Davies v Police
[2023] NZHC 2831
•10 October 2023
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-000280
[2023] NZHC 2831
BETWEEN HAMISH DAVIES
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 22 August 2023 Appearances:
B M Bosomonth and D J Waxman for Appellant J L Gibson for Respondent
Judgment:
10 October 2023
JUDGMENT OF ANDREW J
This judgment was delivered by Justice Andrew on 10 October 2023 at 3.30 pm
pursuant to r 11.5 of the High Court Rules 2016 Registrar / Deputy Registrar
Date ………………………….
DAVIES v NEW ZEALAND POLICE [2023] NZHC 2831 [10 October 2023]
Introduction
[1] Mr Hamish Davies was convicted of one charge of dangerous driving under s 35(1)(b) of the Land Transport Act 1998 following a Judge-alone trial in the Auckland District Court on 18 April 2023.
[2] It was alleged that on 29 June 2021, Mr Davies drove at 101 kilometres per hour despite the speed limit being 50 kilometres per hour. He was charged with driving at a speed which, having regard to all the circumstances, was or might have been dangerous to the public or to a person. Mr Davies contended that he had a defence available, namely an absence of fault, because he was suffering from uncontrolled diabetes that affected his cognitive functions at the relevant time.
[3] Judge Maxwell issued a reserved judgment on 12 June 2023 following written submissions of counsel.1 Her Honour held the absence of fault defence was not available and accordingly Mr Davies was found guilty.
[4]Mr Davies now appeals that decision on two bases, arguing that:
(a)insufficient weight was placed on the evidence of the expert medical witness, and this affected the Judge’s assessment of the reasonable and prudent driver. Specifically, insufficient weight was placed on material facts relating to Mr Davies’ likely medical condition at the time of driving; and
(b)there was an error of law in finding that a person can be held to the standard of a reasonable and prudent driver whilst suffering from poorly controlled diabetes.
[5]The Police oppose the appeal.
1 Police v Davies [2023] NZDC 10131.
District Court decision
[6] Mr Davies called evidence at trial from Dr Woolford, a retired general practitioner. Dr Woolford confirmed that Mr Davies was first enrolled at his medical practice at the beginning of March 2022. The previous week, Mr Davies had been to his former doctor and was diagnosed with diabetes. Mr Davies had chosen to move practices for the purposes of appropriate care.
[7] Dr Woolford explained at the trial that in 2015 Mr Davies had a blood test which measured his HbA1c at 44.2 That is a test that measures blood sugar levels, on average, over the previous three months. Dr Woolford explained that a year or two later Mr Davies’ reading was 40 and that a normal reading is anything below 40. A reading of between 40 and 50 is considered pre-diabetes. Dr Woolford further explained that if the reading is over 50 a person “probably” has diabetes, but there is not a diagnosis until that person has two readings over 50.
[8] In 2018, Mr Davies had a reading of 57.3 Dr Woolford said in evidence that according to Mr Davies’ medical notes there was a recommendation by the doctor to repeat the test in three months in order to make a firm diagnosis. However, that did not occur.
[9] The next time Mr Davies had a test was in February 2022. The reading at that time was 130. Dr Woolford described the rise from 57 to 130 as very dramatic.4 He described Mr Davies suffering from weight loss, symptoms of thirst and described him “peeing a lot”. Mr Woolford gave evidence that those symptoms are all associated with diabetes.
[10] Dr Woolford was of the view that it was very likely that Mr Davies was suffering some degree of harm from diabetes at the time of the offending in June 2021.5 He was also of the view that it was unlikely that Mr Davies’ diabetes was well controlled in June 2021.6
2 Police v Davies, above n 1, at [24].
3 Police v Davies, above n 1, at [25].
4 Police v Davies, above n 1, at [26].
5 Police v Davies, above n 1, at [31].
6 Police v Davies, above n 1, at [34].
[11]Judge Maxwell described Mr Davies’ defence as follows:7
… the submission appears to be that Mr Davies was unknowingly suffering from diabetes which affected his cognitive ability which therefore resulted in him speeding. That because he was unaware of his diabetes and would not have otherwise been driving, that this results in an absence of fault on his part.
[12]In rejecting the defence of absence of fault, her Honour concluded:8
… there is no clear evidence as to the extent to which Mr Davies was suffering from diabetes at the relevant time. There is no medical evidence from that time. Even if the Court was to accept that he was both suffering from diabetes and it was not well controlled, there is no clear evidence that it affected his cognitive ability. And even if the Court was to accept that it did affect his cognitive ability, there is no evidence as to how that somehow did not make him responsible for speeding which he otherwise acknowledges.
Legal principles
[13] Appeals against conviction following a Judge-alone trial must be allowed if the Judge has erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred,9 or if a miscarriage of justice has occurred for any other reason.10
[14] The appeal is to be by way of rehearing, and it is for the appellant to show that an error has been made. In assessing whether there has been an error, an appellate court must take into account any advantages the trial judge may have had.11 Because of this, where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “‘customary caution”.12
[15] A miscarriage is more than an inconsequential or immaterial mistake or irregularity.13 A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.14 The appellant does not have to establish a
7 Police v Davies, above n 1, at [47].
8 Police v Davies, above n 1, at [48].
9 Criminal Procedure Act 2011, s 232(2)(b).
10 Criminal Procedure Act 2011, s 232(2)(c).
11 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].
12 Sena v Police, above n 11, at [38].
13 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
14 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
“miscarriage in the sense that the verdict actually is unsafe” but instead that there is a real possibility the verdict would be unsafe.
Ground one – challenge to the factual findings of the Judge
[16] In support of the submission that the District Court Judge gave insufficient weight to material facts relating to Mr Davies’ likely medical condition at the time of driving, Mr Bosomonth submitted as follows:
(a)The New Zealand Transport Agency (Waka Kotahi) Factsheet in evidence before the Court advised road users regarding diabetes and the duty to act “if one knows” he or she has the condition. Specifically, it states in cases of hyperglycaemia (high blood sugar):
Very high blood sugar levels could leave you feeling unwell or tired, and may affect your ability to drive safely. You should not drive if you are severely hyperglycaemic.
(b)In his evidence, Dr Woolford stated that cognitive impairment is a common, under-diagnosed complication of diabetes that can interfere with the ability to adequately perform self-management behaviours. Dr Woolford also noted that deficiencies in memory capacity, attention to detail, planning, ability to reason, decision-making and information processing speed were associated with diabetes.
(c)Dr Woolford confirmed in evidence that hyperglycaemia was the operating factor in Mr Davies’ case and that this “may have led to poor decision-making”.
(d)Dr Woolford also stated in evidence that although he had no actual information regarding Mr Davies’ mental and physical state in June 2021 “we can assume that the diabetes was not well controlled and that this may have affected him physically and his mental reasoning”.
(e)Mr Davies, in his evidence, consistently stated that he was not aware that he had diabetes nor been told that he had diabetes until March 2022 (i.e. after the offending).
(f)There was no evidence that Mr Davies’ diagnosis had been communicated to him on an earlier occasion.
(g)Dr Woolford confirmed that it would not be unusual for a patient to present at a late stage of poorly controlled diabetes whilst being unaware of concerns.
[17] Judge Maxwell had the advantage of seeing and hearing from the witnesses. This included the defendant, who elected to give evidence, Constable Osbourne, who apprehended him and, of course, Dr Woolford. The learned Judge held that she did not accept Mr Davies’ evidence on the critical issues, including whether he was suffering from observable symptoms of diabetes.15
[18] I accept that the evidence of Dr Woolford establishes a real likelihood that at the time the defendant was suffering from uncontrolled diabetes. However, as the Judge correctly concluded, even if the defendant was suffering from diabetes at the relevant time and it was not well controlled, there was no clear evidence that this affected his cognitive ability.16 At best, the evidence from Dr Woolford suggests that the diabetes “may” have affected him physically and his mental reasoning.
[19] As Mr Gibson for the Police submitted, Dr Woolford responsibly acknowledged that because he did not examine Mr Davies at the time, he could not say whether Mr Davies’ poorly controlled diabetes affected his decision-making skills at the time of the offending. As Judge Maxwell also noted, Dr Woolford could not specifically say that Mr Davies was significantly impaired at the time such that he did not know he was speeding. Again, Dr Woolford accepted that he could not answer that question because he did not see the defendant at the relevant time.17 Furthermore, Dr Woolford was unable to comment on the response given by Mr Davies to the Police
15 Police v Davies, above n 1, at [50].
16 Police v Davies, above n 1, at [48].
17 Police v Davies, above n 1, at [33].
as to why he was speeding.18 As Judge Maxwell correctly concluded, all Dr Woolford could say was that he thought it was very likely Mr Davies was suffering some degree of harm from diabetes at the time.19
[20] It is thus not correct for Mr Bosomonth to contend that Dr Woolford confirmed in evidence “that hyperglycaemia was the operating factor in Mr Davies’ case”. The evidence, as correctly analysed by Judge Maxwell, does not support that conclusion.
[21] The evidence of Constable Osbourne, accepted by Judge Maxwell, is important. In her evidence, Constable Osbourne stated:
(a)Mr Davies never proffered any immediate health issues as an explanation on the day of the incident.
(b)When she questioned him why he was speeding, he noted he had seen a van chasing him.
(c)There was nothing that identified to her that Mr Davies was not in control of the vehicle.
(d)She could smell alcohol in the vehicle.
(e)There was a can of alcohol in the vehicle.
(f)Mr Davies asked if he could continue drinking after he was breath tested.
(g)Mr Davies drove home after the event under the supervision of Constable Osbourne.
[22] Judge Maxwell accepted the evidence of Constable Osbourne that even if Mr Davies was suffering symptoms “of some description” they were not such that they
18 Police v Davies, above n 1, at [33].
19 Police v Davies, above n 1, at [31].
could be observed, nor did Mr Davies mention these symptoms.20 Having accepted the evidence of Constable Osbourne, her Honour held that she did not accept Mr Davies’ evidence on “these critical issues”. Her Honour noted that he continued to drive after the incident.
[23] I further note Dr Woolford’s evidence that if Mr Davies had been to the doctors the day after the incident (as Mr Davies claimed in evidence), Dr Woolford would have had his medical records. There were no such records.
[24] I find that there was no error in the Judge’s reasoning or in the approach she took to the expert medical evidence of Dr Woolford. She did not give insufficient weight to that evidence in reaching her conclusions about Mr Davies’ likely medical condition at the time of driving.
Ground two – error in law
[25] The second ground of appeal advanced by Mr Davies is that her Honour erred in law in finding that a person can be held to the standard of a reasonable and prudent driver whilst suffering from poorly controlled diabetes. Mr Bosomonth submitted that since Mr Davies did not know of his condition, “he cannot be culpable of a crime when he was not able to exercise the duty of care of a reasonable and prudent person who knows that they have diabetes”.
[26] I find that there was no error in the approach of Judge Maxwell. Her Honour accepted, in principle, that a total absence of fault defence might be available to a defendant for the charge at issue. However, it was not made out on the facts. It is the actual circumstances and choices open to a defendant that are of critical importance.
[27] The Judge referred to the recent Court of Appeal decision replied upon by the defence, namely the sleep apnoea case Savieti v Police.21 Her Honour expressly referred to the relevant questions identified by the Court of Appeal as follows:22
20 Police v Davies, above n 1, at [50].
21 Savieti v New Zealand Police [2021] NZCA 176.
22 Savieti v New Zealand Police, above n 21, at [34].
We consider the correct question was whether it was reasonably possible that Mr Savieti did not recognise that he was sleepy when he was driving. If it was, then the next question was whether a reasonable person in his position would have recognised that he was sleepy.
[28] In my view, Judge Maxwell correctly acknowledged that an equivalent two- step process applied here. Again, however, the test was simply not made out on the facts. The defendant did not establish on the balance of probabilities that any uncontrolled diabetes he was suffering from affected his cognitive ability at the time of driving such that he could not be responsible for speeding.
[29] In addressing the second limb of the test, namely whether a reasonable person in Mr Davies position would have recognised that he was sufficiently unwell, her Honour held that a reasonable person in his position would have recognised that he was unwell and should not have been driving (assuming, as her Honour noted, that the defendant was suffering symptoms at the time of driving).23 Her Honour was entitled on the evidence to reach that conclusion and I agree with her finding.
[30] I also note that from as early as 2015, Mr Davies had a relatively high HbA1c reading (based on Dr Woolford’s evidence). In 2018, he had a reading over 50, namely 57, which according to Dr Woolford probably means that the person has diabetes. At that time, according to the medical notes, the defendant was advised to repeat the test in three months’ time. However, that did not occur. This supports the conclusion that a total absence of fault defence cannot be made out.
[31] In her judgment, Judge Maxwell referred to various other authorities relied upon by the defence. In my view, there was a proper basis for distinguishing these authorities and rejecting the defence advanced.
[32]I find there is no merit to ground two of the appeal.
Conclusion
[33] There was no error in the approach of the District Court Judge. The appellant has not established a miscarriage of justice.
23 Police v Davies, above n 1, at [49].
[34]The appeal is dismissed.
Andrew J
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