M v Police HC Wellington CRI 2009-485-20

[2009] NZHC 873

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2009-485-00020

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         21 July 2009

Counsel:         Appellant in Person

M W C Snape for the Respondent

Judgment:      23 July 2009

JUDGMENT OF WILD J

Introduction

[1]      Contending that they were wrong to find he drove carelessly, Mr M   appeals against a decision of Justices given in the District Court at Wellington on 11

February, finding proved a charge of careless driving.  As set out in the Notice of

Appeal he filed on 26 February, Mr M  ’s grounds of appeal were:

•         That the Justices of the Peace reversed the onus of proof.

•That the Justices of the Peace reached a decision that is unreasonable and cannot be supported having regard to the evidence.

•         That the sentence was manifestly excessive.

M V NEW ZEALAND POLICE HC WN CRI 2009-485-00020  23 July 2009

[2]      As the Justices convicted Mr M   and discharged him under s 108

Sentencing  Act  2002,  the  last  ground  of  appeal  was  untenable,  and  indeed  Mr

M   confirmed that his appeal was against conviction only.

Factual background

[3]      Shortly before 9 am on Saturday 29 March 2008, Mr M   was driving down Horokiwi Road in his 1996 Mitsubishi L200 4WD utiility.  That is a double or extended cab solid canopy vehicle weighing around two tonnes.  Mr M   was heading into Wellington City from his home at 360 Horokiwi Road, accompanied by his partner and son.  In the back of the vehicle were his dogs.  It had been raining and was humid.  The road surface was wet.  Witnesses described it as “greasy” and “slippery”.

[4]      Interviewed in hospital by a Police Constable later on the morning of the accident, Mr M   stated that he was driving at about 30 km per hour.  As he approached a blind corner he saw a truck coming up the road around the corner.  He said the near side wheels of the truck were over the white centre line, so he applied his brakes.  He told the Constable he just kept sliding in a four wheel drift, and could not do anything before he collided with the side of the truck.  He said he slid for no more than 10 metres.

[5]      The truck into which Mr M   smashed was a Hino truck with a high back on it.  One of the photographs put in evidence shows that its tare weight marked on the driver’s door as 3,610 kg i.e. 3.6 tonnes.   The truck was driven by a Mr Howard.   Although the same Constable interviewed Mr Howard at the accident scene shortly after 9 am, the statement he took at the time from Mr Howard was not put in evidence.   I will revert to Mr Howard’s evidence in more detail, but in substance he said he came round the corner to see a ute skidding toward him out of control, its wheels locked hard to the left.  The ute went past his cab and smashed into his truck halfway along its side, wedging itself beneath the truck.

[6]      The Justices gave their decision on 11 February, some two weeks after the hearing on 28 January, at which Mr M   was represented by counsel.  First, the Justices summarised Mr Howard’s evidence.  One point relevant to this appeal is their finding:

There was some discussion throughout the hearing as to whether the truck was stationary or moving slowly at the time of impact and we do not believe this was a factor determining the outcome.

[7]      They then referred to the evidence of the Constable who interviewed both drivers.  They noted that the Police could see no tyre pressure marks because of the poor road surface.  I take that to mean that no skid marks made by the appellant’s ute were visible because the ute had slid on a smooth wet road surface.  They noted the Constable’s explanation that no physical markings were made by the Police because of the wet road surface.

[8]      The  Justices  then  referred  to  the  evidence  of  the  two  expert  witnesses, Constable Drumm and Mr Bright, both called by the defence.  Their summary of Mr Bright’s evidence was reasonably detailed.  They noted that Mr Bright had reached his conclusions from information supplied to him and CAD mapping he had undertaken, and had not seen a need to visit the accident site.

[9]      The Justices then summarised the appellant’s evidence, together with that of his partner, Ms Fry.

[10]     Next, the Justices noted the defence submission that this was a non-fault accident:  the appellant had had to deal with the situation created by Mr Howard’s truck straying across the centre line as it rounded the blind corner.   The Justices noted the defence concession that Mr M   might have been travelling too fast for the circumstances, but also the defence contention that that did not amount to carelessness.   They noted that the prosecution rejected that, maintaining that the required standard was driving to the conditions that morning.  The Justices noted that Horokiwi Road was familiar to both drivers.  Mr Howard’s evidence was that he was

returning in his Hino truck to his mechanical workshop, some 60 metres further up

Horokiwi Road.  He had lived, and operated his workshop, there for 15 years.

[11]     The Justices then noted the considerable amount of evidence about the width of the lanes around the corner where the collision occurred.  They noted Mr Bright’s acceptance of Constable Drumm’s evidence that the lane width varied from 2.2-2.6 metres, that Mr M  ’s ute was 1.7 metres wide, and the Hino truck 2.4 metres wide (it actually measured 2.47m across its high back).

[12]     The  Justices  then  observed  that  the  accident  scene  photographs  put  in evidence showed that both the driver’s side front and rear wheels of the Hino truck were on the left hand (correct) side of the centre white line.  They noted the evidence of Mr M   and Ms Fry that the truck’s wheels were over the centre line before the collision occurred.  The Justices then referred to Mr Bright’s evidence that the impact may have displaced the front of the truck to the left.

[13]     There followed the operative part of the Justices’ decision, which is in these paragraphs:

[20]      Mr Howard gave evidence that it is his custom to swing wide on that corner.  We saw no proof of that, but nor did we see any evidence that his truck crossed the centre line and caused the crash.

[21]     Mr M   therefore should have been able to negotiate that corner, even with the truck in the other lane.  Why could he not do that and does that amount to carelessness and/or warrant a no-fault accident as the defence claimed.

[22]      To  prove  carelessness  the  prosecution  has  to  show  through  the evidence given in court that the defendant did not exercise the degree of care and attention that a reasonable and prudent driver would have exercised in the circumstances.  This can be negligence, not the case here, or an error of judgment.

[23]     The circumstances on this day were by no means optimum driving conditions and in those circumstances, we believe, Mr M   did make an error of judgment, he was travelling too fast, the accident resulted.

[24]     He was therefore careless in law and we find the case for the prosecution proven.

[14]     Mr  M    filed  very  comprehensive  submissions  for  his  appeal. Including the material he appended to these, the submissions ran to 84 pages.   I invited Mr M   to summarise for me the points he most wished to press in support of his appeal and he did that in a clear and helpful way.   His main points were these:

a)       Mr  Howard  cannot  have  been  correct  when,  in  his  evidence,  he estimated that he had first seen Mr M  ’s ute at a distance of “probably about 30 metres”, sliding toward his truck out of control. Mr M   referred to maps he had prepared and annexed to his submissions.   His map 1 showed that, if the 30 metre distance was correct, the trajectory of his sliding ute would have been across the path of Mr Howard’s truck, but in front of it.  Even at a much lesser distance, the trajectory of the sliding ute would have taken it into the front of the truck i.e. a head on impact.  These maps were basically demonstrating tangents across the arc of the bend.   Mr M   accepted that the maps were only as accurate as the positions of the vehicles plotted on them.  That led him to mount a sustained criticism of the fact that the Police had not marked the position of the two crashed vehicles at the scene, before they moved the vehicles.

b)Mr M   emphasised his evidence that he had been slowing – braking – as he approached the corner, but only applied emergency braking when he saw Mr Howard’s truck rounding the blind corner on its wrong side of the road.  His point was that he had cornering control of his ute up to the 7-10 metre point.  Thus, there would have been no reason for him to apply emergency braking at that point, had Mr Howard’s truck been on its correct side of the road.

c)       Mr Howard’s evidence was inconsistent with the statement he had made to the Police Constable at the accident scene.  I pointed out to Mr M   that the latter was not in evidence.  His counsel had

not asked the Constable about that statement, nor sought to draw out any inconsistencies.  Accordingly, I told Mr M   that he could not pursue this point.

d)Mr M   also emphasised his evidence that, after first seeing Mr Howard’s truck rounding the corner over the centre line, he saw the truck swing to the left and back to the right in an attempt to correct its position on the road.

e)       The prosecution did not have sufficient evidence to prove its case against him.  The Police had not marked the position of the vehicles on the road when they arrived at the accident scene, and before removing the vehicles.  That made proper investigation of the accident impossible.   The four or five photographs of the accident scene, showing, from various angles, Mr M  ’s ute wedged under Mr Howard’s truck, were not sufficient to prove the prosecution case.

[15]     I mention here two paragraphs in the Conclusion section to Mr M  ’s comprehensive written submissions:

[113]    It is clear that the speed Mr M   was travelling did not allow him to apply emergency braking and stay within his own lane.  But this does not, on its own, amount to careless driving.  Consideration of the behaviour of other motorists must be taken into account.

[114]    Without Mr Howard’s truck over the centre line and blocking the way when correcting its position, would Mr M   have lost control and skidded?   It is extremely unlikely.   He had control up to the point of emergency braking and was proceeding around the corner at a low speed. He was driving to the conditions.

[16]     The  dual  themes  of  Mr  M  ’s  appeal  were  a  challenge  to  the credibility of Mr Howard’s evidence that his truck was not over the centre line, and to a lesser extent his evidence that he was stopped at the time of impact, and a strident criticism of the Police who attended the accident scene for not marking the position of the smashed vehicles before moving them.

[17]     I thought it appropriate that I confront Mr M   with what I considered was the primary evidence given by Mr Howard, and by Mr M   himself. This was Mr Howard’s evidence-in-chief describing the accident:

A.        … I was just coming round the corner and a ute, I saw a ute skidding towards me, it was out of control with the, um, I noticed the wheels were locked hard to the left.  It went past where I was in the cab and went under the truck half way along the side of the truck and became wedged under the truck.

Q.        Are  you  able  to  give  the  Court  indication  of  how  long  it  was between the time you first saw this vehicle coming towards you and the impact?

A.        Well it was only a matter of seconds but sitting in the truck – when I saw it coming towards me I stopped the truck and all I could do is just sit there and watch the vehicle sliding towards me.

Q.        As far as you’re concerned, where was your truck positioned on the roadway?

A.        It was on the left-hand side of the roadway.  I was on my left-hand side.

Q.       So you say you stopped? A.        Yes.

[18]     The prosecuting Sergeant then put this question to Mr Howard:

Q.       … how far away was it when you say you saw it out of control? A. Probably about 30 metres.

[19]     This  was  the important  part  of  the  cross-examination  of  Mr  Howard  by counsel who represented Mr M   at the hearing:

Q.        Do you accept that on your way up the hill your truck was over the centre line of the road?

A.       No I don’t.

Q.        You’ve only just acquired the truck that day, your truck only just fits within the lane at the best of times, do you accept maybe, that you were over the centre line?

A.        No I don’t.  I have driven other trucks up there, the same size trucks and sometimes I drive 10 or 12 trucks a week up there, backwards.

Q.        So do I take it that once you saw Mr M  ’s vehicle you pulled over to the left as far as you could?

A.       No I didn’t.

Q.        When Mr M  ’s vehicle hit you, your truck was still moving as, quite sensibly, you were making an effort to correct your position and go over to the left?

A.        No I wasn’t I was slowing down and I was slow, very slow and what I do when I come up to that position on the road, I look into my rear view mirrors to see if there’s any vehicles following us and if there is, we pull over to let them go past up the hill because of the speed of the truck.

Q.       So you accept that when you were hit you were moving slowly?

A.        No  I  don’t,  I  was  stopped.    When  the  impact  happened  I  was stopped.  I had my foot hard on the brake pedal.

Q.        There’ll be evidence given later by Mr Bright who’s a specialist traffic crash investigator, have you seen the report?

A.       Pardon?

Q.       Have you seen the report? A.      No.

Q.        He’ll  give  evidence that  because  of  markings  on  your  –  on  the vehicles, his conclusion is that you were moving at that time that the impact occurred, do you accept that that might be right?

A.       No, he’s wrong.  I wasn’t moving.

Q.        Do you accept that at that time of a traffic accident when you’ve got other things to think about, you might not have noticed that your truck was still moving?

A.       No I don’t because I was driving very cautiously up the road and I

don’t accept that.

[20]     In his evidence Mr M   said he was travelling down Horokiwi Road at “about 30 km an hour”.  He agreed the weather was drizzly and humid.  He was then asked by his counsel to describe how the accident occurred:

Q.        Can you tell us what, if anything, happened when you proceeded down the road?

A.        Um, sort of very close to that image, um, I saw a, just beyond actually because we saw a truck coming around the corner with its wheels, front wheels, over the centreline coming around the corner. My feet, I was already braking to slow to the descent, to maintain a constant speed.  When I realised that there wasn’t anywhere to go when the truck did a sharp left-hand turn, ah, turn to the left and then it came back, swung back around and at the point where it had done its sort of full turn I slammed on the brakes, fully, and that’s when we went into an uncontrolled skid just after the culvert.

Q.       What do you mean exactly by, “Uncontrolled skid?”

A.       Well the wheels locked and we just travelled in a straight line. Q.   What happened after you went into this uncontrolled slide?

A.        Um, there – I tried to see if I could do something with the steering wheel but couldn’t, um, there wasn’t time to react or go anywhere there was – because we were, the die was cast and, um, we hit the vehicle and felt sort of two, I suppose, punches to the vehicle, first as the initial impact as the bonnet hit and then a kind of a thud as we, um, hit and came to a stop.

[21]     The  following  seems  to  me  to  be  the  important  part  of  the  prosecuting

Sergeant’s cross-examination of Mr M  :

Q.        Right.  So what I’m suggesting to you, Mr M  , is that there is no way the truck can have moved in the fashion you described because you simply haven’t got the visibility to see it, it cannot, in that short space of time, got from the wrong side of the road completely over to the fog line on the left, in that very, very small distance.     It  simply  couldn’t  have  happened  the  way  you’ve described.

A.        Um, well if you’re looking at it from the perspective view, no, it doesn’t look like there is view, is enough room.   However, if you look at the plan scale view, which gives you a much better appreciation  of  how  things  work  in  distances  because  all  the distances  there  are  shortened  because  of  the  angle  that  you’re looking at it.

Q.        But Mr M  , that’s the end result of this incident, its not the start of it.

A.       Yeah I realise that.

Q.        So that’s the furtherest up the road the truck got.   So what I’m suggesting to you sir is that you over-reacted simply seeing that truck come round the corner.  You were going too fast.  You locked up  your  brakes  and  simply  skidded  into  the  side  of  it.    The proposition  I’m putting  to  you  sir  is  this,  if  you’d  simply  been travelling down the road, perhaps 15, maybe even 20 kilometres per hour, none of this would have happened, that’s true, isn’t it?

A.        It wouldn’t have happened if he was on the right side of the road either.

Q.       Well sir, the question though for you is, 30 k was too fast, wasn’t it?

That’s the truth, isn’t it, 30 kilometres an hour is simply too fast?

A.        It’s – yeah, if in this instance 30 kilometres, a slower speed would not have resulted – well I don’t know.   That’s the thing.   I mean, given the state of the road, I don’t know at what speed would have been a safe speed.

The cross-examination ended at that point.  There was no re-examination.

[22]     Mr M  ’s partner, Ms Fry, also gave evidence.  She was the front seat passenger in the ute.  She said that she saw the front wheel of the truck over “on our side of the road”.  She said that Mr M   “couldn’t see anywhere to go” and put the brakes on hard.  She then shut her eyes until after the collision had occurred. When she opened them again, after checking that Mr M   was not dead, she called out to the truck driver “you bastard – you did this”.  She also said the right rear corner of the truck was “on our side of the road”.

[23]     Although I do not think it threw much light on the cause of this accident, I mention also the evidence of the two expert witnesses.  Proposed evidence from the Police Accident Investigator, Constable Drumm, had been disclosed to the defence. When the prosecutor decided not to call Constable Drumm, the defence did.  It was Constable Drumm who gave the width of the lanes around the corner as varying between 2.2-2.6 metres.  He also said there was only slight cross-fall on the corner, about 3 degrees in toward the corner.  That would have caused a very slight sliding to the left of Mr M  ’s ute under heavy braking.

[24]     Mr Bright was the defence expert.  As I have already noted, he agreed with the lane width as measured by Constable Drumm.  Mr Bright said that a 10 metre skid from 30 km per hour to impact indicates extremely low road surface adhesion – a road surface in need of urgent repair.

[25]     Mr Bright said that the weight of the two vehicles – 3½ tonnes for the truck and “over 2 tonnes” for the ute were “not that far apart”.  Mr Bright was not taken to

task about this, but I do not understand the comment.  The truck (actually 3.6 tonnes)

was 80% heavier than the ute.

[26]     Mr Bright said the impact would have pushed the front of the truck further to the left.   On the evidence he could not determine the extent of this.   However, referring to the presence of broken glass on the road, he stated that the truck, prior to the impact, would have been “in the vicinity of or possibly over the centreline”.  He said he could not be more specific as no markings had been taken.  The prosecuting sergeant’s cross-examination of Mr Bright included the following exchange:

Q.        So you believe, as best you can determine, that the truck was on or about the centre line?

A.        I’m saying that the evidence that I have to go on tells me that it was more to the right than what is shown in the police photographs, certainly the front of it was, and was in the vicinity of the centre line based on the glass deposit.  That is as near as I can be.

Q.        But  that  would  be  entirely  consistent  with  a  2.47  metre  truck negotiating a 2.55 corner?

A.        Could be.  It could also be entirely consistent with a 2.47 metre truck over the centre line.

[27]     Based on marks on the front driver’s side tyre of the truck and a discontinuity in the scratches on the bonnet of the ute, Mr Bright suggested that the truck “did have some forward movement of some kind” at impact.

Decision

[28]     I have already observed that the expert evidence did not much assist the

Justices in resolving this case.

[29]     It seems to me that the case turned on the evidence of Mr Howard on the one hand, and Mr M   on the other.  Mr Howard was adamant that his truck was on its correct side of the road, stopped dead, when Mr M  ’s sliding ute smashed into it.  Cross-examination did not shake him on these points.  The Justices accepted Mr Howard’s evidence that his truck had not crossed the centre line – [20] of their decision.

[30]     It may be that Mr Howard’s estimate that he first saw the ute sliding out of control at a distance of “probably about 30 metres” was an over-estimate.   But, equally, I think Mr M  ’s estimate that he lost control and started skidding just 7-10 metres before impact was an under-estimate.   In short, I think the true situation was probably between the two drivers’ estimates.

[31]     In his evidence Mr M   seemed to accept that 30 km per hour was too fast to be driving down Horokiwi Road on that wet Saturday morning, with the road wet and slippery.  Exacerbating that was the poor condition of the road surface on the corner.  The evidence was that the tar had bled through the gravel chips, leaving the road surface virtually smooth around the corner.  That would have provided little adhesion for vehicle tyres, and those on Mr M  ’s ute were in good condition. I mention this because Mr M   was very familiar with Horokiwi Road.  He had lived higher up the road for some two years, and had owned a property there for longer than that.  So he knew that the road surface was in poor condition.

[32]     Confronted with a truck coming up the road around the corner, his 30 km speed caused him to brake heavily and he lost control.  This is essentially what Mr M   accepted in [113] of his written submissions, which I have set out in [15] above.  What he did not accept, was that Mr Howard’s truck was on its correct side of the road.   But the Justices, who had the benefit of hearing and observing the witnesses give their evidence, did accept Mr Howard’s evidence on that important point.

[33]     As  the  Justices  held,  Mr  M    was  “travelling  too  fast”,  and  the accident resulted.  In short, he was not exercising the degree of care of a prudent, reasonable driver in the conditions prevailing that morning on Horokiwi Road.  The Justices, in [22] of their decision, correctly stated the test for carelessness.  It is not a standard equivalent to negligence, simply a failure to exercise the degree of care required in the circumstances.  I consider that the Justices were correct in finding the charge of careless driving proved.

Result

[34]     Mr M  ’s appeal against conviction is dismissed.

[35]     I have already noted that no penalty was imposed, so the appeal against sentence falls away.

Solicitors:

Crown Solicitor, Wellington for the Respondent