Johnson v Police

[2022] NZHC 266

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2021-409-143

[2022] NZHC 266

BETWEEN

JACOB TYLER JOHNSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

10 February 2022

Appearances:

A J Bailey for Appellant

J H Whitcombe for Crown

Judgment:

24 February 2022

JUDGMENT OF MANDER J

This judgment was delivered by me on 24 February 2022 at 11 am pursuant to Rule 11.5 of the High Court Rules 2016

Registrar/Deputy Registrar Date:     .

JOHNSON v POLICE [2022] NZHC 266 [24 February 2022]

[1]    Following a Judge-alone trial in the Christchurch District Court, Mr Jacob Johnson was found guilty by Judge Large of a charge of dangerous driving.1 He appeals his conviction on the grounds the evidence was insufficient to prove any fault on his part had caused him to drive dangerously and the Judge misdirected himself as to the applicable law. Those errors, it was submitted, resulted in a miscarriage of justice.

Facts

[2]    Around 4 am on 3 October 2020, Mr Johnson crashed his motor vehicle through a fence and into a paddock after failing to stop at a T-intersection. His vehicle carried on through the junction, crashed through a gate, and collided with a tree. The vehicle’s speed at the time of the crash was estimated to be 60 kph, and the impact caused the tree to penetrate about halfway into the engine bay. Mr Johnson was not wearing a seat belt. His head impacted with the windscreen and he received large, deep lacerations to both knees as a result of contact with the dashboard.

[3]    After Mr Johnson exited the vehicle, he called emergency services. The attending paramedic described Mr Johnson as confused, with no recall of the crash. He was observed as appearing to be under the influence of alcohol or other substances, with slurred speech and dilated pupils. A blood sample taken from Mr Johnson showed that he had MDMA and tetrahydrocannabinol (THC) in his system.

[4]    Over a month after the crash, Mr Johnson was interviewed by police. He told them that he did not smoke cannabis, and suggested the THC in his blood must have come from second-hand smoke. However, he admitted consuming MDMA, although he was unable to tell police when he took it or in what quantity. Mr Johnson stated he was driving from Woodend to Ohoka and that he could not recall how he ended up on the road where he crashed. He did, however, remember waking up from sleep a split second before hitting the tree.

1      Land Transport Act 1998, s 35(1)(b).

[5]    Evidence was adduced that the crash site in Swannanoa was some three to four kilometres away from any route involving a trip from Woodend to Ohoka, which would not require travelling through Swannanoa.

District Court decision

[6]    Much of the evidence adduced before the District Court was not in dispute. It was accepted that Mr Johnson was the driver of the motor vehicle that had driven straight through the T-intersection and travelled some 50 metres into a paddock before colliding with a tree. Judge Large initially framed the issue for his determination as being whether or not Mr Johnson had fallen asleep and whether before so doing he realised, or ought to have realised, that he was so sleepy as to render it dangerous to continue driving.2

[7]    The Judge identified the police’s case as inviting him to draw the inference from Mr Johnson having ingested MDMA and the circumstances of his driving that he was so affected by a substance to a point he could have gone to sleep “not through tiredness alone”. After refining the issue to being whether an ordinary, prudent driver having ingested MDMA would then drive, Judge Large referred to Mr Johnson’s admission of having taken MDMA, and that he was found some three to four kilometres from his intended route.

[8]    The Judge accepted that, if there was no other evidence of anything other than of a person falling asleep, a driver could not be convicted of dangerous driving. However, in the present case, because of the acknowledged ingestion of a substance prior to falling asleep, the Judge found Mr Johnson had departed from the standard of an ordinary prudent driver. The Judge was satisfied the elements of the charge had been proved.

The appeal

[9]    Three grounds were identified by Mr Bailey on behalf of Mr Johnson in support of the appeal. First, that the Judge had erred in identifying the test for

2      Citing King v Police HC Rotorua AP77/01, 12 March 2002, at [7].

dangerous driving as being whether Mr Johnson had “departed from the standard of the ordinary prudent driver”, which Mr Bailey argued was the relevant standard for determining careless driving rather than dangerous driving.

[10]   Second, Mr Bailey submitted the police’s contention that the driving of a motor vehicle after ingesting MDMA was or might be dangerous to the public was wrong in law. Mr Bailey argued this was a significant error because it directly bore on the Judge’s approach to the case, when he identified the two issues for his determination as being whether Mr Johnson had fallen asleep or not, and whether an ordinary prudent driver, having ingested MDMA, would drive a vehicle.

[11]   Finally, Mr Bailey made the related submission that the Judge had not addressed the question of whether the consumption of MDMA had been causative of Mr Johnson falling asleep. In the absence of there being any proof to that effect, or any such finding, Mr Bailey submitted that Mr Johnson could not have been convicted of the charge.

The police argument

[12]   Mr Whitcombe submitted that, on the evidence available to the Judge, he was entitled to draw the inference that Mr Johnson had departed from the standard of an ordinary and prudent driver. He highlighted that Mr Johnson had taken MDMA and was three to four kilometres from his normal route home at 4 am in the morning. He identified the “fault” in Mr Johnson’s conduct was to have consumed MDMA before driving home in the early hours of the morning, when he could reasonably have been expected to be tired, and was exhibiting signs of intoxication. It could be inferred from the circumstances that Mr Johnson must have been impaired not simply from being tired.

Analysis

The applicable standard

[13]   The relevant provisions of the Land Transport Act 1988 make it an offence for a person to drive a motor vehicle in a manner which, having regard to all the

circumstances, is or might be dangerous to the public or to a person.3 To prove the offence of dangerous driving, the prosecution must demonstrate that the driving, when viewed objectively, was dangerous and that there was some fault on the part of the driver which caused that situation. The relevant standard for assessing fault is that of the competent and experienced driver, which is to be measured against the manner of the driving in the particular circumstances of the case.4 There is earlier English authority that suggests the applicable standard to be that of the “reasonable and competent driver” but that appears to have been superseded by later English and New Zealand cases.5

[14]   In the present case, Judge Large did reference the standard of a “reasonable and competent driver” which, as Mr Bailey submitted, appears to reflect the test for careless use.6 However, the Judge, from the outset of his judgment, directed himself to the need to be “satisfied beyond reasonable doubt that the driving was objectively dangerous”. While I am satisfied the correct test for fault is by reference to a competent and experienced driver, I do not consider, particularly in the circumstances of the present case, that this formulation materially differs from that of a reasonable and prudent driver. Moreover, I do not consider any misapprehension as to the applicable standard would have made any material difference to the outcome of this case.

Consumption of MDMA

[15]   The objective test of whether a person has driven a motor vehicle dangerously is not satisfied by proof of the mere fact the driver has consumed MDMA at some point prior to their journey. It does not necessarily follow, nor is it a reasonable inference to draw, in the absence of medical or expert evidence, that a person’s driving is or has been dangerous simply from the fact that they had previously consumed a drug. Many highly intoxicated drivers are apprehended who fail breath or blood

3      Land Transport Act, ss 7 and 35.

4      R v Jones [1986] 1 NZLR 1 at 3, citing R v Gosney [1971] 2 QB 674, [1971] 3 All ER 220 at 680; and as approved again in R v Seymour CA75/97, 11 June 1997; see Andrew Becroft and Geoff Hall (eds) Becroft and Hall’s Transport Law (NZ) (online ed, LexisNexis) at [LTA35.7].

5      R v Evans [1962] 3 All ER 1086; cited in Anna Longdill and others Brookers Law of Transportation (online ed, Thomson Reuters) at [LT7.05].

6      Andrew Becroft and Geoff Hall (eds), above n 4, at [LTA35.1]. See McBreen v Ministry of Transport HC Dunedin M102/82, 27 September 1982; and Love v Police [2012] NZHC 2952.

alcohol tests. They may be clearly intoxicated but do not face a charge of dangerous driving as a result of those bare facts.

[16]   However, I do not consider in the circumstances of this case there can be any issue that Mr Johnson’s driving was dangerous. The simple fact of his failure to negotiate the intersection safely and, indeed, to drive through it at speed and crash is an obvious example of dangerous driving. The issue is not whether such driving is capable of constituting dangerous driving, demonstrably it is, but whether it was the result of some causal fault on Mr Johnson’s part. The ingestion of MDMA may be relevant to proving this element of fault by establishing it formed part of the circumstances contributing to his failure to meet the standard of a competent and experienced driver, which caused the dangerous driving.

The need to identify fault in Mr Johnson having fallen asleep

[17]   In the present case, it was common ground that the cause of the immediate crash was Mr Johnson falling asleep at the wheel. The Judge accepted that was the case and that dangerous driving cannot be committed by a sleeping driver because their actions are involuntary.7 What is necessary is proof that, before the crash, the driver realised, or ought to have realised, they are struggling to remain awake and are impaired to the point they are so tired as to make it dangerous to continue driving.8

[18]   In R v Seymour, the Court of Appeal held that it was open to a jury to find the appellant breached the standard of “dangerousness” in circumstances where he fell asleep at the wheel after sleeping for only one hour after having worked all day and had remained awake until 5.30 am. He had also not eaten for 12 hours. Importantly, expert evidence was called to the effect that most people in that situation would have felt tired, and the appellant would have known he was likely to fall asleep while driving.9

7      Police v Vialle [1989] 1 NZLR 521 (CA); Kroon v R (1991) 55 SASR 476; and Jiminez v R (1992) 173 CLR 572 (HCA) cited in Andrew Becroft and Geoff Hall (eds), above n 4, at [LTA35.7(a)].

8      King v Police, above n 2, at [7].

9      R v Seymour, above n 4.

[19]   In the present case, the Court did not have the benefit of evidence either of the effect of MDMA on a driver or how a driver would be feeling, nor whether, as a result, they would have appreciated they were likely to fall asleep. The Judge did not address that issue. He relied upon the condition Mr Johnson was found in by the paramedic and other attending officers, the early morning hour at which the crash occurred at a location away from Mr Johnson’s intended route, and the consumption of MDMA to conclude he must have been affected by the drug “to a point where he could have gone to sleep not through tiredness alone”. Mr Johnson had therefore departed from, as the Judge put it, “the standard of an ordinary, prudent driver”.

[20]   Mr Bailey emphasised the need for a causal link between an identified fault and the act of dangerous driving — here, falling asleep and therefore driving a vehicle without conscious control. As I have already accepted, the deliberate ingestion of MDMA alone, at least without the benefit of expert evidence, will not establish a level of impairment that either can be acquainted with the act of dangerous driving, or, relevantly to the present case, can necessarily be linked with falling asleep. However, as the Judge noted, there are other features of Mr Johnson’s conduct that can be drawn upon.

[21]   There is the early hour of the morning, although, as Mr Bailey submitted, there was no evidence about when Mr Johnson had earlier slept, or his routine over the previous day. There was, however, evidence that he was in an impaired state immediately after the crash. When that later circumstance is combined with the fact he had unknowingly driven his vehicle along an unintended route away from or beyond his intended destination, which suggests he was in an impaired state, arguably, he should have appreciated that driving in such a condition placed himself and other road users in danger. The subsequent crash could well be viewed as the product of that impairment and therefore Mr Johnson was at fault for driving in such a condition.

[22]   The difficulty that arises, however, is that the premise of the prosecution case, and certainly the Judge’s reasoning, was the “falling asleep aspect”. It followed that  a  causative  link  needed  to  be  established  between  the  dangerous  aspect  of    Mr Johnson’s driving and an identified fault. In the absence of evidence directly addressing the effect of MDMA, in terms of causing tiredness and inducing sleepiness,

there is not the necessary causal connection between this identified “fault”, namely operating a vehicle while in a state of such tiredness that the driver is at risk of becoming unconscious at the wheel, and the dangerous act of driving relied upon here. Given the reliance on Mr Johnson having fallen asleep, as opposed to any other impairment which might otherwise have been able to be proved from his prior consumption of drugs and the condition he was found in, I do not consider the Judge’s conclusion was available to him.

Conclusion

[23]   It follows that the trial Judge erred in his assessment of the evidence and a miscarriage of justice has occurred.10 Mr Johnson’s conviction for dangerous driving must be quashed. I have given careful consideration as to whether I can or should substitute an offence of driving while under the influence of a drug to such an extent as to be incapable of having proper control.11 However, while the evidence accepted by the Judge may be capable of sustaining the elements of this offence, given the arguable need for medical or expert evidence and the lack of notice to the defendant of such a charge, I am not satisfied Mr Johnson would not be unfairly prejudiced. It was not a course suggested by the Crown and, in the absence of argument, I have decided not to do so.

[24]   In terms of disposition of the appeal, Mr Bailey submitted that, given the matter dates back to October 2020, the fact the crash involved no other person, and that Mr Johnson has already served some four and a half months of a mandatory period of six months’ disqualification, it is not necessary to direct a new trial. Having regard to those considerations, and that it is not immediately apparent the deficit in the prosecution case, namely expert evidence regarding the effect of MDMA on a driver’s consciousness, can be rectified, I direct the entry of an acquittal and make no order for a new trial.

10     Criminal Procedure Act 2011, ss 232(2)(b) and 232(4).

11     Land Transport Act 1998, s 58(1).

Result

[25]   The appeal is allowed. Mr Johnson’s conviction on the charge of dangerous driving is set aside.

Solicitors:
Crown Solicitor, Christchurch