McCoy v Police
[2022] NZCA 617
•9 December 2022 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA143/2022 [2022] NZCA 617 |
| BETWEEN | JAKE ELIJAH MCCOY |
| AND | NEW ZEALAND POLICE |
| Court: | Gilbert, Brewer and Moore JJ |
Counsel: | A J Bailey for Applicant |
Judgment: | 9 December 2022 at 9.30 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal against conviction is granted.
____________________________________________________________________
REASONS OF THE COURT
(Given by Moore J)
In the District Court at Christchurch, Jake McCoy faced charges of dangerous driving,[1] common assault,[2] speaking threateningly,[3] resisting arrest[4] and two charges of wilful trespass.[5] He pleaded guilty to all but the charge of dangerous driving.
[1]Land Transport Act 1998, s 35(1)(b).
[2]Summary Offences Act 1981, s 9.
[3]Section 21(1)(a).
[4]Section 23(a).
[5]Trespass Act 1980, s 4(4).
Following a judge-alone trial before Judge J J Brandts-Giesen, Mr McCoy was found guilty of dangerous driving.[6] He appealed. On 23 February 2022, Osborne J dismissed his appeal against conviction.[7]
[6]Police v McCoy [2021] NZDC 15034 [District Court judgment].
[7]McCoy v Police [2022] NZHC 252 [High Court judgment].
Mr McCoy now seeks leave to bring a second appeal against conviction. The police oppose.
The offending
For present purposes, it is necessary to summarise only the offending underlying the dangerous driving charge.
On 10 October 2020, Mr McCoy was driving his ute down a street in Christchurch. The complainant, B, had parked his car on the side of the road, near his fiancée’s house. Before leaving the car, he looked up and saw Mr McCoy driving around a roundabout some distance away. He opened his car door and got out.
Mr McCoy drove past. As he did, he hurled abuse at B. Then he executed a U-turn and drove back towards B. He stopped in the middle of the road and continued his verbal abuse of B, including the delivery of a racial slur.
Mr McCoy then drove onto the wrong side of the road and stopped about three or four metres past B’s car. The rear of his ute was closest to the back of B’s vehicle. Mr McCoy threatened to smash B’s car. B asked him not to. Undeterred, Mr McCoy reversed towards B’s car. B stood in between the two vehicles. He placed his hands on the ute in an attempt or gesture to Mr McCoy to stop. Mr McCoy stopped. A neighbour, who witnessed the events unfold described the speed of the ute as “medium pace” but with “some intent that it was gonna keep going”.
B told Mr McCoy he would call the police. Mr McCoy responded that he did not care and would be back with some friends. He then drove away. The police later found and arrested him.
District Court judgment
The trial Judge framed the issue as whether Mr McCoy was “driving in a manner which having regard to all the circumstances of the case had been dangerous to the public or a person”.[8] The Judge had no doubt that Mr McCoy both drove aggressively and behaved in an aggressive manner.[9] He accepted that B was not behind Mr McCoy’s ute when he began reversing and that Mr McCoy may well have stopped short of hitting B.[10] However, taking into account the aggression Mr McCoy was displaying at the time, he concluded that the driving was in a manner which could have been dangerous to B or to the two onlookers on the nearby footpath.[11] That danger existed in the wider context of how Mr McCoy was driving and behaving.[12] The Judge thus found the charge of dangerous driving proved.[13]
High Court judgment
[8]District Court judgment, above n 6, at [5].
[9]At [5]–[6].
[10]At [8].
[11]At [8].
[12]At [9].
[13]At [9].
Mr McCoy appealed his conviction. Osborne J considered that the issue on appeal was whether the Judge erred in finding the speed and manner in which Mr McCoy drove, having regard to all the circumstances, was or might have been dangerous to the public or to a person.[14]
[14]High Court judgment, above n 7, at [43].
Osborne J accepted that the trial Judge may have focused unnecessarily on Mr McCoy’s aggressive conduct.[15] However, he also accepted that the trial Judge was entitled to have regard to the broader circumstances.[16] Osborne J reasoned that the Judge did not conclude the driving was dangerous simply because of the aggression.[17] Rather, that his driving was dangerous in the wider context of how he was driving.[18]
[15]At [45].
[16]At [45].
[17]At [45].
[18]At [46].
The High Court concluded that Mr McCoy’s use of his vehicle justified the trial Judge’s finding that it was dangerous.[19] The conviction was sound, and no miscarriage of justice occurred.[20]
Approach to applications for leave to bring a second appeal against conviction
[19]At [47].
[20]At [47].
Mr McCoy now applies for leave to bring a second appeal against conviction.[21] Leave must not be granted unless the appeal involves a matter of general or public importance or that a miscarriage of justice may have occurred, or may occur unless the appeal is heard.[22] The threshold for granting leave is high, particularly because not every error will carry with it a risk of a miscarriage of justice.[23]
Proposed grounds of appeal
[21]Criminal Procedure Act 2011, s 237(1).
[22]Section 237(2).
[23]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38]. See also Larason v Police [2021] NZCA 440 at [18].
Mr Bailey, for Mr McCoy, seeks leave to appeal on two bases:
(a)the Judge erred by relying on irrelevant evidence of Mr McCoy’s aggressive state of mind in assessing whether his driving was dangerous, resulting in a miscarriage of justice; and
(b)the proposed appeal concerns a matter of general or public importance, namely whether the driver’s state of mind is a relevant circumstance when assessing whether the driving was dangerous.
Should leave be granted?
We are satisfied that the proposed appeal raises a genuinely arguable question of law that is of general or public importance. The statutory test for dangerous driving is whether a defendant drove a motor vehicle at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person.[24] This includes not only actual and potential danger to persons present but also extends to hypothetical members of the public who might be endangered.[25] Whether the driving was dangerous is to be assessed objectively and there is long-standing authority that it does not depend on the defendant’s state of mind.[26] An early statement of this principle may be found in the Court of Criminal Appeal’s decision in R v Evans:[27]
... it is no answer to … say: ‘I did not mean to drive dangerously’ … if a driver in fact adopts a manner of driving which the jury think was dangerous to other road users in all the circumstances, then on the issue of guilt it matters not whether he was deliberately reckless, careless, momentarily inattentive or even doing his incompetent best.
[24]Land Transport Act, ss 7(2) and 35(1)(b).
[25]Whiteman v Ministry of Transport [1980] 2 NZLR 507 (CA) at 511, citing Wagg v Shaw [1962] NZLR 498 (SC) at 499.
[26]R v Evans [1963] 1 QB 412 at 418.
[27]At 418.
The danger must nevertheless be the result of some fault on the part of the driver.[28] The relevant standard for assessing fault is that of the competent and experienced driver, which is to be measured against the manner of the driving in the particular circumstances of the case.[29]
[28]Johnston v Police [2022] NZHC 266 at [13].
[29]At [13], citing R v Jones [1986] 1 NZLR 1 (CA) at 3, citing R v Gosney [1971] 2 QB 674 at 680. See also R v Seymour CA75/97, 11 June 1997; and Andrew Becroft and Geoff Hall (eds) Becroft and Hall’s Transport Law (NZ) (online ed, Lexis Nexis) at [LTA35.7].
We consider it is arguable that the courts below erred in taking into account Mr McCoy’s anger and aggression. While the test involves consideration of all the circumstances, it is seriously arguable that a defendant’s general state of mind is not relevant to whether their driving, assessed objectively, was dangerous. We therefore consider that a miscarriage of justice may result if the appeal is not heard.
The proposed appeal raises an issue of general or public importance. Dangerous driving charges are dealt with in the District Court in relatively high volumes. Clarification of the correct approach is therefore desirable to ensure these types of cases are dealt with efficiently and consistently.
Result
The application for leave to bring a second appeal against conviction is granted.
Solicitors:
Crown Law Office, Wellington for Respondent
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