M v Police HC Napier CRI 2009-441-32

[2009] NZHC 2469

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2009-441-032

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 December 2009

Counsel:         C Church and D H Quilliam for Appellant

N M Graham for Respondent

Judgment:      15 December 2009

JUDGMENT OF WILD J

Introduction

[1]      Mr  M    appeals  against  his  conviction  for  careless  driving.    The conviction was entered by Justices of the Peace following a defended hearing in the District Court at Hastings on 31 July.

The case for the Police at the hearing

[2]      The Police called two witnesses.  The first was Mr Cadzow.  His evidence was taken before the Registrar of the Court on 22 July, because he was leaving to return to Scotland.

[3]      Mr Cadzow said he was driving a John Deere tractor north on State Highway

2 at 3.15pm on Wednesday 22 April 2009.  It was a fine autumn afternoon.  As he

M V NEW ZEALAND POLICE HC NAP CRI 2009-441-032  15 December 2009

was driving a tractor, at about 35 kph, on a State Highway, he had his hazard lights flashing.

[4]      He was going to turn right off the state highway into Te Aute Trust Road.  As he approached the intersection, he looked in his rear vision mirror and saw a car coming up behind him, still about 50 metres away.  It was travelling faster than he was.   When he was about 10-15 metres short of the turnoff he put his right hand indicator on to indicate that he was about to turn.  He said that he was travelling in the main traffic lane, “hugging the middle of the road”, not in the left hand passing lane.

[5]      Mr Cadzow said that there was no oncoming traffic so he did not need to stop before he began his right hand turn off the highway into Te Aute Trust Road.  As he began to turn, he said he heard a thump and the car that he had observed travelling behind him collided with the seed drill mounted on the back of his tractor.  He said the collision occurred pretty much in the middle of the road.   He said that he continued his turn off the highway and parked the tractor on the grass verge down Te Aute Trust Road, before walking back to the collision point.   The car that had collided with the seed drill on his tractor had come to a stop in the middle of the road.   It was extensively damaged.   He checked that the three occupants were all right.  The driver was a man.  There was a woman passenger in the front seat and a child in the rear seat.  None of the three was badly injured.

[6]      Mr Cadzow was extensively cross-examined by counsel for the appellant, Mr Church.   In the course of his cross-examination, Mr Church put the appellant’s version  of  what  had  occurred  to  Mr  Cadzow.    This  is  the  relevant  part  of  the transcript of that evidence:

Q.Thank you.   So going back to Te Aute Hill you mentioned earlier that having a low vehicle lane you would normally pull into that lane to allow faster vehicles to go?

A.       I would do that if there was a queue of traffic behind me yes.

Q.So,  as  an  experienced  tractor  driver,  knowing  you  had  a  faster vehicle behind you

A.       Mhm

Q.        you pulled into the slow vehicle lane to let the faster car behind you to pass you?

A.       Sorry can you say that again please.

Q.As an experienced driver, knowing that you had a faster vehicle behind you

A.       Mhm

Q.        you pulled into the slow vehicle lane to let the faster car behind you pass?

A.       No I didn’t.

Q.        But when the car didn’t pass straight away you became impatient, indicated, and started your and started your turning manoeuvre into Te Aute Trust Road.

A.       No that’s not true.

...

Q.I put it to you that you did pull over in the slow vehicle lane, initially to let the faster car past, as any experienced tractor driver would do.

A.Um I did not move into the slow vehicle lane.  I was ah, remained in the left hand of the main lane of the State Highway 2 in which I was hugging the middle lane, indicating right to show my, what I was going to do and then take up my manoeuvre.  I was not in the slow vehicle lane whatsoever.

Q.        I also put it to you that you became impatient when the faster car didn’t pass and so you indicated and started your passing manoeuvre into Te Aute Trust Road

A.       Mhm

Q.       without the 3 second requisite indication?

A.       Um the indicators would have been on for more than 3 seconds and I

was not impatient whatsoever.  I was in no rush.

...

[7]      The  second  Police  witness  was  Constable  Walker,  who  attended  at  the accident.   He made a traffic crash report, which included a diagram showing the tractor and the appellant’s vehicle in the positions he believed they were in the point of impact.  That diagram shows the tractor commencing a right hand turn across the centre line of State Highway 2, and the appellant’s car colliding with the back right

hand  corner  of  the  seed  drill.    The  two  vehicles  are  in  the  main,  or  centre, northbound traffic lane.

[8]      Constable Walker said there was minor damage to the right hand rear corner of the seed drill.  He said it was a fine afternoon, the time approximately 3.15pm.

[9]      The Constable said that, after leaving the accident scene, he went to Hastings Hospital where he took a statement from the appellant at the A & E Department.  He recorded that the appellant said this about the accident:

Driving towards Hastings on State Highway 2 we were following behind the tractor I saw the tractor indicate right, I thought he meant for me to pass him so I sped up a little as I went to pass the tractor he turned right and I ran into the back of it.

[10]     The appellant signed that statement on the traffic crash report.

[11]     In the course of cross-examining Constable Walker, Mr Church put it to the Constable that he had wrongly placed the vehicles on the road in the diagram in his traffic crash report.  The following exchange took place:

Q.Thank you.   I put it to you constable that when you drafted your crash report that in fact you have placed the vehicles, specifically at this stage the car, in the wrong position on your crash report and that it should have in fact been closer to the white solid line?

A.No that’s incorrect.  The defendant stated that he sped up to pass the tractor on the right-hand side.  I wasn’t there at the specific moment when the vehicles impacted, therefore I drew the diagram to show somebody who looked at this report later on what would have occurred at the point of impact.

The appellant’s case at the hearing

[12]     Mr M   gave evidence.  He said that he had been following the tractor for about half a minute, and estimated that he was “a few metres behind the tractor”. He said the tractor had not indicated that it was about to make a right hand turn. This evidence-in-chief then followed:

Q.        So what did you think that the tractor driver was trying to do at that stage?

A.       I thought he was pulling over to let me pass. Q.     And so what did you do?

A.        I looked towards to see if there was any oncoming traffic and then indicated right to overtake.

Q.       And can you remember what happened then?

A.       Ah I remember just getting past the, past the seed drill and then

Q.       And did anything unusual happen after that? A.     Ah he went to go and turn right in front of us. Q. Could you repeat that for Their Worships?

A.       Ah went to turn right in front of me.

Q.       Had you noticed any other indicators flashing up to that stage? A.  No.

Q.So during this whole procedure which side of the tractor, which side had the tractor been on before you started your passing manoeuvre?

A.       It was in the slow vehicle lane. Q. On which side of you?

A.       Oh it was on the left.

[13]     In chief, Mr M   sought to explain his statement to Constable Walker in the following passage:

Q.The officer wrote in the notes that you had quoted in saying that I saw the tractor indicator indicate right, I thought he meant for me to pass him.  What did you mean by that?

A.        Well I seen him pulling into the slow vehicle lane had his hazard lights on so I took that as a indication of he was letting me pass.

Q.Can you tell the Court what sort of condition you were in when you signed the report?

A.       I was in shock.

Q.       And you signed the report where? A.       Ah at the hospital.

[14]     Mr M   was cross-examined by the prosecutor, Sergeant Horne.  That cross-examination included these passages:

Q.        And in fact the Road Code is clear about that, about vehicles not overtaking in intersections for that very point isn’t it?

A.        Yes.

Q.        And you will be familiar with the Road Code because you hold a restricted licence.

A.        Yes.

Q.And in fact that’s exactly what happened today, you being an inexperienced driver elected to pass this vehicle in an area of an open road speed limit with an intersection and that’s exactly what happened.  The vehicle started to turn and you collided with it, isn’t it?

A.        Yes I did.

[15]     There was one question from the Court:

QUESTIONS FROM THE COURT:

Q.Mr M   just one question from me.  I know you haven’t got the photos in front of you but there is a pool of what I imagine might be oil or something on the road.  Can you tell me if that’s where your car, your car, came to a halt?

A.        Yes it was.

[16]     The pool of oil referred to in that question was in the main traffic lane, perhaps slightly toward the left hand side of the lane.  It was certainly not in the left hand (or passing, or slow) lane.

The Justices’ decision

[17]     The Justices’ decision is succinct enough to set out in full:

[1]      We  have  carefully considered this  matter where  Mr  M    is charged with operating a vehicle carelessly.

[2]       The matters not in dispute are that this accident occurred on 22nd April and that Mr Cadzow was making a right-hand turn in a tractor into Te Aute Trust Road from State Highway 2 and that Mr M  , travelling behind him, collided with the seed box on the back of the tractor during this right-hand movement.

[3]      The essence of this case is whether the actions of Mr M   were that of a prudent driver.

[4]       In the evidence of Mr Cadzow he stated that he was driving in the middle lane of the road prior to making his right-hand turn.  However this is refuted by Mr M   who stated in his evidence that the tractor was in the slow lane prior to making a right-hand turn.   Both Mr Cadzow and Mr M   state that there was no oncoming traffic and visibility was good. Therefore, if the tractor was making its turn from the slow lane Mr M   would have had enough room to pass on the other side of the road.  If the tractor was making its turn from the middle lane the following driver should have been at sufficient distance in travelling at an appropriate speed to allow this turn to be completed, even if indicated at the last minute.

[5]       We therefore conclude that in this case Mr M   did not drive in a prudent manner and is guilty as charged.

Submissions for appellant

[18]     Essentially, Mr Church sought to persuade me that the appellant’s version of what occurred was supported by the evidence, and that the Justices’ decision was therefore wrong and should be set aside.  Mr Church submitted that the Justices “had misapplied the law on the basis of incorrect findings of fact”.

My decision

[19]     I regret that I entirely reject this appeal.   Overwhelmingly, the evidence supported the Justices’ finding that the appellant collided with the back of the tractor because he was driving carelessly.

[20]     I say this for five main reasons.  First, although I have not had (and nor for that matter did the Justices have) the benefit of hearing and observing Mr Cadzow give his evidence, it seems to me to be inherently credible, reliable evidence.  From reading his evidence I gained the strong impression that this man simply told the Court what had happened, without fabricating or exaggerating.  He had nothing to hide and hid nothing.

[21]     Secondly,  Mr  Cadzow’s  version  was  essentially  confirmed  by  what  the appellant stated to Constable Walker at Hastings Hospital shortly after the accident, and then signed as correct.  There are two critical points about this statement.  First, the appellant stated “I saw the tractor indicate right”.   Yet he denied that in his

evidence before the Justices.  Secondly, he did not say that the tractor had pulled into the left hand or passing lane, and then made a right hand turn across the main traffic lane.  Yet that was the whole nub of the defence run before the Justices.  It seems to me  that  that  statement  by  the  appellant  shortly  after  the  accident  simply  and truthfully stated what had happened.

[22] Thirdly, although I did not have the benefit of hearing and observing the appellant give his evidence (the Justices did), his evidence seems to me inherently unlikely. As I have just pointed out, it conflicts sharply with his statement to Constable Walker after the accident. Further, under cross-examination, Mr M virtually conceded careless driving – in the passage I have set out in [14].

[23]     The fourth and last point is that the critical item of objective evidence is consistent with Mr Cadzow’s version of events.  That is the oil stain on the road.  It is shown reasonably clearly in the photographs Exhibit 2 at the hearing.   That oil drained from the appellant’s car after it had come to a halt following its collision with the rear of the tractor.  As I have mentioned, the stain is in the main traffic lane, though  slightly perhaps  to  the  left  of  the  centre  of  that  lane.    That  position  is consistent with the appellant’s car colliding with the seed drill on the rear of Mr Cadzow’s tractor as the tractor began its turn, across the centre line of the highway, right into the Te Aute Trust Road.

Result

[24]     For those reasons, I dismiss this appeal, which I consider to be an unfounded one.

[25]     The appellant’s conviction for careless driving stands.  Although the appeal was stated to be against sentence also, no submissions were addressed to sentence. Thus, the fine of $300 and also the Court costs of $130 imposed by the Justices both stand.

Solicitors:

Crown Solicitor, Napier for Respondent