Davies v Police - [2023] NZHC 2831

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2023] NZHC 2831
Decision Date: 10 October 2023

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Hamish Davies against his conviction for dangerous driving. The appellant argued that insufficient weight was placed on expert medical evidence relating to his medical condition at the time of the offence and that the District Court erred in law by holding that a person can be held to the standard of a reasonable and prudent driver whilst suffering from poorly controlled diabetes. The Police opposed the appeal. The court found that there was no error in the District Court Judge's approach to the evidence or in her legal approach. The Judge had the advantage of seeing and hearing from the witnesses and was entitled to conclude that there was no clear evidence that the appellant's diabetes affected his cognitive ability at the time of the offence. The court further found that the Judge correctly applied the legal principles regarding the total absence of fault defence and that the defence was not made out on the facts. The appeal was dismissed.

The final orders of the court were that the appeal be dismissed and the conviction and sentence of the District Court be upheld. The appellant was ordered to pay the respondent's costs of the appeal.

Orders