Gracie v Police - [2020] NZHC 3300

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2020-404-000460

[2020] NZHC 3300

BETWEEN
BEVAN ALAN GRACIE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 14 December 2020

Counsel:

AJ Haskett for Appellant CR Purdon for Respondent

Judgment:

14 December 2020

ORAL JUDGMENT OF DOWNS J

Solicitors/Counsel:
Crown Solicitor, Auckland. AJ Haskett, Auckland.

GRACIE v POLICE [2020] NZHC 3300 [14 December 2020]

[1] Bevan Gracie was convicted of careless driving causing injury at the end of a Judge-alone hearing.1 Mr Gracie appeals conviction. He contends the evidence did not exclude the reasonable possibility he drove reasonably and prudently.

[2]The facts are simple. So, I can be brief.

[3]Daniel Feller was cycling on St Heliers Bay Road at approximately 10 am on

18 September 2018. Mr Gracie was driving in the same direction—toward Grampian Road. The two collided as Mr Gracie was turning left into that road. Mr Feller was digitally tracking his speed. It is common ground he was going 39 kilometres per hour when he and Mr Gracie collided. It is also common ground the point of impact was the left rear of Mr Gracie’s car, at a shallow angle.

[4] Mr Feller was thrown over the handlebars. He suffered a broken tooth, cuts, and concussion. Undoubtedly, the incident was frightening.

[5] An independent witness saw the collision, but not how it occurred. She said Mr Feller was travelling quite quickly. Judge B A Gibson was confronted with differing accounts. Mr Feller said Mr Gracie drove alongside him, then in front of him, then turned left, cutting him off. Mr Gracie said he was driving very slowly—no more than five kilometres per hour—as he was going to stop for a coffee. Mr Gracie said he indicated to turn left, checked his mirrors, turned left—and then heard a collision. Mr Gracie’s testimony implied Mr Feller was attempting to pass him on the left; that is, on the inside.

[6] Had the Judge accepted Mr Feller’s account, conviction was inevitable. However, the Judge appears to have accepted Mr Gracie’s account:2

Here the evidence, which was undisputed, was that the defendant had signalled to turn left into Grampian Road. I accept the cyclist may well have contributed to the accident but nevertheless the defendant had an obligation to check the way was clear before he executed his turn to the left. Section 8 of the Land Transport Act 1998 states that a person may not cause a vehicle to be driven carelessly or without reasonable consideration for other persons. He had an obligation to check to see that the way was clear.

1 Police v Gracie [2020] NZDC 13068.
2 At [6]–[8].

Mr Gracie when he gave his evidence said that he checked his mirrors but did not see the cyclist. He checked his mirrors, but if he did so, he did not see the cyclist who would have been approaching on his left. He said he looked at the footpath on his left…

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.

Continue reading Gracie v Police

Details

AGLC: Gracie v Police [2020] NZHC 3300
Case: [2020] NZHC 3300
Decision Date: 14 December 2020

CaseChat Overview and Summary

Bevan Alan Gracie appeals against his conviction for careless driving causing injury, which was determined at a Judge-alone hearing. The central issue in this appeal is whether the evidence conclusively established that Mr. Gracie was driving carelessly or without reasonable consideration for other road users. The collision occurred on St Heliers Bay Road, where Mr. Gracie was driving towards Grampian Road and Mr. Daniel Feller, who was cycling, collided with the left rear of Mr. Gracie's car as the latter was turning left. The case hinges on conflicting testimonies regarding the events leading up to the collision.

The court had to determine whether Mr. Gracie's actions met the standard of reasonable and prudent driving as required by the Land Transport Act 1998. The District Court Judge accepted Mr. Gracie's account, concluding that he had a duty to ensure the path was clear before turning left, which he failed to do. However, the High Court found that the evidence did not support the conclusion that Mr. Gracie should have reasonably seen Mr. Feller, who was attempting to pass on the left at a significant speed. The High Court noted that the circumstances were akin to those in Lowen v Police, where a similar scenario led to a reversal of a careless driving conviction. The reasoning was that it would have been unreasonable to expect Mr. Gracie to foresee and avoid a cyclist passing on the left at such speed, especially given the cyclist's actions. Consequently, the High Court found that the conviction could not be sustained on the given evidence.

Given the above, the appeal was allowed, the conviction was quashed, and an acquittal was entered. The decision underscores the importance of each driver's responsibility to ensure safety on the road, but also the need for reasonable expectations regarding the foreseeability of other road users' actions.

Orders