Hooper v Police
[2015] NZCA 243
•12 June 2015 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA83/2015 [2015] NZCA 243 |
| BETWEEN | PAUL BRENT HOOPER |
| AND | NEW ZEALAND POLICE |
| Hearing: | 9 June 2015 |
Court: | White, Venning and Williams JJ |
Counsel: | Applicant in Person (by AVL) |
Judgment: | 12 June 2015 at 2.30 pm |
JUDGMENT OF THE COURT
Application for leave to appeal dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Paul Brent Hooper pleaded guilty and was convicted on a charge of careless use of a motor vehicle in the Marton District Court.[1] He was disqualified from holding a driver’s licence for three months.
[1]New Zealand Police v Hooper DC Marton CRI-2014-054-3161, 10 November 2014.
Mr Hooper’s appeal against conviction and sentence was dismissed by Woolford J in the High Court at Wanganui on 10 February 2015.[2]
[2]Hooper v New Zealand Police [2015] NZHC 122 [“High Court decision”].
Mr Hooper seeks leave of this Court to bring a second appeal.
Background
At about 8.30 am on 22 October 2014 Mr Hooper was driving a Mercedes motor vehicle east on State Highway 3 at Sanson. The weather was fine, the road was dry and the traffic flow was medium to heavy. Mr Hooper’s vehicle veered right and crossed the centre line of the road into the path of an oncoming van. The driver of the van had to take evasive action. Mr Hooper’s Mercedes collided with the back of the van causing the driver to lose control and spin. The collision caused moderate to extensive damage to the van. After colliding with the van Mr Hooper’s Mercedes continued on and caused another driver to take evasive action by driving off the left hand side of the road and onto the grass verge. Mr Hooper’s vehicle then left the road travelling for some distance on the grass verge before finally colliding with a farm fence.
In explanation at the time Mr Hooper said he did not have a clue what happened. He said that he could not remember anything except for a “big bang”. He admitted he had had trouble sleeping the previous night and had not had much sleep.
The application for leave
While Mr Hooper accepts there was an accident he argues he was not careless. He understands that there is a defence to the charge on the basis that accidents can occur without carelessness. Mr Hooper accepts he may have fallen asleep but as he did not feel drowsy he considers he was not careless. For the first time before this Court, Mr Hooper said the duty solicitor had ignored his instructions that he wanted to plead not guilty. He also raised for the first time that he suffers from a medical condition which may have caused him to fall asleep and alternatively suggested his car’s airbags may have malfunctioned and caused the accident.
Mr Hooper also says that the police failed to make disclosure as required under the Criminal Disclosure Act 2008 (the Act). He says all he had in front of him at Court was the charging document.
Finally, Mr Hooper is concerned at the sentence. He considers the Judge appeared to have discussed it with the police beforehand.
The first appeal decision
Apart from the suggestion the duty solicitor entered a guilty plea on his behalf contrary to his instructions, and Mr Hooper’s reference to his medical condition and possible airbag malfunction by way of explanation, the points he seeks leave to appeal to this Court were raised before Woolford J in the first appeal.
Woolford J considered that if Mr Hooper was to challenge the duty solicitor’s advice he would have to waive privilege which, despite advice to that effect, he had failed to do.[3] Further, on the facts the police case was strong.[4] There was no miscarriage in allowing the conviction and sentence to stand. The Judge also noted the time for providing disclosure had not passed and in any event he considered it likely the duty solicitor would have had the initial disclosure the Act required.[5]
Decision
[3]High Court decision, above n 2, at [20]–[21].
[4]At [24].
[5]At [26]–[29].
Mr Hooper requires the leave of this Court to appeal against the determination of his first appeal. This Court must not grant leave for a second appeal unless satisfied that:[6]
(a)the proposed appeal involves a matter of general or public importance; or
(b)a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
[6]Criminal Procedure Act 2011, s 237.
Mr Hooper’s proposed grounds for appeal do not raise any issue of general or public importance. This Court has previously settled that carelessness in the context of a charge of careless driving must be judged objectively. The question is whether the defendant failed to exercise the care that would have been taken by a reasonably skilful driver in the circumstances. A person who falls asleep while driving is not necessarily careless, but if a driver finds he is becoming sleepy he will normally be negligent if he does not stop. Similarly, if a person drives after a sleepless night which increases the risk of inattention or drowsiness that could be carelessness. Whether there has been negligence or carelessness is a question of fact in each case.[7]
[7]Police v Vialle [1989] 1 NZLR 521 (CA) at 523–524.
Nor does any miscarriage of justice arise in holding Mr Hooper to his guilty plea for the following reasons:
(a)Mr Hooper was aware he faced a charge of careless use of a motor vehicle.
(b)On the admitted facts in the summary there was sufficient evidence to support a finding of careless use, namely driving early in the morning when Mr Hooper had not slept well the night before. He was aware he had not slept well, yet still chose to drive.
(c)Absent any further explanation from Mr Hooper or reason for him to drive across the centre line in the way he did, the Court could infer carelessness on his part. Although Mr Hooper suggested there were studies supporting the possibility of people falling asleep for no particular reason, which he related to his medical condition, and in the alternative suggested his car’s airbags may have deployed and caused the accident, there was no evidence to support those propositions.
(d)There was no prior ruling embodying any wrong decision on a question of law.
(e)For the reasons given above and in light of Vialle the guilty plea was not entered on any misapprehension as to the non-availability of certain defences or outcomes. There was no tenable defence or defence of some substance in this case.[8]
[8]R v Merrilees [2009] NZCA 59 at [33]–[35]; and Cooper v R [2013] NZCA 551 at [21].
However, as noted, for the first time in his submissions before us Mr Hooper suggested the guilty plea was entered contrary to his instructions. For the purpose of this application Mr Hooper has waived privilege and has sworn an affidavit. Notably, in his affidavit, he does not say that the duty solicitor, Mr Oliver, ignored his instructions, rather he says Mr Oliver advised him to plead guilty as there was nothing to defend.
Mr Oliver says it is not his practice, as duty solicitor, to advise people to plead guilty. He leaves it up to them. He also says in his affidavit that Mr Hooper instructed him he wished to plead guilty. Mr Oliver recorded this at the top of his notes by writing ‘G’ for guilty and then made submissions on Mr Hooper’s behalf. We accept Mr Oliver’s evidence. It is supported by his practice and the note he made at the time. Also, after the guilty plea was entered the summary of facts was read to the Court. If, as Mr Hooper says, he did not intend to plead guilty we are sure he would have intervened in the process. We do not accept the guilty plea was entered contrary to Mr Hooper’s instructions.
Mr Hooper also seeks to revisit the issue of non-disclosure. That issue was dealt with fully by Woolford J.
Mr Hooper’s concern that the Judge appeared to have discussed the sentence with the police can also be dealt with shortly. The summary of facts recorded that the police sought disqualification because Mr Hooper’s actions related to road safety. The Judge had the summary which explained why he raised the matter with the prosecutor.
Result
The application for leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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