Huang v Police - [2016] NZHC 1271

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-001 [2016] NZHC 1271

BETWEEN
KE HUANG

(AKA RICK HUANG) Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 31 May 2016

Appearances:

N Wham for Appellant
C Martin for Respondent

Judgment:

14 June 2016

JUDGMENT OF MANDER J

[1] Mr Ke Huang appeals his conviction for careless driving causing injury.1 In June last year, Mr Huang pulled out of a garage in Gloucester Street. As he did so a cyclist rode into the side of his vehicle. The cyclist suffered a broken nose, damaged teeth, and his bicycle was damaged.

Factual background

[2] The circumstances of the collision were captured by CCTV positioned inside the internal parking area. It records Mr Huang waiting for a gate to rise before driving his vehicle out on to Gloucester Street. Mr Huang drove slowly across the footpath before commencing to accelerate while turning right. It was at that point the cyclist collided with Mr Huang’s vehicle.

[3] As many Christchurch residents are familiar, Gloucester Street is one of a number of streets in the city that was subject to a temporary road management plan

1 Police v Huang [2015] NZDC 25799.

HUANG v NEW ZEALAND POLICE [2016] NZHC 1271 [14 June 2016]

as a result of nearby construction. Entry into Gloucester Street from Cambridge Terrace had been blocked. Vehicles could exit Gloucester Street onto Cambridge Terrace via a single lane on the right hand side of the street. The police evidence called at the hearing was that, as a result of the prohibited entry from Cambridge Terrace, that end of Gloucester Street was one-way, running west to east. However, a diagram was produced which showed at the point Mr Huang exited the building Gloucester Street had become a two-way road, and that the barrier reducing Gloucester Street to one lane ended some distance before Mr Huang’s building.

[4] Despite being prohibited from entering Gloucester Street the cyclist entered the street from Cambridge Terrace on the right hand side of the road and proceeded in a westerly direction down Gloucester Street. The collision took place shortly thereafter.

Approach to appeal

[5] An appeal from conviction must be allowed if the appeal Court is satisfied the Judge erred in his or her assessment of the evidence to such an extent there was an error or irregularity that created a real risk that the outcome of the trial was affected.2 The appeal proceeds by way of rehearing in accordance with the approach outlined by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.3

[6] The appeal Court must make its own assessment and reach its own conclusions on the merits.4 It is required to recognise the advantages of the Judge who has seen the witnesses and heard the evidence. Subject to that qualification, Elias CJ held:

[16] Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate Court, even where that opinion is an assessment of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 1271
Decision Date: 14 June 2016

CaseChat Overview and Summary

The appellant, Mr Ke Huang, appeals his conviction for careless driving causing injury in the Christchurch District Court. Mr Huang collided with a cyclist who had ridden the wrong way on a one-way street, Gloucester Street, and sustained injuries. The District Court found Mr Huang's actions fell below the standard of a reasonable and prudent motorist, and he breached his obligation to keep a proper lookout. The High Court was required to assess whether the District Court erred in its evaluation of the evidence, potentially affecting the outcome of the trial.

The key legal issues for the High Court to determine were whether Mr Huang exercised the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances and whether his actions fell below the required standard. The Court considered the objective standard of care required, whether Mr Huang's actions were adequate in keeping a proper lookout, and the impact of the temporary traffic management plan on Gloucester Street. Additionally, the Court assessed whether the District Court erred in its evaluation of the evidence, particularly Mr Huang's evidence regarding his observations before exiting the garage.

The High Court assessed Mr Huang's evidence and found that he had looked to the right and then left again before exiting the garage. However, the Court concluded that Mr Huang's actions did not fall below the standard of a reasonable and prudent driver in the circumstances. The Court considered that Mr Huang's attention was understandably focused on the left, given that Gloucester Street was one-way, and that his initial observations should have provided a sufficient arc of view to check for pedestrians and aberrant road users. The Court also considered the temporary traffic management plan, which indicated that cyclists were the worst offenders for travelling the wrong way on Gloucester Street. The High Court found that the cyclist's actions, while legally impermissible, did not absolve Mr Huang of his obligation to keep a proper lookout.

The High Court allowed the appeal and quashed Mr Huang's conviction for careless driving causing injury. The Court held that it could not be established beyond reasonable doubt that Mr Huang had fallen below the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. The Court granted leave to admit the fresh evidence of Mr Michael Mulcay, a safety manager, on the appeal, which clarified the temporary traffic management plan in Gloucester Street.

Orders