Le Strange v Police

[2013] NZHC 1049

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2013-412-0005 [2013] NZHC 1049

BETWEEN  DEREK ANTHONY LE STRANGE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         9 May 2013

Counsel:         D A Le Strange, in person, Appellant

M J Grills for Respondent

Judgment:      10 May 2013

JUDGMENT OF HEATH J

This judgment was delivered by me on 10 May 2013 at 4.00pm pursuant to Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:
Crown Solicitor, PO Box 803, Dunedin
Copy to:

Mr Le Strange, Appellant

LE STRANGE V NEW ZEALAND POLICE HC DUN CRI 2013-412-0005 [10 May 2013]

Introduction

[1]      Following a defended hearing in the District Court at Dunedin on 29 January

2013, Mr Le Strange was convicted on two charges of careless use of a motor vehicle causing injury.  He was sentenced to pay reparation to the victims and was disqualified from holding or obtaining a driver licence for a period of nine months.

[2]      Mr Le Strange appeals against his conviction.  In general terms, his position is that the evidence was not sufficient for the Police to prove the charges beyond reasonable doubt.  There is no challenge to the sentence imposed, if the conviction appeal were unsuccessful.

Background

[3]      On  17  March  2012,  Mr  Le  Strange  was  driving  his  van  in  a  northerly direction along State Highway 1, in the direction of Timaru.  At some point on his journey, he picked up two hitchhikers, a brother and sister.  While talking to the hitchhikers, he realised he had gone past the Waitati Store, at which he was to paint an Easter bunny on its window.  Mr Le Strange stopped his vehicle and asked his passengers if they minded if he turned back to do the job at the store. They agreed.

[4]      Mr Le Strange pulled over on the left hand side of the State Highway.  He says that his vehicle was stationary at that point, for a period of some five minutes, I suspect that estimate of time is overstated.  He then undertook a u-turn manoeuvre, with the intention of driving back in a southerly direction to the Waitati Store.  Mr Le Strange told a police constable, a few days later, that he could see “100 metres either way” but that “there was a blind spot due to [a] S bend” in the road.

[5]      Mr Le Strange gave evidence that he looked right, left and right again before commencing the u-turn manoeuvre.  He did not see anything coming towards him as he moved out from the roadside.  However, as he was moving towards the southerly lane, he saw a truck driving towards him.  The photographs indicate that the truck was a large articulated vehicle, with a trailer.

[6]      In neutral terms, the truck struck Mr Le Strange’s vehicle in the area of the side door on its right hand side.  Both of the two hitchhikers were injured as a result of the collision.  The female hitchhiker went to hospital in Dunedin and was under observation to ensure she had no serious abdominal injuries.  The injuries suffered by the male hitchhiker were less serious.

Analysis

[7]      There  was  a  conflict  in  the  evidence  about  what  happened  after  Mr  Le Strange’s vehicle began to pull out from the roadside.  Mr Le Strange said that he saw no traffic approaching but, while completing the u-turn as he was entering into the southbound lane, he saw the approaching truck, travelling northwards but in the southbound lane.  He considered that it was too late to take any evasive action.  The driver of the truck braked, but was unable to stop before impact.

[8]      Evidence was given by the driver of the truck, Mr Souter, and an independent witness, Mr Coatham, who was driving a vehicle behind the truck.  Mr Souter’s evidence, broadly corroborated by Mr Coatham, was that he had driven around a corner at around the recommended speed of 65km/h and then accelerated to something in the order of 75 km/h as he entered the straight. About that time, he saw Mr Le Strange’s van some 50–60 metres in front of him, in a stationary position.  Mr Souter saw that Mr Le Strange had operated indicators to show he was turning to the right.

[9]      Mr Souter believed that the speed at impact was about 50km/h.   Mr Le Strange’s evidence was that the truck was travelling, at impact, at about 1km/h.  Mr Le Strange believes that the truck deliberately shunted the van along the road after they collided.

[10]     At first instance, Judge Crosbie accepted the evidence of Mr Souter and Mr Coatham,  in  preference  to  that  of  Mr  Le  Strange.    The  Judge  rejected  Mr  Le Strange’s evidence because it was “inconsistent with the evidence of the two [other]

witnesses”.1    The Judge observed that Mr Le Strange, who was acting on his own behalf, had not put to either of the witnesses that they were lying.  The Judge thought that Mr Le Strange was affected physically and emotionally by the accident and that made his evidence unreliable.

[11]     The critical finding made by the Judge related to Mr Le Strange’s decision to

undertake a u-turn on the State Highway.  Judge Crosbie said:

[25]      What has occurred, in my view, as a matter of fact and consistent with the evidence of the two witnesses that I have heard, is that Mr Le Strange, thinking that the way was clear, has erroneously signalled to do a right-hand turn, has failed to account for a truck coming well within the speed limit towards him and has failed to clear the northbound lane.  Even if I am wrong and he was stationary partly in the southbound lane, Mr Souter had no alternative but to take evasive action because Mr Le Strange would still have been partly in the wrong lane.

[26]     In my view, because of taking this action without checking that the way was clear Mr Le Strange has fallen below the standard of a reasonably prudent driver, has driven carelessly causing the injuries to [the two hitchhikers] and I find both charges proven to the standard of beyond reasonable doubt.

[12]    Mr Le Strange’s submission on appeal reflected the evidence he had given before the District Court.  He relied extensively on photographic evidence that was before that Court.

[13]     I accept that the nature of the impact of a large articulated truck into a relatively small van depicted in the photographs is not wholly consistent with the damage one would expect if the truck were actually travelling at 50km/h at the time of impact.  Nevertheless, it is clear that the truck must have been travelling at more than 1km/h.

[14]     The likelihood is that the driver of the truck, having braked, reduced the speed of the truck considerably but, at impact it was still going fast enough to cause an indentation in the right hand side of the vehicle and to shunt it along the road for some distance.  The differing accounts can be explained by the speed at which events

unfolded and the need for honest people to reconstruct events as best they can when

1      Police v Le Strange DC Dunedin CRI 2012-012-1470, 29 January 2013 (Judge Crosbie) at para

[23].

giving evidence.  That view is also supported by the evidence of Constable Turner, a member of the Strategic Traffic Unit in Dunedin.  She gave evidence of unobstructed visibility for a minimum of 230 metres from the area of the impact to the south.  If a vehicle were travelling at 80km/h for that distance it would take just over 10 seconds to do so.   That evidence indicates that the witness had very little time to react to events as they unfolded.   Plainly, that impacts on their ability to recall events accurately.

[15]    Nothing in the transcript of the notes of evidence suggests that any of the witnesses (including Mr Le Strange) were lying.   The conflicts in evidence are readily explicable by reference to honest but mistaken recollection.

[16]     Mr Le Strange was particularly aggrieved about the finding that the truck was travelling at something in the order of 50km/h at impact.   I have explained why I would tend to treat the evidence on that topic, and therefore the Judge’s finding, with caution.  If that were the critical issue, there would be room to argue that it would be unsafe to rely on oral evidence, when it is measured against that of a photographic nature.

[17]     Mr Le Strange’s difficulty is that the alleged carelessness arose out of the way in  which  he conducted his  manoeuvre.    It  was  open  to  the Judge,  on  the evidence, to find that Mr Le Strange was mistaken in his recollection that the truck was travelling north in the southbound lane when he first saw it.  That evidence that was inconsistent with that given by Mr Souter and Mr Coatham.  The evidence supports the Judge’s finding that the truck was there to be seen when the manoeuvre began.  Mr Le Strange either did not see the truck coming, or misjudged the time available to complete the manoeuvre.

[18]    The standard of care required of a driver is measured against that of the (hypothetical) reasonable and prudent driver.  On the evidence, Judge Crosbie was entitled to find that Mr Le Strange’s driving fell below that standard.  There being no dispute that injuries were caused as a result of the collision, Mr Le Strange was properly convicted on the two charges of careless use of a motor vehicle causing injury.

Result

[19]     For those reasons, the appeal against conviction is dismissed.

P R Heath J

Delivered at 4.00pm on 10 May 2013