D v Police HC Christchurch CRI 2007-409-139

[2007] NZHC 930

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000139

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 September 2007

Counsel:        T K Stevens for Appellant

D Jackson for Respondent

Judgment:      20 September 2007

ORAL JUDGMENT OF PANCKHURST J

[1]      Mr D   was convicted in the District Court upon a charge of careless use.    That  charge  related  to  events  on  Friday,  22  December  last  in  the  early afternoon.  The appellant was proceeding towards town on Cranford Street, having just crossed the intersection with Westminster Street.  However, his intention was to enter the premises of a company which deals in lawn-mowers from premises on the corner of the intersection.  This business was on the other side of the road, given the direction in which Mr D   was proceeding.

[2]      There  are  two  entrances  to  the  business,  one  reasonably  close  to  the intersection and a second some distance back from the intersection.  Mr D 

D V NEW ZEALAND POLICE HC CHCH CRI 2007-409-000139  20 September 2007

intended to use the more distant point of entrance.  However, there was a difficulty. The   lights   governing   Westminster   Street   had   turned   red   and   accordingly, immediately to Mr D  ’s right, there was stationary traffic proceeding in the opposite direction, but awaiting a change in the lights to green.

[3]      A courteous motorist had stopped a short distance back from the car in front of her, having seen Mr D  ’s stationary position and his blinker indicating an intention to make a right hand turn.   Having presented a gap this motorist  then waved to Mr D   for him to proceed through it and into the premises of the lawn-mower company.  As he proceeded to do so the complainant came, proceeding towards Westminster Street and there was a collision of the two cars.   The other motorist was proceeding on the left-hand side of the stationary line of traffic and I shall explain in a moment where exactly this placed him on the road.

[4]      The case was heard before Justices of the Peace on 13 June.  In finding the charge proved they said this:

The defendant was making a right hand turn and in my very long driving experience I believe that the onus is on any driver that is making a turn, but particularly one who is making a right hand turn, to be extremely cautious and to give way to everything.  While we have evidence that the defendant was cautious, extremely cautious  in fact,  clearly he was  not  careful nor cautious enough.   Every day thousands of drivers make this manoeuvre on Christchurch roads without having an accident.  The onus is on the turning driver to make sure that the way clear before he makes his turn.

[5]      The Justices then went onto say that they were alive to the fact  that the complainant had been charged with an infringement himself.  This was proceeding on the roadway other than in a designated lane.   There are two lanes on Cranford Street prior to the intersection with Westminster Street.   The second lane (for left turning traffic) extends back to almost the second entrance into the lawn-mower company’s premises.   Beyond that turning lane there is a parking lane which of course means that the southbound carriageway from that point is restricted to one lane.   In fact, however, the complainant  was driving  in the parking  lane at  the moment of the impact.

[6]      The Justices concluded their decision (after reference to the complainant’s driving) by saying this:

We find that the charge is proved because this particular driver should have made absolutely certain the road was clear before he moved through and as we have already said, the word “careless” is used when the standard of driving falls below that of a careful and prudent driver and quite clearly because there are hundreds of people making this sort of manoeuvre every day, on this particular occasion because there was an accident this standard was lower than it should have been.  We find the charge proved.

[7]      Counsel accepted that although the Justices had identified the correct test, they had not ultimately applied it in relation to the facts of the case.  Having said that the test was the standard of care to be expected a reasonably prudent driver, the reasoning then became focused upon the fact that there was an accident and that, therefore, it inevitably followed Mr D   must have been careless.   This of course does not automatically follow.   Not every accident is the product of carelessness.   Otherwise the standard to be applied would become effectively an absolute one, at least in all circumstances where an accident resulted.

[8]      In these circumstances both counsel accepted that the appropriate course was to re-examine the facts in the present context, it being a general appeal on the notes of evidence, and determine afresh whether the appellant’s driving fell below the required standard.  This I proceed to do.

[9]      Both counsel placed reliance upon the decision  in  Rattray  v  Ministry  of Transport AP196/86, 17 October 1986, a decision of Holland J (which is referred to in some of the relevant texts).   That case concerned an almost  identical factual situation.  Mr Rattray was proceeding north on Manchester Street intending to turn right into the Christchurch City Council parking building which lies between Gloucester and Armagh Streets.   He too was confronted with a line of stationary traffic on Manchester Street, awaiting a change in the lights.  Likewise a courteous motorist made a gap available for him to execute a right-hand turn in order to enter the parking building.   As he did so a cyclist riding on the left-hand side of the stationery cars, came into Mr Rattray’s path of travel and there was an accident.

[10]     The issue, as in the present case, was whether the driver’s conduct fell below the required standard.  Holland J was satisfied that it did.  He made reference to the Court of Appeal decision of Police v Creedon [1976] 1 NZLR at 571 and cited passages from the judgments with approval. He then continued:

… the obligation on the appellant was to proceed slowly through this gap with an ability to stop immediately as his vision widened and a bicycle was capable of being seen.   The very fact that the accident occurred at a stage when the appellant had not seen the cyclist until immediately prior to the accident satisfies me beyond reasonable doubt that in the circumstances this appellant  was  either  proceeding  too  fast  through  this  gap,  or  if  he was proceeding so slowly that he had an ability to stop immediately, he was not keeping an adequate lookout to see this cyclist who was there to be seen and could certainly have been seen at least in part over the bonnet of the stopped vehicle.

As might be expected Mr Jackson embraced this reasoning and suggested that it must apply with equal force in the circumstances of the present case.  Mr Stevens, however, argued that the facts in the present case are distinguishable from those in Rattray.

[11]     I turn to examine the facts in a little more detail.  The informant called only one witness being the complainant, together with a constable who went to the scene after the event.  With reference to the complainant, he freely accepted that he had not reached the designated left turning lane, but was in the marked parking zone on Cranford Street.  With reference to speed the complainant said that it was “below 50, I am sure of this.  I was not accelerating at the time.  I was effectively coasting”.  At another point he explained that he had been travelling at 50, that he hadn’t braked, that he probably accelerated when he proceeded into the parking lane, but then he was reducing speed as he approached the intersection which he guessed was about six car lengths away.

[12]     I must say that I find this evidence extraordinary.   This is an account of someone proceeding off the road into a parking lane in order to pass to the left of a line of stationary vehicles, and doing so at a speed of or approaching 50 kilometres an hour, without braking and simply coasting from the earlier speed towards the intersection.

[13]     The other important witness is the courteous motorist who presented the gap to Mr D  .  Mrs Dunbar described the scene as I have already endeavoured to depict it.   With reference to waving Mr D   through, she said that he was proceeding “very slowly.   He was being very cautious”.   When asked in cross- examination her impression of the complainant’s driving, she said that she only saw

him momentarily immediately before the impact and that her major impression was of excessive speed.   Indeed, to use her phrase, which was used both to the police officer who attended the scene and in court, the complainant was “fair hoofing it”.  I think that is a description not inconsistent with the complainant’s own description of the speed at which he was travelling.

[14]     Incidentally, Mrs Dunbar was not called by the informant but rather as a defence witness, despite the fact that she had been interviewed on the day.   This impresses me as curious, given that she had the best possible view of the appellant’s driving conduct as he proceeded in front of her nose through the gap which she had left in the line of stationary traffic.

[15]     Holland J in the course of his oral decision Rattray said that both the turning motorist and the cyclist were engaged in “unusual and potentially dangerous manoeuvres”.   I agree,  and apply that  same assessment  to  the situations of the appellant and the complainant in this case.

[16]     It seems to me that the issue in this case is whether Mr D   did necessarily fall below the standard of care required on the part of a prudent motorist. Put another way, given the excessive speed at which the complainant was proceeding and the fact that he was using a parking lane rather than the carriageway, was it nonetheless still incumbent upon Mr D   to be in a position to stop and avoid an accident in those circumstances?

[17]     In Rattray there was no suggestion of speed on the cyclist’s part.  The Judge referred to the cyclist’s speed as about twice that of the motorist who could only have been moving at a very slow pace from a standing start as he endeavoured to drive through the gap and into the parking building.  That then is an immediate point of distinction between the two cases.   But, of course, there is a second point of distinction.    The  cyclist  was  entitled  to  overtake  on  the  left-hand  side  of  the stationary cars and in doing so he was not driving off the carriageway and in a parking lane.   As I have said there can be no question that Mr D   was undertaking an unusual and potentially dangerous manoeuvre during which he had an obligation to keep a very close lookout for cyclists and motorists.  But, is he to be

found careless in not having seen a motorist who was both proceeding in a parking lane and at considerable speed?

[18]     I regard the case as marginal.   I do not subscribe to the view that simply because an accident occurred it must follow that both motorists were careless.  At the end of the day I am in doubt about the matter.  It seems to me that unless one is to apply an absolute standard this fact situation well permits of the interpretation that Mr D   became involved in an accident not of his own making, that is that the dominant cause of the accident was the manner of driving of the complainant and that  there  may  have  been  no  relevant  carelessness  on  Mr  D  ’s  part. Therefore there is not proof beyond reasonable doubt.  This conclusion, needless to say, is one which reflects the peculiar facts of this case.

[19]     For these reasons I allow the appeal and quash the conviction for careless use.

Solicitors:

T K Stevens Barrister, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent