Huang v Police
[2016] NZHC 1271
•14 June 2016
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 RespondentJudgment:
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 fact and degree and entails a value judgment. If the appellate Court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
2 Criminal Procedure Act 2011, ss 232(2)(b) and (4).
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 At [3] and [16].
Errors in the first instance judgment, however, are required to be identified, and the appellant bears the persuasive burden of satisfying the appeal Court that a different finding is warranted.5
The District Court decision
[7] The defence presented by Mr Huang in the District Court was twofold. Firstly, he considered the cyclist should not have been where he was, cycling the wrong way on a one-way street, having accessed Gloucester Street from Cambridge Terrace despite the prohibited entry. Secondly, and in any event, Mr Huang’s evidence at trial was that he had looked firstly to the left and then right, and then looked left again after the gate lifted, and before he drove onto the street. He submitted he had not been careless.
[8] The Judge found that Mr Huang, when exiting the garage and turning right onto the road, crossed a footpath, and that a reasonable and prudent motorist would look both ways, even if they knew they were going onto a one-way road. This was especially so in a city area where there is a footpath as in the present case. In the Judge’s view, Mr Huang had little visibility whilst in the garage, limited only to the road in front of him, and once the garage door had lifted he could only have obtained full vision when he was on the footpath. Mr Huang had not stopped at anytime, and in the Judge’s view he was focussed on the left.
[9] The collision occurred only a very short distance from the footpath. The District Court’s concern was as to the adequacy of Mr Huang keeping a proper lookout. The Judge observed she had concerns as to whether Mr Huang checked to the right and, if he did, how long that check took. The District Court concluded that Mr Huang’s actions fell below the required standard when exiting a garage in the inner city and that, notwithstanding the cyclist was not blameless, Mr Huang had an obligation in exiting the garage to do so safely.
[10] The Judge appears to have taken the view the road outside Mr Huang’s
building was no longer one-way, although she did not consider the state of
5 At [4].
Gloucester Street at the time as being that significant. The District Court considered that Mr Huang’s actions in leaving the garage were not those of a reasonable and prudent motorist, that the cyclist was there to be seen, and the fact the cyclist should “perhaps” not have been where he was, did not remove Mr Huang’s obligation as a road user to have checked. The charge was found proven.
The offence
[11] Section 8 of the Land Transport Act 1998 (the Act) prohibits a person from driving a vehicle carelessly or without reasonable consideration for other persons. Under s 38 of the Act, a person who operates a vehicle on a road in such a manner and by that act or omission causes injury to another person commits an offence.
[12] The standard of care required is objective. The key question will be whether the driver was exercising the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.6 It is not necessary in order to constitute carelessness for there to have been negligence, rather it is a failure to exercise the degree of care and attention that a reasonable and prudent driver would exercise in looking after his or her own safety. To make such a determination the Court must have regard to the actions of each of the motorists involved.7
Fresh evidence
[13] During the hearing in the District Court, Mr Huang sought to introduce evidence relating to the traffic management plan which was in effect in Gloucester Street at the time of the collision. Because of its late introduction, its unknown provenance and its hearsay nature, it was not admitted into evidence.
[14] On appeal, Mr Huang sought leave to admit the affidavit of Mr Michael Mulcay, a safety manager employed by Fulton Hogan, which was carrying out works at the nearby Christchurch Art Gallery site and was responsible for the installation of the temporary traffic management plan in operation on Gloucester Street between
November 2014 and January 2016.
6 Simpson v Peat [1952] 2 QB 24 (QB) at 27.
7 Williams v Police HC Christchurch AP89/95, 3 August 1995 at 1.
[15] While strictly not fresh evidence, the accuracy of the information provided was not disputed and it was clearly credible. The overriding test therefore is whether the admission of the new evidence best serves the interests of justice.8 The Crown responsibly did not object to its admission, but submitted it would have no impact on the safety of Mr Huang’s conviction.
[16] Mr Mulcay’s evidence was that the traffic management plan for the entire of Gloucester Street between Montreal Street and Cambridge Terrace was one-way in a west to east direction. He deposed there was signage up at each end of the street to prevent traffic driving the wrong way. However, there were a number of private vehicles from both residential and commercial premises that travelled the wrong way up Gloucester Street when the temporary traffic management plan was in place. Mr Mulcay deposed that cyclists were the worst offenders, and he refers to a number of occasions when they were involved in heated conversations with drivers of vehicles travelling in the correct direction. He considered the two diagrams produced by the police of Gloucester Street to be inaccurate as at 5 June 2015.
[17] In the District Court there was some discussion about whether the cyclist was entitled to cycle east to west down Gloucester Street where the collision occurred, and whether he had been permitted to use the road to ride into Gloucester Street from Cambridge Terrace while the temporary traffic plan prevented road access. It is clear from the new evidence that the cyclist was not entitled to ride into and down Gloucester Street, and in doing so he was violating the rules of the road which, like
any other road user, he was legally obligated to comply with.9
8 R v Bain [2004] 1 NZLR 638 (CA) at [22]; Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at
[120].
9 Land Transport (Road User) Rules 2004:
Clause 3.1(1) provides that a person using the road at a place controlled by a traffic control device must comply with the instructions given by that traffic control device. Traffic control device is defined as having the same meaning as in pt 2 of the Land Transport Rule 54002: Traffic Control Devices 2004 which includes any sign in its definition.
rider means a person riding an animal, an all terrain vehicle, a motorcycle, a moped, a cycle, a mobility device, or a wheeled recreational device
…
road user means a driver, rider, passenger, or pedestrian
[18] However, the cyclist’s actions, legal or otherwise, do not absolve Mr Huang of his obligations to operate his vehicle with care, and in particular to keep a proper lookout.
Did Mr Huang keep a proper lookout?
[19] As the District Court Judge found, there can be no question that a reasonable and prudent motorist in the circumstances that existed in Gloucester Street at the time would look both ways, even if he or she knew they were going onto a one-way road.
[20] Mr Huang gave evidence that once the gate was open he looked left and right, and then looked left again. He said he was focussed on looking left because that was where, in his view, the traffic was coming from. He acknowledged the cyclist would have seen the back of his head because he was looking left at the time of the collision.
[21] The District Court Judge observed that Mr Huang at the scene told the attending constable that he had looked for traffic but the road was clear, and that he had not looked right because he knew the road was blocked. Mr Huang in his evidence stated that what the constable wrote in the traffic crash report that evening was not all that he had said. He acknowledged that the constable’s note was read back to him, which he signed.
[22] The District Court Judge in assessing this evidence concluded that Mr Huang was indeed focussed on the left, as he told the constable at the time. The Judge stated she was not sure whether Mr Huang had looked to the right or not. It was noted there was no evidence of any cars parked to the right, and while the cyclist was not going slow, equally, the Judge concluded she did not think he was “racing”.
[23] The District Court Judge clearly had reservations about the accuracy of Mr Huang’s recollection about whether he looked to the right. The Judge did not reject his evidence, only observing that she was not sure whether he had looked to the right. Because of the importance of that aspect of the evidence, the District
Court Judge was therefore obliged to proceed on the basis there was a reasonable possibility that Mr Huang had looked to the right.
[24] The position distils to whether what Mr Huang says he did in terms of keeping a lookout was adequate. The District Court concluded that it was not. The Judge was critical of the fact that Mr Huang did not stop at any point after the garage gate opened. She considered that Mr Huang had not “nosed” out of the garage to an area where he could see that the way was clear before proceeding. It is apparent from his evidence that he did not have a complete view to his right as he exited the car park onto the footpath. He described it as a 35 degree angle both ways as he emerged from the garage.
[25] I have viewed the CCTV footage myself. Mr Huang’s car travels slowly out of the garage after the gate is opened and as he begins turning onto the street starts to accelerate. He is at all times moving slowly and was able to come to an immediate stop after the cyclist hits the right hand side of his vehicle.
Assessment
[26] It is uncontested that Mr Huang was obliged as a reasonable and prudent driver to look both ways upon exiting the garage in order to ensure the way was clear, if not for cyclists, at least for pedestrians. This applies notwithstanding that Gloucester Street was the subject of a one-way temporary traffic management plan. Mr Huang himself stated in evidence that he did look to the right, but the fact remains that he did not see the cyclist.
[27] The question which requires determination is whether Mr Huang exercised the degree of care and attention that a reasonable and prudent driver would exercise, and whether what he did was adequate when exiting the garage onto Gloucester Street to discharge that duty. The District Court Judge appears to have concluded that because he failed to see the cyclist, who must have been there to have been seen, Mr Huang breached his duty of care and attention. There is a risk of adopting a type of res ipsa loquitur approach in making such a finding in the face of Mr Huang’s evidence that he did check to the right.
[28] The present situation has some similarity with the circumstances considered by the Court of Appeal in R v Pegler.10 A question of law was placed before the Court as to whether the District Court and High Court had erred in concluding that the test of carelessness had been made out, and in particular whether the finding amounted to one of res ipsa loquitur without regard to material facts such as the glare of the sun.
[29] In that case the appellant had turned out of a supermarket car park at the same time as some pedestrians were crossing the road. As the appellant drove slowly out of the car park he came into collision with the pedestrians whom he had failed to see. He had only travelled some three to four metres and was travelling very slowly because of the glare of the sun.
[30] The complaint on appeal was that the lower Court had failed to consider as a reasonable explanation Mr Pegler’s vision being obscured by the sun, and had based its finding of carelessness on the fact of the accident itself. It was argued the Court had effectively applied the doctrine of res ipsa loquitur in a criminal case, leaving the accident to speak for itself and not requiring the prosecution to disprove or exclude other potential causes consistent with the exercise of reasonable care.
[31] The Court of Appeal observed that past decisions had uniformly rejected the principle of res ipsa loquitur, and that it had no application in criminal cases even though the evidence in a particular case may be such that in the absence of some explanation the only proper inference is careless driving.11 The Court of Appeal considered it more appropriate to focus directly on the simple principles that the prosecution has in all but exceptional cases the onus of proof, and the decision- maker must take into account relevant factors and give adequate reasons for the decision.
[32] Notwithstanding those statements, the Court of Appeal had little difficulty in rejecting the appellant’s argument on the merits in the circumstances of that case.
The Court observed that having regard to the difficulty presented by the glare of the
10 R v Pegler CA214/03, 10 November 2003.
11 At [22]
sun, the risk of bringing the power and weight of a motor vehicle into collision with a pedestrian when there is the option of simply stopping or indeed remaining stationary, and (in that case) lowering the sun visor before moving forward was “wholly unacceptable”.12
[33] In the present case, it is not apparent why Mr Huang did not see the cyclist when he looked to the right. Clearly, he did not, however, in the absence of Mr Huang’s evidence that he looked to the right being rejected, why at that point he did not see the cyclist is open to speculation.
[34] Ordinarily, the failure to see an ongoing vehicle, cyclist or pedestrian will allow a reasonable inference to be drawn that the driver failed to keep a proper lookout, but the situation is complicated in the circumstances of the present case because Mr Huang was to some degree entitled to rely on the fact that there should be no traffic coming from his right down Gloucester Street. That does not absolve him from having to keep a lookout as a precautionary step for pedestrians, or in the unlikely (although on Mr Mulcay’s evidence, apparently not rare) circumstance of a road user in breach of the temporary road plan going the wrong way down the one- way street.
[35] In Warren v Police, McGechan J observed that a driver is not required to provide against every remote possibility.13 In that case the appellant was driving along at night when he saw a pair of shoes on the road. He stopped his car and reversed to go back to pick up the shoes. At the same time, the complainant who had been driving in the opposite direction turned right, behind the appellant, to enter the driveway into his house. The reversing vehicle and the turning vehicle collided. The appellant had been looking over his left shoulder while reversing so did not see the car turning across from his right. McGechan J held:14
All careless use cases depend on their circumstances. A driver is not required to provide against very remote possibilities. In the circumstances which prevailed the possibility of another motorist turning across the rear of his vehicle, having already seen his vehicle, is in a very remote category.
12 At [21].
13 Warren v Police HC Napier AP67-93, 21 February 1994.
14 At 2.
[36] Because Gloucester Street was one-way at the time of this incident and entry into that street from Cambridge Terrace prohibited, I have considered whether the circumstances of the collision falls into this rare category of case.
[37] After careful consideration, I do not consider the circumstances of the cyclist travelling the wrong way up the one-way road falls into that exceptional category of being a very remote possibility. That circumstance, however, has to be taken into account in assessing whether what Mr Huang did to keep a proper lookout fell below the standard of the reasonable and prudent driver in the particular circumstances that prevailed in Gloucester Street at the time. The District Court did not conclude that Mr Huang was untruthful or mistaken in his evidence that he looked to the right and checked.
[38] If Gloucester Street had been a normal two-way street, a reasonable conclusion to have drawn was that Mr Huang’s level of observation or visual scrutiny was inadequate for that situation and he fell below the level of care and attention required in those circumstances. The situation, however, was that Gloucester Street was closed to road users coming from Cambridge Terrace, including cyclists, and while it behove any motorist exiting from an internal garage onto the street to check both ways for pedestrians and the possibility of an aberrant road user, I do not consider the duty extended any further.
[39] Mr Huang’s evidence was that he looked to the left, to the right and back to the left. At the time of the collision he was looking left. As the District Court Judge found, clearly his attention at that point was focussed on the left, and understandably so given that was where the only traffic could reasonably be expected to be coming from, he having already checked to the right and it being a one-way street. Mr Huang’s initial vision both ways was not a complete view, but it ought to have given him a sufficient arc of view upon which he could rely that there were no pedestrians and to check there were no road users going the wrong way down a one-way street.
[40] Based on this assessment, I do not consider it could have been 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. I note, unlike the District Court, I have had the benefit of Mr Mulcay’s evidence which clarifies the temporary traffic management plan which had been in place in Gloucester Street since November 2014 in reaching that conclusion. Leave is formally granted to admit Mr Mulcahy’s evidence on the appeal.
Result
[41] The appeal is allowed. Mr Huang’s conviction on the charge of careless use
causing injury is quashed.
Solicitors:
Natalie Wham Barrister, Timaru
Raymond Donnelly & Co, Christchurch
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