L v Police HC Gisborne CRI 2007-416-10
[2007] NZHC 735
•2 August 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI 2007-416-000010
L
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 2 August 2007
Appearances: Appellant in person
R Collins for Crown
Judgment: 2 August 2007 at 3.30 p.m.
JUDGMENT OF VENNING J
This judgment was delivered by me on 2 August 2007 at 3.30 p.m. pursuant to Rule 540(4) of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Napier
A LeLievre, Te Puia Springs
L V NEW ZEALAND POLICE HC GIS CRI 2007-416-000010 2 August 2007
[1] On 8 March 2007 in the District Court at Gisborne the appellant was convicted before Justices of the Peace on a charge of careless use of a motor vehicle. She was fined $500, ordered to pay Court costs of $130 and directed to pay reparation of, in total, $2,999.87.
Background
[2] On 14 September 2006 the appellant was driving her Toyota motor vehicle down Nelson Road in a direction away from the intersection of Lytton Road. She turned left into Anita Grove and then executed a turning manoeuvre so that she came up to the intersection of Anita Grove with Nelson Road intending to head back on to Nelson Road in the direction from which she had come.
[3] The appellant pulled out from the intersection with Anita Grove into Nelson Road. Her car was struck by a white Nissan utility driven by Mr Graham Ross. Mr Ross was travelling along Nelson Road towards Lytton Road. Mr Ross’ car then carried on and collided with a car being driven by Mr Lewis Blight who was travelling on Nelson Road from Lytton Road towards Anita Grove.
[4] The police were called to the scene. Traffic Constable Leach attended the accident. He spoke to the appellant and the drivers of the other vehicles. He then advised the appellant she would be charged with careless use of the motor vehicle.
[5] The Justices of the Peace did not provide any detailed reasons for their decision, merely confirming that they found there was a case to answer and that the appellant was guilty as charged.
[6] The appellant applied for a rehearing on 21 March 2007 which was refused on 10 April 2007. The appellant then filed a notice of appeal on 8 May 2007 against both conviction and sentence.
[7] While the notice of appeal is filed outside the 20 day time limit provided for by s 116 of the Summary Proceedings Act 1957 it was filed within 28 days of refusal to grant the application for rehearing and in the circumstances the police do not oppose an extension of time for hearing the appeal.
Lack of reasons
[8] It is unfortunate that the Justices of the Peace did not provide brief reasons for finding against the appellant in this case. It may be that if brief reasons had been provided the appellant would not have felt the need to seek a rehearing or indeed appeal to this Court.
[9] In R v Jefferies [1999] 3 NZLR 211 the Court of Appeal had occasion to consider the scope of the High Court’s powers on appeal where sufficient reasons have not been given for the original decision. In the course of the decision the Court of Appeal observed that it was unsatisfactory reasons had not been given and noted that in the Justices of the Peace manual at the time there was a provision that:
Justices should always give reasons for their decisions, even if the reasons are brief because –
(a) The defendant wants to know, particularly if found guilty, why that decision was reached; the giving of reasons explains this and better enables justice to be seen to be done; and
(b) If either party appeals, the Judge will know why the Justices reached the decision they made, and this enables a better consideration of the merits of the appeal. In numerous appeal decisions High Court Judges have commented that the Justices gave no reason for their decision this making the task of hearing the appeal more difficult.
[10] I accept that as there is a full record from the proceeding before the Justices this Court can hear and determine the appeal on the basis of the record before it.
[11] To convict the appellant the Court has to be satisfied beyond reasonable doubt that her driving on the day constituted a failure to exercise the standard of care expected of a reasonable and prudent driver.
The standard of care required by a driver is to be viewed objectively and to be convicted a person’s conduct must fall below that of a reasonable and prudent driver. A person must drive at all times in a manner and in a speed so as to be able to deal with any situation which may reasonably confront him or her. An error of judgment may or may not amount to careless operation of a vehicle.
per MacKenzie J in Warrington v Police HC Masterton CRI 2004-435-000003, 27
April 2004 at para [9].
[12] Mr Ross, the driver of the utility, gave evidence that:
… this car just came out of, turned into Anita Grove and just came straight out and drove into the side of me.
…
basically I saw it, just coming out, hit me, out of Anita Grove.
…
I just saw it coming out and straight into the side of me.
And later:
And what happened when it hit your door?….. Oh, it knocked the back of the ute round, and I headed across the road and collided with a vehicle coming the other way.
[13] Mr Ross said that after the accident he spoke to the appellant and she said:
Where did you come from?
And he said:
Down Nelson Road.
[14] The vehicle that was hit by Mr Ross’ vehicle was driven by Mr Lewis Blight. Mr Blight gave evidence that he was heading in the same direction as the appellant’s
car and was following it down Nelson Road towards Anita Grove. He said, describing the appellant’s car:
The car came round, towards the right, it was over the white line, I couldn’t proceed through. And then from I don’t know where, a white ute came down Nelson Road, they collided and the next thing I wore the ute, that’s all I remember.
And later:
I couldn’t proceed because of the way that [the appellant’s car] came out of Anita Grove, it was already blocking my path, so I just stopped and I thought “I’m clear of this”, but ah, unfortunately I wasn’t.
[15] When asked what side of the road the utility was Mr Blight said:
He was on his correct side. I actually, from what I can recall when I think about it now, they actually met right on the white line, and then I just, suddenly I thought, this white ute is gonna wallop me real good, but he went behind me.
[16] Ms L represented herself at the hearing and gave evidence that she was looking for a park on Nelson Road but there were no parks available:
So I decided to turn into Anita Grove. I turned into Anita Grove, and went as far as the first driveway, and I did my U-turn there, and when I U-turned back around and went and stopped at the Give Way sign. I couldn’t see any cars coming from either direction, … and so I decided to protrude a bit out from the Give Way sign to see if there were any cars, but I felt it would be safe enough to pull out to have a look because there were no cars coming and all the cars were parked, so you couldn’t see how far away the cars were, and when I went to look to my right, to see how far away the cars were, they were sort of just coming off the roundabout, so that person driving that vehicle was quite a way away near the garage. And just as I was going to reverse, because there were no parks there as I looked over, and as I went to, because I was stationary, because I went to put my foot on the brake to change into reverse to wait for all those cars to go past and for a park to get into, but as I had went to look down, look down at my gear stick to put it into reverse, I had my foot on the clutch and just as I went to look up, I got clipped by the white ute, and of course it gave me such a fright, because I was a stationary car going into reverse, that my car, still in first gear, jolted forward and hit him. I’m not denying that I didn’t hit him, but I was on my side of the road, but he clipped me first, because I know I was not on that yellow line so that when anyone saw me on that yellow line, my jolt forward, when I hit him, because I wasn’t moving, ‘cos he said I was going
5 k’s, I wasn’t travelling at all. …
[17] The Court is therefore presented with a conflict between the evidence of the appellant in that her explanation was that because she couldn’t see past the parked
cars she inched out into the intersection and was stationary at the time her car was hit by the utility driven by Mr Ross. Against that Mr Ross’ evidence was that she had driven out of Anita Grove and drove into the side of his car. Mr Blight gave evidence that the appellant’s car was over the white line, so much so that he couldn’t proceed down through Nelson Road. But he did not give direct evidence about whether the appellant’s car was moving forwards and hit Mr Ross’ car or whether it was stationary as the appellant says. Mr Blight did say that the white car, the utility driven by Mr Ross was on the correct side of the road. However, significantly, the constable who spoke to the appellant following the accident recorded that she said:
I was making a turn from Anita Grove to Nelson Road, there was a white truck further down the road, I had enough room to turn, so I did. All of a sudden, he crashed into me, he was speeding as well.
[18] There was no suggestion by the appellant when spoken to by the constable immediately after the accident that she was in fact stationary when she was hit. Her statement is in fact contrary to that. It was that she had enough room to turn so she did.
[19] The appellant complained that she was not advised of her rights by the constable before he spoke to her. However, this case is similar to that of Mavumkal v Police HC AK AP138/02 24 September 2002 where a challenge was made to the admissibility of the appellant’s statement to the police constable on the grounds the appellant had not been cautioned or advised of his rights under the New Zealand Bill of Rights Act 1990. I accept the reasoning of Priestley J in that case that the situation was not prima facie one in which the New Zealand Bill of Rights Act is engaged. When speaking to the drivers of the respective vehicles the constable was investigating the accident and treating all those he spoke to as witnesses. The appellant was not charged, detained or arrested at the time she was spoken to. It was only after he had spoken to her that the constable indicated that she would be charged. The evidence of the constable is admissible.
[20] In explanation and in support of her appeal the appellant also indicated that she was looking to the right down towards Lytton Road and to where Mr Blight was. She would not have been looking further down to the left towards where Mr Ross
was coming from. That is consistent with her asking Mr Ross after the accident
“Where did you come from?”
[21] On the basis of the evidence the Justices of the Peace could properly have found beyond reasonable doubt and this Court finds also, that at the time of the accident the appellant had come through the Give Way sign on Anita Grove and was proceeding to turn right back into Nelson Road and that in doing she was careless and failed to give way to the utility driven by Mr Ross as it came down Nelson Road.
[22] The appeal against conviction must be dismissed.
[23] In terms of the appeal against sentence the maximum penalty provided is
$3,000 and a disqualification. The fine of $500 is unexceptional. In relation to reparation the appellant takes issue with the reparation of $2,749.87 in favour of Mr Blight. There were two quotes provided to the Justices of the Peace for the damage to his vehicle, one for $3,791.25 and one for $2,749.87. The Justices of the Peace took the lesser amount. The appellant suggested there was some confusion as to whether Mr Blight was insured but that appears to a reference to a box on the standard quote form. She also noted that Mr Blight’s car had been described variously as a Mitsubishi Mirage and a Mitsubishi Lancer. She accepted however that the registration number was the same in relation to both quotes.
[24] Section 12 of the Sentencing Act provides that if lawfully entitled to impose a sentence of reparation, (as it was in this case), the Court must impose reparation unless it is satisfied the sentence would result in undue hardship for the offender. The appellant did not advance any grounds in terms of undue hardship. The appeal against sentence must be dismissed.
Result
[25] The appeals against conviction and sentence are dismissed.
Venning J
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