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…

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.

Continue reading Lowen v Police

Details

AGLC: Lowen v Police [2012] NZHC 2057
Case: [2012] NZHC 2057
Decision Date: 15 August 2012

CaseChat Overview and Summary

Pauline Lowen appealed against her conviction for careless use of a motor vehicle causing injury. The District Court had found that she had carelessly turned into the path of an overtaking motorcyclist without properly checking that the way was clear. Lowen argued that the finding of careless use was not available to the Judge, as he had accepted her account of the incident, including that she had checked her rear vision and wing mirrors before turning left to park on the grass verge. The court had to decide whether the Judge's findings of fact and credibility were reconcilable with the finding of careless use. The High Court found that the Judge had accepted Lowen's account of what occurred and that she had checked her mirrors before turning left. The court was unable to reach the same conclusion as the Judge that she was careless. The cause of the accident lay with the manoeuvre undertaken by the complainant motorcyclist, who was found by the Judge to be contributorily negligent. The appeal was allowed and the conviction was quashed.

Orders