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. She described it as follows:3

[13]      … The main part of the coupling that attaches the trailer to the truck has two jaws. The lower jaw is fixed to the towing vehicle and is shaped like a U. The upper jaw pivots to form a closed circle. The upper jaw is locked in the closed position by a pull-type action. When the coupling is closed, the arm is lowered down and stops the coupling from opening.

[14]      The pintle hook is fully closed when the locking mechanism is resting flush with the top of the body of the pintle lock. The surface across the top of the pintle lock hook is in alignment when the pintle hook is locked. When it is fully retracted and in the locked position, it prevents the upper jaw of the pintle hook from being opened. If the locking jaw is in place and locked, it will not become disengaged. If the pintle hook is not locked, the latching mechanism will sit above the horizontal line across the top of the towing coupling. To release the pintle hook from the vehicle it is necessary to raise the latch and lift the lock locking pull up. The trailer can only come off the hook if the pintle hook is not correctly latched and secure. …

[7]    The Judge then turned to the two propositions advanced by the appellant to support his claim that the prosecution could not prove he was not a careful and prudent driver:

(a)First, that it was possible for a stone to stop the primary lock engaging; and

(b)Secondly, a person taking reasonable care may not have been aware that the pintle hook locking mechanism had not engaged.

[8]    As to the first proposition, the Judge accepted that a small piece of debris such as a stone could stop the locking arm dropping down into the locked position and prevent the pintle hook from fully closing and engaging. She also accepted that a

3      Police v Mackisack [2019] NZDC 16960.

small stone lodged in the upper casing hole would be difficult to see as the upper jaw faced downwards.

[9]    As to the second proposition, the Judge referred first to the appellant’s statement to the Police hours after the accident, in which he described the steps he took to connect the trailer to the truck. The Judge did not consider it was enough for the appellant to rely on the fact he had regularly taken steps to ensure the pintle hook was locked over the course of his driving career.

[10]   The Judge thought that the appellant’s immediate response to the officer in charge when she arrived on the scene was significant. It was spontaneous and relevant to his recall of what he had done that day. He said he must not have clicked it down properly.

[11]   Although the pintle hook manufacturer did not provide any specific recommendations as to what steps should be undertaken to ensure the coupling is locked, the Judge did not consider this assisted the appellant. As the driver and operator of the truck and trailer unit, it was for the appellant to take whatever steps were required to ensure the coupling was locked. The appellant said he did not rely on touch, but rather relied on “sight or visuals to check if the coupling was locked”. He said he never “runs his hand along the latch to check it is flush. It is a sight thing”.

[12]   Although the defence expert witness, Mr White, gave evidence it was not normal procedure to run your hand over the coupling to check if it is locked, the Judge could see no reason why an operator could not, immediately after securing the coupling, run their hand across the latch to check if it was closed and flush. In the event that she was wrong about that and the only usual method of ensuring the coupling was locked was by visual check, the Judge considered the appellant should have viewed the coupling from several angles to check it was locked.

[13]   The Judge did not agree with the defence submission that there was very little difference in appearance between a locked and unlocked pull. While even a small piece of debris may prevent the mechanism locking, the Judge said it still results in the latch being raised which could be seen by the operator. From the Judge’s view of

the photographs, it was apparent when the latch was not locked and raised, irrespective of the size of the debris. The Judge rejected criticism of the prosecution expert witness, Mr Wolf, that he did not specifically view the pintle hook from different angles and undertake calculations as to how that would alter a person’s viewing of the latch.

[14]   Finally, the Judge said that the description of the accident as a freak accident neither advanced nor hindered the defence case.

[15]   The Judge concluded that the appellant did not exercise the degree of care and attention that a reasonable and prudent driver and operator should have in the circumstances. The Judge considered that he should have run his hand over the upper jaw of the pintle hook or viewed the coupling from several angles. He did not. The Judge therefore found the charges proven beyond reasonable doubt.

[16]   The Judge concluded that special reasons why the appellant should not have his licence disqualified had not been established. She noted that the appellant’s carelessness involved him failing to undertake appropriate checks to ensure that the pintle hook was fully engaged. The Judge said that being able to operate a heavy commercial vehicle unit on a public road which is shared by other members of the public came with it a basic duty of care and responsibility so that it did not pose a risk or danger to the appellant or others. The Judge therefore disqualified the appellant from holding or obtaining a driver’s licence for 12 months.

Grounds of appeal

[17]   The appellant appeals both his conviction and the refusal to grant relief pursuant to s 81 of the LTA. The grounds of appeal specified 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 when:

(i)the circumstances giving rise to the accident were highly unusual and uncommon;

(ii)the prosecution failed to serve expert evidence setting out the basis upon which the appellant’s conduct was careless, failed to engage in expert consultation regarding the issues for trial and failed to serve reply expert evidence to assist the Court;

(iii)the prosecution’s expert agreed with the expert evidence served;

(iv)the prosecution’s expert evidence was not impartial and the Judge failed to discount that evidence given the conduct of the expert, the officer in charge and the prosecution;

(v)the prosecution failed to prove beyond reasonable doubt 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.

Relevant law

Appeal against conviction

[18]   The appellant has a right of appeal against conviction under s 229 of the Criminal Procedure Act 2011. Pursuant to s 232(2), the appeal must be allowed if the Court is satisfied that:

(b)In the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)in any case, a miscarriage of justice has occurred for any reason.

[19]Under s 232(4), a miscarriage of justice means:

… any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)has created a real risk that the outcome of the trial was affected; or

(b)has resulted in an unfair trial or a trial that was a nullity.

[20]   If the appeal court comes to a different view on the evidence, then the trial Judge will necessarily have erred, and the appeal should be allowed.4

[21]   The appeal court must, however, pay appropriate deference to findings made by the trial Judge, as he or she had the advantage of hearing the witnesses on questions of credibility; nevertheless, the appeal court must still review the evidential basis for factual findings carefully.5

[22]   Whether a person was careless is a matter of fact, assessed objectively. 6 In this context, carelessness is a failure to exercise the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.7 The carelessness does not need to reach the level of negligence.8

Appeal against sentence

[23]   An appeal against sentence is governed by s 250 of the Criminal Procedure Act 2011. The appeal must be allowed if the appeal court is satisfied that:

(a)for any reason, there is an error in the sentence imposed on conviction; and

(b)a different sentence should be imposed.

[24]   This Court must point to an error made by the District Court, either in the Judge’s reasoning or shown by additional material considered on appeal.9 The error must be adequately significant for the appeal to be allowed — although the Criminal

4      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].

5      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5] and [13]; and Kueh v R [2013] NZCA 616 at [32].

6      See Rayner v Police [2018] NZHC 2276 at [28]–[29].

7      Huang v Police [2016] NZHC 1271 at [12].

8 At [12].

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].

Procedure Act 2011 does not require the sentence to be “manifestly excessive”, this is a helpful concept when considering the seriousness of the error.

Appeal against conviction

Mechanical defect

[25]   If a defendant raises the possibility of a mechanical defect as the cause of an accident on the evidence viewed as a whole,10 the prosecution must prove beyond reasonable doubt that:

(a)the defect was not the cause of the accident;11 or

(b)despite an unknown mechanical defect, the defendant’s actions were a sufficiently proximate and material cause of the accident;12 or

(c)the defect was known to the driver or should have been discovered with reasonable prudence.13

[26]   Should the prosecution fail to prove one of the three possibilities listed above, the defendant is entitled to be acquitted.

[27]   The appellant’s submissions in relation to a mechanical defect rest solely on the possibility of a small stone preventing the pintle hook from properly closing and locking. The Judge found no evidence of a mechanical defect, as both expert witnesses agreed that the pintle hook was in good working order.

[28]   There was some debate at the appeal hearing whether the possible presence of a small stone amounted to a mechanical default. The Crown submits that the term ‘mechanical defect’ cannot be properly extended to circumstances in which a foreign object, such as a small piece of debris, prevents the proper operation of a mechanism

10     R v Spurge [1961] 2 QB 205 (Crim App) at 210–211 and 213, applied by Hurst v Police (1990) 5 CRNZ 506 (HC) at 512.

11     de Jonge v Ministry of Transport HC Auckland AP269/90, 8 March 1991 at 2.

12     Hurst v Police (1990) 5 CRNZ 506 (HC) at 511.

13     R v Spurge [1961] 2 QB 205 (Crim App) at 213, applied in Hurst v Police (1990) 5 CRNZ 506 (HC) at 512.

that is otherwise in good working order. In my view, however, it is not necessary for me to determine whether or not the possible presence of a small stone amounts to a ‘mechanical defect’. This is because the Crown submits that, in any event, the appellant should have discovered the ‘defect’ with reasonable prudence. It says that the appellant was careless in not checking whether the pintle hook was closed and locked — I turn to this issue now.

Carelessness

[29]   The key issue for the Judge was whether the appellant was careless when attaching the trailer. Whether a defendant was careless is a matter of fact, assessed objectively.14 In this context, carelessness is a failure to exercise the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.15 The carelessness does not need to reach the level of negligence.16

[30]   The appellant characterised the accident as a freak accident. A freak accident is however an unfortunate event with such a low likelihood of occurring that everyone is taken completely by surprise when it happens. Here, it is possible to envisage a trailer detaching from a truck. Indeed, this particular trailer had a break away function which caused the trailer’s braking system to automatically engage. As the trailer moved away from the truck, the air lines came free, thus triggering the break away function. So this trailer was built with a safety function to minimise risk if and when it became detached from a truck. Other trailers have a secondary locking mechanism if the primary mechanism fails.

[31]   There are also always one or more contributing causes to an accident. Here, the pintle hook was obviously not properly locked. It was closed because the appellant was able to drive away towing the trailer. However, it was not locked because the trailer became separated from the truck when the unit hit a bump in the road at speed and the pintle hook opened when struck by the towing eye of the trailer.

14     Rayner v Police [2018] NZHC 2276 at [28]–[29].

15     Huang v Police [2016] NZHC 1271 at [12], citing Simpson v Peat [1952] 2 QB 24 (DC) at 28.

16     Huang v Police [2016] NZHC 1271 at [12].

[32]   The Judge found that the appellant was careless in not ensuring the pintle hook was locked by either running his hand over the upper jaw of the pintle hook or visually checking the latch from different angles to confirm whether the locking handle was raised (in which case the pintle hook was not locked) or flush with it (in which case the pintle hook was locked).

[33]   I am of the view that this finding was open to the Judge and correct. In reaching this conclusion I have had regard to the following factors:

(a)The manufacturer’s operating instructions state that, “when locked, the lock handle (A) will rotate and move up until it is flush with the top of the latch (see illustrations at right)”. The operating instructions then include two photographs — one labelled “Correct” and “Locked” and the other labelled “Incorrect” and “Unlocked”. The photograph labelled “Correct” shows the locking handle flush with the top of the upper jaw of the pintle hook. The photograph labelled “Incorrect” shows it raised. The operating instructions clearly invite the operator to at least visually confirm that the locking handle is flush with the upper jaw of the pintle hook. That position is described as “Correct”.

(b)The officer in charge recorded in her note book the following comments made by the appellant on the day of the accident:

Driven from Matakana taking the trailer to get a COF. Has got a reg but no cert.

This trailer doesn’t have a pin like other trailer. I must not have clicked it down properly. As I came around the corner I hit a bump and next thing I knew this happened.

At least the brakes came on straight away.

This suggests that the appellant relied on the pintle hook “clicking” into place. In evidence, the appellant did not say he checked that the pintle hook was locked by touch or by sight.

(c)It was possible to check that the pintle hook was locked either by touch or by sight. Both the appellant and the defence expert witness,

Mr White, at least initially acknowledged that it would not be difficult to check that the pintle hook was locked by touch, although Mr White did later suggest there might be some difficulty or danger in doing so. Confirmation by sight was also possible, although again Mr White raised some difficulties and suggested an operator needed to get down to the height of the pintle hook (knee height) or walk around to the other side of the truck to check it. He also referred to air lines obscuring the view. I do not however accept that any perceived difficulties excuse an operator from checking whether the pintle hook was locked.

(d)The risks involved in the trailer detaching from the truck while travelling at speed on a public road are such that a reasonable and prudent driver would exercise a high degree of care and attention when attaching the trailer prior to commencing travel. A check, either by touch or by sight, that the pintle hook was locked would take only a few seconds and was clearly proportionate to the risks involved. In the circumstances of this case, the only reasonable conclusion was that the appellant did not take the time to check because he had attached the trailer so many times before without incident. He assumed it was locked.

Other complaints

[34]   The appellant raised various other complaints about the conduct of the prosecution and the evidence given by the prosecution expert witness, Mr Wolf. For the reasons articulated by the prosecution, I do not have any concerns about these.

[35]   First, Mr Wolf  was not  required to meet with  the defence expert witness,  Mr White, before trial to determine what could be agreed between the experts, including whether or not the charge should proceed to trial. A prosecutor disagreeing with a defendant’s assessment of the expert evidence to be given at trial is not prosecutorial misconduct.

[36]   Secondly, although Mr Wolf should not have spoken to members of the prosecution team while he was in the process of giving evidence, this was a matter

dealt with by way of a voir dire hearing during the trial. The appellant was given the opportunity at that stage to apply for a mis-trial, but his counsel confirmed that the trial should proceed. Furthermore, it does not appear from the evidence given in the voir dire hearing that anything objectionable was discussed. No prejudice has been demonstrated.

[37]   Thirdly, even if the appellant was taken by surprise by evidence  given  by  Mr Wolf in re-examination, there was no prejudice because the trial was then adjourned part-heard. Before the trial resumed, Mr White filed an additional statement in response to Mr Wolf’s evidence. He also gave oral evidence on the points raised when the trial resumed. Mr Wolf was not recalled.

[38]For the above reasons, I am not satisfied that there was a miscarriage of justice.

Appeal against sentence

Disqualification

[39]   This Court recently summarised the law in relation to s 81 of the LTA in the following way:17

[59]      In terms of the sentence appeal, a refusal to waive or lessen an otherwise mandatory disqualification period involves both:18

(a)an assessment of fact and application of law in determining whether “special reasons” exists; and

(b)the exercise of judicial discretion in making an order other than the mandatory disqualification.

[60]A special reason is defined in R v Crossen as:19

A mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the Court ought properly to take into account when imposing punishment.

[61]      The principles applying to the application of special reasons are as follows:20

17     Anderson v Police [2018] NZHC 2408.

18     Morgan v Police [2013] NZHC 3431 at [13].

19     R v Crossen [1939] NI 106 at 112.

20     Anderson v Police [2016] NZHC 942 at [15]–[16].

(a)special reasons are only factors of particular or exceptional character;

(b)they must arise from the circumstances in which the offence was committed, or the manner of its commission as a whole, and not circumstances peculiar to the offender;

(c)personal circumstances are irrelevant, except to the extent they influence the events leading up to the commission of the offence or are part and parcel of the offending itself;

(d)the special reason must be of a sufficiently compelling nature to justify a departure from the usual consequences;

(e)the special reason must not conflict with the essential purpose of the statutory provision; and

(f)where all reasonable or possible alternatives are not explored, it is unlikely that special reasons will be found.

[40]   The circumstances of this offending are relatively unique. Both expert witnesses have not come across a similar case in their many years of experience. Crown counsel has not been able to locate any case involving similar circumstances to those in the present case.

[41]   The unique circumstances do not, of themselves, meet the test for special reasons but are indicative that this case is out of the ordinary range of cases. Standing back and looking at all the circumstances, however, I am of the view that the test for special reasons has been met. In reaching this conclusion, I have had regard to the following factors:

(a)The appellant’s driving was not careless or below the standard of a reasonable and prudent driver. He has not been shown by the offence to be a public danger on the road. The mandatory disqualification provision was designed to “keep dangerous drivers … off the road”.21 The appellant is not such a driver.

(b)The appellant’s carelessness arose solely from him not checking, by touch or by sight, that the pintle hook was locked before he commenced

21     See Hitchens v R CA380/03, 25 March 2004 at [10].

driving. He may well have been lulled into a false sense of security by relying over many years on hearing the pintle hook click closed.

(c)The defect in the locking mechanism was not obvious. Both the prosecution and defence expert witnesses agreed that a small piece of debris, even as small as three millimetres and not apparent to the naked eye, could stop the locking arm dropping down into the lock position and prevent the coupling from fully closing and engaging. Specifically, debris such as a small stone could enter the hole in the upper jaw of the pintle lock and become lodged. Photographs revealed damage to the perimeter of the hole. A small stone lodged in the upper casing hole would be difficult to see as the upper jaw faces downwards.

(d)Although the manufacturer’s operating instructions include photographs of a “Correct” and “Locked” pintle hook and an “Incorrect” and “Unlocked” pintle hook, no specific instructions are provided as to how to check whether the pintle hook is locked and why that is important — it is not expressly spelt out.

[42]   While special reasons must arise from the circumstances in which the offence was committed and not circumstances peculiar to the offender,22 I accept and note that the appellant has a previously unblemished record and had absolutely no inkling of any danger when he drove that day. He has also been deeply affected by the accident. He has paid the reparation ordered and has offered to provide one of those injured with specialist rehabilitative care. In any event, for the reasons listed above, I am satisfied that the circumstances of the offence give rise to special reasons under s 81 of the LTA.

22     See Brookers Law of Transportation — Land Transport Act (online looseleaf ed, Thomson Reuters) at [LT81.02], citing Anderson v Police [2016] NZHC 942 at [15].

Result

[43]   The appeal against conviction is dismissed. The appeal against sentence is allowed to the extent that the order for 12 months’ disqualification is quashed. All other aspects of the sentence remain.

Woolford J