L v Police HC Auckland CRI 2007-404-387
[2008] NZHC 2535
•27 August 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2007-404-000387
L
v
NEW ZEALAND POLICE
Hearing: 19 August 2008
Appearances: G Morison for the Appellant
J Donkin for the Respondent
Judgment: 27 August 2008
RESERVED JUDGMENT OF WYLIE J [Appeal against conviction]
This judgment was delivered by me on 27 August 2008 at 12:00 midday pursuant to Rule 540(4) of the High Court Rules
………………………………………..
Registrar/Deputy Registrar
Solicitors:
G Morison, Barrister, PO Box 2728 Shortland Street, Auckland
Meredith Connell, PO Box 2213 Auckland
LS V NEW ZEALAND POLICE HC AK CRI 2007-404-000387 27 August 2008
[1] On 3 December 2007, the appellant, Ms L , was convicted of dangerous driving under s 35(1)(b) of the Land Transport Act 1998 by Judge P I Treston in the District Court at Auckland. She was disqualified from holding or obtaining a driver’s license for a period of six months, fined $350 and ordered to pay Court costs of $130.
[2] Ms L appeals against her conviction. The notice of appeal recorded that the Judge preferred the evidence of the appellant to that of witnesses called by the respondent, but found the charge proved in light of the appellant’s own evidence. It noted that the evidence relied on was that the appellant admitted not stopping at a compulsory stop sign, and reaching a speed of approximately 65 kilometres per hour in a 50 kilometre per hour limited speed zone. The notice of appeal asserted that these acts alone do not constitute dangerous driving, and that there was no evidence of dangerous driving.
Relevant facts
[3] The information asserted that the appellant drove a motor vehicle on Newton Road, Auckland, in a manner which having regard to all the circumstances of the case might have been dangerous to the public.
[4] At 1:20 am on 1 October 2006, the appellant was driving in a westerly direction on Karangahape Road across an overbridge near Cobden Street. She dropped a cigarette lighter and pulled into a bus stop to pick it up. At the same time, a police “paddy wagon” was travelling in the opposite direction, and one of the police officers in that vehicle noticed the appellant’s vehicle.
[5] For reasons that are not altogether clear on the evidence the police officers decided to speak to the appellant. The police vehicle undertook a U-turn. As the police vehicle made the turning manoeuvre, the appellant accelerated and proceeded in a westerly direction along Karangahape Road towards the traffic signals at the intersection of Edinburgh Street and Karangahape Road. The police followed the appellant’s vehicle, and activated their red and blue flashing lights and siren. The
appellant did not see the police vehicle and did not appreciate that it was following her.
[6] As the appellant neared the intersection of Karangahape Road and Edinburgh Street, a vehicle in front of her stopped – and on her evidence began to reverse. The appellant braked heavily. She then passed the vehicle and proceeded in a westerly direction on Karangahape Road. She turned left into a smaller street known as Gundry Street. She continued down Gundry Street, turned right into Ophir Street, and then left into Newton Road.
[7] There is a compulsory stop sign at the intersection of the Ophir Street and Newton Road. At the hearing the police witnesses – Constables Walker and Veve – gave evidence that the appellant failed to stop at this stop sign. In her evidence, the appellant admitted that she had failed to stop. Her evidence was as follows:
I braked for the intersection. I’m unaware of what speed I took the intersection, I would estimate my speed to be 25 and 30 kilometres. I did not stop at for the stop sign but I slowed right down to obtain visual reference to Newton Road to see whether there was any traffic coming. There was no traffic coming down Newton Road in the direction I wished to enter so I proceeded onto Newton Road.
[8] On entering Newton Road, the appellant drove into the righthand lane, because initially she wished to turn right into a nearby motorway entrance. She accepted that she accelerated down the hill towards the motorway entrance. She did not, however, enter the motorway entrance but rather pulled into the lefthand lane and then continued along Newton Road. In cross-examination at the trial, the appellant stated that at the most, she was going 65-67 kilometres per hour on Newton Road. Newton Road has a posted 50 kilometre per hour speed limit.
[9] The appellant then changed from the righthand lane on Newton Road into the lefthand lane. She went through a set of traffic lights and then turned left into Cargill Street. By this stage she had appreciated that the police vehicle was following her. She stopped for the police. She was spoken to by the police and then arrested.
[10] The police officers at the hearing gave evidence of the appellant’s driving on Karangahape Road leading to the Edinburgh Street intersection, at the intersection itself and then when she turned left into Gundry Street, and when she turned right into Ophir Street. The appellant also gave evidence in relation to this driving.
[11] Traffic conditions in the area generally were described by Constable Walker as being moderate. He stated that vehicles were not bumper to bumper, but that there was certainly more than light traffic. He remembered other vehicles on Newton Road. Constable Veve also stated that there were other vehicles on Newton Road, and that traffic was moderate.
[12] The appellant in her evidence also referred to other vehicles which were on the roads, including Newton Road. She stated that there were cars stopped at an intersection and in the righthand lane on Newton Road leading into the motorway entrance, and that there was one vehicle travelling in the lefthand lane.
[13] The appellant through her counsel also produced a series of photographs showing the roads in question, and two street maps. It is clear that Newton Road is a four lane road with two lanes in each direction. There are a number of streets and intersections in the area in which the driving occurred. In particular, there are a number of intersections on Newton Road.
District Court Judge’s decision
[14] The Judge took the view in his written decision that it was the appellant’s journey from the time she turned left into Newton Road from Ophir Street, until she went into Cargill Street from Newton Road, that was the subject of the allegation because the information alleged that the dangerous driving occurred in Newton Road.
[15] The Judge seems to have formed this view at a relatively early stage when evidence was being given by a prosecution witness – Constable Walker. It is apparent from the transcript that this view was communicated to counsel.
[16] The Judge reviewed the evidence of the police officers, and expressed the view that on the evidence the officers were not in an ideal situation to assess the actual speed of the appellant as she travelled up Newton Road. The Judge summarised the applicable law, and then stated as follows:
While the allegation specifically relates to Newton Road I have to say that going through the stop sign is a fine line as to whether that happened in Ophir Street or Newton Road. Clearly on her own admission the [appellant] went through the stop sign. She said she looked right. There was no traffic coming so she proceeded through at a slow speed, nevertheless she did fail to stop [at] that stop sign. That is in my view on Newton Road for the purposes of this prosecution.
Furthermore she conceded that she drove up the roadway at 65 kilometres per hour or thereabouts, which is more than the posted speed limit. I do not find that was is occasioned by her endeavouring to clear the way for an enforcement vehicle with lights and siren. She did eventually stop, however, I do find that going through the stop sign and driving at 15 kilometres or thereabouts over the speed limit, even at the time in question, fell below the care or skill of a competent driver.
[17] The Judge found that the prosecution had proved the case beyond reasonable doubt and that the appellant had driven dangerously on the night in question, first by going through the stop sign, and then by travelling at a speed 15 kilometres or thereabouts in excess of the speed limit.
Approach on appeal
[18] This is an appeal against conviction under s 115 of the Summary Proceedings Act 1957. It is a general right of appeal, and it is by way of a hearing – see s 119. This Court’s powers on the appeal are outlined in s 121.
[19] As noted in cases such as Barry v Police, HC, WHG, CRI-2007-488-29,
3 April 2008 at [23] to [26], the principles applicable to general appeals of this kind have recently been considered by the Supreme Court in Austin Nicholls & Co Limited v Stichting Loadestar [2007] NZSC 103. Giving the judgment of the Court, Elias CJ at [16] noted as follows:
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.
[20] The Court of Appeal in Rae v International Insurance Brokers (Nelson Marlborough) Limited [1998] 3 NZLR 190, held that an appellate Court should not reverse a factual finding unless compelling grounds are shown for doing so. The Court noted that the ambit of any appeal on fact is very narrow, and Thomas J discussed the various pragmatic considerations which underline the deference which an appellate Court should accord to findings of fact made by a Court at first instance.
[21] These observations may now perhaps be regarded as too broadly stated. The Supreme Court in Austin Nicholls was careful to limit the deference discussed in Rae to instances where findings of fact are credibility dependent. The Court stated at [13]:
The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important.
[22] This Court on appeal from a decision of the District Court should, in my view, properly be cautious of departing from factual findings. Nevertheless, it is required to form its own opinion on the basis of all material before it. That is the approach I have applied in this case.
Analysis
[23] The appellant was convicted of dangerous driving under s 35(1)(b) of the
Land Transport Act 1998. That section relevantly provides:
35Contravention of section 7, or section 22 where no injury or death involved
(1) A person commits an offence if the person—
…
(b)Drives or causes a motor vehicle to be driven on a road at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person; or
[24] To justify a dangerous driving conviction there must be a situation which is objectively dangerous. There must also be some fault on the driver’s part which caused that situation. Fault does not necessarily involve deliberate misconduct or recklessness, or any element of moral blame. A driver can be at fault where he or she falls below the standards a competent and careful driver would exercise in the circumstances.
[25] This was the approach taken by the District Court Judge at [13] of his judgment.
[26] Mr Morison for the appellant did not challenge the Judge’s summary of the applicable law. Rather, Mr Morison submitted that it was only the evidence in respect of the appellant’s driving on Newton Road which was relevant. He argued that the compulsory stop at the intersection of Ophir Street and Newton Road was situated on Ophir Street, and not on Newton Road, and that the act of failing to stop at the stop sign could not of itself form part of the actus reus of the offence alleged in the information.
[27] Counsel for the respondent, Mr Donkin, submitted that the appellant’s failure to stop at the Ophir Street/Newton Road intersection, and then driving at or around
65 kilometres per hour on Newton Road was objectively dangerous and fell below the care or skill of a competent and experienced driver. It was argued that the admitted failure to stop at the Ophir Street/Newton Road intersection was rightly considered by Judge Treston to form part of the actus reus of the offence. He relied on the decision of Randerson J in Robinson v Police HC AK, 27 February 2001, A184/00.
[28] Robinson was an appeal against conviction. The appellant argued that the District Court Judge had erred in determining the true extent of the road on which the dangerous driving was alleged to have occurred, and that, as a consequence, he wrongly took into account driving on another road prior to the commencement of the
road referred to in the information. Randerson J observed that time and place are not generally essential elements of an offence. He referred to the Summary Proceedings Act and to relevant authorities. He concluded the correct identification of the road was not an essential element of the charge, and that s 35 of the Land Transport Act 1998 requires only that the offence take place on a roadway. Having examined the transcript, His Honour concluded that the appellant could not have been under any illusion about the nature and substance of the charge against him, and that there was nothing to suggest that he had been misled or prejudiced in his defence. He concluded this District Court Judge was entitled to take into account the manner of driving and all other relevant circumstances which were before him.
[29] In my view the same approach should have been applied in the present case, and the Judge was correct in taking into account the failure to stop at the stop sign at the intersection of Ophir Street and Newton Road. The Judge should, however, have done so on the basis that it was not essential that the failure to stop take place on Newton Road, rather than finding that it took place on Newton Road for the purposes of the prosecution.
[30] On this approach regard could also have been had to the evidence of the appellant’s driving prior to turning from Ophir Street onto Newton Road. Police witnesses gave evidence of the appellant’s driving from the time they observed her on Karangahape Road. The police constables were cross-examined on their version of these events. Similarly the appellant gave evidence in relation to all of her driving from the bus stop on Karangahape Road to Cargill Road.
[31] The Crown in its submissions on the appeal did not suggest that the driving prior to the Ophir Road/Newton Road intersection should have been considered.
[32] As I have noted above, the District Court Judge made his view clear at a relatively early stage in the course of the hearing, and I cannot dismiss the possibility that had the correct legal position been appreciated, the appellant might have given additional evidence in relation to her driving prior to the Ophir Street/Newton Road intersection, and/or that her counsel may have further cross-examined the police officers in relation to that driving, or redirected the focus of his cross-examination. I
have, therefore, excluded the earlier driving from my consideration of this appeal. I record that Mr Donkin for the Crown accepted that this was the appropriate course to take.
[33] I am, however, firmly of the view that the appellant was not under illusion that the evidence at trial was not limited to her driving on Newton Road itself, and that it included her failure to stop at the Ophir Street/Newton Road intersection. I have read the transcript; there is nothing to suggest that the appellant was misled or prejudiced in her defence, and this was accepted by Mr Morison.
[34] In my view both aspects of the appellant’s driving – namely the failure to stop at the compulsory stop sign, and her speeding – were appropriately considered as part of the actus reus of the offence, and the Judge was correct in convicting the appellant of dangerous driving under s 35(1)(b) of the Land Transport Act.
[35] It is clear from the evidence that the appellant failed to stop at the intersection of Ophir Street and Newton Road, and notwithstanding that there is a compulsory stop sign at that intersection. She went through that intersection at a speed of 25-30 kilometres per hour. It is also clear that she drove at a speed of approximately
65 kilometres per hour on Newton Road, which has a posted 50 kilometre per hour speed limit. These events occurred at night. There were other vehicles in the vicinity at the time. Moreover, the responsibility of a competent and careful driver is not just to actual other road users, but also to hypothetical members of the public who might come into the area of the appellant’s driving: see Wagg v Shaw [1962] NZLR 498, and Robinson at [28]. Newton Road is a four-lane road, and there are a number of intersections and roads running off it. There are traffic lights on the road at two relevant intersections, and there are motorway on and off ramps.
[36] Despite the submissions I have received from Mr Morison, in my view a competent and careful driver would not, in the circumstances, have travelled through a stop sign at a speed of between 25 and 30 kilometres per hour and exceeded the speed limit by some 15 kilometres per hour.
[37] In my view, the evidence established that there was a reasonable likelihood of danger to persons who were, and who might reasonably have been expected to be, on Newton Road at the time. The situation was objectively dangerous and the appellant’s driving fell below the standard of a competent and careful driver.
[38] The conviction is confirmed and the appeal is dismissed. The appellant is disqualified from holding or obtaining a driver’s licence for a period of six months as from midnight on the date of release of this judgment, and the fine and costs order
imposed by the District Court are confirmed.
Wylie J
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