Fleming v Police
[2013] NZHC 2938
•7 November 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000217 [2013] NZHC 2938
BETWEEN LIONEL FLEMING Appellant
ANDNEW ZEALAND POLICE Defendant
Hearing: 5 November 2013
Appearances: A Haskett for Appellant
W N Fotherby for Respondent
Judgment: 7 November 2013
JUDGMENT OF VENNING J
This judgment was delivered by me on 7 November 2013 at 3.00 pm, pursuant to Rule 11.5 of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Auckland
Copy to: A Haskett, Auckland
FLEMING v NZ POLICE [2013] NZHC 2938 [7 November 2013]
Introduction
[1] Following a defended hearing before Judge Roy Wade in the District Court at North Shore Mr Fleming was convicted of driving at a speed which, having regard to all the circumstances, was or might have been dangerous to the public.1 He was fined $3,000 together with Court costs and disqualified for 12 months. Mr Fleming appeals against conviction. His disqualification has been deferred pending the outcome of this appeal.
Background
[2] On the night in question, at a little after 11.00 pm, two traffic officers observed Mr Fleming’s car, a BMW740, exiting the Johnstone Hill Tunnel at excessive speed. They activated a radar device which recorded a reading of
195 km/h. The speed limit through the tunnel and the section of road outside it is 80 km/h. Mr Fleming was stopped and spoken to by the officers.
[3] During the District Court hearing Mr Fleming conceded he may have been travelling at 140 km/h or so in the tunnel, but denied ever travelling at 195 km/h. The Judge found that he was travelling at 195 km/h and, in the circumstances of the case, that was a speed that might be dangerous to the public. The Judge noted that visibility in the tunnel was 200 m and held that Mr Fleming could not possibly have stopped his vehicle in the distance he could see.2
Appellant’s submissions
[4] Mr Haskett accepted it was not open to challenge the finding the officers had recorded Mr Fleming’s speed at 195 km/h, but submitted the Judge was wrong to conclude that he may have been travelling at 195 km inside the tunnel. Further, the Judge’s reliance on the limited visibility was not valid when Mr Fleming’s car exited
the tunnel. The police themselves had 500 metres visibility to the tunnel exit.
1 NZ Police v Fleming DC North Shore CRI-2012-084-000466, 8 July 2013.
2 At [9]. “... Even with the assistance of a parachute behind him, I am satisfied that the defendant could not possibly have stopped his vehicle in the distance he could see to be clear at that sort of speed and I am therefore satisfied the [charge] being made out in the case will be found proved”.
[5] Next, Mr Haskett submitted the test is whether there is a likelihood of danger to persons reasonably expected to be on the road. He emphasised that speed itself was insufficient to warrant a conviction. He noted the conditions of the road. There were no cars ahead of Mr Fleming. Outside the tunnel there was a wide median and a double crash barrier. The road was a dual lane with no side roads, off-ramps, houses, schools or anything of that nature.
[6] Mr Haskett then submitted that even if an accident was reasonably foreseeable the prosecution had not proved that Mr Fleming was unable to stop safely. Mr Haskett submitted the Judge had overstated Mr Fleming’s speed in the tunnel and understated the stopping distance by failing to consider the tunnel opened up near the exit. Mr Haskett referred to Land Transport (Road User) Rule 2004 and the stopping and following distances referred to in r 5.9.
[7] Finally Mr Haskett referred to Broderick v Police.3 In that case Cooper J concluded that the factual basis for the Judge’s finding a similar charge was proved, namely the combination of speed and proximity to a driveway on the side of the road was not made out. Cooper J allowed the appeal, quashed the conviction and substituted an offence of breaching s 40 of the Land Transport Act 1998 by contravening r 5.1 of the Land Transport (Road User) Rules 2004 and remitted the matter to the District Court for the imposition of penalty. Mr Haskett submitted this Court should adopt a similar approach.
Discussion
[8] The starting point is the wording of the offence:
35Contravention of section 7, or section 22 where no injury or death involved
(1) A person commits an offence if the person—
...
(b) Drives or causes a motor vehicle to be driven on a road at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person; ...
3 Broderick v Police HC Whangarei CRI-2008-488-20, 10 July 2008.
[9] In Broderick, Cooper J referred to the relevant law as summarised by
Penlington J in Joad v Police as follows:4
As the learned Judge rightly observed in the Court below, proof of speed alone is insufficient to warrant a conviction.
Whether or not the speed at the material time is dangerous is to be judged
objectively and does not depend on the defendant’s state of mind: R v Evans [1963]
1 QB 412; [1962] 3 All ER 1086 (CA). The danger must be more than a mere possibility. There must be proof of a reasonable likelihood of danger to persons who might reasonably be expected to be on the highway: Transport Department v Giles [1965] NZLR 726. It is not necessary for the prosecution to prove any person was actually endangered by the defendant’s mode of driving. The responsibility of the driver is not only to a definite person but also to the hypothetical member of the public who might come into the defendant’s driving: Wagg v Shaw [1962] NZLR
498. The mere fact that not many people were likely to be about at the time when the alleged offence took place is not a defence where there is still a sufficiently distinct and reasonable possibility that an accident could result: Gallagher v Police (HC AK M1264/86, 3 December 1984, Pritchard J).
[10] Given the realistic concession that Mr Fleming could not challenge the finding that his BMW was travelling at 195 km/h shortly after exiting the tunnel, the issue is whether the evidence before the Court establishes beyond reasonable doubt that, having regard to all the circumstances that speed was or might have been dangerous to the public or a person. It is necessary to consider all of the circumstances.
[11] While speed of itself is insufficient to make out the charge, as all the relevant circumstances must be considered, speed is still one of the factors to be considered as part of those overall circumstances.
[12] The fact Mr Fleming was travelling at about two and a half times the speed limit for the particular area of road, 80 km/h, is relevant. I reject Mr Haskett’s submission that the speed limit is not particularly relevant as there is no information as to why the limit was fixed at 80 km/h. Eighty km/h is the speed that has been assessed as a safe maximum appropriate for that section of road from the tunnel and extending to the road near its exit. As Rodney Hansen J observed in Wilson v The
Police:5
... The fact that [the appellant’s] speed was significantly in excess of the
legal limit is a material factor. All things being equal, the higher the speed
4 Broderick v Police, at [23], citing Joad v Police HC Hamilton AP79/94, 28 September 1994.
5 Wilson v Police HC Whangarei CRI-2010-488-008, 13 July 2010 at [12].
the greater the danger. Although the speed [the appellant] was travelling cannot alone support a conviction, it was high enough to be a weighty consideration by itself.
[13] Mr Fleming’s case on appeal is based on the premise that he was doing 140 km/h in the tunnel, and that he only accelerated when the roadway opened up when he exited it. There are a number of difficulties for the appellant with that premise.
[14] The particulars of the charge were of driving on State Highway 1 on 27
October 2012, so the relevant driving includes Mr Fleming’s driving both within the
tunnel and on exiting it.
[15] Mr Fleming’s case in the District Court was that he was only driving at 140 km/h in the tunnel, and that his top speed would not have been much more than that. Mr Fleming said that while he was doing 140 km/h he was still accelerating but “only lightly”. This was to explain his reference to his understanding his top speed was 145 km/h.
[16] However, given the finding Mr Fleming was travelling at 195 km/h after exiting the tunnel, and that Mr Fleming said he was only accelerating lightly through the tunnel, it was (and is) open to the Court to infer that Mr Fleming was travelling at 195 km/h or very close to it, in the tunnel. As Randerson J confirmed in Robinson v Police an inference can be drawn where there is evidence of excessive speed
shortly before the time.6 The converse applies in this case. The inference can be
drawn that Mr Fleming was driving at 195 km/h or very close to that speed in the tunnel. The tunnel curves to the right and has limited visibility. As Senior Constable Winterbottom described in his evidence:
... the road through the tunnel is a continual right-hand bend, slight bend but offers only approximately 150 to 200 metres visibility at any time. The walls of the tunnel come down almost to the fog line so there’s very little room for error driving at that speed as does the barriers exiting the tunnel. I did notice a short time after the defendant exited the tunnel and I had locked on his speed a second vehicle exited the tunnels which led me to believe that this speed the defendant was travelling at he would have, must have passed that vehicle inside the tunnel.
6 Robinson v Police HC Auckland A184/00, 27 February 2001 at [21] citing R v Dalloz (1908)
1 Cr App R 258.
[17] Mr Fleming himself accepted himself that anything over 140 km/h in the tunnel could be dangerous when he acknowledged that “In excess of 140 kilometres an hour yes I can see there may be an issue”. On the basis I infer that Mr Fleming was travelling at close to 195 km/h in the tunnel that is sufficient to confirm the conviction. Given the limited clear visibility in the tunnel travelling at close to
195 km/h in it was dangerous. I do not consider Mr Haskett’s reference to r 5.9 to be helpful. It provides stopping and following distances but says nothing about whether the speed Mr Fleming was driving at was safe in the circumstances of this case.
[18] There are further considerations that support the conviction. The road which emerges from the tunnel also curves to the right. While it is a two lane carriageway, it continues to curve to the right and down a reasonably defined incline, quite shortly after the tunnel exit. That is confirmed by the photographs produced by the appellant, Mr Fleming.
[19] Next, while I accept Mr Haskett’s submission that there were no relevant off- roads, on-ramps or the chance of other traffic intersecting with the appellant’s car because of the concrete median barrier, one does not have to be a physicist to understand that there is a risk of a car travelling at 195 km/h tending to travel left of the curve towards the side of the tunnel, and after its exit, towards the left hand barriers.
[20] Next, there was other traffic about. The officers observed a car emerge from the tunnel behind Mr Fleming’s car. There could have been other cars in front of Mr Fleming’s car which, if travelling at the permitted speed limit of 80 km/h, would have been approached by Mr Fleming’s car at a relative speed of 115 km/h.
[21] A further factor is that the incident occurred at 11 o’clock at night. The tunnel has limited visibility and the roadway from its exit is not particularly well lit, as again is apparent from the photograph produced by the appellant.
[22] If, as is a reasonable possibility, the appellant had lost control of his car at
195 km/h in the tunnel or just outside it then given the lighting, the topography of the road, including the curvature and the incline, it is reasonable to conclude it would
have been dangerous to other road users. I do not accept Mr Haskett’s submission that it could not be dangerous to other road users because they would be obliged to stop within half the clear distance of road. If there was an incident involving the appellant’s car, the ultimate behaviour of the car would be entirely unpredictable.
[23] So even if the Judge may have erred in his approach to calculating how long it would take the appellant to brake based on the speed of 195 km/h, that is immaterial. The Judge’s finding that Mr Fleming was driving at a speed which, in the circumstances, was or might have been dangerous to the public was correct.
Result
[24] Although for slightly different reasons than the District Court Judge, I am satisfied the appellant was driving at a speed which in the circumstances was dangerous. The appeal is dismissed. The disqualification will commence at
midnight, Friday 8 November 2013.
Venning J
0
0
0