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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] NZHC 2952
Decision Date: 7 November 2012

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Matthew Francis Anthony Love, a police constable, against his conviction for careless use of a motor vehicle. Love was pursuing a speeding motorist when he was hit by a truck travelling in the wrong lane. The Justices of the Peace had found Love's actions amounted to carelessness, but no penalty was imposed. Love argued his actions were not careless and, if they were, a discharge without conviction would have been appropriate. The court considered whether the appellant's actions were careless and whether a discharge without conviction was appropriate.

The court noted that determining whether a person is driving carelessly is a matter of fact and an objective standard, not related to the individual driver's degree of proficiency or experience. The court found that Love's flashing emergency lights were a clear signal to other traffic to give priority to the police officer and to stop if necessary. Although Love was not entirely certain he could complete the U-turn due to southbound traffic, he was not careless in commencing the manoeuvre. The appellant was entitled to assume that any traffic in the southbound lane would be southbound traffic only and any northbound traffic would remain in its lane and wait for him to move on. The court found that the appellant was not careless in proceeding on these proper assumptions. Therefore, the appeal was allowed, and the conviction was set aside.

The court did not need to address the second ground of appeal, which was whether a discharge without conviction would be appropriate. However, the court noted that the consequences of the conviction were not sufficient to outweigh the gravity of the offending, and therefore, the decision to refuse to discharge was correct.

Orders