M v Police HC Christchurch CRI 2008-409-81
[2008] NZHC 1098
•11 July 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2008-409-000081
BETWEEN M
Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 10 July 2008
Counsel: J K Mitchell for the Appellant
K A White for the Respondent
Judgment: 11 July 2008
JUDGMENT OF WILD J
Introduction
[1] Mr M appeals his conviction for careless driving. The two Justices convicted him in the Christchurch District Court on 16 April, giving their decision orally at the end of the hearing.
[2] Ms Mitchell mounted a wide ranging attack on the Justices’ decision, asserting:
• It was not supported by the evidence.
• It was inadequately reasoned.
• It lacked necessary findings of fact.
M V NEW ZEALAND POLICE HC CHCH CRI 2008-409-000081 11 July 2008
Factual background
[3] Mr M is a director and operator of a coach tour company. He has been involved in the coach tour industry since 1969, and virtually all his life in motor engineering and driving heavy vehicles. He said in evidence that he obtained his heavy trade licence when he was 18.
[4] On the afternoon of 16 January this year Mr M was driving one of his company’s coaches up Dyers Pass Road. Travelling with him was an employee, Mr Louis. Together they were road testing the bus which had just been fitted with a reconditioned engine. Mr Louis was the mechanic. The bus was a Hino, 12.5 metres long, 2.5 metres wide and it weighed 13 tonnes. Coming up the road, Mr M rounded a slight left hand bend. A car was parked on his left hand side, and a vehicle was coming down the hill towards him. The uphill lane at this point was 2.7 metres wide. As the bus passed between the parked car on its left and the oncoming vehicle on its right it clipped the parked car. Mr M ’s evidence was that he was unaware of this and the bus carried on up the hill. Coming down the hill behind the oncoming vehicle was a Police patrol car. The driver of this patrol car, Constable Cosgrove, noticed the bus clip the parked car and carry on. What the Constable noticed was the parked car jolted - lurched about on its suspension.
[5] As soon as traffic permitted, the patrol car did a U turn and pursued the bus, but did not catch up with it. The Police then radioed the bus depot, which in turn contacted Mr M who returned to the accident scene.
[6] At the scene, Constable Cosgrove took a statement from Mr M , writing it down in his notebook and getting Mr M to sign it. At what Mr M said was his insistence, the Constable also took a statement from Mr Louis.
[7] As will become apparent, what both Mr M and Mr Louis told Constable Cosgrove at the accident scene differed, on critical points, from their evidence before the Justices.
[8] At yesterday’s hearing, I put it to Ms Mitchell that the Justices had determined the case on the basis of witness credibility, and that it was obvious from their decision that they had believed Constable Cosgrove’s evidence, and disbelieved that of Messrs M and Louis. I put to Ms Mitchell that it was difficult for me sitting on appeal to differ from findings of credibility, when I completely lacked the benefit the Justices had of hearing and seeing the witnesses.
[9] Despite that, Ms Mitchell urged me to read the transcript of the evidence the Justices heard (I had indicated to her that I had not done that). She submitted that that would demonstrate to me that the Justices’ decision was not supported by the evidence, and that the conviction simply could not stand.
[10] Accordingly, I have taken the time this morning to read the evidence the Justices heard (all 58 pages of it), and I have looked carefully at the photographs that were put in evidence – photographs were produced both by the prosecution and the defence.
[11] Although many people might view careless use of a motor vehicle as a minor charge, and although there is no appeal against the $300 fine imposed by the Justices, this case is clearly important to Mr M , who has approaching 40 years involvement in the coach tour industry. I hope it will be apparent to Mr M from what follows that I have carefully considered the evidence.
Approach on appeal
[12] Austin Nichols Inc. v Stichting Lodestar [2008] 2 NZLR 141 (SC) provides authoritative guidance. A general appeal such as this one requires a fresh look at the questions raised by the appeal without undue presumptive deference to the Justices’ decision, and requires that I allow the appeal if I reach a different conclusion from the Justices.
[13] Where, as here, findings of fact dependant on the credibility of witnesses are in issue, then some caution on my part is appropriate, because of the advantages the
Justices had in seeing and hearing the witnesses. This is the point the Supreme
Court made in Stichting Lodestar at [13]:
[13] … The appeal court must be persuaded that the decision is wrong, but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important. Such caution when facts found by the trial Judge turn on issues of credibility is illustrated by Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3 NZLR 190 (CA) and Rangitira Ltd v CIR [1997] 1 NZLR 129 (PC).
The Justices’ decision
[14] As I mentioned, the decision was an oral one. It runs to some five pages. I will quote the concluding and critical part of the decision, but, otherwise, the following is my attempt at summarising the main points emerging from it:
•The owner of the parked car hit by the bus said the car had been parked there about two hours, and was not damaged when parked.
•Constable Cosgrove observed the bus coming up the hill toward him and the parked car, and saw the bus hit the car, which “bounced” or “jumped” in its position on the roadside. The Constable considered the accident resulted from the bus being too close in to the marked parking lane, within which the car was parked, quite legally.
•The Constable thought there was one vehicle in front of his patrol car as he drove down the hill. That car was some way in front of him. Mr M ’s evidence was to the contrary: he said there were three cars in front of the patrol car.
•The Justices pointed out right at the start of their decision that Mr M ’s evidence before them differed from what he had said in his statement to the Police on the day of the accident. They set out in their decision Mr M ’s statement to the Police, the nub of which was:
I noticed a car travelling down and it was close to the centre line.
They then recorded Mr M ’s evidence before them that:
He observed a car coming (down) the hill and crossing the centre line.
They recorded Mr M disputing that he had caused the damage to the parked car, but recorded:
In cross-examination he confirmed he was not saying he did not damage the car and that he certainly did clip the car, but again it was the amount of damage that had happened that he was concerned about.
•They noted that defence witness Mr Louis, who was travelling in the bus with Mr M , did not see the oncoming car cross the white line, but said in evidence that he saw Mr M flick the steering wheel and heard him say “He’s over the white line”.
[15] The critical part of the Justices’ decision is this:
We have carefully considered the submissions made by both counsel. Every driver has a duty of care on the road, particularly if you are a driver of a 13 tonne bus and particularly if you are in an area that is known to be narrow for passing. Constable Cosgrove was very clear in what he observed. He was aware of only one car in front of him, this supported by the evidence of Mr Louis, but did not see that car cross the centre line. He did see however the parked car and the bus came around the corner and breaching the parking lane and then saw the parked car bounce and the bus very close to the car which led him to believe that the bus had clipped the car. The bus clipping the car was admitted in Court today by Mr M and as I said before the extent of the damage is disputed. Mr M admitted to flicking the steering wheel to the left thinking he could get through the situation he had in front of him and that is between the parked car and the approaching vehicle. However his evidence today differed from his statement signed at the time in which he gave an indication that the approaching vehicle had not crossed the centre line. Mr M admitted that he had certainly clipped the parked car and he should be particularly careful in using this road if he knows and is aware of the width of it at that point.
On this occasion we find that Mr M did not exercise the degree of care needed in negotiating the circumstances that were there at the time and we find the charge proved.
Decision not supported by the evidence
[16] First, some preliminary observations. From submissions yesterday, I gained the impression that it was always common ground that Mr M ’s bus had hit the parked car. I thought the issue at the hearing was whether this was carelessness resulting from Mr M being too far over to the left as he rounded the bend, or the result of defensive action by Mr M , to avoid colliding head on with the oncoming vehicle which had crossed the centre line into the path of his bus.
[17] It was not until I read the transcript this morning that I realised that was not the position at all. Through most of the hearing, Mr M ’s defence was obviously that the bus had not hit the parked car. Ms Mitchell cross-examined Constable Cosgrove at length, repeatedly challenging his evidence that he had observed the bus hitting the parked car. Just one example is this toward the very end of Ms Mitchell’s cross-examination:
WITNESS REFERRED TO PHOTOGRAPHS
Q. I've pointed at them from afar but can you just have a look at that and comment. I’m putting it to you in this case that that damage that you’re looking at on his white Corolla is not consistent with the damage on Mr M ’s bus?
A. As I said before I believe it is. (28/7-12)
[18] Constable Cosgrove said that he was driving the patrol car down Dyers Pass road with Constable Gibson as his passenger. As they approached the slight right hand bend, he noticed the bus coming up the road towards them and a white car parked on the opposite side of the road facing uphill. He said:
… as the bus come around the corner he’s clipped the back of the parked vehicle. I observed the driver sort of lean slightly forward and look in his left side mirror straight after the impact with the parked vehicle and then the bus carried on.
(10/23-26)
[19] The Constable read out the statement he took from Mr M after the bus had returned to the accident scene:
Q. So what details did the bus driver give you? A. Would you like me to read the statement.
Q. Yes.
A. “I was travelling up Dyers Pass Road testing the bus after repairs. I noticed a car travelling towards us which was close to the centre line. I saw a white car parked on the left side of the road. I think I moved slightly to the left. I travelled around a slight left hand bend and carried on up the hill. I did not realise I had clipped a parked car until informed by one of my workers.” He signed it in my notebook.
(12/4-11)
[20] The Constable said he was about 50-60 metres up the hill when the accident occurred. He had come around the curve slightly up Dyers Pass Road, was on a straight piece of road so “had a clear view right down” (13/12-13).
[21] The Constable said that nothing about the car travelling in front of him had attracted his attention: “It wasn’t speeding or anything like that” (15/6-8).
[22] He was then questioned somewhat inconclusively (15-10/18) as to whether he saw this car cross the centre line.
[23] The Constable said that after the bus hit the car he saw Mr M glance in his rear vision mirror and he thought that was because Mr M realised he had hit something. He accepted that it might have been a coincidence that Mr M looked in his mirror at exactly the time he hit the car (15/25-16/4). He estimated the speed of the bus at 30-40 kph (17/18), although in his crash report he entered its speed as 45 kph (24/13).
[24] The Constable was cross-examined about his exchange with Mr M at the accident scene. This is important:
Q. He’s back on the scene, at this point you were quite aggressive towards Mr M weren’t you?
A. I wouldn’t say aggressive but from what I observed and the way he was acting he was totally saying, “I've got nothing to do with this. This is nothing to do with me” and actually at one point told me that, “I’m sure you have much better things to deal with than petty things like this.”
Q. Mr M says you were quite aggressive towards him and wouldn’t listen to him?
A. Well I took his statement so I must of.
Q. Mr M also says that when he was giving you his statement he said that he saw a white utility crossing the line coming towards him which is why he had to maintain himself within the vehicle carriageway to avoid a collision. Is that what he said to you?
A. He said that he noticed a car travelling towards us which was close to the centre line. He never said it was a utility and he did not say it crossed the centre line.
Q. Mr M says that he did say that? A. Okay, I wrote down what he said to me. Q. So you don’t recall him saying that?
A. And he signed the statement so … Q. So you don’t recall him saying that?
A. I don’t recall that and if he’d said that then I would have put that in his statement.
(18/24-19/12)
[25] The following exchange took place about the passing space available to the bus:
Q. Would you agree that if a vehicle is travelling down the road close to the centre line on it or crossing the centre line a bus with 15 centimetres room would probably need to alter its position to avoid crashing into that car?
A. I would imagine so. I never observed the bus making any alterations. It made a smooth drive around the corner so I did not observe it make any sudden deviations to its turn.
(23/20-26)
[26] Mr M ’s evidence-in-chief was this:
I was approaching just above the cross roads of Dyers Pass and Hackthorne Road. I was driving up towards the Sign of the Takahe, just below Westenra Terrace which I’ll use the street address which was outside 107 Dyers Pass Road. I observed a car in the left land, parking lane. The road in that particular place is very narrow. I was preparing to pass that car. The car coming down the hill in the opposite direction to me crossed the white line. I had to do a little bit of a flimsy we call it, as referred to in that, and to
position myself through it. We managed to get through that position and I
continued up to the Sign of the Takahe … (30/16-23)
[27] Asked about the oncoming vehicle he said it was a white utility vehicle, either a Toyota or a Mazda. He said variously:
It actually had crossed the white line (31/18); It was actually right across (31/20);
He was coming straight for me (31/29);
This car was very much over the white line (32/7).
[28] Mr M said that he commented to Mr Louis:
Well I hope that, excuse the French, cop gets that guy that was over the white line.
(32/10)
[29] As I mentioned, Mr M ’s evidence-in-chief was that he did not hit the parked car. For examples:
Q. At that point in time (as he flicked his steering wheel to avoid the oncoming vehicle) did you touch any other vehicle?
A. No.
Q. Did you hear anything? A. No, not at all. …
(32/13-16)
… I don’t know how Constable Cosgrove can even entertain the idea that that dent could be caused by this vehicle. It’s just completely wrong. I mean there was no dents in the vehicle (i.e. the bus).
(34/25-28)
Q. So what is your view about the damage on the white car? A. It certainly wasn’t done by the coach. …
(37/12-13)
Q. Mr M did you hear the bus hit the car?
A. Definitely not. I would have absolutely – if I believed that I’d stuffed up I would have stopped. There would be no reason whatsoever. I did not. I was driving defensively, not carelessly and I cannot understand why I’m here today. I mean this is just really, doesn’t stack up, the whole thing.
(40/9-14)
[30] Mr M was asked in evidence-in-chief about what he said to the Constable. He maintained that he told the Constable that the oncoming car crossed the white line (33/7).
[31] Asked about the statement he made to the Constable he said this:
… Then things finally calmed down a little bit and a statement was taken. At that stage I hadn’t been told that I was going to be charged with the offence. It was quite an agitated sort of interview, especially over the situation with my address and a few other things that happened there and he said, “I want your statement signed.” I just signed it. I’d had enough at that stage. I was rather shattered to think what had actually happened and the way I’d been treated over such a minor matter as I saw it.
(33/20-27)
[32] Mr M said that he insisted Constable Cosgrove interview Mr Louis, and that after initially refusing the Constable finally agreed (34/5-8).
[33] The cross-examination by Mr M by the prosecuting police officer was comparatively short. First, the officer put it to Mr M that he had not mentioned in his statement to Constable Cosgrove that the oncoming car had crossed the centre line, nor that he had flicked his steering wheel in the manner he had described in evidence. This answer and exchange followed:
A. I stuffed up in that. That’s not what I actually said. It’s not what I said to Constable Cosgrove over at the car or said to him when we first went there.
Q. You’re now saying in court today. A. I’m saying what.
Q. That the car came across the centre line.
A. It did. I mean it was the referral that I referred to my employee. I referred that in front of constable, the lady constable, and I did that in front of Mrs Wilks when I walked over to the car.
Q. You never mentioned it to Constable Cosgrove did you? A. What.
Q. It’s not in your statement that the car cross the centre line?
A. Did you hear what I just said? I said when I went over to the car, when I said, “I’m sorry I didn’t even realise that I’d clipped the car”, that’s when it was said. He said, “Well, yes you did” when he pointed his finger straight at me and said, “I saw you, you knew you’d clipped it because I saw you look in the rear vision mirror”. My comment at that time was, “I’m sorry, if you saw that, what about the car that came across the white centre line.”
(44/1-19)
[34] Then Mr M , for the first time anywhere in his evidence, accepted that his bus had hit the parked car:
Q. So you have hit the car?
A. Listen, I have told you three times, I actually clipped the car. I accept the responsibility of those two white lines but not doing that damage there.
(46/15-18)
[35] Mr Louis then gave evidence. He said that he was a mechanic working for Mr M ’s company. He had completed a major reconditioning of the engine in the bus, and the two of them were road testing the bus when the accident occurred. This was his account in evidence-in-chief:
… We went up Dyers Pass Road and at this particular time we were going around a sweeping bend and I momentarily saw a white car parked on the side and then Mr M said, “He’s over the white line” and he said, “I hope that” – this was coming the other way towards us when I was sitting in the bus and I was looking over his head, and he said, “I hope”, there were cars coming down the road on our right hand side and he said, “He’s over the white line. I hope that cop sees him” because there was a police car behind that.
(51/21-29)
[36] Mr Louis was cross-examined about the statement he made to Constable
Cosgrove:
Q. When you made your statement to Constable Cosgrove you said, “I
noticed a car coming down the road. Robert said ‘he’s going pretty
fast.’” You never mentioned in your statement about going over the centre line, you just mentioned his speed.
A. Yeah. When that happened I didn’t think I’d be sitting here in front of you answering questions because it was the furthest thing from my mind. I mean I was concentrated on my job and that was to ensure that but was going to be running correctly because we’d put a lot of time and money into that to go so I didn’t expect to be sitting here telling you that, of any little thing.
(53/27-54/3)
[37] Mr Louis accepted that he did not see the oncoming car on the wrong side of the road or across the centre line (54/8-10).
[38] Having read all the evidence, I am reinforced in the view I expressed to Ms Mitchell at yesterday’s hearing, that this case turned largely on the assessment of the credibility of the witnesses.
[39] I reiterate the point I have already made about the disadvantage I am at, in that I have not heard or seen the witnesses. But Ms Mitchell was adamant in her request that I read and assess all the evidence.
[40] Having done that, I can understand why the Justices accepted Constable Cosgrove’s evidence. He was clear and consistent in his account of what he had observed. The salient points were that the bus had rounded the corner travelling at
30-40 kph too far to the left i.e. too close to the white line marking the parking lane. As a result, it hit the parked car, causing it to bounce or jolt in a way clearly visible to the Constable. As this was occurring, the car travelling downhill in front of Constable Cosgrove’s patrol car was approximately abreast of the bus, but nothing about that car caught the Constable’s attention, in particular it was not speeding. The questions to the Constable as to whether he saw that car – or was in a position to see that car – cross the centre line were inconclusive. The Constable estimated that the vehicle travelling downhill ahead of him was about 50 metres ahead of his patrol car when the Constable observed the bus hit the parked car.
[41] Constable Cosgrove clearly thought Mr M was aware his bus had hit the parked car, because he saw Mr M glance in his rear vision mirror at the moment of impact. I am in no doubt that, as a result, the Constable was terse with
Mr M after he arrived back at the accident scene. The Constable understandably thought he was dealing with a “hit and run” accident, and took a dim view of that. However, for reasons the Constable explained in evidence, Mr M was not charged with failing to stop and ascertain, so those matters were no longer relevant for the Constable at the hearing. It was Ms Mitchell who asked the Constable about them.
[42] I gain from the transcript the impression that Mr M was a somewhat arrogant witness, who wanted to convey to the Justices that he knew a great deal more about driving buses than did Constable Cosgrove or anyone else in the Court. There was at least one indication in the transcript that Mr M did not make a good impression on the Justices.
[43] But the stand out point about this case is the difference between what Mr M stated to Constable Cosgrove at the scene following the accident, and what he said in evidence. Whether or not the oncoming car had crossed the centre line was a critical issue. A pillar of Mr M ’s defence was that he had been forced to steer to the left to avoid colliding head on with the oncoming car which had crossed into his lane, and it was that evasive action which had caused him to hit the parked car. I have already made the point that it was not until well into his cross- examination, that Mr M actually accepted his bus had hit the parked car. That, in itself, is a point reflecting adversely on Mr M ’s credibility.
[44] Given the vital importance of the oncoming vehicle crossing the centre line, I cannot conceive that Mr M would not have insisted that that be recorded in the statement he made to Constable Cosgrove and signed, if it was true. It was not there, and Mr M was forced to try and explain that away. The Justices clearly did not find his explanation convincing, and nor do I. Mr M may well have been irritated with the Constable, even irate. But he was clearly not a timid man likely to be overridden by the Constable. A demonstration of this is his insistence that the Constable interview Mr Louis. Further, Mr M volunteered that matters had “calmed down a bit” before he made his statement to Constable Cosgrove, and signed it.
[45] Then there is the difficulty about Mr Louis. On the same critical issue, what he told the Constable at the scene following the accident differed from what he said in evidence. Again, it is clear to me that the Justices found Mr Louis’ explanation for that unconvincing, as do I.
[46] If the Justices disbelieved the defence evidence, then they needed to go back to the prosecution evidence, and see whether that established the charge. In my view the Justices were entitled to find that it did. They had Constable Cosgrove’s clear and consistent account of what he saw happen. And they had the statement Mr M had made to the Constable at the time and signed, and likewise the statement Mr Louis had made to the Constable at the time. Those statements were consistent with the Constable’s evidence.
Decision inadequately reasoned, and lacking necessary findings of fact
[47] I deal with these two grounds of appeal together.
[48] I accept that the Justices’ decision is not an exemplar of legal reasoning. But this was an oral decision of Justices on a traffic charge, given in the course of, I imagine, a busy day in the Christchurch District Court. Justices are not legally qualified, or at least it is not a requirement that they be.
[49] I see the requirement as being that Justices’ decisions are sufficiently well reasoned or explained, so that the parties can understand how the result was arrived at, and likewise an appellate Judge like me who needs to consider the decisions.
[50] I can understand how the Justices arrived at the result they did. Accordingly, I do not find the decision wanting, for lack of proper reasons.
[51] I accept Ms Mitchell’s points that the decision does not expressly make a finding of fact as to whether or not the oncoming car crossed the centre line into the uphill lane. I accept also that no credibility findings against Mr M and Mr Louis are expressed in the decision. But, had the Justices accepted the evidence of
Mr M and Mr Louis, or even if it had left them in reasonable doubt, they would not have found the charge proved.
[52] Consistent with disbelieving and rejecting the evidence of Mr M and Mr Louis, is the Justices’ finding that the oncoming car did not cross the centre line. This finding also is implicit only in the decision, but again clearly so. The Justices clearly accepted Constable Cosgrove’s evidence that nothing about the vehicle ahead of him attracted his attention, corroborated by Mr M ’s statement to Constable Cosgrove following the accident, that that oncoming vehicle was “close to the centre line”.
[53] Accordingly, I also dismiss the ground that the decision must be set aside as lacking necessary findings of fact.
[54] In the hope that this decision will reach the two Justices, may I add that it would be much preferable, in future, if they clearly stated in their decisions the findings of fact they make having heard and weighed up the evidence.
Result
[55] The appeal is dismissed, the conviction stands.
Solicitors:
Cavell Leitch Law, Christchurch for Appellant
Crown Solicitor, Christchurch for Respondent
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