Glover v Police HC Wellington CRI 2011-485-89

[2011] NZHC 1909

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2011-485-89

CHRISTOPHER JOHN GLOVER

Appellant

v

NZ POLICE

Respondent

Hearing:         1 November 2011

Counsel:         Appellant in person

H M Lanham for the Respondent

Judgment:      24 November 2011

JUDGMENT OF MALLON J

Introduction

[1]      Mr Glover has the view that a particular stretch of road in Paraparaumu is in the wrong place and also that it needs a pedestrian footpath. As a result of this view, he drove his car along the road with two of his wheels up on the grass verge.  He did so because that was where he thought the road should be and also to create a path with his tyre tracks.  He was observed doing this by a police officer.  He was charged with  operating  a  vehicle  carelessly  (s  37(1)  of  the  Land  Transport Act  1998). Following a defended hearing before two Justices of the Peace he was convicted and

discharged.

GLOVER v NZ POLICE HC WN CRI 2011-485-89 24 November 2011

[2]      Mr Glover appeals his conviction.  He says that he was not careless because he was driving slowly and could see all driveways and that there were no pedestrians or cyclists on the road margin.   If the Justices of the Peace were not in error in finding the charge established then Mr Glover seeks to be discharged without conviction.  He says that he has had no convictions of any sort for at least five years and would like to have a “clean slate” in seven years.

Was the driving careless?

[3]      A driver is careless if they do not exercise the degree of care and attention that a reasonable and prudent person would exercise in the circumstances.   The Justices of the Peace concluded that the driving was careless because it “created a danger  to  other  vehicles  that  may  have  been  exiting  their  driveways  and  to pedestrians had they been there.”  They did not discuss Mr Glover’s evidence that he could see clearly and that he would have been able to drive back on the road had anyone exited a driveway or if any pedestrian had been on the grass verge.

[4]      The evidence before the Justices of the Peace did not give any precise detail of the distance Mr Glover travelled on the grass verge although Mr Glover estimates that it would have been a short distance of about 50 or so metres.   That estimate appears to be consistent with the photographs which were produced at the hearing and which show the tyre marks that Mr Glover made.  The photographs show that there are two driveways that Mr Glover needed to cross.   They also show that in places the grass verge is steep so that if pedestrians were walking along on that side of the road (rather than on the footpath on the opposite side of the road) they are likely to walk on the road curb rather than the grass verge.

[5]      The evidence from the prosecution was that it “would be slightly difficult for the defendant to see” pedestrian traffic.  Mr Glover did not accept this.  He said that he had never had problems seeing pedestrians when he has driven along the grass verge.  The photographs appear to support Mr Glover’s evidence that he would be able to see any on-coming pedestrians.   They also indicate that anyone using the driveways could be seen just as clearly from where Mr Glover was driving as if he were driving with four wheels on the road.  There was no evidence as to Mr Glover’s

speed but the respondent accepts that Mr Glover was driving well below the speed limit when he was on the grass verge.  That supports Mr Glover’s evidence that, had there been pedestrians on the verge or cars on the driveways, he would have been able to move onto the road without difficulty.

[6]      I therefore consider that the evidence did not support the conclusion that Mr Glover’s driving created a danger.  However carelessness does not require that.  All that is required is that Mr Glover’s driving fell below the standard of a reasonably prudent driver.   In my view it did.   A reasonably prudent driver exercising care would drive on the road and not on the grass verge (unless there was a hazard on the road that required evasive action).  A reasonably prudent driver would not take it upon themselves to drive on the grass verge because they did not agree with the alignment of the road, nor to create a footpath, even if that would make that area safer for pedestrians.  There are other avenues for decisions to be made about road alignment and footpaths. The charge against Mr Glover was proven.

Discharge without conviction?

[7]      A discharge  without  conviction  does  not  appear  to  have  been  raised  for consideration by the Justices of the Peace. A discharge without conviction cannot be granted unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offending.

[8]      In this case the gravity of the offending was at the very low end.  The driving was careless and not dangerous, it was for a short period and Mr Glover appears to have been genuinely motivated by an issue he feels strongly about.   However the consequences of a conviction of this kind are also low.   No specific prejudicial consequence has been identified other than that Mr Glover will have to wait a little longer to have a “clean slate”.  In my view that is not sufficient to meet the test for a discharge without conviction.   Should Mr Glover need to disclose his conviction history before he becomes eligible for the operation of the clean slate scheme it will be readily apparent that Mr Glover’s convictions are for very minor matters.

Result

[9]      The appeal is dismissed.

Mallon J