Gracie v Police
[2020] NZHC 3300
•14 December 2020
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 and I agree that that area which on a Saturday in particular, often has a number of pedestrians or persons seated at Browns Café is an area where there is a risk of an inattentive driver hitting a pedestrian attempting to cross the road. He also said that he was checking to see whether there were cars coming up Grampian Road.
My view given his evidence that he was first aware of the cyclist when he felt the impact is that the defendant has not kept a proper lookout by checking to see that he did not have anyone coming up on his left and accordingly in those circumstances I would have to say, and I do so, that Mr Gracie was on this occasion careless. There was a collision, the cyclist was thrown off his bicycle, he tumbled some six or seven metres and he did suffer injury though fortunately not severe and so accordingly I accept that the elements of the charge of careless driving causing injury have been proven and the defendant is guilty of the same.
[7] The Judge also said Mr Feller had right of way. On behalf of the Police, Mr Purdon accepts this was incorrect. Moreover, r 2.8 of the Land Transport (Road User) Rule 2004 provides a driver may not pass another on the left unless the other is stationary or turning right. Neither exception applied.
[8] So, on the Judge’s factual findings, Mr Feller was attempting to pass on the left and travelling at speed, while Mr Gracie was slowly turning left into Grampian Road—with right of way.
[9] This constellation is very much like that in Lowen v Police,3 which Mr Purdon very properly drew to my attention. In that case, a motorcyclist attempted to pass Ms Lowen on the left as she was turning left to pull into a park. Ms Lowen was convicted of the same charge as Mr Gracie. The High Court reversed. Whata J observed:4
In my view, the cause of the accident lay, on the facts as presented in the judgment, with the manoeuvre undertaken by the complainant motorcyclist, who was found by the Judge to be contributorily negligent. The evidence was that he was travelling at about 50 kilometres per hour (as compared to the appellant’s speed at about 25 kilometres per hour), changed from the right lane to the left lane and then sought to overtake the appellant on the left hand side immediately adjacent to the kerb. For my part, it is unreasonable to expect that the appellant was required to take added precautions to deal with such drivers (though extra precautionary driving is to be commended).
3 Lowen v Police [2012] NZHC 2057.
4 At [21]–[22].
I am also respectfully unable to agree with the District Court Judge that had the driver looked to her left the accident would have been avoided. The tolerably clear picture that emerges from the facts as found, is that it would have been fortuitous for the appellant to have seen the motorcyclist given the actions of the motorcyclist.
[10]These observations are apposite.
[11] Judge Gibson appears to have accepted Mr Gracie checked his mirrors but did not keep “a proper lookout”.5 However, it is not clear beyond reasonable doubt a reasonable and prudent driver would see a cyclist attempting to pass on the left, at speed. It follows the appeal must be allowed.
[12] I have given thought to whether there should be a re-trial. If Mr Feller’s account were accepted, conviction would follow. That said, the balance of the evidence is very much in favour of that given by Mr Gracie. Mr Feller was cycling quickly and apparently trying to pass on the inside lane when Mr Gracie had right of way. Events are also now two years on.
[13]The appeal is allowed. The conviction is quashed. An acquittal is entered.
……………………………..
Downs J
5 Police v Gracie, above n 1, at [8].