H v Police HC Wellington CRI 2008-485-11

[2008] NZHC 2339

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-485-11

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         20 May 2008

Counsel:         D L Stevens QC for Appellant

C Patterson for Respondent

Judgment:      21 May 2008

RESERVED JUDGMENT OF RONALD YOUNG J

[1]      Mr  H    was  driving  his  car  up  Dowse  Road,  Maungarakai  on

29 June 2007 in a 50 kilometre per hour zone.  As he took a severe right-hand bend (described as a hair-pin bend) his car slid off the road, across the grass and came to halt between two large trees.  When the police arrived, Mr H   admitted he was the driver.  He told police he was driving at approximately 50 kilometres per when he came to the corner, and as he went around he slid across the road and into the bush.  He said that he did not think he was going that fast.

[2]      The police officer said at trial that the car had suffered a low-speed impact. In describing the physical circumstances, the constable said that the road conditions

H V NEW ZEALAND POLICE HC WN CRI 2008-485-11 21 May 2008

were wet with a light rain or drizzle.  He accepted in cross-examination that there may have been some dry patches on the road.  The appellant did not give evidence. The Justices of the Peace concluded that the appellant’s driving had dropped below the appropriate standard and convicted him.

[3]      There are two grounds of appeal:

(i)The prosecution had not proved beyond reasonable doubt that the appellant drove carelessly; and

(ii)       The Justices of the Peace failed to properly consider the appellant’s defence.

[4]      As to (i), the appellant says that this case was not one where want of care on behalf of the driver was the only possible conclusion open to the Justices.   The appellant’s submission is that it was not fanciful to suggest, that the skid was caused by an unexplained slipperiness of the road.  Thus the appellant says that it was a very real possibility he had no reason to suspect his tyres would fail to grip the road.

[5]      In the circumstances want of care was the only possible conclusion for the Justices  of  the  Peace  to  draw  in  the  absence  of  evidence  supporting  any other possible conclusion.  Here the constable’s evidence was that the road was wet with some dry patches.   The maximum speed on the road was 50 kilometres per.   The appellant approached the corner which was described as a “hair-pin bend”.  He said he was doing 50 kilometres per as he drove into the corner and then slid off the road.

[6]      The compelling inference is that Mr H   slid off the road because he was going too fast in the conditions.  The relevant conditions were the hair-pin bend and the wetness of the road.  There is nothing to suggest he would not have been aware that the road was wet.

[7]      On the undisputed evidence of the police constable there was light rain. While there was no warning sign or advisory speed sign with respect to the corner, it must have been obvious to Mr H   that he was approaching the corner.  In

those circumstances, the prudent driver slows.   In those circumstances a prudent driver would not have continued driving at 50 kilometres per into a hair-pin bend when it had been raining and the road was wet.  The Justices of the Peace were well entitled to reach the conclusion they did.  :

[8]      The second issue raised by the appellant is whether the Justices of the Peace properly considered the appellant’s “defence”.   The appellant’s “defence” was the suggestion that the accident may have been caused because the appellant came upon an  unexpected  slippery  road  surface.     There  is  no  evidence  to  support  this proposition.   In any event, the road was wet and it had been raining.   Those circumstances would hardly support a claim of an unexpected slippery road.

[9]      In my view the Justices’ decision was clearly correct.  There are no grounds to justify this appeal.  The appeal will be dismissed.

“Ronald Young J”

Solicitors:

Fanselows Solicitors, Wellington, for Appellant

Crown Solicitor’s Office, Wellington, for Respondent