Kingsley v Police

[2016] NZHC 1304

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000017 [2016] NZHC 1304

BETWEEN

DAVID LUC KINGSLEY

Appellant

AND

NEW ZEALAND POLICE Defendant

Hearing:	14 June 2016
Appearances:	T J Mackenzie for Appellant AMS Williams for Respondent
Judgment:	16 June 2016

JUDGMENT OF GENDALL J

Introduction

[1]      The appellant appeals against both conviction and sentence in the District

Court on one charge of failing to stop and ascertain injury.

Background

[2]      On 26 November 2013, the appellant was driving a DAF truck towing a trailer  fully  laden  with  vehicles  (weighing  in  excess  of  30  tonnes)  south  on State Highway 1.   The appellant entered a moderate left-hand bend and his trailer travelled across the centreline of the roadway.   The rear of the appellant’s trailer collided with the side-door mirror of a fuel tanker driven north by the complainant, forcing the mirror back and through the driver’s door window.  The complainant was showered with glass. The appellant’s trailer then scraped along the side of the truck,

puncturing the top of the fuel tank.

KINGSLEY v NEW ZEALAND POLICE [2016] NZHC 1304 [16 June 2016]

[3]      The  appellant  initially  slowed  after  the  contact  but  did  not  stop.    He continued to drive for 600 metres at which point he stopped in a rest area some distance away and out of sight of the location of the collision and the other vehicle. Then, the appellant telephoned his employer and after approximately five minutes, decided to continue driving.  He did not walk back to the scene of the incident to check on damage to the other vehicle involved or injury to any occupants of that vehicle.

[4]      As a result of the accident, the complainant sustained a sprain of the cervical spine, a small laceration to the back of the head and a sprain to his chest and rib. The appellant was subsequently charged with careless driving causing injury and failing to ascertain injury.   The appellant pleaded guilty to the charge of careless driving causing injury.  He was disqualified from driving for six months.

[5]      The failing to stop and ascertain injury charge went to a defended hearing.  In a reserved decision on 15 October 2015, Judge O’Driscoll found the charge proved against the appellant.  Judge O’Driscoll then sentenced the appellant to 150 hours’ community work and he imposed a 12 month disqualification period on the appellant backdated to the date of an initial six month disqualification imposed for the careless driving causing injury charge.

Submissions

[6]      The following grounds of appeal relating to his conviction are advanced by the appellant here:

(a)      The learned judge erred  in law by conflating the appellant’s later acquired knowledge of the accident with the appellant’s knowledge at the time in not returning to the accident.

(b)The learned judge was wrong to reject the reasons advanced by the appellant on the basis that they were not advanced at the time of the incident.

(c)       The  Judge  erred  in  finding  that  the  police  had  proven  that  the appellant did not have a reasonable excuse

[7]      And, on his appeal against sentence, the appellant submits that 150 hours community work was manifestly excessive, given the circumstances of the offending and the personal mitigating factors of the appellant.

Appeal against conviction

[8]      Section 229 of the Criminal Procedure Act 2011 (the Act) provides a right of appeal against conviction.  In accordance with ss 232(2)(b) and (c) of the Act, the Court must allow the appeal in the case of a Judge-alone trial if it is satisfied that a miscarriage of justice occurred because the Judge erred in his or her assessment of the evidence or for any other reason.

[9]      Section  232(4)  of  the Act  defines  a  miscarriage  of  justice  as  any  error, irregularity or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or that has resulted in an unfair trial or a trial that was a nullity.

First ground:

[10]     The appellant submits that the trial judge erred in law by assessing whether the appellant had reasonable excuse not to return to the scene of the collision to ascertain injury on a retrospective assessment of the damage and injury after the incident.  The appellant maintains that the Judge failed to consider, when analysing whether the appellant had reasonable excuse, what knowledge the appellant had at the time of the offending.   Counsel for the appellant refers to Judge O’Driscoll’s

decision, in which his Honour held:1

The defendant was involved, in what I would describe as a “significant” accident. The defendant’s vehicle is one of the largest vehicles that can travel on the road. It is 23 meters long, and when fully loaded, has a weight to be in the vicinity of 38 tonnes.

[11]     The  appellant  suggests  that  the  conclusion  that  this  was  a  “significant accident” reached by the Judge was made with the benefit of photographs of the damage.  However, it is submitted that the appellant did not have this knowledge at the time of the incident.

[12]     The appellant further submits that the judge was incorrect in law when his Honour stated that there was no issue as to the appellant’s mens rea here.   The appellant  submits  that his  lack  of knowledge  of the extent  of the incident  is  a relevant point to consider in assessing reasonable excuse.   The assessment of reasonable excuse requires an assessment of all the surrounding circumstances, one of them being what is claimed by the appellant that he did not know at the time the extent of the damage and the injury that had occurred.  The appellant submits that this  knowledge  should  have  been  taken  into  account  when  considering  the appellant’s decision not to return.

[13]     At this point, however, I need to say that in my view there is no merit in the appellant’s submission on these aspects.   The purpose of s 36(1)(c) of the Land Transport Act 1998 relates to issues of safety and protection of a person injured. This is to ensure they are not left after a collision in an injured condition and further

that they might run the risk of further injury by reason of being unattended to.2   It is

therefore contrary to the exact purpose of the provision to allow what is said to be the appellant’s lack of knowledge on the extent of the damage and injuries sustained to exonerate him here.  In other words, it is because of this lack of knowledge that a duty is imposed on the appellant to stop and ascertain any potential damage or injuries arising from the incident.

[14]     Furthermore, Judge O’Driscoll’s observation of the crash being “significant” in my judgment was not made with the benefit of hindsight.  His Honour was simply highlighting the fact that it was not reasonable that the driver of an extremely large and heavy truck, which the appellant knew and acknowledged at significant speed had collided with another large truck unit on a State Highway, should conclude that he did not need to stop and go back to ascertain whether anyone was injured.

[15]     Judge O’Driscoll’s statement that there is “no issue of mens rea” as I see it was essentially referring only to the fact that a lack of knowledge of the crash had not been raised as a defence by the appellant.  Judge O’Driscoll was not suggesting that mens rea was not an element of the offence.3

Second ground

[16]     At [72] of Judge O’Driscoll’s decision, he rejected what might be seen here as the appellant’s “excuses” for not returning to the scene of the collision, stating:

It is evident from what I have said that I do not accept the defendant’s evidence providing his reasons for not returning to the crash scene. The reasons were not advanced to Constable Hooykaas when the defendant was interviewed. They are self-serving statements given nearly two years later by the defendant to justify why he did not go back to the crash scene.

[17]    The appellant submits that the Judge erred in law by not accepting the defendant’s reasonable excuse given on a later date. Counsel refers the Court to section 32 of the Evidence Act which prohibits anyone from inviting the fact-finder to draw an inference that the defendant is guilty from a failure to give evidence. This section protects a person’s rights under s 23 of the New Zealand Bill of Rights Act 1990 which guarantees the right to refrain from making any statement.  While there may be issues as to whether s 23 extends to prohibit the fact finder from drawing inferences from a defendant’s silence, as I see the position, this is an issue for another day.

[18]     Counsel, in my view, to an extent has quoted the passage out of context and is mistaken about Judge O’Driscoll’s reasoning. In the later part of [72], Judge O’Driscoll held:

I place considerable weight on what the defendant told the Constable shortly after the crash. In any event, the excuses and explanations advanced now by the defendant are not in my view reasonable, particularly taking into account the potential consequence of a collision involving two large commercial vehicles colliding from opposite directions at speed.

3      As counsel for the Crown has pointed out, mens rea is an essential ingredient of the offence.

Where a driver is unaware that an accident had occurred, he or she commits no offence by failing to stop.  See: Harding v Police [1948] 1 KB 695, where the driver was unaware that his trailer had collided with another vehicle because of the noise of his vehicle.

[19]     There is also no merit to counsel’s submission.  The Judge’s comment was not advanced in reference to the appellant’s silence.   But rather, the Judge was questioning the veracity of the defendant’s “excuses” given a year after the incident.

Third Ground

[20]     The appellant in this ground maintains that the Judge has erred in failing to consider the cumulative effect of all the “excuses” raised by the appellant.  Counsel for the appellant submits that the Judge erred in his approach in that His Honour chose  to  approach  each  fact  individually.    The  appellant  contends  the  proper approach required Judge O’Driscoll to consider the “excuses” cumulatively.     He goes on to suggest also that it was improper for the Judge to take into account what witnesses may have done here as being what a reasonable person would do in the circumstances of this case.

[21]     In  my  view,  however,  there  is  also  no  merit  in  these  arguments  here. Judge O’Driscoll,  as  I  see  it,  was  entitled  to  take  into  consideration  witnesses’ accounts of the incident when assessing what was reasonable in the circumstances of this case. The witnesses were Mr Vosper and Mr Watts.    As I understand it, they were driving behind the victim’s truck at the time of the incident.  After the collision happened, Mr Watts was told by Mr Vosper to travel along the road to see if he could see the appellant’s vehicle.  It took only about five minutes, he said, for Mr Watts to safely walk to the layby.   Under examination, Mr Watt’s evidence was that there were very few vehicles on the road at the time and the visibility was good.

[22]   Judge O’Driscoll was not holding the witnesses’ account as the sole determinants of what a reasonable person would do.   His Honour, it seems, was simply accepting the witnesses’ evidence as to assessing the state of the road at the time, the traffic upon it, the length of time it took to walk between the two vehicles and any other relevant circumstances.   Factors associated in the collision involving two large trucks at speed, no doubt noisily making contact to such an extent that the appellant knew a crash had occurred, were no doubt influential for Judge O’Driscoll.

[23]     There is also no requirement, as I see the position, for the Judge to consider the  “reasonable  excuses”  advanced  cumulatively  or  on  an  individual  basis.

Requiring such an approach would only potentially encourage a practice of offenders listing as many excuses as they can think of, hoping that the cumulative effect might satisfy the statutory threshold of “reasonable excuse” for failing to stop.   In the circumstances of this case, in my view, it was entirely proper for Judge O’Driscoll to hold that on all the evidence before him no “reasonable excuse” had been raised to a point that it was even open to justify the appellant “not stopping and ascertaining injury”.  As mentioned above, the vehicle the appellant was driving was large and heavy, and it collided with another truck at high speed.  I am satisfied too, like Judge O’Driscoll, that the accepted reasons put forward by the appellant were insufficient to reach the threshold test of whether a reasonable person in all the circumstances would consider a reasonable excuse existed for the appellant’s failure to “stop and ascertain injury” here.

[24]     The appeal against conviction is therefore dismissed

Appeal against sentence

[25]     The Court must only allow an appeal against sentence if it is satisfied that there has been an error in the sentence imposed, and that a different sentence should be imposed.  In Tutakangahau v R, the Court of Appeal confirmed that while s 250 does make no specific reference to sentences first being “manifestly excessive”, the Criminal  Procedure  Act  2011  was  not  intended  to  amend  the  well-engrained approach taken by previous courts on sentence appeals.4

[26]     A sentence  will  only  be  manifestly  excessive  if  it  can  be  shown  to  be substantially or significantly more severe than it ought to have been in light of the seriousness of the offence and the culpability of the offender.  The focus is on the correctness of the end result, and not the process by which the sentence was reached.

In Larkin v Ministry of Social Development, Toogood J held:5

The High Court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is manifestly excessive is to be examined in terms of the sentence given, rather than by the process by which the sentence is reached.

4      Tutakangahau v R [2014] NZCA 279 at [35].

5      Larkin v MSD [2015] NZHC 680 at [26].

[27]     The charge of failing to stop and ascertain injury carries a maximum penalty of five years’ imprisonment and a fine not exceeding $20,000, since the victim was injured.6   The seriousness of this charge has commonly attracted sentences of home detention and imprisonment.7   Counsel for the appellant referred me to the decision in Simon v Police where he said that in far more serious circumstances the High

Court upheld a sentence of 225 hours of community work, nine months’ disqualification, nine months’ supervision, and reparation, imposed on two convictions of careless driving, one for failing to give a blood sample and one for failing to stop and ascertain injury.8   What seems clear, however, is that in Simon the charge of failing to stop and ascertain injury fell under s 35(1)(c) of the Land Transport Act 1998 (as no death or injury was involved) and therefore carries as maximum penalty of three months’ imprisonment and a fine not exceeding $4500. The present charge in this case of failing to stop and ascertain injury falls under s 36(1)(c) of the Act (as injury was involved) and therefore carries a maximum

penalty of five years’ imprisonment and a fine not exceeding $20,000.  A reasonable argument exists therefore that in fact Simon would support an indication that the sentence of 150 hours’ community work imposed in the present case was a lenient one.

[28]     Given this and taking into account the circumstances in this case and the other decisions to which I have referred, I am satisfied that the sentence of 150 hours’  community  work  was  available  to  Judge  O’Driscoll  and  could  not  be described here as manifestly excessive.

Result

[29]     The appeals against conviction and sentence are therefore dismissed.

...................................................

Gendall J

6      Land Transport Act 1998, s 36(1)(c).

7      See for example: Samuel v Police HC Whangarei CRI-205-488-29, 8 June 2005; R v Hoskin HC Wanganui CRI-2010-083-2713, 9 May 2011; Dalliessi v Police [2014] NZHC 1136.

8      Simon v Police [2012] NZHC 2610.

Solicitors:

Tim Mackenzie, Christchurch

Raymond Donnelly & Co, Christchurch