M v Police HC Ak Cri-2009-404-222

[2010] NZHC 104

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-000222

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 February 2010

Appearances: Appellant in Person

K L Bannister for Respondent

Judgment:      15 February 2010

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

G R M  , Auckland

M V NEW ZEALAND POLICE HC AK CRI-2009-404-000222  15 February 2010

Introduction

[1]      On  29  June  2009  at  the  District  Court  at  Auckland  the  appellant  was convicted on a charge of careless use before two Justices of the Peace.  He was fined

$650 together with Court costs and ordered to pay witnesses expenses.  He appeals against conviction and sentence.

Facts

[2]      The charge followed an accident that occurred on 26 May 2008 at about

5.20 p.m. in the evening.   The appellant was the driver of a car stopped at the intersection of Coleman Avenue and May Road.  He was on his way home having been at the gym.  He lives in Denny Avenue, which is across the other side of May Road slightly to the right from the end of Coleman Avenue.

[3]      There was a line of traffic following 5 o’clock, and the end of business, travelling down May Road.  The driver of the other vehicle involved in the accident, a motorcycle, was Mr Kooger.   Mr Kooger was driving his motorcycle down the inside of the line of cars banked up in the lane of traffic on May Road.  The appellant pulled out from the stop sign at Coleman Avenue and into the intersection with May Road.   The motorcycle driven by Mr Kooger hit Mr M  ’s car.   There was minor damage to both the car and motorcycle.

[4]      The accident was witnessed by one of the car drivers, a Ms Hadley.  A police officer was called to the scene and spoke to the appellant.  The police officer took a brief statement from the appellant.

[5]      After hearing evidence from the motorcyclist Mr Kooger, the driver of the car, Ms Hadley, the police officer and then hearing from Mr M  , the Justices of the Peace found the charge proved and convicted Mr M  .  In doing so they noted:

[11]     Mr M  , we are confronted with conflicting evidence.   We have heard three witnesses give what the Court judges to be, very credible evidence.  We have had submitted to us photos of the intersection which we

find difficult if not impossible to support the evidence that you have given that there were two lanes of traffic crossing the front of your vehicle.  We are [sceptical] to the point of not accepting as valid the evidence you have given regarding the traffic at this intersection.  We have no reason to dispute the veracity of the evidence given by either Mr Cougar, Ms Hadley or the constable involved and as a consequence of that evidence presented to the Court, we find this charge proven.

Submissions for appellant

[6]      In  support  of  the  appeal  against  conviction  Mr  M    raised  the following matters.

[7]      First, that he has never been involved in an accident, minor or otherwise, in

50 years of driving.  He has a diploma in defensive driving.  He also submitted that his car was stopped when he was hit by the motorcyclist and the motorcyclist was speeding immediately prior to the accident.  He said the accident occurred because the motorcyclist had misjudged the space between the cars either side of Mr M  ’s car on May Road and, in trying to manoeuvre around the front of Mr M  ’s car, had hit it.

[8]      Mr M   also challenged the evidence of Ms Hadley, the driver of the car.  He submitted she was on the median line and was driving illegally herself.  Mr M   noted he had not signed the police officer’s statement and had only made a statement to her because he was anxious to get home to his partner.

[9]      In support of the appeal against the sentence Mr M   said it was unfair. It  was  excessive  given  his  personal  circumstances.    He  is  on  a  superannuation benefit.   It was also unfair because he had not previously been involved in an accident.

Decision – conviction appeal

[10]     There is really no dispute that Mr M   was subject to a stop sign at

Coleman Avenue, nor that the accident occurred when Mr M  ’s car was in

the intersection of May Road, although Mr M   does take issue with how far into that intersection he was.

[11]     The   relevant   evidence   concerning   the   incident   is   as   follows.     The motorcyclist said that he was approaching the intersection, the Coleman intersection:

I noticed a car was stopped at the compulsory stop and he was stopped behind the yellow line so it was probably stopped.  I then proceeded towards the intersection but slowed down because things can change and I waited to get eye contact with the driver which is my way of confirming that he’s seen me, got eye contact and then proceeded towards going through that intersection. Just as I approached the car the car leapt forward and I couldn’t avoid hitting it and fell off my bike.

[12]     Ms Hadley’s evidence about the accident was:

I saw a vehicle which I thought was pulling out to turn left and that was on that intersection of Coleman and May Road.

...

The next minute I knew I felt an impact on the side of my car and I saw

Theo [the motorcyclist] on the floor in front of my car, on the road.

[13]     The police officer recorded Mr M  ’s statement as follows:

It’s quite simple, I came out of here, there was a big gap and there was nothing coming the other way, [where] you turning left or right, he said, right.  ... Did you stop at the stop sign?  He said yes.  The vehicles had left a gap to get out, I crossed inbetween them, he came through and hit the front right corner of my car, I backed up and waited and picked up his bike, ...

[14]     For his part Mr M   said:

I stopped at the compulsory stop and there was two lanes of traffic.  The car directly in front of me was an SUV and he had obligingly left me a gap to go through.  Hadley’s vehicle was across from it, there was also a gap there but I don’t think she did it out of road courtesy, she did it, well, just stopped there anyway you know.   She was not moving.   I then began to move forward very slowly, so slowly that it didn’t even register on the speedo and I looked to my right, before I started moving I looked to my right, I looked to my left, nothing coming.  I started moving, I looked to my left and to my right again and I seen a motorbike come out from behind a car, about three cars up, four cars up and he came down that inside lane quite fast.  I thought what the earth’s he up to so I stopped, that left a gap – three quarters of my car was still in [Colman] Avenue and I stopped and it left a gap of about a metre and a bit between me and the SUV.  He came down, he tried to get round me to go up into the inside lane and make up – he was trying to circumvent the traffic that he could get home quicker or whatever and I’m

trying to get round the narrow gap between me and the SUV.  His footrest hit my lower right-hand blinker light ...

[15]     The real conflict that the Justices of the Peace had to resolve was whether Mr M   had seen the motorcyclist and stopped in time.  Mr M   accepted he saw the motorcyclist.  He says he stopped his car and it was when his car was stopped the motorcyclist then hit him.  The Justices of the Peace, however, accepted the evidence of the motorcyclist, supported by Ms Hadley, that the accident occurred because Mr M   drove out into the May Road intersection from the stop sign in such a way the motorcyclist could not avoid hitting him.  That is also consistent with the statement the police officer took from Mr M   immediately after the incident.   In that statement there is no suggestion by Mr M   that he had stopped his vehicle in the intersection.

[16]     To make out the charge of careless use the prosecution had to prove Mr M  ’s  conduct  fell  below  that  of  a  reasonable  and  prudent  driver.    The standard is an objective one:  Aiono v Police HC Hamilton AP3/99, 1 March 1999; Simpson v Peat [1952] 2 QB 24.

[17]     On  the  findings  of  the  Justices  of  the  Peace  Mr  M  ,  who  was subjected to a stop sign at Coleman Avenue, drove out over the stop sign into the intersection of May Road in such a way that the motorcyclist travelling down May Road could not avoid his car and hit it.

[18]     While the action of the motorcyclist travelling down the inside lane of the traffic might have been unwise, Mr M   was subject to a stop sign.  He was not permitted to travel into the intersection without ensuring the way was clear to do so.  He says he saw the motorcyclist travelling towards him.  In those circumstances he should not have moved into the intersection because the way was not clear to do so.

[19]     On the evidence before the Court the Justices of the Peace were entitled to conclude that the prosecution had proved the charge of careless use against Mr M  .

[20]     I turn to the matters Mr M   raised.   He calls in aid his previous driving record of no accidents.  That is irrelevant to his actions that night given the objective nature of the standard.  In any event, given his previous record of careless driving convictions, his previous record would not assist him if regard was had to it.

[21]     The suggestion Ms Hadley was in an illegal position on the road is not relevant to the credibility or otherwise of her evidence which the Justices of the Peace accepted.  The issue is whether she was in a position to give evidence of the position of Mr M  ’s car which she was.

[22]     The fact the statement Mr M   made to the police officer was not signed, does not make it inadmissible.  It is a question of weight to be given to the statement.   The police officer recorded questions and answers she put to Mr M   in her notebook.  She referred to the notebook in Court.  It was not put to the police officer that what she said was incorrect.

[23]     It was open to the Justices of the Peace to resolve the conflict of evidence as they did.

[24]     The appeal against conviction is dismissed.

Sentence appeal

[25]     The maximum sentence for an offence of this nature is $3,000.  It also carries the possibility of disqualification.  The carelessness in this case was perhaps towards the lower end of the scale.   Mr M  ’s previous record, however, does not assist him.  He has two previous convictions for operating a vehicle carelessly, one in 1997 and one in 1988.  Even accepting for the moment his oral submission that neither  of  those  involved  accidents,  they  are  still  two  previous  convictions  for careless driving offending.  Worse than that there are previous offences for driving whilst disqualified and driving with excess blood alcohol.  Mr M   does not have a good driving record at all to rely on.

[26]     Mr M   can receive no credit for a clean record.  It could even be said that an uplift for the previous convictions for careless use would have been appropriate.   On any view of it a fine of $650 in the circumstances of this case cannot be said to be manifestly excessive.   The appeal against sentence is also

dismissed.

Venning J