H v Police HC Whangarei CRI 2008-488-22
[2008] NZHC 1062
•8 July 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI 2008-488-000022
BETWEEN H
Appellant
ANDPOLICE Respondent
Hearing: 3 July 2008
Appearances: G R Anson for Appellant
A L Patterson for Respondent
Judgment: 8 July 2008
JUDGMENT OF COOPER J
This judgment was delivered by Justice Cooper on
8 July 2008 at 2.30 p.m., pursuant to r 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors:
McLeods Lawyers, Private Bag 1002, Kerikeri
Marsden Wood Inskip & Smith, Crown Solicitors, PO Box 146, Whangarei
Copy to:G R Anson, PO Box 248, Kerikeri
H V POLICE HC WHA CRI 2008-488-000022 8 July 2008
[1] The appellant was convicted on a charge of operating a vehicle on a road carelessly, thereby causing injury. The charge was laid under s 38 of the Land Transport Act 1998.
[2] The conviction was entered following a defended hearing before Judge Johnson, the Chief District Court Judge. The Judge ordered that the appellant pay emotional harm reparations of $1,000 to the complainant and made an order disqualifying the appellant from holding or obtaining a driver’s licence for the minimum mandatory period of six months.
[3] The appellant now appeals against his conviction alleging that the Judge erred in fact and in law when he described three possible causes of the accident that had been identified by the defence as “speculative” and as not amounting to reasonable possibilities.
The facts
[4] The complainant was travelling in a Mitsubishi Sigma in a northerly direction on Puketona Road in Paihia. As he rounded a corner he saw the appellant’s vehicle, which was a van, coming downhill towards him, well across the centre line of the road. He tried to avoid the collision by turning to the left, but the appellant’s van impacted with the complainant’s car on the complainant’s side of the road.
[5] There was extensive damage to the right-hand side of the complainant’s vehicle. Photographs that were produced show that the right-hand driver’s and passenger’s doors were extensively damaged. There was crumpling to the panels in front of and behind those doors. There was corresponding damage to the front and right of the appellant’s van. After the impact the van continued across the road and over a bank.
[6] The complainant suffered four fractured ribs, and had lacerations to his forehead, scalp and right elbow. He experienced pain in his back and shoulders.
[7] There had recently been rain and the conditions were overcast at the time of the accident. The Judge recorded that the defendant could not really remember what had happened, when spoken to by a police officer soon after the accident. He knew that he was travelling to Paihia but was not sure what happened. He thought he had been travelling between 70 to 80 kilometres per hour, but had not seen the complainant’s vehicle approaching him. He had not felt the van slide, nor could he recall loosing control before the crash. He could remember climbing up from the bush where the van ended up after the accident and speaking to the officer.
The decision
[8] Having recorded the facts, the Judge considered that there was at least a prima facie case pointing to the guilt of the appellant on the basis of the overall circumstances of the collision and the fact that the collision had occurred on the complainant’s side of the road. He then, however, referred to the fact that three issues had been raised by the defence as to possible causes of the collision which the prosecution had not disproved.
[9] The first of those issues was photographic evidence that there was sand or grit (possibly kitty litter) on the road. In particular, in one of the photographs there was a patch on the left-hand side of the downward slope and in two other photographs there was also a patch near where the complainant’s car had come to rest. There was evidence before the Court that such material is placed on the road in order to soak up or cover fuel, oil or substances of that sort. The defence raised the possibility that the van might have struck something of that kind on the road causing the appellant to loose control. The second issue raised by the defence concerned a visit the appellant had made to the premises of a panelbeater who had possession of the van after the collision. Whilst at the panelbeater’s premises he had depressed the brake pedal in the van with his hand to find that it went straight to the floor. He had then pumped the pedal half a dozen times, at which stage there was normal pressure back in the pedal. The appellant contended that that might suggest that the collision was caused by the vehicle loosing control as a result of having no brakes, or defective brakes, at the time of the accident.
[10] The third matter concerned the steering wheel of the van. At the panelbeater’s premises it was observed to be broken or defective in its operation.
[11] Having set out those matters, the Judge continued at [10]:
What is the status of evidence of that kind? The burden never shifts from the prosecution but a defendant must raise more than a speculative defence as something that there might have been a mechanical failure for example or a slip on the road or a broken steering wheel to require the prosecution to disprove. There needs in my view to be some substance to the facts which have been asserted as to elevate from speculation to a reasonable possibility. In this case I do not accept that that substance exists. There has been no evidence which suggests that the vehicle might have had the mechanical defects which I have mentioned prior to its collision and there has been no evidence to suggest, nor does the position of the sand on the photographs suggest it, that any slippery substance on the surface might reasonably have caused the events to occur. There is not enough in my view to put the prosecution to the point of establishing that those did not cause the accident to the relevant standard of proof. I characterise them as speculative and lacking the significant necessary factual quality required to raise a defence of reasonable possibility.
[12] As a consequence, he found the charge proved.
The appeal
[13] In support of the appeal Mr Anson referred to the fact that the appellant had given evidence that the sand or grit had been applied to the road, as depicted in the photographs submitted in evidence, some 20 to 50 metres back up the road from the point where the appellant’s van had come to rest. Further, a Constable Caswell in giving evidence had accepted that part of the sand or grit probably was not on the roadway on his arrival, and may have been put there to clean up oil after the crash. There was also evidence from Senior Constable Hawthorne that the material shown in one of the photographs is a product in fact used to soak up contaminants such as oil or fuel from the road surface.
[14] Mr Anson argued that there was little or no conflict between the accounts of the witnesses with the consequence that no credibility findings had been required and that, on appeal, this Court was not at a disadvantage through not having seen or heard the witnesses. Further, the Judge had apparently accepted the appellant’s
evidence. Mr Anson referred in this regard to the sentencing remarks in which the
Judge had spoken to the appellant in the following terms:
Mr H you are a patently honest man. I wish all witnesses were as you are. It is quite clear to me that you are a good citizen, an honest witness and you did not seek to elaborate or colour the event at all. I thank you for that.
[15] It followed that the Judge must have accepted the appellant’s evidence that the sand or grit had been applied to the roadway approaching the accident scene after the accident. The appellant had also given evidence about inspecting the van at the panelbeater’s premises and observing the condition of the brakes and steering wheel as earlier described. He accepted, however, that those things might have happened either in the impact or after the impact as the van was proceeding down the hill.
[16] Mr Anson submitted that in the circumstances the Judge had erred in fact by stating at [10] of the decision that the position of the sand in the photographs did not suggest that any slippery substance on the surface might reasonably have caused the accident. Further, he maintained that there had been no suggestion (and there could be no suggestion) that the “contaminant” shown in the photograph was spilt as part of the accident. Its presence in the location shown was a matter which called for explanation and went beyond speculation or hypothesis.
[17] Further, Mr Anson argued that the Judge had erred when he categorised the other two issues of defective brakes and steering as “speculative”. Each issue had been supported by evidence from the appellant who the learned Judge found to be credible and reliable and had not been contradicted by other witnesses or evidence. If it was correct to describe the issues raised as “speculative” in these circumstances, then the evidential burden cast upon a defendant in a case such as the present would require him in effect to carry out his own scene and crash analysis and procure a technical report on the state of the van.
[18] Finally, Mr Anson contended that the Judge’s treatment of the evidence was affected by legal error. The Judge’s approach had effectively treated the defence as carrying an evidentiary burden. That was implicit in the reference to whether the issues raised by the defence were a “reasonable possibility”. Mr Anson submitted that where a prosecution case is based on inference from circumstantial facts the
Court should consider all the facts which it has found proven and then determine whether an inference is available. If the proven facts support two inferences of equal weight, one supporting and the other negating guilt, then no inference should be drawn: R v Puttick (1985) 1 CRNZ 644.
[19] Instead, the Judge had separated out the three circumstances identified by the defence and had proceeded to draw an inference without taking them into account. Having done so, he had then gone on to consider whether, in light of those circumtances relied on by the defence, the inference should stand or be displaced. The result was to place a persuasive burden on the defence. However, if all the circumstances had been considered at the outset the Court could not have drawn the conclusion that a prima facie case had been established.
Discussion
[20] As Mr Anson conceded during argument, he was on stronger ground with respect to the sand or grit applied to the surface of the road than he was with respect to the mechanical defects in the van ascertained when he visited the panelbeater. There was no evidence from which it could be inferred that the absence of pressure in the brake pedal and the defective operation of the steering wheel had arisen prior to the accident. The Judge was entitled to state as he did at [10] that there had been no evidence to suggest that “the vehicle might have had the mechanical defects … prior to its collision”. To suggest that, without explanation or possible cause, the van had suddenly developed these two serious defects contemporaneously, thereby causing the accident, was unreal.
[21] Mr Anson’s point about the sand or grit spread on the road is of more substance. The Judge found in this case also that there was no evidence, including the position of the sand on the road that any slippery substance on the surface might reasonably have caused the events to occur. Sand was shown in a number of the photographs that were before the Court. Two were in the region of where the accident had occurred and as Mr Anson submitted, were irrelevant to the issue, the sand having been put there as part of steps taken to clean up after the accident. The sane upon which Mr Anson relied was further up the hill. If that sand had been
placed after the accident (which was the evidence) Mr Anson argued that it could have been to cover a contaminant on the road which might therefore have had a slippery surface as the appellant’s van travelled over it. To this extent, the position of the relevant sand was consistent with the defence contention about the accident’s possible cause.
[22] One difficulty with the defence argument is that the sand was placed near the left-hand edge of the lane in which the appellant was travelling. It appears that only the left-hand front and rear tyres could have passed over that area of the road surface. It is not immediately apparent, without some further explanation, as to how that could have caused the appellant’s vehicle to veer to the right into the path of the complainant’s on-coming car. Mr Anson explained that if, at the relevant point, the appellant had applied his brakes that might have had the effect of slowing the movement of the right-hand tyres and causing the left-hand tyres to slide through the slippery surface of the road, thereby altering the vehicle’s path. The difficulty with that response, however, is that it tends to suggest that the Judge was correct when he described the issue raised as speculation.
[23] I say that because there was no evidence that the appellant had braked at any point. When he was giving evidence-in-chief he indicated that he could not remember the accident at all, nor could he recall crossing the centre line prior to it. However, in speaking to Constable Caswell after the accident he had told him that he had not felt the van slide or lose control prior to the accident. Mr Anson submitted that the fact that he could not recall the events leading up to the accident was the important aspect of his evidence and that the Court should have, in the circumstances, discounted the evidence given by the police officer about the conversation at the scene.
[24] Although he described himself as having been “pretty upset about it all” and “pretty cut up about the whole deal”, according to Constable Caswell the appellant had appeared “reasonable to talk to”, “not particularly confused” and not “affected that badly” at the time of their post accident conversation. In the circumstances the Judge was entitled to take into account what the appellant said to the constable at the time. In the absence of evidence suggesting that the van had slid after the
application of the brakes, I consider that the Judge could fairly describe the issue raised by the defence as speculation.
[25] The short point is that there was not a proper evidential foundation for the possibility on which the defence sought to rely. On the one hand there was evidence that sand had been placed on the road up the hill in an area which the van would have crossed on its way to the accident. There was also the evidence that such material is placed on a road where there are contaminants there was perhaps the beginning of an argument that the oil could have caused the accident. However, on the other hand, there was no evidence to suggest that the vehicle had lost control because of the presence of oil other than the fact that the accident subsequently occurred.
[26] In the circumstances I consider that the evidence was left in a state where the Judge could legitimately decide that the defence had not done enough to raise a reasonable doubt based on this issue. The defence, of course, is not obliged to prove innocence, but it is to be noted that the Judge reminded himself at the outset of [10] that the burden of proof never shifts from the prosecution. A fair reading of the judgment as a whole indicates that the Judge found from the circumstances proved that the cause of the accident was carelessness on the part of the appellant. That, I think, was a conclusion that the Judge was entitled to reach on the facts, and there is no basis on which this Court could hold that he was wrong.
[27] I do not consider that the judgment was affected by error of law. As I have already noted, it was Mr Anson’s argument that the Judge had in effect separated out the matters raised by the defence and drawn an inference as to careless use from the other facts in the case. This was to be contrasted with the more correct approach which was to consider all of the circumstances, including those relied on by the defence, before deciding whether or not to draw an inference that the appellant’s driving had been careless.
[28] I do not consider that there is anything in this point. I think it is simply based on the way in which the judgment was expressed rather than on any matter of substance. Again, on a fair reading of the judgment, it is my opinion that the Judge
concluded that there was careless driving. The issues raised by the defence did not reach the level at which there would be a reasonable doubt. Therefore, a conviction had to follow. I see nothing wrong with such an approach.
Result
[29] For the reasons I have given the appeal is dismissed.
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