L v Police HC Auckland CRI 2006-404-215

[2006] NZHC 1146

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-215

BETWEEN  L

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         29 September 2006

Appearances: R Wood for the Appellant

N F Flanagan for the Respondent

Judgment:      29 September 2006

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:

Richard S Wood, PO Box 6422, Wellesley Street, Auckland

Crown Solicitor, PO Box 2213, Auckland

L V POLICE HC AK CRI 2006-404-215  29 September 2006

Introduction

[1]      The  appellant  was  convicted  of  careless  use  of  a  motor  vehicle  in contravention of s 37(1) of the Land Transport Act 1988.  She was fined $300 and ordered to pay court costs and witnesses’ expenses.

Background

[2]      The prosecution was brought following an accident at the intersection of Mt Albert Road and Waite Avenue in Mt Roskill. A vehicle driven by Paul Tuafoe was stationary in the median strip of Mt Albert Road waiting to turn right into Waite Avenue when his vehicle was hit from behind by a car driven by Warren Whiteford. Immediately before the collision, Mr Whiteford’s car had stopped some 3 metres behind Mr Tuafoe’s car.  Mr Whiteford’s car was shunted into Mr Tuafoe’s car when it was hit from behind by a third car driven by a Aimen Zidon.  The impact of that collision  must  have  considerable  because  it  resulted  in  Mr  Whiteford’s  and Mr Tuafoe’s cars being propelled some 7 metres from the point of impact.

[3]      Mr Whiteford said in evidence that he was travelling in an easterly direction along Mt Albert Road and was forced to stop behind Mr Tuafoe’s car because a car driven by the appellant, which had been parked on the left-hand side of Mt Albert Road, moved in front of him and obstructed his line of travel. He said he could not proceed because the gap between the appellant’s car and that of Mr Tuafoe was too narrow to permit him to pass.

[4]      It is not in dispute that Mr Zidon’s driving was the instrumental cause of the collision. He was obviously driving too fast and too close to Mr Whiteford, who said in evidence that Mr Zidon had been “tailgating” him as he drove along Mt Albert Road.  It is equally clear that the appellant’s driving was causative of the accident in the sense that her manoeuvre caused Mr Whiteford to stop behind Mr Tuafoe’s car. However, she maintained that she had only “nosed out” slightly from her parking place in order to obtain a clear view of cars approaching from behind.  She denied

moving into the line of travel of Mr Whiteford’s car.  Whether her driving fell below the standard expected of a reasonably prudent driver is therefore crucially dependent on how far she had moved her car from its parked position immediately prior to the accident.

Justices’ decision

[5]      After reviewing the evidence of Mr Tuafoe and Mr Whiteford (Mr Zidon did not  give  evidence),  the  Justices  referred  to  the  appellant’s  evidence.    She  had provided a written brief of evidence in which she said:  “I nosed out slightly to get a better view”, and “I had slightly nosed out without stopping traffic passing by”.  The Justices in their decision contrasted this with a statement given to a Police Constable some 3½ months after the incident in which the appellant said she had not moved from the parking lane at the time of the collision.

[6]      The  Justices  identified  the  critical  issue  as  where  responsibility  for  the accident  lay. They said  they had  no  reason  to  doubt  Mr  Whiteford’s  evidence, confirmed by the appellant herself, that she had made a manoeuvre.  They went on to say at para 12:

We have to decide the degree of the manoeuvre bearing in mind the weather conditions and the response that any normal ordinary driver would make to that manoeuvre when driving along the road.

And at para 14:

What caused those two vehicles in the weather conditions, the time of the day, to make that right manoeuvre which caused this problem?

[7]      Their  answer  to  that  question  and  their  essential  findings  are  set  out  in paras [15]-[17], which read as follows:

[15]      There is no irrefutable evidence that you were right in the middle of the road but there is clear evidence, supported by your own statement, that you did make a manoeuvre out into the traffic, and I have to suggest to you also that you had a rear vision mirror in your car, that you could well have seen the traffic coming up behind you without having to make that (in your own words “I nosed out slightly”) manoeuvre.  The rules regarding this are very clear “that you cannot move out into traffic until the road is clear.”  At that time of night all cars would have had their lights on.  They would have

reflected in your rear vision mirror and in your wing mirror, and you should have used those facilities to ascertain that the road was clear before making that manoeuvre.

[16]     Finally, I am quite sure that the reason for this was a natural driver reaction, when driving along this road and suddenly seeing on your left a vehicle attempting to move or starting to move out into your path that you would  automatically  try  and  avoid  it  by  moving  to  the  right,  and  the evidence is quite clear as to what happened from that point on.

[17]     So Ms L  , on the evidence before the Court, I find this charge proven.

Appellant’s submissions

[8]      Mr Wood was critical of the reliance placed by the Justices on the statement made by the appellant, taken so long after an accident which did not directly involve her. He was also critical of their receiving in evidence a diagram prepared by the officer who attended the scene but who did not give evidence.  However, the main thrust of his submission was that the prosecution evidence left open the reasonable possibility that the appellant had not driven so as to prevent following cars from passing.

[9]      Mr Wood relied on Mr Tuafoe’s evidence.  He said he had driven past the appellant before positioning himself in the median strip preparatory to making the right hand turn.  He said the appellant had started to nose out from a parked position but had stopped before pulling out.   He also said that immediately following the accident the appellant’s car was still parked by the side of Mt Albert Road.

[10]   Mr Wood also pointed to what he described as inconsistencies in Mr Whiteford’s evidence.  He relied on an acknowledgement from Mr Whiteford that he had first seen the appellant’s car slightly edging out from a parked position when he was some 15 metres away.  He said it had just started moving.  He confirmed that he was in a position to stop within half the clear roadway in front of him and was in fact successful in coming to a halt some 3 metres behind Mr Tuafoe’s car.

[11]     Mr Wood argued that a prima facie case of carelessness may be rebutted by pointing to another reasonable hypothesis which is inconsistent with negligence.  He

argued that the features of the prosecution evidence I have referred to left open the reasonable possibility that, as the appellant herself maintained, she had not pulled out into the line of travel of Mr Whiteford’s car and the Justices were wrong to find she had done so.

Crown response

[12]     Mr Flannagan, in his admirably focused and succinct submissions, relied on what he described as the unequivocal evidence of Mr Whiteford that he was forced to take evasive action by the appellant pulling out in front of him.   He said the Justices  were  entitled  to  accept  his  evidence  and  this  Court  should  be  slow  to overturn their factual finding, which was based in part on their assessment of his credibility.   He maintained that Mr Whiteford would have had no reason to take evasive action if the appellant had not pulled out in front of him.  He submitted that if the appellant’s version of events were correct, Mr Whiteford may have taken evasive action but he would not have needed to stop.  He said the car driven by Mr Zidon similarly could have passed safely if the road had not been blocked by the appellant’s car.

Discussion

[13]     Counsel have correctly identified as the critical issue whether or not the appellant moved into the line of travel of Mr Whiteford’s car.   Unfortunately, however, on my reading of the decision, the Justices never finally determined that issue.  That is because they focused on the issue of whether the appellant’s driving caused the following cars to deviate into the centre lane.  There is no doubt that it did, but that does not establish that the appellant drove carelessly.

[14]     The critical factual issue is how far the appellant’s car moved from a parked position. If she had simply nosed out, as she said she did, in my view she could not have been guilty of careless driving. The incident occurred at night when it was raining.   Visibility would have been poor.   I consider a prudent driver may be entitled, in those conditions, to move slightly out from a parked position to get a

better view of approaching traffic, provided, of course, their vehicle does not move into the line of travel of approaching vehicles. I did not understand Mr Flanagan to take issue with this proposition.

[15]     Mr Whiteford’s evidence and his actions strongly suggest the appellant did move into his line of travel.  But it seems to me at least reasonably possible that he saw her manoeuvre as suggesting an intention to move out into the driving lane and he drove into the centre lane in anticipation of that occurring.  As the appellant was parked only a short distance from where Mr Tuafoe was waiting, ready to turn, this would have left Mr Whiteford with no alternative but to stop behind Mr Toafoe’s car in the centre lane.   Because Mr Zidon’s car was travelling at speed and had been tailgating Mr Whiteford, it cannot safely be concluded that the reason he collided with Mr Whiteford was because there was no available route to proceed to his left.

[16]     On my reading of the decision, the Justices appear not to have excluded, nor have sought to exclude, the possibility that Mr Whiteford’s manoeuvre into the centre lane occurred merely as a result of his apprehension that the appellant was going to move into his line of travel.   At para [14] of the judgment (quoted in para [6] above) they asked the question what caused the two vehicles “to make that right manoeuvre which caused this problem”.  Their answer was:

And I have to tell you that it is our view that that was caused by your manoeuvre no matter how minor that may have been. [Emphasis added.]

[17]     It is true that they went on in paragraph 15 to say there was clear evidence that the appellant made a manoeuvre out into the traffic, but they relied in part on the appellant’s own statement – plainly referring to her brief of evidence – which said that she only “nosed out”.  And in paragraph 16 of their decision, they again leave open the possibility that the manoeuvre of the other vehicles to the right could have been caused by the appellant’s vehicle “attempting to move or starting to move out” into the path of the other cars.

[18]     The Justices did not reject the appellant’s version of events.  They took the view that even if her account was right, she was careless.  That was an error.  If the

appellant had “nosed out” to get a better view and had not moved into the line of travel of following cars, she did not drive carelessly.

[19]     As the Justices’ findings do not exclude the reasonable possibility that the appellant did not drive carelessly, their verdict cannot stand.

Result

[20]     The appeal is allowed.  The appellant’s conviction is quashed.