O v Police HC Auckland CRI-2009-404-323

[2009] NZHC 2157

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2009-404-323

O

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 December 2009

Appearances: Mr L Cordwell for Appellant

Mr N Flanagan and Ms F Cuncannon for Respondent

Judgment:      1 December 2009

(ORAL) JUDGMENT OF LANG J

[on appeals against conviction and sentence]

Solicitors:

Crown Solicitor, Auckland
Counsel:

Mr L Cordwell, Auckland

O V NEW ZEALAND POLICE HC AK CRI-2009-404-323  1 December 2009

[1]      At about 8.30 pm on the evening of 2 May 2008 Ms O   was the driver of a motor vehicle travelling north on Tuakau Road.  She came up behind a truck and trailer unit and elected to pass it, believing that the road ahead was clear. She pulled out into the other lane and began overtaking the truck and trailer.  Before she had completed the overtaking manoeuvre, however, she saw the lights of an oncoming vehicle.  She was unable to avoid colliding with the vehicle, and the two vehicles collided in an impact that was of severe force.

[2]      As a result of the accident the driver of the other vehicle, Mr Benjamin McDonald, was very severely injured.  He suffered substantial physical injuries and has also suffered a brain injury that has tragically left him virtually incapacitated.

The competing cases

[3]      As a result of the events that I have just described the police charged Ms O   with aggravated careless driving causing injury.   The prosecution case was that Ms O   was careless in the following respects:

1.      In deciding to overtake the truck and trailer unit.

2.      In failing to apply her brakes when she first saw the oncoming vehicle.

3.That that carelessness was aggravated because she was in breach of the rules governing overtaking manoeuvres at the time that the accident occurred.

[4]      Ms O   defended the charge.   She maintained that her decision to overtake in the circumstances that confronted her was not careless.   She also contended that she was not careless in the way that she carried out the overtaking manoeuvre, and that any decision that she made not to brake when she saw the oncoming vehicle was not careless either.

The Judge’s decision

[5]      The Judge heard the charge in a defended hearing that extended over two days.  On 24 July 2009 she delivered an oral judgment in which she concluded that the prosecution had failed to prove beyond reasonable doubt that Ms O  ’s decision to overtake the truck and trailer unit was careless.  She found, however, that Ms  O    fell  short  of  the  standard  required  of  a  reasonable  and  prudent motorist when she made a conscious decision not to brake and thereby continued to travel at speed into the path of the oncoming vehicle.

[6]      The critical passages from the Judge’s decision are as follows:

[42]      In relation to the evidence of Mr Marks on this point, I firstly did not find the article referred to him to be something of which I am prepared to place any reliance.  Whilst accepting Mr Mark’s evidence that people will react differently to emergency situations, I am satisfied beyond reasonable doubt on the evidence that I have heard that failing to brake by you was careless.  It is clear from your statement to the police and your evidence that you made a conscious decision not to brake and continued to travel at speed directly  into  the  path  of  Mr  McDonald’s  car.    I  am  satisfied  beyond reasonable doubt, looking at all the evidence objectively, that a reasonable and prudent driver would have applied his or her brakes as soon as the oncoming car was seen.  Whilst I accept it is unlikely that the applying of your brakes would have avoided a collision completely, in my view it would have significantly reduced the speed at which you hit Mr McDonald’s car and the devastating results of this accident may well have been avoided.

[43]      To continue driving on the wrong side of the road at speed, knowing that the road could not fit all three vehicles (as accepted by you in evidence) is also in my view clearly careless.   Therefore, I am satisfied beyond reasonable  doubt  that  your  driving  fell  below  that  of  a  reasonable  and prudent driver when you failed to brake and t hat you are careless sin that regard.   You are therefore convicted of careless use causing injury to Benjamin McDonald, but you are not convicted of aggravated careless use, causing injury to Benjamin McDonald.

The appeals

[7]      On appeal, counsel for Ms O   contends that the learned Judge was wrong to reach the conclusion that she did in relation to Ms O  ’s decision not to brake.  He contends that that decision was a reasonable response in all of the circumstances and that it could not be said to be careless given those circumstances.

[8]      Alternatively, counsel for Ms O   contends that the sentence that the Judge imposed namely, 200 hours community work and 14 months disqualification, was manifestly excessive in all the circumstances.

The appeal against conviction

[9]     Not surprisingly, the focus in the defended hearing was largely on Ms O  ’s decision to undertake the overtaking manoeuvre in the first place.  A great deal of evidence revolved around that particular issue and a significant portion of the Judge’s decision is devoted to it.  The Judge’s decision that Ms O   was not careless in this regard appears to have been influenced to a large extent by evidence called by an expert witness for the defence.

[10]     The defence called Mr Marks, who has given evidence in this type of case on many previous occasions.  He has undertaken extensive investigations into this case, and was able to tell the Court that it would not have been possible for Ms O   to know of the existence of the oncoming vehicle until she was able to see its headlights pointing directly towards her.  He carried out tests and discovered that no hint of light from headlights was visible until that point because of the curvature of the road in a dip that was located some distance away from the point where the accident occurred.  Between the dip and the area where the accident occurred is a hill.  Mr Mark’s evidence was to the effect that any “loom”, as he called it, would have been rendered invisible by virtue of the configuration of the landscape.

[11]     For that reason the Judge accepted that Ms O   was entitled to begin the overtaking manoeuvre in the belief that there was a significant stretch of clear road ahead.  She was not to know that the dip ahead was likely to prevent her from being able to know of the existence of oncoming vehicles.

[12]     Mr Marks’ evidence on this point was confirmed by the driver of the truck. He was sitting in a position that was much higher than Ms O  ’s position in her vehicle.  He said that he was not able to see the lights of the oncoming vehicle until that vehicle came to the brow of the hill and its lights pointed directly at his truck. He said that by that stage he knew that an accident was inevitable.

[13]     The issue of whether or not Ms O   applied her brakes in order to reduce the force of the impact does not appear to have played a large part during the hearing in the District Court.  Ms O   made no mention, either, of braking in a written statement that she had made to the police shortly after the collision.  There were no marks on the road to suggest to investigators that either vehicle had braked heavily before the moment of impact.

[14]     Ms O   said initially during cross-examination that she believed that she had braked a short time before impact, but her subsequent answers make it clear that she did not have any clear recollection of this issue at all.  Ms O   was, however, adamant that when she saw the oncoming vehicle she believed that the best option was to remain as close to the side of the truck as possible.   This would provide the oncoming vehicle with the maximum amount of room to pass by on the other side of the road.   She said, however, that even if she had stopped it is still likely that a collision would have occurred.

[15]     Ms O  ’s statement that she endeavoured to manoeuvre her vehicle to a point as close to the right hand side of the truck was supported by damage to the truck.  This suggests that Ms O  ’s vehicle may, in fact, have struck the side of the truck at some stage before the collision with the oncoming vehicle.

[16]     The evidence also demonstrated that the right hand side of Ms O  ’s vehicle collided with the right hand side of Mr McDonald’s car.  The investigation reports show that Mr McDonald’s motor vehicle was extensively damaged on the right hand side as a result of the collision.  The extent of his injuries is also such that there can be no doubt that both vehicles were travelling at reasonable speed at the point at which they collided.

[17]     The nature of the injuries that Mr McDonald suffered were also such as to make it clear that they were caused on impact.  The investigation report states that the driver’s door was badly damaged, and the injuries that Mr McDonald suffered are such that I accept that they were caused at the moment of impact.

[18] Counsel for Ms O maintained in his submissions before me that the Judge had made errors in the passages from her summing up that I have set out at [6]. He submitted that there was nothing in the evidence to permit the Judge to conclude that Ms O had made a conscious decision not to brake, and that she had continued to travel “at speed” directly into the path of Mr McDonald’s car. He also contended that the Judge was not entitled to conclude that if Ms O had applied her brakes it would have significantly reduced the speed at which her vehicle collided with Mr McDonald’s vehicle. For that reason he submitted that the Judge had no evidential foundation for a conclusion that, if Ms O had applied her brakes, the devastating results of the accident may well have been avoided.

[19]     Counsel for Ms O   placed considerable emphasis on the fact that, as the Judge found, his client was entitled to undertake the overtaking manoeuvre based on the information available to her.   He submitted that the appearance of the oncoming vehicle was a matter that would have taken Ms O   by surprise, and that she only had a matter of seconds to react to it.  In those circumstances he contended that Ms O  ’s decision to remain as far to the left as possible was appropriate in all the circumstances.   He submitted that Ms O  ’s decision can properly be described as a decision made in the agony of the moment when she was faced with an immediate emergency.   He referred me to cases in which the courts have been prepared to allow a degree of latitude to drivers who are caught in such a position.

[20]     It  needs  to  be  borne  in  mind,  however,  that  Ms  O    decided  to undertake a manoeuvre that had significant inherent risks.  First, she was required to manoeuvre her car onto the other side of the road and to carry out the entirety of the manoeuvre on that side of the road.  This left her vulnerable to any oncoming traffic or traffic that approached suddenly from her right.

[21]     Secondly, Ms O   was not familiar with the road.  This was not a road that she travelled regularly.  The evidence established that she had only travelled on it on one or two previous occasions and those had been some considerable time before the collision.

[22]     Thirdly, the manoeuvre was undertaken at night.   Visibility is necessarily restricted at night, and features of the landscape that may be visible during the day will often be hidden at night.  All of those risks would have been readily apparent to a prudent and reasonable motorist.  This meant that Ms McDonald needed to be in a position to react quickly should any form of emergency arise.

[23]     Counsel’s submission that Ms O   made her decision in the agony of the moment needs to be compared to the description of the incident that Ms O   gave to a police officer at 11.28 pm on the evening of the collision.  In this statement she described the critical parts of the incident as follows:

Once the yellow lines has [sic] ended I thought to pass the truck and carry on.

As I went into other lane to overtake the truck there was a dip in the front and I couldn’t see anything further.

As I came close to overtake the truck I saw lights from the other car coming towards me.

I had no place to move as the truck was on my left hand side, and I got stuck in between the truck and oncoming car.

I saw the other car was staying in the middle of the lane and thought that there was a drain on the right hand side of the road.  I then thought to move left so that the other car can pass.

As I was stuck between truck and the oncoming car I had very little space.  I stayed in the middle of the road thinking that the other car would have space to pass but my car clipped the other car.

The truck braked and I managed to pass the truck but hit the other oncoming towards me.

[24]     This extract from Ms O  ’s statement suggests to me that, although the  events  happened  quickly,  they  did  not  happen  with  such  speed  that  Ms O   had no time within which to make a considered decision.  Quite clearly she had enough time to observe what was happening and to weigh up the choices that were available to her.  For that reason I consider that it is likely that she had some seconds within which to take evasive action.

[25]     I  accept  without  reservation  that  by  the  time  Ms  O    saw  the oncoming vehicle there was no possibility of avoiding a collision.  Her decision to

remain as close to the side of the truck as possible was also one that was appropriate in the circumstances.  Like the learned Judge in the District Court, however, I have no doubt that a reasonable and prudent motorist faced with this situation would also immediately have applied his or her brakes as soon as possible.  The reason for this is obvious.  In any collision involving two motor vehicles, and particularly when the collision occurs head on, the force of the impact is directly affected by the speed at which the two vehicles are travelling.  As a consequence, any reduction in speed at all is likely to have a significant influence on the ultimate force of the impact.  Like the Judge, I consider that Ms O  ’s conduct fell below the standard of that required by a reasonable and prudent motorist when she failed to apply the brakes as well as to move her vehicle over to the left.

[26]     Counsel for Ms O   submitted that there was no evidence before the Judge to enable her to draw a conclusion that Mr McDonald would not have been injured even if the brakes had been applied.  The answer to this submission lies in the nature of Mr McDonald’s injuries and the point at which they occurred.  There is no, and in most situations there can never be, any direct evidence regarding what would have happened had Ms O   applied her brakes and thereby slowed her vehicle down.  Given the length of time that she had before impact, however, and the point at which impact occurred, I am left in no doubt that the force of the impact would  have  been  significantly  less  if  Ms  O    had  applied  her  brakes forcefully as soon as she saw the lights of the oncoming vehicle.  As I have said, I consider that that is what a prudent and reasonable motorist would have done faced in the circumstances that confronted Ms O   at the time.

[27]     For these reasons I have reached the conclusion that the Judge correctly concluded that Ms O   was guilty of careless driving causing injury.  Had she applied her brakes it is highly likely that the extent of the injuries that Mr McDonald suffered would have been significantly less.   For these reasons the appeal against conviction cannot succeed.

The appeal against sentence

[28]     This conclusion brings me to the appeal against sentence.   Counsel have referred me to a large number of cases in this area.  These demonstrate that every case has a unique set of facts, and it is very difficult to usefully apply sentences imposed in other cases to the facts of an instant case.

[29]     One issue that I am satisfied the Judge was entitled to take into account was the extent of Mr McDonald’s injuries.  That is not a determining factor in terms of sentence, but it is a factor that the Court is entitled to take into account when imposing  sentence.    In  this  context  counsel  for  the  Crown  referred  me  to  the following  passage  from  Paintin  v  Ministry  of  Transport  HC  TAU  AP25/90

10 October 1990 Fisher J at 7:

The consequences of an offender’s conduct are not irrelevant to sentencing. The emphasis in matters of this kind is no doubt rightly put on personal culpability but the consequences have implications in a number of ways. Reattribution is a subservient but relevant aspect of sentencing and, indeed, it is illustrated in this very case in view of the understandable emotional reactions of the deceased’s family.  In fixing the penalty for careless driving, the  legislation  itself  draws  a  dramatic  contrast  between  the  fortuitous presence or absence of a fatality or injury yet this factor will usually have little or no bearing upon personal culpability ... It is the result of the carelessness that affects the penalty in that respect.

[30]     Here, Ms O  ’s actions are likely to have exacerbated or, at least failed to mitigate, the injuries that Mr McDonald suffered as a result of the accident. As I have said, these are extreme.  He is now only able to communicate in writing and the consequences for him and his family have been devastating.   Before the accident he was a young man of enormous promise who had shown a considerable degree  of  competence  and  excellence  in  a  wide  variety  of  activities,  including sporting endeavour.  All of those have now been taken from him as a result of the collision with Ms O  ’s vehicle.   For that reason I accept the Crown’s submissions that the Judge was required to impose a sentence that was of some significance.

[31]     Taking  those  matters  into  account  I  have  reached  the  conclusion  that  a sentence  of  200  hours  community  service  cannot  be  regarded  as  manifestly

excessive.   It is higher than the sentence imposed in some of the cases to which counsel have referred me for similar offending.  On the other hand, it is less than the sentences imposed in other like cases.  In those circumstances I cannot reasonably reach the conclusion that the sentence was outside the range of sentence that the Judge could reasonably impose.

[32]     Counsel for Ms O   also submitted that 14 months disqualification from driving was manifestly excessive having regard to the authorities.  Once again, however, the authorities need to be viewed in light of their own facts.  The evidence in this case demonstrates that Ms O   was not particularly familiar with the rules and advice provided by the New Zealand Road Code.  She was not aware, for example, of the fact that the road code recommends that when a driver is faced with an oncoming car the most appropriate response is to brake hard.   Mr Marks too, accepted that that was the case, although his evidence was to the effect that, in practice, drivers may react in a variety of different ways.

[33]     The Judge noted that a 14 month period of disqualification would mean that Ms O   would need to re-sit her licence at the end of that period.  The Judge viewed this as a desirable outcome given the events that had given rise to the charge. I also share that view.  It is a matter of concern that Ms O   did not appear to consider that braking was an appropriate response when it would be an obvious response for most reasonable and prudent motorists.  I, too, consider that she would benefit from being required to refresh herself on the rules of the road and to re-sit her driving test.

[34]     For these reasons, and notwithstanding the very perceptive and thoughtful arguments that Mr Cordwell has advanced on Ms O  ’s behalf, I find myself unable to disturb the sentence.

Result

[35]     The appeal against sentence is accordingly dismissed as is the appeal against conviction.

Lang J