McNair v New Zealand Police HC Auckland a 122/01

[2001] NZHC 905

IN THE HIGH COURT OF NEW ZEALAND

AUCKLAND REGISTRY A 122/01

BETWEEN CAMPBELL THOMAS McNAIR
Appellant

AND NEW ZEALAND POLICE
Respondent

Hearing: 25 September 2001

Counsel: P Trehey for appellant
A Jordan for respondent

Judgment: 27 September 2001

JUDGMENT OF NICHOLSON J

Solicitors:
P Trehey, PO Box 941, Auckland for Appellant
Meredith Connell & Co DX CP24063 Auckland for Respondent

INTRODUCTON

[1] Mr McNair appeals against his conviction and sentence on a charge of driving a motor vehicle in a manner which, having regard to all the circumstances of the case, might have been dangerous to the public.

[2] Mr McNair was convicted after a defended hearing.

CIRCUMSTANCES

[3] About 8.30 pm on 25 April 2000 Ms La Bud, a security guard at the Bayswater Marina, saw a Holden car parked on the boat ramp facing the water and that someone standing beside it was throwing objects into the sea. As she approached the car it started to reverse off the ramp with its wheels spinning. The car stopped momentarily. Ms La Bud went behind it and slapped the back of the boot to let the driver know that she was there, yelled for the car to stop and the occupants to get out. The car remained stationary. Two men who Ms La Bud had been earlier helping with a boat came and stood with her at the back of the car. She told them to bang on the back of the car with their hands while she went to the side of the car and tapped on the driver’s window. She did this and repeatedly said “Stop the car. I need to talk to you, stop the car or I’m gonna have to call the Police’’. Passengers in the car were urging Mr McNair to leave. Ms La Bud heard the shouts of “Just go man, just go”. The car then reversed up the ramp and drove out of the marina area. The Police were advised and a patrol car saw the Holden.

[4] Constable Muir spoke to Mr McNair. He said that they had been parked at the marina having a cigarette and one of them called Andrew was outside the car as he did not smoke. He said that when Andrew hopped back into the car he started it and was reversing back when the security guard approached and started asking for his licence and telling him to get out of the car. He said he started to get his licence out of his wallet but one of the passengers told him not to give it to her and to just go. He said that a guy in a red shirt approached the car, was banging on the driver’s side window and then moved to the back of the car so he could not drive off. He said that he reversed back “. . . just trying to shake him to act him off my car. I wasn’t going fast, I was just trying to nudge him away, he then moved . . .”. Constable Muir arrested Mr McNair.

DANGEROUS DRIVING

[5] The principal appeal ground which Mr Trehey advanced was that the Judge was wrong in finding that Mr McNair’s driving was dangerous. There was a conflict of evidence about Mr McNair’s manner of driving. Ms La Bud said “The accelerator of the car was obviously depressed and the car skidded slightly before it started going backwards at a great rate of knots”. She said that there was definitely one person standing behind the car when it reversed and if he had not jumped out of the way he would have been hit. None of the men who assisted Ms La Bud were called as witnesses. Mr McNair and two of his passengers gave evidence. Mr McNair said that a man got on the back of the car, that he asked him to get off several times and when he would not budge he reversed slowly to try and shake him and as he did not move he stopped. He said he told him to get off again and then proceeded to reverse slowly. The man then jumped off. The passengers said that Mr McNair reversed slowly.

[6] In his decision, the Judge said:

“Thus it is clear enough that the defendant, on any view of the facts, reversed this car at night up a boat ramp with a man standing behind it whom he hoped to, as he put it, nudge out of the way. There is a conflict of evidence as to the manner of driving. The complainant, Ms Budd, as I have said indicated that the driving was quite violent, with the wheels spinning and the car moving quite suddenly when the wheels took hold. The occupants of the car characterised it as a much more gentle manoeuvre, backing up carefully at about 5 kilometres an hour to ensure that nobody was injured.

Somewhere between those two events in those two versions lies the reality, but in all events what we have here is a large car in the hands of a young man who was plainly agitated, being reversed at night up a slippery ramp and with a man standing directly behind it. It must, in my view, be prima facie dangerous driving to behave, in that fashion. To reverse or drive a motor vehicle in any circumstances towards somebody who was standing in its path is a difficult matter. It is made more hazardous when it is happening in a situation where the parties are agitated and upset, where it is happening at night, and where the car is being reversed on a slippery and sloping surface. The potential for somebody to be injured in such a circumstance is all too apparent, as recent events in the South Island will no doubt show forth. Concern for damage to the vehicle is not a justification for that sort of behaviour.”

[7] Mr Trehey emphasised that the prosecution called only Ms La Bud and not any of the men outside the car and, in light of the evidence of Mr McNair and his two passengers, submitted that the Judge was wrong in coming to his view about the manner of driving. He also submitted that from the language used in the decision that the Judge had not been satisfied beyond reasonable doubt of the manner of driving and that it was dangerous. He referred to the Judge’s use of the term “prima facie” in the part of the decision just quoted and the concluding part of the decision when he said:

“I am satisfied that no defence of necessity has been established and that the driving admitted to is prima facie dangerous and the charge is proved.’’

[8] Section 7(2) of the Land Transport Act 1998 (“the Act”) provides:

“A person may not drive a motor vehicle on a road, or cause a motor vehicle to be driven on a road, 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.”

[9] Section 35(l)(b) of the Act provides that a person commits an offence if, in contravention of s 7, the person:

“Drives or causes a motor vehicle to be driven on a road 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’’.

[10] The offence of dangerous driving is not an absolute offence. In order to convict, the situation viewed objectively must have been dangerous and there must be fault on the part of the driver, namely driving in a manner below the standard of care or skill of a competent and experienced driver - Transport Ministry v McIntosh [1974] 1 NZLR 142.

[11] As stated by Eichelbaum CJ in Stratford v Ministry of Transport [1992] 1 NZLR 486, the prosecution has to prove a situation which, viewed objectively, was dangerous and was caused by the defendant driving in a manner which fell below the standard of a competent and experienced driver. The facts needed to prove this must be established beyond reasonable doubt. Proof of those facts may be a matter of inference from a number of circumstances, not all of which must themselves be established beyond reasonable doubt.

[12] I consider that in using the term prima facie as he did, the Judge meant that upon the basis of the facts which he found proved, he drew the inference that the defendant drove in a manner which, having regard to all the circumstances of the case, might have been dangerous to the public. Although the Judge did not specifically state that he found the facts proved beyond reasonable doubt and the inference of dangerous driving from those facts to be so strong as to admit of no other conclusion, it is implicit from the content and tenor of his decision that he did so. Bearing in mind that Mr McNair reversed with excessive speed up a slippery ramp when he knew that at least one man was directly behind his car, I consider the circumstances justified a finding of dangerous driving beyond reasonable doubt. Accordingly I am not satisfied that the Judge was wrong in finding Mr McNair guilty of dangerous driving and convicting him accordingly.

DURESS

[13] The Judge said that counsel for Mr McNair (who was not Mr Trehey) raised but did not argue with any specific reference to fact, the prospect of a defence of duress of circumstance. As the Judge stated, this is a defence which is only very sparingly available in New Zealand and in quite restricted terms.

[14] In the circumstances of this case the availability of the defence is restricted by s 24(1) of the Crimes Act 1961 which states:

“Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.”

Where the threat comes from a person who is present the common law defences of duress do not apply - Kapi v Ministry of Transport (1991) 8 CRNZ 49

[l5] The Judge pointed out that none of the occupants of Mr McNair’s car spoke with any conviction about any grounds which they might have had for feeling they were in imminent peril of serious injury. The car doors were locked and the people who were intervening were clearly there to try and restrain them from moving and not to attack them in some way. I am satisfied that the Judge was correct in finding that a defence of duress was not available on the evidence.

CONVICTION APPEAL RESULT

[16] The appeal against conviction accordingly fails on the main dangerous driving ground and the secondary duress ground. It is accordingly dismissed.

SENTENCE

[17] Mr Trehey submitted that the driving disqualification order was manifestly inappropriate and excessive because there were special reasons relating to the offence which warranted the mandatory disqualification provision of the Act from not being applied.

[18] Section 81(1) of the Act provides:

“If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining) a drivers licence for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.’’

[19] The Judge said that he had some sympathy with the situation that Mr McNair found himself in and commented that for what it was worth his impression was that if Mr McNair had been on his own he would have done the right thing and was somewhat misguided by the camaraderie of those within the car. The Judge said that he fixed the penalty at the lightest level that he reasonably could do in view of the findings that he had made. He accepted that Ms La Bud’s demands that Mr McNair get out of the vehicle and show his drivers licence and that if he did not do so she would call the Police was delivered in what was “probably a quite pre-emptory fashion”. It is common ground that Ms La Bud had no authority to require Mr McNair to show his drivers licence or to get out of the car or to refrain from driving off. When she endeavoured to enforce these requirements by having men assist her and stand behind Mr McNair’s car, she unjustifiably created a situation in which Mr McNair became flustered, upset and concerned. Had Ms La Bud and the men not sought to unlawfully detain Mr McNair, the situation of danger created by Mr McNair reversing when he knew that at least one of the men was standing behind the car would not have arisen and an offence would not have been committed. I consider that many drivers in Mr McNair’s situation would have been likely to have acted as he did by driving off.

[20] The circumstances of the attempted unlawful detention clearly amount to special reasons relating to the offence and it is unjust and inappropriate that Mr McNair be disqualified from driving. Ms Jordan advised that the respondent did not oppose the removal of the disqualification. Operation of the disqualification has been stayed pending the determination of the appeal. I accordingly allow the appeal against sentence by quashing the order disqualifying Mr McNair from holding or obtaining a drivers licence for six months.

COSTS

[21] As the appeal has succeeded in part and in light of the circumstances of the offence, I consider that the costs of the appeal should lie where they fall and I so order.