G Appellant v Police Respondent

[2006] NZHC 614

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2006 412 6

G

Appellant

v

POLICE

Respondent

Hearing:         1 June 2006

(Heard at Christchurch)

Appearances: AND Garrett for Appellant

B Hawes for Respondent

Judgment:      1 June 2006

ORAL JUDGMENT OF CHISHOLM J

[1]      Following a defended hearing the appellant  was convicted in the District Court on two counts of careless driving causing injury.  These charges arose out of an accident in which a man and his wife were injured.  The appellant was ordered to undertake 120 hours community work and was disqualified  from driving  for 12 months.  His appeal against conviction and sentence has been very ably argued by

Mr Garret (who was not counsel in the Court below).

G V POLICE HC DUN CRI 2006 412 6  1 June 2006

[2]      The accident occurred on State Highway 1 north of Dunedin.  The appellant was driving a van in a northerly direction and was in the process of negotiating a gentle right hand bend when the rear of his vehicle fishtailed.  A truck travelling in the opposite direction was forced to take evasive action and in so doing crashed into a Mitsubishi vehicle which was following the appellant’s van.   Both occupants of that vehicle were seriously injured.  The road was wet.

[3]      For the purposes of this appeal it is sufficient to note that the driver of the approaching truck gave evidence about the appellant’s van fishtailing and about the evasive action he was forced to take.   Apart from the appellant the only other eye witness was the driver of a vehicle following the Mitsubishi.  However, the driver of that vehicle only saw the last phases of the accident immediately before the truck crashed into the Mitsubishi.

[4]      Evidence was also given by Mr Crocker, a senior vehicle compliance officer with  Land  Transport  New  Zealand,  who  inspected  the  vehicle  soon  after  the accident.  The Judge’s summary of Mr Crocker’s evidence was:

“[6]     … He found the right rear tyre was below 1.5mm of tread over three-quarters of the tread width, with the outer tread pattern only just meeting 1.5mm.   The tyre pressure was over-inflated at 57 pounds per square inch (psi).  He found the left rear tyre pressure was over-inflated at 56psi.  It was not contested that these tyre pressures are far in excess of the recommended inflation pressure for this type of tyre, with light loads at a maximum of 40psi or with heavy loads at maximum 50psi.  The left and front tyre pressures were measured at

37psi.”

Mr Crocker also gave evidence that in an unladen vehicle over-inflation of the rear tyres in this way would result in poor handling that should be noticed by the driver. Mr Crocker likened it to “the rear wheels driving on ball bearings”.

[5]      A written statement was made by the appellant.  He said that he was about a quarter of the way around the corner when the left rear of his van “slid out” and he tried to correct.  He thought that the van had partially crossed the centre line of the road and while he was struggling to regain control a truck travelling in the opposite

direction was approaching him and took evasive action.   The appellant also gave evidence.

[6]      In his evidence the appellant  explained  that  he uplifted  the  vehicle  from Christchurch for the specific purpose of travelling to Dunedin to pick up some items, that he had not found it necessary to check the pressure, that he did not encounter any difficulty in handling of the vehicle on the trip to Dunedin, while he was in Dunedin, or on the return trip to Christchurch before the accident.  He had checked that the vehicle had been recently issued with a warrant, was unaware that the tyres were over-inflated, and had no reason to believe that there was any problem.

[7]      In his reserved decision the Judge said that  he was not satisfied that the insufficiency of the tread depths on the rear tyres of van was sufficient to support an allegation of carelessness.   He noted that a warrant of fitness had been recently issued.  The Judge then turned to the over-inflation of the tyres:

“[24]     The more important issue for determination is whether or not the defendant was careless in using the vehicle when the tyres were over-inflated.   Again, the defendant’s attitude was that the state of inflation of the tyres was not his responsibility and that he had perceived nothing in the course of his driving which suggested that they were over-inflated.  I have already indicated that I accept Mr Crocker's evidence with respect to the performance of the van with the rear tyres as over-inflated as they were found to be.   In reaching the conclusion that I should accept that evidence, I reject the defendant’s evidence that the performance of the van was not so affected.  I find that it was …

[25]     The test to be applied to the issue of carelessness is that of a reasonably prudent and competent driver.  I find that such a driver would have recognised that the performance of the van, with  its  over-inflated tyres  and  without  a  significant  load,  was  unsafe  and required investigation.   Furthermore, I am satisfied that the defendant was aware that its performance was unsatisfactory but simply did nothing to investigate.  It may be that he did not recognise that over-inflation of the rear tyres was the cause, but I am satisfied that a reasonably competent driver would have recognised that there was something amiss that required further investigation and even that the over-inflation of the tyres was a likely cause. It would not have taken an expert to recognise the symptoms described by Mr Crocker, the rough ride and the tendency of the vehicle to bounce and to move sideways when the tyres hit minor surface irregularities or imperfections.”

The Judge found that the prosecution had proved the charges beyond reasonable doubt.

[8]      Mr  Garrett  suggested  that  in  the  District  Court  counsel  defending  the appellant made a serious error of judgment by failing to call evidence to contradict the  evidence  given  by  Mr  Crocker  and/or  support  the  evidence  given  by  the appellant.   Mr Garrett submitted that Mr Crocker’s evidence to the effect that the handling attributes of the vehicle could be likened to the rear wheels driving on ball bearings was overly emotive and open to question.  He also noted that Mr Crocker had not driven the vehicle to determine whether his conclusions were correct.

[9]      A letter from Martin Reeves, a technical services field representative  for Bridgestone New Zealand Limited, was provided by Mr Garrett without opposition from Mr Hawes.  This letter indicates that it is common to inflate tyres of the type under consideration to around 40 – 50 pounds per square inch and that because it is not unusual for a vehicle to be fully loaded or completely empty within a short space of time, tyres can be over-inflated for much of the time.  He continued:

“I would not consider that the handling or braking performance of an empty van would be significantly compromised by having the tyres inflated to 50psi.   While it may not be the optimum pressure for the given load there  would be other factors that would affect the vehicles handling performance, such as the condition of the tyre’s tread, the condition of the road surface (wet or dry) and the condition of the vehicle’s suspension.”

Mr Reeves concluded by saying that these comments were only made in general terms and that he would require more specific details before making any further comment.

[10]     This letter was produced by Mr Garrett to illustrate that it would not have been difficult to adduce expert evidence to counter Mr Crocker’s evidence and to support his submission that the failure to adduce such evidence constituted a serious error of judgment by Mr G  ’s counsel which has resulted in a miscarriage of justice.  Under those circumstances, submitted Mr Garrett, the appropriate course is for a re-hearing to be ordered.

[11]     Mr Garret also argued that the Judge had fallen into error when he rejected Mr G  ’s evidence.  Counsel submitted that after rejecting Mr G  ’s evidence the proper course was to place that evidence to one side and then determine whether

the remaining evidence was sufficient to constitute proof beyond reasonable doubt. In Mr Garrett’s submission the Judge had failed to apply the evidence in that way.

Discussion

[12]     Obviously Mr Crocker’s evidence was pivotal to the outcome in the District Court.  That evidence underpinned the Judge’s conclusion that a reasonably prudent and competent driver would have been aware that without a load the over-inflated tyres would render the vehicle unsafe.   Thus it  was important to neutralise that evidence if possible..

[13]     Tactical decisions about the strategy to be adopted is always difficult for trial counsel.  They do not have the benefit of hindsight which is often relied on after the event.  In this case hearing counsel obviously decided that the best way to challenge Mr Crocker’s evidence was by cross-examination coupled with the appellant’s evidence.

[14]     Clearly Mr Crocker is a highly qualified and experienced expert  witness. Because he was on the spot and the tyre pressure was reduced before Mr G   continued his journey north after the accident, Mr Crocker’s findings of tyre pressure were virtually unassailable.  His evidence was that the tyre pressure was 57psi in the case of the right rear tyre and 56psi in the case of the left rear tyre and that given those tyre pressures the unsatisfactory performance of the vehicle would be apparent to the driver.  In his letter Mr Reeves has considered the situation where tyres are inflated up to 50psi and he has not attempted to address tyres inflated to the higher pressures involved in this case.  In all the circumstances I cannot accept that counsel incompetence has been established.  Nor do I think that the failure of Mr Crocker to test drive the vehicle alters the outcome.   When Mr Crocker was cross-examined about this his response was that it was unnecessary to test drive the vehicle.

[15]     As to the other aspect concerning rejection of the appellant’s evidence and the reasoning process adopted by the Judge, I have not been satisfied that the Judge fell into error.   The passages already quoted indicated that the Judge accepted Mr Crocker’s evidence about the rear tyre pressures and the impact of those pressures on

the handling capabilities of the vehicle.   As I read the  judgment, the Judge has adopted the conventional approach.  Having rejected Mr G  ’s evidence he was left with Mr Crocker’s evidence which he obviously found to be sufficient to prove the allegations against the appellant beyond reasonable doubt.  There was no error in his reasoning process.

[16]     I  now  turn  to  the  appeal  against  sentence.    The  sentence  of  120  hours community work was within the range available to the Judge and was not manifestly excessive.  This component of the appeal must also fail.

Outcome

[17]     The appeals against both conviction and sentence are dismissed.

[18]     The District Court Judge suspended the disqualification until this appeal was determined.   It is appropriate that  the appellant  be given proper notice that  the disqualification is to come into operation.  The disqualification will come into force on 7 June 2006.

Solicitors:         AND Garrett, Christchurch for Appellant

Crown Solicitor, Christchurch