O v Police HC Auckland CRI-2006-404-125

[2007] NZHC 32

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2006-404-125

BETWEEN    O

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         12 February 2007

Appearances: Appellant in person

Anna Longdill for Respondent

Judgment:      12 February 2007

JUDGMENT OF HARRISON J

SOLICITORS

Meredith Connell (Auckland) for Respondent

COPY TO: DG O    , [address], Remuera

O  V POLICE HC AK CRI-2006-404-125  12 February 2007

[1]      Mr D   O       appeals  against  his  conviction  and  sentence  of disqualification following a defended hearing in the District Court at Auckland on

20 January 2006 on one charge of dangerous driving on Tamaki Drive, Auckland:

s 35(1)(b) Land Transport Act 1998.

[2]      I note by way of introduction that Mr O      represented himself in the District Court, as he has today on appeal.  The careful decision of Judge Caroline Henwood recited and rejected Mr O     ’s challenge to the prosecution alleging abuse of process and associated breaches of the New Zealand Bill of Rights Act 1990.  He persisted in part with that argument on appeal but, like the learned District Court Judge, I am satisfied that his challenge was without success and I do not intend to consider it further.

District Court

[3]      The  facts  are  straightforward,  although  Mr O     ’s  careful  cross- examination of the complainant and his submissions in the District Court may have served to introduce an unnecessary degree of complexity.  I respectfully adopt Judge Henwood’s summary of the relevant circumstances as follows:

[25]      There is no dispute that [Mr O     ] was driving a very large truck some 17 metres long and a truck that he described himself as one of the largest you would find on the New Zealand roads.  He was travelling on Tamaki Drive, Auckland City and there is no dispute that he made a lane change from the left-hand lane into the right-hand lane and at that time the complainant’s vehicle was in that right-hand lane.  There is no dispute that there was a parked car in the left-hand lane obstructing [Mr O     ] as he approached.  It is the prosecution allegation that [Mr O     ] had an obligation to slow down and stop to avoid hitting the parked car and wait to see if the way was clear before moving into the right-hand lane.   The prosecution allege that [Mr O     ] was travelling too fast taking into account all the circumstances and was unable to stop without either hitting the parked car or moving into the right-hand lane thereby forcing the complainant’s vehicle out of the lane, on to the wrong side of the road and into the face of oncoming traffic.  The prosecution say the defendant drove in a dangerous manner.

[4]      The  Judge  also  summarised  the   complainant’s   evidence   in   the   next succeeding passage of her decision as follows:

[26]      [The complainant] said he was driving a small motor vehicle in Tamaki Drive.  He was in the right-hand lane and [Mr O     ’s] truck was in the left-hand lane.  He said he was half way past the truck when the truck’s indicator light came on.  When the complainant’s vehicle comes almost parallel with the truck’s cab the truck pulls out pushing the passenger side of his vehicle and forcing him into the opposing traffic lane where he has to take evasive action.  He said ‘it was terrifying’.  The wheel studs of the truck were eating into his passenger’s door.

[5] Mr O gave evidence in his own defence. Having heard both parties and considered the independent evidence, the Judge preferred the complainant’s account: at [45]. She then summarised her grounds for finding Mr O guilty as follows:

[47]      …

1.[Mr O     ] was driving a heavy motor vehicle which he knew or reasonably ought to have known required some distance to stop. He has given evidence to that effect.

2.In the circumstances of driving such a vehicle he was exceeding the speed limit of 50 kph travelling at 55 kph around 10.30 in the morning when there was considerable traffic.   Where he was in a lane (the left-hand lane in Tamaki Drive) which, from time to time, vehicles are allowed to park and indeed a vehicle was parked and [Mr O     ] was travelling at such a speed that he was unable to slow down and stop for that vehicle without colliding with it.

3.He then changed lanes into the right-hand lane knowing that there was another vehicle in that lane and making an assumption that that vehicle would brake and make room for him.   That assumption was incorrect and dangerous and by making that manoeuvre he forced the complainant out of the right-hand lane and onto the wrong side of the road and into the face of ongoing traffic putting, not only the complainant’s life at risk, but other motorists and oncoming traffic.

[My emphasis]

[6]      Judge  Henwood  subsequently  sentenced  Mr O       on  7 April  2006. She convicted and disqualified him from holding or obtaining a driver’s licence for six months from 14 April 2006.  She also sentenced him to 120 hours community work.  Both sentenced have been stayed pending determination of Mr O     ’s appeal.

[7]      Mr O     ’s initial synopsis of submissions raised two grounds against conviction.  A third arose as a consequence of his application for an adjournment in this Court on 3 October 2006.   A fourth has been introduced in a supplementary synopsis.  Neither of the latter two grounds were argued in the District Court.  I shall deal with each in turn.

[8]      First,  Mr O       submits  that  the  decision  was  not  supported  by evidence.  In essence he says that the difference or altercation between himself and the complainant commenced about 150 metres before the parked motor vehicle.  He says that the police case that his truck was too close to the parked car at the time of the offence was unsubstantiated by the evidence.

[9]      In evidence the complainant said this:

Q.        You’ve  decided  the  best  course  of  action  would  be  to  keep overtaking, why not brake and let the vehicle in?…..Because I didn’t think that it was an issue, I didn’t really know how – obviously the other parked car was so close to him that his alternatives had gone and his only alternative was to come into my lane, which I didn’t realise until we’d stopped further up and I looked back to see where that car was, he had left it until the last moment so he had no escape route, there’s only one option for him was to come into my lane and I presume that’s why he came over.

[10]     As I have already noted, the Judge accepted the complainant’s account.  That preference was clearly open to her.  She had the advantage of seeing and hearing all witnesses.  Her decision was carefully reasoned and in my view there was an ample evidential basis for it.

[11]     Second, Mr O      submits that the Judge failed to take account of the complainant’s conduct in determining what was reasonably careful and prudent driving.  With respect, this submission misses the point.  The complainant’s driving was  not  in  issue.    The  sole  question  was  whether  or  not  Mr O       drove dangerously.  Again, in any event, I note that the Judge was satisfied that the complainant bore no responsibility for the incident.  In particular I refer to this finding:

[45]      The complainant is adamant that he did not exceed the speed limit and if (sic) he was going 50kph when [Mr O     ] slowed as he approached the car.   It is quite logical that the complainant gained on the truck at the critical and relevant time of a lane change to place him near to the cab as he testified.  The Court accepted the complainant’s account of events in this regard.  The complainant said he could see [Mr O     ] in the  truck  cab  in  his  mirror.    [Mr  O     ]  then  started  easing  over pushing the complainant in his small Toyota Starlet onto the wrong side of the road – a very dangerous manoeuvre.  [Mr O     ’s] suggestion that the complainant in the right-hand lane should brake in his lane and pull back and stop and allow the truck to move over is certainly quite incorrect.

[12]     Third, as a consequence of the  previous  adjournment  Mr O       has raised a submission of autrefois convict: s 26(2) New Zealand Bill of Rights Act.  It arises in this way.

[13]    The police officer who first attended the scene of the incident issued an infringement notice to Mr O      for the offence of carrying out an unsafe lane change  and  fixed  the  infringement  fee.     The  notice  was  sent  by  mail  to Mr O     .   However, immediately afterwards, following discussions with his superior,  the  officer  reviewed  his  decision.    He  telephoned  Mr O       and requested  him  to  ignore  the  notice,  advising  that  the  more  serious  charge  of dangerous driving would be laid.   Mr O      was aware of this advice before receipt of the notice by post.

[14]     Mr O      submits that the infringement notice is final.   He correctly points out that it has a penalty prescribed by statute.  In his submission it ‘metes out a sentence pertaining to the event’.  A recipient wishing to challenge the notified offence must give notice to the Court.  He describes this process as being akin to an appeal which should exclude the right of substitution by a more serious charge.  In Mr O     ’s  argument  the  prosecution  decision  to  lay  a  formal  charge  of dangerous driving on 24 November 2004, some three weeks after the event, placed him in double jeopardy.  He says the notice had already sentenced him to a fine of

$150 on a charge specifying the same event.

[15]     This submission raises an arguable point of principle. However, on reflection I am satisfied that Ms Anna Longdill for the Crown is correct.   An infringement notice is an offence for the purposes of s 24(a) New Zealand Bill of Rights Act:

Henderson v The Director Land Transport Safety Authority CA133/04 19 September

2005.   However, I respectfully agree with Keane DCJ; the New Zealand Bill of Rights Act is concerned with the criminal process, as s 24(a) makes clear, whereas the infringement procedure prescribed by the Land Transport Act is civil in nature rather than criminal: Wellington City Council v McCready [1995] DCR 536.

[16]     This point is emphasised by s 78A Summary Proceedings Act 1957 which materially provides as follows:

(1)       Notwithstanding any other provision of this or any other Act, where in proceedings for an infringement offence (whether being an offence for which an infringement notice has been issued or not) the defendant is found guilty of, or pleads guilty to, the offence and the Court would, but for this subsection, convict the defendant, the Court shall not convict the defendant but may order the defendant to pay such fine and costs and may make such other orders as the Court would be authorised to order or make on convicting the defendant of the offence.

This provision confirms that a conviction shall not be entered for an infringement offence.  Accordingly, in the absence of a conviction Mr O      was never at jeopardy  at  any  time  before  the  charge  of  dangerous  driving  was  laid  on

24 November 2004.

[17]     Also, I agree with Ms Longdill that Mr O      faces a separate obstacle. Contrary to Mr O     ’s submission, I am satisfied that the infringement notice was for a different offence than for the one for which he was subsequently prosecuted.  The test is not whether or not the same evidence was tendered or would be tendered to support either or both.   The law recognises that in certain circumstances, such as this, two distinct offences are committed by the one act.  The question is not whether the facts relating to both is the same but whether the offences are the same or substantially the same: R v Brightwell [1995] 2 NZLR 435 (CA); MOT v Hyndman [1990] 3 NZLR 480. Dangerous driving is different in nature from the offence of an unsafe lane change.

[18]     Fourth, and belatedly, Mr O      submits that the information laying a charge of dangerous driving was defective for failing to properly particularise the offence.  He advances a tightly reasoned but, in my respectful view, misconceived argument.    As  Ms Longdill  points  out,  the law  in  New Zealand  is  well  settled.

Particulars of alleged careless or dangerous driving are not required for inclusion in informations: Police v Wyatt [1966] NZLR 1118 (CA). In any event, the terms of the information were more than adequate, especially given Mr O ’s familiarity with all the circumstances.

[19]     It follows that I dismiss Mr O     ’s appeal against conviction.

Sentence

[20]     Mr O      appeals separately against the Judge’s imposition of a term of disqualification for six months.  The Judge noted Mr O     ’s submission that imposition of a term of community work would be preferable to a fine.  He advanced a submission of special reasons against disqualification.  The Judge was satisfied that

‘there are no special reasons or circumstances pertaining to this traffic matter’. Accordingly, she disqualified Mr O      from holding a driver’s licence.

[21]     However, Mr O      confirms today that he did not draw the Judge’s attention to or rely upon s 94.   It introduces an important qualification to s 81(1), obliging the Court to disqualify unless the Judge is satisfied that ‘special reasons relating to the offence’ justify otherwise.  Plainly Judge Henwood was referring to this provision.

[22]     However, in my judgment s 94 is relevant.   Mr O      properly relies upon it here.  The material provisions are as follows:

(1)      This section applies if—

(a)The offender has previously been ordered on conviction for an offence to be disqualified from holding or obtaining a driver licence; and

(b)      The court, having regard to—

(i)       The circumstances of the case and of the offender;

and

(ii)      The effectiveness or otherwise of a previous order of disqualification made in respect of the offender; and

(iii)     The likely effect on the offender of a further order of disqualification; and

(iv)      The interests of the public,—

considers that it would be inappropriate to order that the offender be disqualified from holding or obtaining a driver licence; and

(c)The court considers that it would be appropriate to sentence the offender to a community-based sentence in accordance with Part 2 of the Sentencing Act 2002.

(2)      Despite  any  provision  of  this  Act  that  requires  a  court  (in  the absence of special reasons relating to the offence) to order a person convicted of an offence to be disqualified from holding or obtaining a driver licence, the court may instead make an order referred to in subsection (3) if this section applies.

(3)If the court sentencing an offender determines under this section not to make an order of disqualification,—

(a)The court must impose a community-based sentence on the offender; and

(b)The imposition of such a sentence does not limit or affect the power of the court to impose any other sentence for the offence that, in accordance with the provisions of the Sentencing Act 2002, it may impose in addition to the community-based sentence; and

(c)In determining the appropriate sentence to be imposed on the offender in respect of the offence, the court must take into account the gravity of the offence and the fact that the offender  would  otherwise  have  been  liable  to disqualification from holding or obtaining a driver licence.

[23]     Ms Longdill does not dispute that s 94 applies despite the terms of s 81.  She accepts  that  Mr O       satisfies  the  qualifying  requirements  following  his conviction for driving with excess breath alcohol on 27 September 1995 and the period of six months disqualification imposed then.   However, she submits that Mr O      was obliged to raise s 94 before Judge Henwood.  His failure to do so, she says, precludes him from reliance on it here.

[24]     With respect, I disagree.  I repeat that no criticism can be directed towards the Judge; Mr O      should have based his submissions specifically upon it. I must approach this question afresh.  Taking into account the particular factors set out in s 94(1)(b) I am satisfied that it would be inappropriate to order disqualification.

While the circumstances of the offending are serious, I am influenced by the fact that Mr O      is a professional driver whose income depends upon his retention of a heavy traffic licence.  Disqualification would terminate his employment prospects. Additionally,  Mr O     ’s  previous  term  of  disqualification  was  more  than 10 years ago and is now of historical importance.

[25]     The interests of the public do not mandate disqualification.   I am satisfied that Mr O      has learned his lesson, even at this stage in life, and will not repeat offending of this type again.  He is otherwise a responsible citizen who has conducted himself with courtesy and ability in support of his appeal in this Court.

[26]     In the circumstances I quash the term of disqualification.   In its place  I

impose a fine of $1000 to take account of Mr O     ’s financial circumstances. The term of community work remains.  Otherwise the appeal is dismissed.

Rhys Harrison J