Mash v Police - [2014] NZHC 1223

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000346 [2014] NZHC 1223

BETWEEN
ROBERT MASH

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 26 May 2014

Appearances:

J Maddox for Appellant
B Hamlin for Respondent

Judgment:

3 June 2014

JUDGMENT OF VENNING J

This judgment was delivered by me on 3 June 2014 at 2.15 pm, pursuant to Rule 11.5 of the High
Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors: Meredith Connell, Auckland
Copy to: J J Maddox, Liberty Law Barristers, Auckland

MASH v NZ POLICE [2014] NZHC 1223 [3 June 2014]

[1] Following a defended hearing in the District Court at North Shore Judge L I Hinton found a charge of dangerous driving proved against Robert Mash.1 On 8
November 2013 the Judge declined Mr Mash’s application for a discharge under s 106 of the Sentencing Act 2002, convicted him and disqualified him for three months.2

[2] Mr Mash appeals against conviction.

Background

[3] At around 8.50 am on Thursday, 17 November 2012 Mr Mash, a serving police officer, was involved in the high speed pursuit of a stolen car. The stolen car, a Subaru, was being driven along a dual carriageway on Oteha Valley Road pursued by three police cars. The speed limit on the carriageway was 60 km/h. Mr Mash was driving the lead police car.

[4] The Subaru crossed through a small gap in the median barriers (described during the course of the hearing as a chicane) onto the wrong side of the road and into the face of oncoming traffic, (although there was no oncoming traffic immediately in front of the Subaru in the lane in which it was in).

[5] Mr Mash, who was following the Subaru at speeds estimated between 113 and 130 km/h, attempted to follow the Subaru through the chicane. However, the left rear wheel of Mr Mash’s police car clipped the concrete edge of the median at the far end of the chicane. Mr Mash lost control of his car which careered across two lanes and between two oncoming vehicles before mounting the kerb and coming to rest against a fence. Mr Mash was unharmed.

[6] The other two police cars continued to follow the direction the Subaru took but stayed on the correct side of the road. The driver of the stolen Subaru was
ultimately apprehended.

1 New Zealand Police v Mash DC North Shore CRI-2011-044-9115, 20 June 2013.
2 New Zealand Police v Mash DC North Shore CRI-2011-044-9115, 8 November 2013.

[7] After an investigation into the crash, Mr Mash was charged with dangerous driving. At Mr Mash’s prosecution a DVD containing the traffic camera footage disclosing the incident was produced. Sergeant Atkinson, who investigated the accident, gave evidence that Mr Mash was travelling at speeds of up to 130 km/h, although under cross-examination he accepted that Mr Mash’s speed could have been less than that. Nevertheless, in his view, it would not have been less than 113 km/h.

[8] Mr Atkinson’s report also referred to the fact…

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.

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Details

Case: [2014] NZHC 1223
Decision Date: 3 June 2014

CaseChat Overview and Summary

The appeal in Mash v Police was heard by Venning J in the High Court of New Zealand, Auckland Registry. Robert Mash, a police officer, was convicted of dangerous driving by the District Court after he pursued a stolen vehicle onto the wrong side of a dual carriageway while exceeding the speed limit. Mash appealed against his conviction, arguing that the District Court erred in its application of the law and in its assessment of the evidence. The key issues before the High Court were whether Mash's driving was objectively dangerous, whether the dangerous driving was due to a sudden emergency or mechanical defect, and whether the defence of necessity was available and made out in the circumstances. The High Court found that even if the defence of necessity was available, the District Court was correct to reject it as Mash had a realistic alternative available to him. The Court also found that the driving was objectively dangerous, but that there was insufficient evidence to prove beyond reasonable doubt that Mash was at fault. The appeal was therefore allowed, the conviction quashed, and the charge dismissed.

Orders