Love v Police

[2012] NZHC 2952

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2012-483-4 [2012] NZHC 2952

BETWEEN  MATTHEW FRANCIS ANTHONY LOVE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 November 2012

Counsel:         P S Coles for Appellant

J M Woodcock for Respondent

Judgment:      7 November 2012

JUDGMENT OF THE HON JUSTICE KÓS

[1]      The appellant is a police constable.  He appeals a conviction for careless use of a motor vehicle,1 his patrol car, in the course of pursuing a speeding motorist.

Facts

[2]      The appellant is a member of the Central Districts Highway Patrol.  On the night of 6 June 2011 he was driving his marked police patrol car.  He parked up on State Highway One, just north of the hamlet of Rata. His car was facing north. Passenger wheels on a grass verge, driver’s wheels on the tarsealed verge, all to the left of the main carriageway.  Engine running, lights off.

[3]      That section of the highway is long and straight.  To the south, behind the appellant, was a straight section of road about 700 metres long.  A vehicle entering that straight, travelling at the maximum speed limit, would catch up with the appellant’s car in 25 seconds.   In the case of a truck, with a 90 km/h limit, 28

seconds. The straight section to the north was rather shorter.

1      Land Transport Act 1998, s 8.

LOVE v NEW ZEALAND POLICE HC WANG CRI 2012-483-4 [7 November 2012]

[4]      The appellant’s radar detected a speeding vehicle heading south.  To pursue it he would have to do a U-turn across the highway.   He activated his blue and red emergency lights.   He activated his right hand indicator.   He checked his mirrors. Then he looked back over his shoulder for northbound traffic behind him.  He saw nothing down the straight behind him, heading north.  It is unlikely that he missed seeing such a vehicle.   Its lights would have been visible in the darkness as he checked his mirrors and looked back over his shoulder.

[5]      The appellant then began to do a right hand U-turn, moving across the northbound lane into the southbound one, in order to pursue the speedster.  But as he began that manoeuvre three other southbound vehicles entered the straight, following the speedster.  The appellant paused to allow them to pass. He was in effect stranded across the northbound lane, pointing neither north nor south, but east.  The front of his car was near the centreline.  The three southbound vehicles slowed down, and moved over towards the verge.   In doing so they further protracted the appellant’s manoeuvre.  When eventually they passed, the appellant proceeded to complete his U-turn. At which point he was hit by a truck.

[6]      Where had that come from?   The truck was travelling north, but in  the southbound lane.  It was in the wrong lane, on the wrong side of the road, because it was trying to pass the patrol car.  This despite the fact that the patrol car was lit up like a Christmas tree and prone across the northbound lane.  The appellant had not seen it before it hit the nose of his car.

[7]      Originally the truck would have been some distance down the road behind the appellant.  During this period it was proceeding lawfully in the northbound lane. When the appellant began his manoeuvre, the northbound truck would have been round the corner at the start of the straight.  Protracted by the unexpected southbound traffic, which then slowed down, the manoeuvre took more than 28 seconds to effect. So the truck would have been out of sight when the appellant started to turn across the road.

[8]      The driver of the truck acknowledged that from about 500 metres he had seen the appellant’s flashing lights and realised he was going to make a U-turn.   He

however decided to pass the patrol car, assuming both that he had been seen and that the patrol car was not going to move.  So he moved right across the centreline into the southbound lane, as the appellant commenced his U-turn.   Cross-examined he acknowledged he should have slowed down and given way to the appellant.

Decision appealed

[9]      The hearing took place on 20 March 2012 before two Justices of the Peace sitting in Marton.  The Justices considered the essential question was whether or not the defendant acted carelessly, or without reasonable consideration for other persons using the road, according to an “objective standard of a reasonable and prudent driver.”

[10]     The appellant had claimed his driving was not careless or imprudent because he could reasonably have expected oncoming vehicles to stop on seeing the flashing lights and his car across the road.  It was therefore unnecessary for him to check the northbound land.  His counsel also argued special circumstances applied to a police vehicle with flashing lights carrying out its lawful duty.   The defendant was only guilty of an error of judgment which did not amount to carelessness.

[11]     The Justices however decided that the law did not provide for any special exemptions for police in these circumstances.  They found the defendant’s actions did amount to carelessness beyond reasonable doubt, “and no special exemptions would apply to an admitted error of judgment”.  They convicted the appellant, but imposed no penalty.

Appeal

[12]     The appellant advances two grounds of appeal: (a)     his actions were not careless; and

(b)if the charge was proven, then a discharge without conviction would be appropriate.

[13]     As to the first issue, Mr Peter Coles for the appellant maintains he acted in a reasonable and prudent manner in the operation of his patrol car, in the execution of his lawful duties.   Further, that he reasonably expected any northbound vehicles approaching his car would stop on seeing the flashing lights and clear signal of his intention to make a right hand turn.  It is submitted the appellant had no reason to expect that a northbound vehicle would fail to stop clear of his car, or approach from behind travelling in the (wrong) southbound land.

[14]     Mr Coles submits the truck driver was in fact in breach of Land Transport (Road User) Rule 2004, 2.3(1)(b) and 2.3(2)(b).   Rule 2.3(1)(b) provides a driver must not use a lane on the right side of the centre line on a two way road unless the driver is passing another vehicle travelling in the same direction. It is submitted when the truck decided to overtake, the patrol car was no longer travelling in the same direction as the truck.  Rather, it was indicating a right hand turn and was at right  angles.    Rule 2.3(2)(b) provides  a driver  must  drive  as  far  as  practicable entirely within one lane and must not move from a lane until he or she has first ascertained that the manoeuvre may be made safely.  The truck driver accepted he moved lanes on the assumption as to the likely (non) movement of the patrol car, rather than ascertaining the correct position or simply and sensibly, stopping.

[15]     As to the second issue, it is submitted no conviction should have been entered because the direct and indirect consequences of the conviction were out of all proportion to the gravity of the offence.  The actions of the appellant fell at the lower end of the scale of seriousness for this type of offending.  Law enforcement officers in the lawful execution of their duties are called upon to make judgments in the interests of public safety which require officers to undertake driving manoeuvres which might not be prudent for members of the public to do without emergency warning  lights.    Given,  the  truck  driver  had  in  excess  of  700  metres  of  clear visibility, his actions were significantly more culpable. Yet he was not charged. Any conviction against a serving police officer for an offence committed in the course of his duties is a serious matter in terms of his permanent record.  He was required to resit his drivers’ status classification.   For a long serving and highly experienced officer with a previously unblemished record the conviction is a matter of particular significance.

[16]     Ms Jo Woodock for the respondent submits the facts are proven and not disputed.   The Justices were entitled to find the appellant failed to exercise the degree of care and attention that a reasonable and a prudent driver would exercise in the circumstances. It is conceded the truck driver was not completely blameless.  But the  appellant  performed  a  dangerous  manoeuvre,  on  a  highway,  in  the  dark. Although initially he checked traffic from the south, he did not do so again before entering the southbound lane.

[17]     Ms  Woodcock,  rather  adroitly,  shifted  her  ground  somewhat  during  the course of argument.   If the appellant was not careless in completing the U-turn (entering the southbound lane after the other traffic had passed through) then he was at least careless in commencing the manoeuvre in the first place.  So, on that theory, the carelessness lay in commencing the U-turn at a time when other southbound traffic prevented its completion.  On this theory, he should have waited on the verge, emergency lights on, and only crossed the two lanes of the carriageway when it was all clear to do so.  Had he taken that approach, he could not have collided with the northbound truck.

[18]     The  respondent  submits  there  is  no  authority  provided  to  support  the proposition that the assessment of what a reasonable and prudent driver would have done is to be adjusted to take account of the appellant’s particular characteristics. That is, so the question becomes what a reasonable police officer would have done. The test in respect of this offence is an entirely objective one.  In the context of the reasonable person test under s 150A of the Crimes Act, the Court of Appeal have stated it is inappropriate to graft personal characteristics onto the reasonable person unless such characteristics made a defendant incapable of appreciating the nature and

quality of the consequences of the acts or omissions in issue.2    It is submitted this

principle is equally applicable to the reasonable person test in the context of careless use of vehicle.  There are no special exemptions or considerations for police officers

in circumstances such as these.

2      R v Hamer [2005] 2 NZLR 81 (CA).

[19]     As to the second issue, it is submitted the failure of the Justices of the Peace to give reasons was not fatal to their application to discharge without conviction. All it does is make it difficult to assess how the conclusion was reached.  It is conceded the gravity of this type of offence, and the circumstances of this case, resulted in offending at the lower end of the spectrum.  The only consequences asserted were that the conviction had the potential for “internal consequences within the police administration in the appellant’s career”.  But no material was provided to support this proposition.  Balancing the gravity of the offending with the consequences, the decision to refuse to discharge was correct.   Despite low gravity of offending, the asserted consequences were no more than speculative.   Speculative consequences and consequences that ordinarily flow are insufficient to outweigh the gravity of the offending.  The s 107 test was therefore not met.  There was no basis to exercise the s 106 discretion to discharge.

Approach to Appeal

[20]     This is a general appeal heard by way of rehearing.   The onus is on the appellant to satisfy the Court that the grounds of appeal have been made out and that it should differ from the original decision.  The appellate Court must come to its own view on the merits, recognising the evidential advantages (if any) of the trial Court.3

As Fisher J said in Herewini v Ministry of Transport:4

On a rehearing the appellate court can come to its own conclusions on questions of fact and law but the onus still lies upon the appellant to satisfy the appellate court that the decision given in the court below was wrong

Section 121(2) contains the power to confirm, set aside or amend the conviction.

[21]     Where the Court refuses to discharge an offender, an appeal against that decision is usually taken by way of appeal against the sentence under s 115 of the Summary Proceedings Act 1957.  However, the appropriate course is to treat it as an

appeal against both conviction and sentence.5

3      Austin, Nichols and Co Inc v Stichting Lodestar [2008] 2 NZLR 141.

4      Herewini v Ministry of Transport [1992] 3 NZLR 482 at 489.

5      Rutherford v Papakura District Council HC Auckland CRI-2005-404-162, 20 September 2005

Careless driving

[22]     Whether a person is driving carelessly is a matter of fact.  As Lord Goddard

CJ said in Simpson v Peat:6

The question for the Justices was, was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances? If he was not they should not convict. If on the other hand the circumstances show that his conduct was not inconsistent with that of a reasonably prudent driver the case has not been proved.

The standard is an objective one, not related to the individual driver’s degree of proficiency or experience.   But that is not to say that the whole context is to be disregarded.  In particular, the fact that this driver was in a fully marked police car with all its emergency lights lighting up the night in Rata.

[23]     The Court is to consider the actions of the driver charged, not the care or lack of care of the other driver.7     The fact that the truck driver may have had some culpability is not the appropriate focus in considering whether in fact the appellant was careless.

[24]     Four cases are instructive here.  In Readings v Police8 a police constable in an unmarked car wished to pursue a motorcycle passing him in the opposite direction. He indicated and began to pull out to do a three point turn.  That manoeuvre caused the following driver to collide with him.  The constable had seen the approaching car and intended to pass ahead of it, allowing it to continue in its proper lane.  However, its driver had misunderstood his manoeuvre, which was described as unusual, and thought he was just pulling out from the side of the road.  So she swerved across to the other lane to avoid him, and met him there instead.   The facts therefore bear some relationship to the present case.  Asher J held the constable was careless.  He had an obligation in initiating a three point turn, for no obvious reason, on a quiet

residential street, to ensure the vehicle following would not collide with him.

6      Simpson v Peat [1952] 2 QB 24.

7      Readings v Police HC Auckland CRI-2006-404-00437, 26 April 2007.

8      Readings v Police HC Auckland CRI-2006-404-00437, 26 April 2007.

[25]     In Lindsay v Police9  a driver of a car attempting a U-turn collided with a following motorcycle when pulling out from the side of the road.  The driver had merely glanced in the rear vision mirror.  That was held to be careless.  A reasonable and prudent driver would look behind his or her car immediately prior to actually pulling out.   To look behind prior to getting into the car was not sufficient.   The motorcyclist was not entirely free of blame, but that was irrelevant.

[26]     In Clifford v Police10 a driver pulled across the road to make a right hand turn into an entrance.   His vehicle was struck by a following car that had overtaken a tractor that was behind the defendant, and was planning to overtake.  The defendant had not seen the following car.  His vision obscured by the tractor.  Durie J said:

The fact is the appellant was changing direction.  He had, as a result, a duty to ensure that it was safe to do so, checking both in front and behind before crossing the centre line. If the rear vision mirror was not enough to provide a proper view, then plainly, a physical check was required or else the appellant was obliged to wait until it was plainly safe to move.

[27]     Finally, in Turner v Police11 the appellant was at an intersection.  He checked to the right and saw nothing nearby.   He turned left.  But he then decided he was going the wrong way.  So he tried instead to perform a U-turn.  As he began his U- turn he was hit by a van which he had not seen.  Priestley J noted it was a busy road. In that situation the degree of care and attention of a reasonable and prudent driver is high: “Checking and double checking that there is no approaching traffic in either direction is what one would expect from a reasonable and prudent driver.” Lulled by his memories of the traffic seconds earlier, the appellant made an error which could only be categorised as careless.

[28]     I turn now to the present appeal.  The facts in this case are that the accident happened at night, on a long straight section of highway. The police car was marked. Its emergency lights were on, flashing red and blue.  Its right indicator lights were also on.  The car was straddled across the northbound lane.  The appellant waiting for southbound traffic to pass so he could complete his U-turn and enter that lane.

That his intention was not to proceed in a northbound direction must have been

9      Lindsay v Police HC Christchurch AP 153/94, 30 June 1994.

10     Clifford v Police HC Blenheim AP 3/03, 6 June 2003.

11     Turner v Police HC New Plymouth CRI 2009-443-0021, 14 December 2009.

obvious to any driver.  The truck driver acknowledged under cross-examination that he had seen the red and blue flashing lights soon after entering the straight, at least

500 metres from the patrol car.   He agreed that signal meant that he had to slow down, give way, and be prepared to stop.  As he got closer, he appreciated that the patrol car was intending to make a U-turn.  Although, he was not entirely sure when the appellant was planning to do it.  He could see the right-hand indicator blinking.

QAt the point you were aware of the right-hand indicator on the patrol car you were still far enough back to be able to come to a complete halt weren’t you?

A        Yes.

QSo at that point you are aware the driver of the patrol car intended to change his direction and not travel north – agree with that?

A        Yes.

Despite all these considerations, the truck driver assumed that the patrol car would remain stationary across the northbound lane and allow him to pass, travelling northward in the southbound lane.

[29]     The case is therefore very different from the four cases just discussed.   I cannot agree with the broad proposition by the Justices, that there are no special exemptions for a police officer, if the effect of that proposition is to disregard all context.  In particular, the fact that the patrol car’s emergency lights were on.  That was a clear signal to other traffic to give priority to the police officer and to stop if need be.  The truck driver acknowledged that in cross-examination.  The southbound drivers, perhaps unfortunately, acknowledged as much at the time by slowing down, thereby protracting the U-turn manoeuvre.   The circumstances are therefore quite unlike  those  in  Readings  where  the  police  patrol  car  was  unmarked  and  no emergency lights were flashing.

[30]     Proceeding in a chronological fashion, the appellant cannot be criticised for the way in which he went about commencing the U-turn.   Before moving off the verge and into the northbound lane, he had checked carefully for northbound traffic. The road was clear back to the beginning of the straight, some 700 metres away.  His emergency lights were flashing clearly.  But for those emergency lights, it may well

be that to enter the northbound lane, commencing a U-turn, at a time when he was not  certain  that  he  could  complete  it  (because  of  southbound  traffic)  might  be careless.  But the flashing emergency lights change everything.  Traffic coming from the south, such as the truck, would thereby be warned to slow down, give way and stop if need be.   It was a misfortune that in turning on his emergency lights, the appellant caused the approaching southbound vehicles to slow down, thereby protracting the completion of his U-turn.  He was right to act prudently and allow them to pass before completing his U-turn.  He was not careless in commencing the manoeuvre, despite the fact that he then had to halt mid-manoeuvre.

[31]     Nor in my view was he careless in completing it.  The appellant was entitled to occupy the northbound lane in the course of pursuit of the southbound speedster. In doing so the defendant had checked to the south and had seen no northbound traffic.   His flashing emergency lights were a clear signal to the northbound truck driver to slow down, give way and stop.  The appellant was entitled to proceed on the basis that any traffic in the northbound lane would do so.   He was not then careless  in  pulling  into  the  southbound  lane,  following  the  southbound  traffic, without first looking to the south.   The northbound truck driver had no business crossing the centre line to pass the police car when it was out in the carriageway, plainly not heading north, and with its emergency lights on.   The appellant was perfectly entitled to assume, given the operation of his emergency lights, that any traffic in the southbound lane would be southbound traffic only.  Further, that any northbound traffic which came along would remain in its lane, wait for him to move on, and would not attempt instead to pass him by entering the southbound lane in the wrong direction.    He  was  not  careless  in  proceeding  on  those  perfectly proper assumptions.

Discharge without conviction

[32]     In these circumstances it is unnecessary for me to express my view on the second ground of appeal.

Result

[33]     Appeal allowed.  Conviction set aside.

[34]     I thank counsel for the fine submissions I received on this appeal.

Stephen Kós J

To:

P S Coles, Palmerston North

Crown Solicitor, Wanganui