the  cyclist)  moving  off,  although  Mr Kurtman was stationary.  The cyclist had earlier said in answer to a question that he was doing about “20 to 25 kilometres an hour in a very tight space”.

[16]     Having regard to this evidence, and the evidence of the defence witnesses which I need not go into, I do consider that there was reasonable doubt as to whether the offence had been committed.

[17]     To this should be added the submissions made by Mr Carline relating to the responsibilities of cyclists or, more generally, vehicles passing on the inside.  These are  the  submissions  relating  to  the  general  Road  Code  and  the  New  Zealand Transport Agency “Official New Zealand Code For Cyclists”.   I acknowledge Mr Hamlin’s  submission  that  at  the  end  of  the  day  the  critical  provisions  are  the statutory rules.  However, the Road Code, carefully compiled by the New Zealand Transport Authority, is valuable guidance in respect of the responsibilities of road users.  It has a bearing on the question as to whether this accident occurred without a want of safety in the manoeuvre undertaken by Mr Carline.  I will simply note some

of the rules, without noting all of those referred to by Mr Carline:

(a)       Under a heading “Passing on the left”:

You can only pass on the left when:

there  are  two  or  more  lanes  on  your  side  of  the centre line and you are able to pass safely by using the left-hand lane

In that regard I note that the formal rule is found in r 2.8 “Passing on the left”. The relevant parts of which are:

(1)       A driver must not pass or attempt to pass on the left of another vehicle moving in the same direction except in accordance with this clause.

(2)      In any case in which the movement referred to [in]

subclause (1) may be made,—

(a)       the 2 vehicles must be in different lanes; or

(b)       the overtaken vehicle must be stationary or its driver must have given or be giving the prescribed signal of that driver’s intention to turn right; or

…

(b)      Under  a  heading  “Driving  up  to  an  intersection”  there  is  the

following:

As you drive up to an intersection:

slow down and look in all directions: ahead, behind and to both sides

be ready to stop if you have to

(c)       Under a heading “Information For Cyclists” there is the following:

You  can  only  ride  alongside  another  cyclist  or moped.  You must not ride alongside a car, truck or other motor vehicle.

(d)      In  the  “Official  New  Zealand  Guide  For  Cyclists”  there  is  the

following:

When riding past queues of stationary or slow moving vehicles, your visibility will be reduced and turning cars may not see you.   Slow down and be particularly careful when there is a gap in the queue – the driver leaving the gap may have left it for a turning vehicle.

[18]     In referring to these matters I am not seeking to determine whether an offence was committed by the cyclist.  That is not a matter for determination on this appeal. These matters have relevance for the reasons earlier noted.   In my judgment they lend weight to the conclusion that the offence under the rule charged against Mr Carline was not established beyond reasonable doubt.

[19]     For these reasons I am satisfied that the appeal should be allowed and the conviction quashed.

[20]     I do consider it appropriate to refer to one other matter raised by Mr Carline. This concerns two matters relating to the way in which the hearing was conducted. He submitted that at one point during the hearing he, in effect, requested leave to confer with his McKenzie friend in the District Court, again his father.  He wished to discuss a matter with him.  That request was declined.  There is no record of this in the transcript and it is perhaps not the sort of thing that would be recorded in a hearing of this nature.  I simply record that where somebody is appearing on their own behalf and permission has been given for a McKenzie friend to assist, it would normally be appropriate for the Court to allow the defendant, within reason, to consult the McKenzie friend.

[21]     The other point of process arose at the end of the hearing.  Mr Carline told me that in the District Court he wished to make submissions in respect of the case following the evidence.   I apprehend that the submissions would have been made alone the lines of the submissions competently made to me.  Mr Carline says that following  the  evidence  submissions  were  made  by  the  police  prosecutor.    The Justices did not ask Mr Carline whether he wished to make submissions.  He says he felt somewhat intimidated by the circumstances and did not make clear that he wished to make submissions.  It is unfortunate that the enquiry was not made to this young, self represented litigant so that he could have had an opportunity to make

final submissions.  It was his right.  And it may be that the submissions would have

assisted in the final disposal of the case.

Woodhouse J