Kydd v Police - [2012] NZHC 1969

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000042 [2012] NZHC 1969

PETER ANDREW KYDD
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing: 19 July 2012

Appearances: A G James for the Appellant
A Raj for the Respondent

Judgment: 7 August 2012

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1] Mr Kydd was charged in the District Court with careless use of a motor vehicle causing injury, contrary to s 38 Land Transport Act 1998.

[2] The charge arose out of a collision between the truck he was driving and a motorcycle.

[3] Mr Kydd defended the charge but, following a hearing, was found guilty. The Judge sentenced him to 200 hours community work, ordered him to pay reparation of $2000 for emotional harm and disqualified him from driving for
10 months.

KYDD V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000042 [7 August 2012]

[4] He now appeals both his conviction and sentence.

Appeal against conviction

The hearing in the District Court

[5] At the hearing, the evidence established that the collision occurred when Mr Kydd was undertaking a U-turn manoeuvre in Worcester Street, Christchurch, the motorcyclist having entered Worcester Street behind him via a left hand turn from Norwich Street.

[6] The collision occurred 63.5 metres from the Norwich Street corner, the motorcycle striking Mr Kydd’s truck on the rear of the right front wheel arch. There was an 8 metre skid mark, located on the road 5.1 metres out from the kerb.

[7] The evidence further established that Mr Kydd left the scene of the accident before the police arrived and was unable to be located. He subsequently made a voluntary appearance at a police station[1] and underwent a video interview.

[1] The transcript suggests this occurred over three weeks after the accident, although Mr Kydd claimed otherwise at the appeal hearing.

[8] For his part, the motorcyclist could not remember anything of the accident. He was very seriously injured and his motorcycle extensively damaged.

[9] Both the prosecution and defence adduced expert evidence as to the cause of the accident.

[10] The police expert estimated the pre-braking speed of the motorcycle was between 41.7 and 53.6 kilometres per hour. In the officer’s opinion, the motorcyclist would have been well within Mr Kydd’s line of vision had the latter properly checked behind him. The motorcyclist should have been visible for up to five
seconds prior to commencement of the U-turn.

[11] The defence did not dispute that the motorcycle was in its correct position on the road. However, Mr Kydd argued that because he had checked before commencing his U-turn and never saw the motorbike, the motorcyclist must have been travelling too fast.

[12] Mr Kydd’s evidence to that effect was supported by an engineer specialising in accident reconstruction. Dr Stevenson testified that the police calculations of speed were flawed, and that a likely travel speed range of the motorcyclist prior to braking was 38.6 to 66.4 kilometres per hour.

[13] Dr Stevenson’s conclusion was that if the motorcyclist…

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.

Continue reading Kydd v Police

Details

AGLC: Kydd v Police [2012] NZHC 1969
Case: [2012] NZHC 1969
Decision Date: 7 August 2012

CaseChat Overview and Summary

The appellant, Mr Kydd, was found guilty in the District Court of careless use of a motor vehicle causing injury, and was sentenced to 200 hours of community work, a payment of $2000 in reparation for emotional harm, and a 10-month driving ban. He appeals both his conviction and sentence. The court found that the appellant's arguments against his conviction were unconvincing. The court held that the appellant had not properly checked behind him when undertaking a U-turn, and that a careful and prudent driver would have checked over their shoulder to ensure absolutely there was nothing there before commencing their turn. The court also held that there was no reasonable alternative explanation for the motorcyclist's taking no avoidance action, other than the police version of events. The court found that the sentence was within range, and was not manifestly excessive.

The appeals against conviction and sentence are both dismissed.

Orders