Green v Police
[2017] NZHC 1475
•30 June 2017
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2017-463-10 [2017] NZHC 1475
BETWEEN SUSAN DAPHNE GREEN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 21 June 2017 Counsel:
T Braithwaite as agent for C Andersen for Appellant
A Shore for RespondentJudgment:
30 June 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 30 June 2017 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Crown Solicitor, Rotorua
SUSAN DAPHNE GREEN v NEW ZEALAND POLICE [2017] NZHC 1475 [30 June 2017]
[1] Mrs Green was found guilty in a Judge alone trial on one count of reckless driving. Mrs Green appeals the conviction on the grounds that Judge Bidois erred in concluding that the required elements of the charge of reckless driving had been established.
[2] With the benefit of argument, the appeal raises two main issues:
(a) Did the Judge adopt an objective assessment of recklessness? (b) Is wilful blindness sufficient to establish a guilty mind?
Background
[3] The essential background facts are not disputed. On 29 February 2016, Mrs Green was returning to Opotiki from Tauranga. She had recently acquired a new Ford ute, was in good spirits and the music was blaring from the radio. She had been seen travelling at about 123 km/h and undertaking overtaking manoeuvres, some of which were described by a constable as dangerous, with vehicles having to pull to the left. Attempts were made by the police to stop her. Mrs Green denied any dangerous or risky overtaking manoeuvres but admitted that some oncoming vehicles pulled over to the side of the road while she was overtaking.
[4] Eventually, in the Matamata Township, the police were forced to use road spikes to stop Mrs Green. Having had her tyres spiked, she drove up two side streets in an attempt to seek refuge and help from private residents. On her arrest, she was forcibly removed from the car, with the front windows of the car smashed in the process. Glass showered into the car. She was dragged to the ground, forcibly restrained and arrested.
The statutory frame
[5] Section 35 of the Land Transport Act 1998 (the Act) provides:
35Contravention of section 7, or section 22 where no injury or death involved
(1) A person commits an offence if the person—
(a) operates a motor vehicle recklessly on a road; or
(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; or
(c) without reasonable excuse, contravenes section 22 by failing to stop and ascertain whether any person has been injured, after an accident where no other person has been injured or killed.
[6] Section 7 of the Act provides:
7 Drivers not to be reckless or dangerous
(1) A person may not drive a motor vehicle, or cause a motor vehicle to be driven, recklessly.
(2) A person may not drive a motor vehicle, or cause a motor vehicle to be driven, 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.
[7] It is common ground between the parties that the following three elements are required in order to prove the charge of reckless driving:1
(a) the driver fell below the standard of care expected of a reasonable and competent driver;
(b) the resulting situation was objectively dangerous; and
(c) the driver was aware of the potential danger and continued to act despite knowledge of the possible consequences.
[8] There is no dispute that the first two elements were proven.
Did the judge adopt an objective test of recklessness?
[9] Mr Braithwaite (on instructions from Ms Andersen) contends that the Judge did not make a clear finding that Mrs Green was aware of the potential danger and
continued to act, despite knowledge of the possible consequences. A number of
1 See Brookers Law of Transportation (online looseleaf ed, Thomson Reuters) at [LT7.03].
passages in the judgment are said to demonstrate this. I refer to these below at [11]- [18].2
Police response
[10] Ms Shore, for the Police, responds it is clearly evident in Judge Bidois’ judgment that he did not accept the various claims made by Mrs Green during her evidence as to her knowledge at the time of the offending. Examples include:
(a) Mrs Green claimed she never saw the police officer behind her except at one stage because she was focusing on the road ahead. However, the Judge did not accept that she did not look in the mirror while effecting overtaking manoeuvres.3
(b)Mrs Green claimed that at one point she did notice a police car behind her but she believed that it was going to deal with the four cars that had just pulled over in front of her. The Judge, however, did not accept Mrs Green’s account of this incident.4
(c) The Judge also characterised the Mrs Green’s claimed belief that she had done nothing wrong as inconsistent with her panicking when confronted with road spikes and her anger toward men in blue uniforms. The Judge went on to find that the only conclusion that one could draw in these circumstances was a continuing attempt to evade apprehension.5
Assessment
[11] There are suggestions in the judgment that the Judge has taken an objective view, as opposed to a subjective view, of recklessness. The following passages are
illustrative:
2 Police v Green [2017] NZDC 317 at [9], [18], [20]-[22].
3 At [13] and [14].
4 At [16].
5 At [17].
[9] She is an intelligent and articulate woman and I have no doubt she honestly believes her account is true, she did nothing wrong except after the spiking and what occurred was not justified. That is her subjective view.
[10] I have to determine what occurred on an objective basis and assess whether either or both charges have been proved beyond reasonable doubt which is being sure that the offences have occurred in relation to reckless driving and the failing to stop.
…
[18] … Her euphoria or absentmindedness has caused her to misread the
whole situation. From there it deteriorated.
[20] The wilful blindness of what was happening has also blurred Mrs
Green’s appreciation of just what was happening on the road that day.
[12] And:
[21] As stated earlier I accept Mrs Green subjectively and honestly believes her account but in critical parts she is wrong. I cannot accept her assertion of every overtaking manoeuvre was at an acceptable level of responsibility.
[13] But, as Ms Shore noted, the Judge made multiple findings about her awareness of the circumstances of her driving. These are then combined with findings of wilful blindness.
[14] At [15] and [16] the Judge notes:
[15] Mrs Green is an experienced driver, holding a licence since she was
15 years of age. I do not accept she did not look in the mirror, at least when effecting overtaking manoeuvres. If she did she would have seen the blue
and red flashing lights of the following police officer.
[16] Mrs Green accepts she did not see the police car with red and blue flashing lights at one point when four cars in front of her slowed down and pulled to the left. She thought that was strange. She overtook all four vehicles in a single passing manoeuvre and believed the police officer was going to deal with the drivers of these four cars because they were driving too slow. That is illogical thinking. It must have dawned on her that all four cars had observed the police car in their rear vision mirrors with blue and red flashing lights and they responsibly pulled over to the side of the road. Mrs Green not having done anything wrong, from her perspective, should have joined them by likewise pulling over. She did not. She having overtaken the four cars one might have thought human curiosity would have prompted a glance in her rear vision mirror to confirm ones own belief that the police officers were going to pull over those four drivers of separate cars. If she had she would have seen the police officer directly behind her. I do not accept Mrs Green’s account of this incident.
(Emphasis added)
[15] Paragraph [17], highlighted by the Crown, includes this observation:
[17] … Having been road spiked she carried on. The only logical
conclusion one can draw is a continuing attempt to evade apprehension.
[16] The Judge then refers to Mrs Green’s wilful blindness:
[19] … To then ignore the red and blue flashing lights does not provide a defence of “I didn’t know”. This was a deliberate wilful blindness that does not negate Mrs Green’s obligation to stop. I am satisfied beyond reasonable doubt that Mrs Green failed to stop and on that matter she will be convicted.
(Emphasis added)
[17] The Judge then goes on to say:
[20] The wilful blindness of what was happening has also blurred Mrs Green’s appreciation of just what was happening on the road that day. Constable Chelley described extremely dangerous or risky overtaking manoeuvres which coincided with oncoming vehicles taking evasive action by moving off the road and Mrs Green’s own admission of oncoming cars moving to the left. The road was wet. It had showered, squalled or rained at different times, the road was becoming increasingly busy and speeds got up to 120 ks at times.
(Emphasis added)
[18] Finally, he concludes:
[22] In all the circumstances, having accepted the description of the cars having to pull over, not because of the blue and red flashing lights but to avoid the possibility of a head on crash and in the light of the wilful blindness of what was going on around her in my view constitutes reckless driving and in relation to that matter Mrs Green will be convicted.
[19] The reference to wilful blindness in juxtaposition with several findings about her awareness of the circumstances of her driving, particularly at paragraph [22], suggests the Judge found Mrs Green was aware of the circumstances of her driving but was wilfully blind to the potential consequences; that is, she deliberately closed her mind to the potential consequences of her driving.
[20] I do not consider therefore that the Judge adopted a purely objective test of recklessness. The critical issue remains however whether the finding of wilful
blindness was sufficient to find guilt, particularly when combined with a finding of honest belief.
Is wilful blindness sufficient to show a guilty mind?
[21] Mr Braithwaite submitted:
(a) The use of the terms “subjectively and honestly believes” and “wilful blindness” is contradictory.
(b)The offence of reckless driving is a clear mens rea offence where a guilty mind is an essential ingredient of criminal liability.6
(c) A finding of “wilful blindness” does not meet the guilty mind criteria of a mens rea offence.
(d)Even if the submission on wilful blindness is wrong, the inconsistent finding of honest belief and wilful blindness cannot be reconciled, such that the Court should adopt the findings in favour of Mrs Green, namely that she was honest about her understanding of the facts and that she had done nothing wrong.
[22] In this regard, Mr Braithwaite relies on the decision of the Court in D’Almeida v Auckland City Council.7 In that case, the Court observed that if an appreciation of the risk to others is lacking, it is not possible to convict on a charge of reckless use of a motor vehicle.8 Ms D’Almeida, after being spoken to by a traffic officer, had taken off and driven in a display of bad temper and bad driving, during which she was chased by the officer and others for a distance of 6.5 km through busy streets, attaining speeds of up to 87 km/h on occasions. The Court observed that the Judge rightly considered the appellant’s driving created an obvious and serious risk of physical injury to others on the road, but concluded that she was upset by the
pressures of that day and gave no thought to the manner of her driving. Based on
6 Citing Millar v Ministry of Transport [1986] 1 NZLR 660 (CA).
7 D’Almeida v Auckland City Council (1984) 1 CRNZ 281.
8 At 283.
that finding, Casey J was of the view that the necessary mental element had not been proved in order to sustain a charge of reckless driving. Casey J also observed that reckless driving recognises the mental state of the driver, going a step beyond dangerous driving, a purely objective standard, to what might be regarded as more blameworthy conduct.9
[23] Ms Shore responds while the Judge did not explain what he meant by “wilful blindness”, its traditional meaning allows the implication of required knowledge where there was obvious means of knowledge available, and where the defendant did not enquire because he or she knew the answer was going to be or because he or she
wished to remain in ignorance or to be able to deny knowledge later.10
Assessment
[24] As noted there is no dispute that this is a mens rea offence; that is a guilty mind is an essential element of the offending. The police agree for present purposes that it had to be shown that Mrs Green was aware of the potential danger and continued to act despite knowledge of the possible consequences. As such, at issue is
whether wilful blindness is sufficient to establish guilty mind.11
[25] A not dissimilar issue arose in the textbook case Millar v Ministry of Transport. Mr Millar faced a charge of driving while disqualified. The District Court Judge found Mr Millar had an honest belief he was not disqualified but had wilfully closed his eyes to facts which had been readily ascertainable. The High Court rejected the finding of honest belief. The Court of Appeal set aside conviction. Cooke P and Richardson J (Somers J concurring) held that the prosecution had to affirmatively prove knowledge, but because of the ambiguity of the District Court
judge’s finding about wilful blindness, the appeal should be allowed and an acquittal
9 At 282.
10 Millar v Ministry of Transport, above n 6.
11 I note that the Supreme Court in Cameron v R [2017] NZSC 89 has recently described the requisite elements for recklessness at [73]. I should not be seen to foreclose the argument that recklessness in this sense may sufficient to prove the charge. Rather, this case was not argued before me on that basis.
entered.12 McMullin and Casey JJ found that the finding of honest belief displaced the finding of wilful blindness.13
[26] For present purpose, McMullin J’s judgment has the most direct application, both on the sufficiency of wilful blindness and on the significance of honest belief. The judge said:
For over a century there have been cases in which it has been held that wilful blindness can be regarded as the equivalent of intent. R v Sleep (1861) 30
LJMC 170 is an early instance of an accused's guilt being put on the basis either of an actual intent or the wilful shutting of his eyes. R v Crooks [1981]
2 NZLR 53 is a recent case in which the "blind eye" direction was discussed
in a receiving case. Many of the decided cases concern the position of an aider and abettor said to have connived at an offence by wilfully shutting his
eyes to an obvious means of knowledge. When a person deliberately refrains
from making inquiries because he prefers not to have the result; when he wilfully shuts his eyes for fear that he may learn the truth; he may for some purposes be treated as having the knowledge which he deliberately abstained from acquiring: R v Crabbe (1985) 59 ALJR 417. But where a defendant has been found to have acted honestly but mistakenly, there is no room for importing the notion of wilful blindness to take away from him something which he has already been held to have, namely an honest belief.
[27] In a context involving dangerous driving, as here, a finding of wilful blindness, in the sense of deliberately shutting one’s eyes to the potential consequences, must be sufficient to establish a guilty mind. Plainly, a positive finding of the kind in D’Almeida that no thought was given to the manner of driving is not wilful blindness. There was no awareness. But it would defeat the clear object of the s 7 if a person driving dangerously could defend the charge simply because he or she deliberately closed his or her mind to the circumstances of the driving and or the potential consequences.
[28] Ordinarily, knowledge can be inferred from the circumstances of the driving, particularly of the kind in this case. As Heron J noted in Armstrong:14
There is evidence in the circumstances this was a deliberate piece of poor driving from which a conscious appreciation of the risk of danger and continuing nevertheless may be inferred. A purposeless journey in which a vehicle is driven at speed involving sudden braking and noise by its nature suggests deliberate action. The risk taking emerges from the circumstances
12 Millar v Ministry of Transport, above n 6, at 669, 677.
13 At 674,678.
14 Armstrong v Police HC Palmerston North AP 267/91, 24 October 1991 at 6.
of the driving. In the absence of evidence to the contrary a case can be established containing the necessary element of risk of danger and continuing nevertheless.
[29] But, as happened in Millar, given the ambiguity arising from the combination of findings of honest belief and wilful blindness by the trial judge, a cautious approach is necessary. I adopt therefore the suggestion made by Cooke P and Richardson J in Millar, namely that it would be appropriate to remit the matter back
for clarification about the wilful blindness finding15 and in particular whether the
Judge was satisfied Mrs Green was wilfully blind to the circumstances of her driving and or the potential consequences. If so, the judge will need to clarify the significance of her honest belief.
[30] The Supreme Court in Cameron v R recently noted that the requisite mens rea standard will often turn on the language of the offence-creating provision.16 I observe that s 7 expressly embodies a recklessness standard. As Casey J observed in D’Almeida:17
I believe ‘reckless’ was chosen in light of the long-standing authority of [R v Storey [1931] NZLR 417 (CA)] in all aspects of our criminal law, requiring an appreciation of the risk as a added mental element beyond the purely objective standard involved in dangerous driving.
[31] Helpfully the threshold test for recklessness was also recently stated by the
Supreme Court in Cameron, namely:18
(a) the defendant recognised that there was a real possibility that:
(i) his or her actions would bring about the proscribed result;
and/or
(ii) that the proscribed circumstances existed; and
(b) having regard to that risk those actions were unreasonable.
[32] The Court’s observations at [74] are worth noting, including the reference to
the statement made by Casey J in Millar at [63].
15 Millar v Ministry of Transport, above n 6, at 669.
16 Cameron v R, above n 11, at [72].
17 D’Almeida v Auckland City Council, above n 7, at 283.
18 Cameron v R, above n 11, at [73].
[33] In the result, the issues of honest belief and/or wilful blindness should go to the issue of whether Mrs Green recognised a real possibility that her driving was dangerous, and the reasonableness of her actions in light of that risk.
Outcome
[34] The appeal is allowed. The matter is to be remitted to the Judge for reconsideration in light of my judgment.
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