Mackisack v Police - [2020] NZHC 57

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-000423

[2020] NZHC 57

BETWEEN
ROBERT MACKISACK

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 16 December 2019

Appearances:

D Grove for the Appellant

R Belcher for the Respondent

Judgment:

3 February 2020

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Monday, 3 February 2020 at 3.00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Meredith Connell (Office of the Crown Solicitor), Auckland Counsel: D Grove, Auckland

MACKISACK v NZ POLICE [2020] NZHC 57 [3 February 2020]

Introduction

[1] On 13 June 2019, Judge Sinclair found Robert Francis Mackisack guilty of one charge of careless driving and four charges of careless driving causing injury under the Land Transport Act 1998 (LTA).1 On 20 September 2019, the Judge sentenced him to 200 hours of community work, 12 months’ disqualification from driving and ordered him to pay $8,000 in reparations.2 Mr Mackisack now appeals against both conviction and the Judge’s refusal to waive the otherwise mandatory disqualification period.

Factual background

[2] On 16 January 2018, the appellant was driving a truck and trailer unit, when the trailer unit detached from the truck. The trailer veered across the road and struck a taxi van travelling in the opposite direction. The taxi van was substantially damaged. The four occupants in the taxi van suffered injuries, including lacerations, fractures, sprains, abrasions, ligament damage and concussion. One required surgery. While the trailer was still in motion, it struck a second vehicle with two occupants inside, causing damage to the second vehicle, but no injuries to the occupants.

District Court decision

[3] At the hearing on 13 June 2019, the key issue for the Judge was whether the appellant took reasonable steps to secure the pintle hook coupling attaching the trailer to the truck — that is, whether the appellant exercised the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.

[4] At the outset, the Judge considered the defence submission that the accident had been caused by a mechanical defect, in which case the onus was on the prosecution to disprove such defect beyond reasonable doubt or prove that the appellant knew of the defect before the accident. The mechanical defect alleged was the possible presence of a stone which stopped the locking arm dropping down into the locked position.

1 Police v Mackisack [2019] NZDC 16960.
2 Police v Mackisack [2019] NZDC 20073.

[5] Expert witnesses were called by both parties. John Wolf, the prosecution expert witness, and Paul White, the defence expert witness, both agreed that the pintle hook was in good working order. In those circumstances, the Judge was satisfied that there was no evidence to support a finding of mechanical defect. It was not a reasonable possibility.

[6] The Judge then recorded that both Mr Wolf and Mr White were agreed on the mechanics and operation of the pintle hook.…

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 Mackisack v Police

Details

AGLC: Mackisack v Police [2020] NZHC 57
Case: [2020] NZHC 57
Decision Date: 3 February 2020

CaseChat Overview and Summary

Robert Francis Mackisack appeals his conviction and sentence in the High Court of New Zealand. The appellant was found guilty of careless driving and causing injury by the District Court. The District Court Judge convicted the appellant of failing to take reasonable steps to secure the pintle hook coupling attaching the trailer to the truck. The appellant was sentenced to 200 hours of community work, 12 months’ disqualification from driving and ordered to pay $8,000 in reparations. The appellant’s grounds of appeal were: (a) the Judge erred in not finding that there was a mechanical defect and that accordingly the onus shifted to the prosecution; (b) the Judge erred in finding that the appellant had acted carelessly; and (c) the Judge erred in not finding special reasons existed and therefore no disqualification should have been ordered pursuant to s 81 of the LTA. The Court found that the appellant’s carelessness in not checking whether the pintle hook was locked was open to the Judge and correct. The Court rejected the argument that there was a mechanical defect as both expert witnesses agreed that the pintle hook was in good working order. The Court found that special reasons existed to justify a departure from the usual consequences and quashed the order for 12 months’ disqualification. All other aspects of the sentence remain.

Orders