Lowen v Police

[2012] NZHC 2057

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2012-409-000031 [2012] NZHC 2057

PAULINE LOWEN

Applicant

v

POLICE

Respondents

Hearing:         8 August 2012

Counsel:         R W Maze for Appellant

MAV Raj for Respondent

Judgment:      15 August 2012

JUDGMENT OF WHATA J

[1]      The appellant was convicted on one charge of careless use of a motor vehicle causing injury.  The District Court found that she had carelessly turned into the path of an overtaking motorcyclist without properly checking that the way was clear.  The appellant says that a finding of careless use was not available to the Judge, because he accepted her account of the incident, including that she had checked her rear vision and wing mirrors before turning left to take a park on the grass verge.

Judgment of the District Court

[2]      The Judge prefaces his decision by observing:[1]

[1] Police v Lowen DC Christchurch CRI 2011-009-005252, 28 March 2012.

LOWEN V POLICE HC CHCH CRI 2012-409-000031 [15 August 2012]

[2]       The circumstances of the accident are very confusing because in large part I am dependent upon eyewitness evidence which is not always reliable.

[3]      He then states:

[3]       There are some incontrovertible facts.  Mrs Lowen lives in Lincoln. She works at the hospital as a nurse aide and this accident occurred right outside the hospital where she works.  The point of impact was close to the left-hand verge of the left-hand of two lanes but how she came to be there and how the motorcyclist came to be there is a matter for conjecture almost.

[4]      The Judge then identifies two civilian witnesses; a motorcyclist, Mr Taylor, the  victim,  and  another  person  on  the  road  travelling  in  the  same  direction, Mr Timothy Delaney.  Both those witnesses say that the appellant, Mrs Lowen, was travelling with them in a stream of traffic from Tuam Street, outside the hospital straight  past  the  hospital  in  two  lanes  of  traffic.    The  Judge  also  records  that Mr Delaney says that Mrs Lowen was in front of him after they had travelled 50 to

100  metres,  that  the motorcycle appeared  in  the left  lane beside  him,  overtook Mr Delaney on the left and then went to overtake Mrs Lowen’s vehicle.  Mr Delaney is said to have observed Mrs Lowen pull onto the motorcyclist forcing him onto the kerb and off his motorcycle.

[5]      The Judge then records the appellant’s evidence.  Given the significance of

the findings I record the finding in full:

[5]       But Mrs Lowen has given evidence, although she is not required to, she says that in fact she had been parked on the left-hand side of the road just past the traffic lights.  She had been on the grass verge for half an hour and not at the traffic lights at all.   She had been waiting for a carpark somewhere on the road ahead of her so that she could leave the car there and go to work.  She travelled there deliberately a couple of hours before she was due to start work because carparks there are so hard to find and at that time, which  was April  last  year,  much  of  the  city  was  cut  off  and  available carparks were therefore at a minimum which is why the authorities were permitting cars to park on the grass verge.  She has a practice of driving to the area and stopping on the verge by these lights waiting for a park.  She has waited as long as an hour and a half in the past which is why she goes to work so early.  On this occasion she says that shortly before the accident she had seen a carpark become vacant 50 metres or so up the road.   She had indicated  when  the  way  was  clear,  pulled  into  the  left-hand  lane  and travelled a short distance before she indicated left and began to pull into the area where there was the vacancy.  It was at that point she says that she saw a flash and the accident occurred.   Really she only saw the motorcycle milliseconds before the impact and had no opportunity to avoid the accident.

[6]      The Judge then deals with the apparent irreconcilability of the accounts in this way:

[9]       Is it possible to reconcile these three different pieces of information? It is hard to see why Mrs Lowen would be in the right-hand lane when (a) she has come from Lincoln and (b) she is wanting to park in her usual place on the left-hand side of the road.  It is reasonable to expect her to have been in that left-hand lane.

[7]      Ultimately the Judge concludes that at the end of the day he was not able to reject Mrs  Lowen’s  evidence  as  being untruthful  or unreliable and  that  he was willing to accept what she says.  In terms of the critical assessment of careless use, the Judge observes:

[12]      The next question is if I place her in the left-hand lane about to turn left does she have an obligation to check to her left and behind her before she turns out of that lane across the kerb and into the carpark?  The answer has to be yes. Although one would not expect to be overtaken by a motorcar on the left in those circumstances because there would not be room for a car one would need to check to see whether there was a cyclist and she did not check.   Cyclists often overtake vehicles on the left.   It is a common error made by motorcar drivers not to check to their left and this is particularly so in laned traffic where inexperienced drivers of motor scooters also travel to the left of other vehicles pretending they are cycles.  In those circumstances Mrs Lowen should have looked to her left.  Had she done so she would have seen  Mr  Taylor  and  the  accident  would  have  been  avoided.    She  was careless, an accident resulted and in that accident Mr Taylor was injured.  I accept however that Mr Taylor can only have got himself to that position on her  evidence  by  contributory  negligence.    Fortunately  he  has  not  been charged with an offence but I am required to make some findings about contribution as counsel have indicated that there would be a plea, that there are special circumstances surrounding these events which would justify me in not imposing the mandatory disqualification I find that there are such special circumstances (sic).

The grounds for appeal

[8]      The grounds for appeal are essentially that having accepted the appellant’s evidence, it was not available to the Judge to find that she did not look behind her or to her left before turning to park in her car.   It is said that that finding is in fact contrary to her evidence.

[9]      Mr Maze highlighted that the appellant’s evidence was that she travelled a

total of about 20 metres at about 25 kilometres per hour in the left of two lanes.  She

looked in her mirrors before indicating and turning.  When she looked she saw the motorcyclist in the right hand lane.   It is thus submitted that the motorcyclist’s driving behaviour could not be reasonably anticipated and the reasonably prudent driver in Mrs Lowen’s position could not have prevented the accident.

[10]     Mr Maze then refers to Police v Chappell[2]  which he says stands for the proposition that in cases of careless driving the informant must prove either an identifiable careless act or omission or in the alternative, carelessness must be the only available inference from the facts.

[2] Police v Chappell [1974] 1 NZLR 225.

[11]     In summary, it was not available to the Judge to make an adverse finding that the appellant did not look to the left or behind her.  The finding of careless use was therefore flawed.

The argument for the police

[12]     Ms Raj for the appellant refers to King-Turner v Police.[3]    In that case, it is said Heron J held that while the excessive speed of the motorcyclist probably went to a mitigating circumstance, the overall test must be that of the duty of a motorist to keep a proper lookout and in particular when changing direction.  Heron J also held that the vehicle was in the attainable vision of the appellant, and had the appellant in that case kept a proper lookout, the accident would have been avoided.

[3] King-Turner v Police HC Nelson AP5/99, 6 July 1999.

[13]     It is thus submitted by Ms Raj that the motorcyclist would have been in the attainable vision of the appellant and the Judge correctly held that the issue was whether the appellant had checked to her left and behind her before she turned.  It is submitted that while the appellant had checked her mirrors, the appellant had not looked over her shoulder to check if the way was clear as she did not expect the victim to come up on her left.  However, as the Judge stated, cyclists could also have

been in the victim’s position and the appellant did not check for that either.

[14]     Ms Raj also sought to have evidence adduced that showed, she says, that the appellant was not a credible witness.  I am told that that was only being adduced for the purposes of seeking a rehearing, if I get that far.  The primary submissions of the police, however, did appear at least to seek to impress upon me that the Judge had put some significant store on the appellant’s knowledge of the road network and the evidence sought to be adduced showed that that was not correct.   I deal with this aspect at the conclusion of my judgment.

The evidence

[15]     Given the basis for the appeal and that the Judge believed the appellant to be truthful and accurate, it is helpful to record the salient parts of the evidence as it relates to the appeal.  The immediate background is that the appellant had travelled from  Lincoln  down  Lincoln  Road,  and  parked  on  a  grass  verge  at  the  end  of Riccarton Avenue waiting for a carpark.  Her car was facing west towards Riccarton. The following exchange deals with the circumstances leading up to and including the

accident:[4]

[4] Notes of evidence pages 22-23.

Q.       And how long did it take you to get to the area around the hospital? A.      30 minutes.

Q.       And when you arrived in the hospital area what did you do?

A.       I parked on the grass verge in Riccarton Ave at the top end waiting for a carpark.

...

Q.       Now you’ve told us that you were waiting for a carpark how long

did you have to wait?

A.       At least half an hour.  Sometimes you have to wait for an hour and a half.

Q.       How did you know that a carpark became available. A.     I seen a car back out on to the road.

Q.       And what did you do then?

A.        I put my right-hand blinker on.  I travelled 20 metres up the road in the left-hand lane.

Q.       Before you pulled out did you check the traffic? A.         Yes I did and the lights were on red.

Q.        When you say the lights were on red which set of lights do you mean?

A.       Tuam Street lights.

Q.        How fast do you estimate you went as you were travelling west along Riccarton Ave?

A.       Probably about 25 k’s.

Q.        I think you may have already answered this question Ms Lowen but how far from where you parked initially was it to the carpark?

A.       20 metres.

Q.       What did you do when you approached the carpark?

A.        I turned on my left-hand blinker, looked in my rear vision mirror.  I seen  the  traffic  leaving  the  Tuam  Street  lights.    There  was  a motorbike in the right-hand lane and I indicated left to, I was a metre from the concrete verge.  I indicated left and went into the carpark and then I seen a flash beside me and then I heard someone hit the car and I looked.   It was a motorbike travelling very fast which caused $1000 worth of damage to the car and he ripped off my front bumper at the same time and he hit, the left hand pedal hit the concrete kerb, he was wobbling like that and he went over that onto the grass.  ...

[16]     Under cross-examination the appellant was then tested on her recollection of events as compared to Mr Delaney’s evidence.  It was put to her that she was parked in front of Mr Delaney at the lights.  Her response was adamant.  She states:[5]

[5] Ibid, page 24

A.        No I wasn’t at those lights full stop.   I come from down Lincoln Road, down Hagley Ave and turned right, left I mean into Riccarton Ave.  I wasn’t at those lights at all.  I don’t come from Lincoln from that side of town.

[17]     When pressed under cross-examination about facts relating to the incident she confirmed the evidence as follows:[6]

[6] Ibid, page 25.

A.        I seen a motorcycle when I pulled off the grass verge in my rear vision mirror when I travelled up a bit and he was in the right-hand lane.  When I indicated I did not see a motorcycle in my rear vision mirror or in my wing mirrors.

Q.        I put it to you that the motorcyclist travelling up in the left-hand lane, you were in the right-hand lane.

A.       I wasn’t in the right-hand lane.  I was in the left-hand lane.

Q.       You’ve then moved to the left lane without looking haven’t you?

A.        No, I did not.   I always use my rear vision mirrors and my wing mirrors.  I was always in the left lane not the right lane so I’m quite adamant about that.  I travel every day to work and I know how I travel.

[18]   In re-examination the Court questioned Mrs Lowen about whether the intersection she travelled through is a give way or a lighted intersection.  She said that there are lights and that she had a green light and turned left and parked on the grass verge.  Under re-examination from Mr Maze she said that she went through the Hagley Ave lights and turned left.

Assessment

[19]     With the luxury of fresh argument and time, I have ultimately come to the view that the finding of carelessness in this case is not reconcilable with the findings of fact and credibility.   First, the Judge accepted the appellant’s account of what occurred.  Key features of that account were as follows:

(a)      She waited at the kerbside for up to one half-hour for a carpark on a grass verge adjacent to Riccarton Avenue;

(b)When a carpark came free, she indicated right so as to move on to Riccarton Avenue with two lanes heading in the same direction checking that it was clear to do so;

(c)       She moved onto the left hand lane of the road and travelled for about

20 metres at about 25 kilometres per hour;

(d)      She indicated to move left to park on the grass verge, checked her rear

vision mirror and her side mirrors to ensure that the way was clear to turn and she did so;

(e)       At the time she looked through her rear vision mirror, the complainant motorcyclist was in the right hand lane heading in the same direction.

[20]     The District Court judgment found that the appellant was careless, because she did not check to her left and behind her that the road was clear.  Read literally that cannot be right, given the direct evidence of the appellant that she checked her rear vision mirror and the wing mirrors.  I am prepared to accept, however, that what the Judge meant is that the appellant did not check the way was clear by looking backwards over her shoulder.  Undoubtedly in the general run of cases drivers that wish to move left or right out of a lane of traffic must check that the way is clear including by way of looking over the left or right shoulder.  But each case must be assessed on its merits and against the backdrop where the onus rests with the Crown to prove beyond reasonable doubt that the act was careless in the context.  Given that the appellant checked that the road was clear before she entered onto it, observed that the complainant motorcyclist was in the right lane, and not in the left lane, moved only 25 metres, indicated (presumably for more than three seconds given that the Crown did not raise that as an issue), then checked the wing mirrors and the rear vision mirror, I am unable to reach the same conclusion as the Judge that she was careless.

[21]     In my view, the cause of the accident lay, on the facts as presented in the judgment, with the manoeuvre undertaken by the complainant motorcyclist, who was found by the Judge to be contributorily negligent.   The evidence was that he was travelling at about 50 kilometres per hour (as compared to the appellant’s speed at about 25 kilometres per hour), changed from the right lane to the left lane and then sought to overtake the appellant on the left hand side immediately adjacent to the kerb.  For my part, it is unreasonable to expect that the appellant was required to take added precautions to deal with such drivers (though extra precautionary driving is to be commended).

[22]     I am also respectfully unable to agree with the District Court Judge that had the driver looked to her left the accident would have been avoided.  The tolerably clear  picture  that  emerges  from  the  facts  as  found,  is  that  it  would  have  been fortuitous for the appellant to have seen the motorcyclist given the actions of the motorcyclist.

[23]     I appreciate that the police and undoubtedly the Court were concerned about left hand turns into non motorised cyclists.  Their vulnerability calls for great care.  I agree.  But the act of carelessness must be demonstrated on the facts to the beyond reasonable doubt standard.   The evidence in this case is that the appellant looked twice to check the road was clear.  Undoubtedly had she seen a cyclist in the left lane at any time she would have needed to take greater care.  But she did not, and nor is it available to assume a cyclist might materialise within the short span of time it took the appellant to move onto Riccarton Avenue and off it again.   Accordingly, the benefit of the doubt about whether there was such a risk must go to the appellant.

Rehearing?

[24]     Ms  Raj  sought  that  rather  than  quashing  the  decision,  I  should  order  a rehearing.  She did so on the basis that the key findings of the Judge turned on his assessment of the appellant’s credibility.  Apparently the appellant expressed some confidence about her knowledge of the route to work, including that the key intersection was signalised, rather than simply a give-way sign.  It transpires that the appellant was wrong on this.  Ms Raj then impressed upon me that this goes to her credibility and therefore an opportunity should be afforded to the prosecution to test that credibility at a rehearing.  That is an unattractive proposition  for a number of reasons  including:

(a)      The appellant’s credibility is not a matter currently before the Court on this appeal.   Certainly, the appellant has not sought to challenge the credibility findings on appeal, and in fact seeks to rely upon them;

(b)      The police are in effect seeking a second bite at the cherry.   They were given ample opportunity through the initial hearing to test the

appellant’s credibility.  They say that the evidence in question arose in the context of re-examination by the Judge, and therefore they were not given the opportunity to test that information.    But that misdescribes the process.  While the Judge may not have afforded an opportunity for further questioning, nor did he deny that opportunity on application.  If the police thought it was a matter of such gravity, then they ought to have sought leave to question the appellant.

(c)      I   am   doubtful   that   the   particular   point   in   question,   namely signalisation versus a give way sign, is of such moment as to demand a different outcome on a credibility finding.  The issue is not directly relevant to any of the elements of the offending and on its face does not reveal a lie or an untruth that might really undermine the appellant’s credibility.

[25]     For the foregoing reasons, I do not think that a rehearing is appropriate or a proper use of limited judicial resources.   I am satisfied that the Court’s factual findings were robust.  I simply disagree with the analysis of them for the purposes of a finding of careless use in this context.

[26]     Finally, I record my agreement with Mr Maze that fresh evidence ought only to be allowed in accordance with s 119(3) of the Summary Proceedings Act 1957, or where principles of fairness demand such an outcome.   Fresh evidence about signalisation at an intersection does not fall into that category.

Result

[27]     The appeal is allowed and the conviction is quashed.

Solicitors:

R A Fraser & Associates, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent