Lord v Police
[2022] NZHC 1103
•19 May 2022
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2022-454-4
[2022] NZHC 1103
BETWEEN MATTHEW TOMAS LORD
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 18 May 2022 Appearances:
P L Murray for the Appellant
A M Barham for the Respondent
Judgment:
19 May 2022
JUDGMENT OF PALMER J
Solicitors
Paul Murray Barrister & Solicitor, Palmerston North Crown Solicitor, Palmerston North
LORD v NEW ZEALAND POLICE [2022] NZHC 1103 [19 May 2022]
What happened?
[1] On 29 July 2019, the appellant, Mr Matthew Lord flew from Palmerston North to Auckland to pick up and drive back a 1998 Mitsubishi Lancer EVO 5 he had just bought. Around 7.30 pm he was approximately 10 kilometres south of Taihape on State Highway 1. There he collided with a Mazda 3 driven by the complainant, Ms Dara Graham. Both of them were seriously injured. Ms Graham suffered severe injuries, fracturing her pelvis, sternum, leg (in several places), heel, ankle and vertebrae. She had multiple bruising. She was in a wheelchair for more than two months and had fluid on her lungs.
[2] Neither Mr Lord nor Ms Graham had any memory of what happened. On 5 October 2021, in the Taihape District Court, Mr Lord defended a charge of aggravated careless driving causing injury, under s 39 of the Land Transport Act 1998 (LTA). The transcript from the judge-alone trial is not available and the audio quality of the recording is so bad that much of it is inaudible. But Judge J Krebs set out his understanding of the evidence in some detail in his judgment.1 In summary, relevantly:
(a)A witness, Mr Lawrence Jensen, gave evidence that he was travelling north behind Ms Graham’s car, saw Mr Lord’s car round a corner and cross the centre line. His evidence was that the headlights of Mr Lord’s car were completely obscured by Ms Graham’s car. Her vehicle veered away off the road, at which point the left headlight of Mr Lord’s car came into view. Then the two vehicles collided. Mr Jensen’s car hit Mr Lord’s car and pushed it partly back across the centre line into the southbound lane.
(b)Another witness, Mr Keith Wood, was travelling north behind Mr Jensen. He said the weather was fine and clear and road conditions were reasonable.
(c)A third witness, Mr Wade Wilson, was travelling south. While he was travelling at 100 kilometres per hour he saw Mr Lord’s car come up
1 New Zealand Police v Lord [2021] NZDC 20643.
very quickly behind him and pass him in a passing lane. He said Mr Lord’s car made three attempts to pass another car 500 metres ahead. Mr Wilson had talked to Mr Lord at the Taihape BP Service Station. He noticed the road was slippery with dampness but was drivable and he did not have any problem driving, providing he was driving to the conditions. It was more slippery as he got close to the scene of the accident.
(d)Constable Justin Moore arrived at the scene some minutes after the accident. His evidence was that the road was wet due to light drizzle and was slippery near the vehicles, which he considered was from the oil and fluids from the crashed vehicles. He took blood tests from Mr Lord and Ms Graham which were negative for drugs and alcohol. Constable Moore said the corner could be safely negotiated at 100 kilometres per hour. He had had seven years’ policing experience of that road and corner.
(e)Mr David Taylor gave evidence as an expert vehicle engineer. He found no fault in the vehicles that would have contributed to the accident. He did not inspect the underside of Mr Lord’s vehicle, including the rear suspension assembly or security of the rear subframe. Mr Taylor concluded the vehicle would have been in good condition when it obtained its warrant due to the lack of leeway in vehicle checks at the border. He confirmed that if all the bolts connecting the rear subframe and suspension assembly to the vehicle were loose, the handling of the vehicle could potentially have been affected. In his opinion, a photograph of damage to the bolts could have been caused by or after the accident or after his inspection.
(f)Mr Lord also gave evidence. He said that, before he left Auckland, he filled up the car and noticed it was dripping petrol. He said there was a crimp in the breather-pipe and he returned the vehicle to the vendor who quickly repaired it. But, shortly after 1 pm that day, he had sent a text indicating one of the hose clips had been loose and he was “pissed
off” because he was meant to have been on the road by then. In an earlier text exchange, Mr Lord was asked whether he was happy with the car and he replied “[i]ts fast asf” which he accepted meant it was “fast as fuck”.
(g)Mr Lord and his mother gave evidence of an inspection of the wreck of the vehicle carried out by a friend of his two months after the accident. The friend, who was not called, apparently removed bolts from under the vehicle. Photographs were produced. One of the bolts had damage to it. Another bolt and washer on the vehicle were depicted in a photograph. It showed that Mr Lord’s fingers could fit between the washer and the surface of the wheel arch.
(h)Mr Paul Bass was called by Mr Lord as an expert crash investigator. In his opinion it was clear that the point of impact was in the northbound lane. He considered that if the speed of the vehicle and the friction value of the surface at the time were not known, then exactly what happened could not be established. He also said vehicles of this sort are prone to understeer. He accepted it was quite possible to travel safely around the bend at 100 kilometres per hour, whether the road was wet or dry. He could not rule out the possibility that the accident was caused by an issue with the suspension or by travelling at excessive speed.
[3] The Judge agreed that what exactly had happened could not be established. But he had no doubt that Mr Lord drove his vehicle on the wrong side of the road and considered that fell below the standards to be expected of a reasonable and prudent motorist. He held that was the single causative factor of the accident. He considered there was no reasonable doubt about the vehicle’s road-worthiness. The Judge held the degree of carelessness was high and there were no intervening causes that might have been outside the defendant’s control. The Judge stated:
[69] Nonetheless, it was his driving at the time immediately before the accident which is in question. It is not possible and not necessary to say whether the defendant was travelling at excessive speed, although there is some evidence to infer that this was probably the case. It is also not necessary
to establish the exact mechanism by which he was on the wrong side of the road. However, in the absence of vehicle fault and given the conditions of the road, I am satisfied that he was not driving to the conditions and was therefore careless.
[70] His carelessness caused the accident. It was aggravated by the fact that he breached the traffic regulations by driving on the wrong side of the road. In those circumstances, the charge is proved.
[4] On 10 March 2022, Judge Krebs sentenced Mr Lord to nine months’ supervision with conditions including an unmonitored curfew, drug and alcohol counselling and a defensive driving course. The Judge also ordered Mr Lord to pay the victim $5,000 in reparations for emotional harm and disqualified him from driving for 15 months, backdated to 1 September 2021.
[5] Mr Lord appeals his conviction and the drug and alcohol counselling condition of his sentence.
Submissions
[6] Mr Murray for Mr Lord, and Ms Barham for the Police, agree on a number of points. They agree the evidence did not establish that Mr Lord was driving in a manner in breach of the rules or regulations, which is an element of the offence of aggravated careless driving. They agree the Judge erred in imposing the alcohol and drug condition because there was no issue of alcohol or drugs being involved in the offending. Counsel also agree that the Court could acquit Mr Lord, direct a new trial be held in the High Court or District Court, enter a conviction for careless driving causing injury, or stay the proceedings.
[7] Mr Murray also submits the Judge’s assessment of the evidence was in error to such an extent that a miscarriage of justice occurred. He submits the Judge erred in finding that Mr Lord drove on the wrong side of the road, that he failed to drive to the conditions, and that environmental factors and the condition of the vehicle could be excluded as causative. In particular, he submits the evidence of Mr Wilson that the area around the accident was slippery could sustain an inference that conditions at the accident scene were different from those in the area leading up to it.
[8] Ms Barham submits the Court should be cautious in disturbing the findings of fact made by the trial judge. She submits the charge of careless driving was available and the appeal should be decided on the detailed recounting of the evidence in the decision. She submits that it was open for the Judge to find there was no vehicular fault or road condition that was an intervening cause of the accident outside Mr Lord’s control. Given that, she submits the Judge correctly found that Mr Lord must not have been driving to the conditions and was therefore careless. She also submits that, if there is a re-trial, the charge of aggravated careless driving should be left open.
Conviction appeal
[9] Under s 232(2) of the Criminal Procedure Act 2011 (the CPA), I must allow the appeal against conviction if satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred or there has been a miscarriage of justice for any reason. In Sena v New Zealand Police, the Supreme Court confirmed it is for the appellant to show an error has been made and the appellant court must take into account any advantages a trial judge may have had, meaning an appellate court will exercise “customary caution” to a challenge to credibility findings based on contested oral evidence.2 But if the appellate court comes to a different view of the evidence, the trial judge must necessarily have erred and the appeal must be allowed.
[10] As Mr Murray notes, the Court of Appeal in Kingi v R held that an inadequate record is not itself a reason to find a conviction was unsafe or that there was a miscarriage of justice.3 In the event there is reason to suspect something has gone wrong in the trial, the absence of a proper transcript may be material.4
[11] The offence of aggravated careless driving causing injury set out in s 39(1)(b) of the LTA requires, relevantly, that a person “causes bodily injury to … a person by carelessly using a motor vehicle while … driving the motor vehicle in such a manner
2 Sena v New Zealand Police [2019] NZSC 55 at [38]; citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141.
3 Kingi v R [2016] NZCA 160 at [30].
4 At [30].
as to commit an offence against the regulations or the rules concerning … the part of the road on which a driver may drive his or her motor vehicle”.
[12] Mr Murray is correct that Gendall J in Han v District Court at Manukau held that an element of the offence is that “it must be shown that a driver acted deliberately” in a manner in breach of the relevant rule or regulation.5 The Judge here made no finding regarding this and, on the account in the judgment, the evidence was not available for him to do so. Consequently, it was an error for the Judge to hold the threshold for aggravated careless driving causing injury was met, as counsel agree.
[13] However, I consider the findings of the Judge mean the elements of the offence of careless driving (without the aggravation) were made out. Under s 38 of the LTA, “[a] person commits an offence if the person operates a vehicle on a road carelessly or without reasonable consideration for other persons using the road, and by that act or omission causes an injury to … another person”.
[14] There is eyewitness evidence that Mr Lord crossed the centre line and collided with Ms Graham’s car. The Judge considered the expert evidence about the vehicle, the results of the examination of the vehicle by Mr Lord’s friend (who was not called to give evidence though he was available), the warrant of fitness, and evidence of the importation inspection. On the basis of that evidence the Judge considered there was no reasonable doubt as to the vehicle’s road-worthiness.6 I consider it was open to him to do so.
[15] Given the condition of the road, the Judge concluded Mr Lord was not driving to the conditions and was careless. Mr Wilson’s evidence does not contradict that. His evidence was effectively that Mr Lord was driving aggressively, as the Judge noted. Other evidence supports that. Mr Wilson said he did not have any problem driving, providing he was driving to the conditions. Given all that, I do not consider an inference drawn from the greater slipperiness closer to the accident casts reasonable doubt on the proposition that Mr Lord was not driving to the conditions. I consider it was open to the Judge on the evidence to find that Mr Lord was careless.
5 Han v District Court at Manukau HC Auckland, CIV-2004-404-2710, 3 November 2004 at [10].
6 Police v Lord, above n 1, at [66].
[16] Given my conclusion that the evidence supports a charge of careless driving causing injury, the costs and delay of a retrial, and that much of the sentence has been completed, under s 233 and 234 of the CPA, I consider I should substitute a conviction for careless driving causing injury for the conviction for aggravated careless driving causing injury. I consider that it is in the interests of justice to do so.
Sentence appeal
[17] In relation to the sentence appeal, under s 250 of the CPA, I must allow the appeal if I am satisfied there is a material error in the sentence and a different sentence should be imposed. Otherwise, I must dismiss the appeal.
[18] Section 50 of the Sentencing Act 2002 states that a court may impose a special condition related to a programme provided it is satisfied there is a significant risk of further offending, that standard conditions would not adequately mitigate that risk and that the offender requires the programme to reduce the likelihood of further offending.
[19] I agree with counsel that the condition requiring drug and alcohol and counselling is not related to the offending here. The Judge did not discuss the reason for this condition in his sentencing remarks. The condition is not related to the risk of Mr Lord reoffending. That was an error. I allow the sentence appeal and quash the condition.
Result
[20] I allow the appeal. I quash the conviction for aggravated careless driving and substitute a conviction for careless driving causing injury under s 38 of the LTA. I quash the condition of sentence requiring attendance at an alcohol and drug programme. The rest of the sentence is unaffected.
Palmer J
0
3
0