Paul v Police HC Auckland CRI-2010-404-000274

[2011] NZHC 982

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-000274

BETWEEN  GAVIN PAUL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         26 October 2010

Appearances: M J Utting for Appellant

D M Robinson for Respondent

Judgment:      8 February 2011 at 3:30 PM

JUDGMENT OF COURTNEY J

Solicitors:           Meredith Connell, P O Box 2213, Auckland 1140

Fax: [phone] – D Robinson

Counsel:             M J Utting, P O Box 31293, North Shore 0741

Email: [email protected]

PAUL V NZ POLICE HC AK CRI-2010-404-000274 8 February 2011

[1]      Mr Paul was convicted on one charge under s 35(1)(c) Land Transport Act

1998 of failing, without reasonable excuse, to stop and ascertain injury following a defended hearing in the North Shore District Court.   He appeals against his conviction.  A second charge of driving at such speed as to be unable to stop in the length of lane visible to the driver was dismissed.  The ground of appeal is that the facts as found by Judge Simpson did not satisfy the elements of the offence.

[2]      Section 22(1) Land Transport Act 1998 provides that:

(1)      If an accident arising directly or indirectly from the operation of a vehicle occurs to a person or to a vehicle, the driver or rider of the vehicle must—

(a)       Stop and ascertain whether a person has been injured; and

(b)       Render all practicable assistance to any injured persons.

[3]      Section 35(1)(c) provides:

(1)      A person commits an offence if the person—...

(c)      Without reasonable excuse, contravenes section 22 by failing to stop and ascertain whether any person has been injured, after an accident where no other person has been injured or killed.

[4]      The purpose of ss 22 and 35 was described by the Court of Appeal in R v

Bowden1 in the following way:

The underlying idea, it seems to us, on a fair construction of the section was to ensure as far as possible the protection and safety of an injured person so that he might not be left in his injured condition to run the risk of further injury by reason of his being left on the road or perhaps to die for lack of attention.

[5]      In Houghton v Police2 Richmond J said:

…I think that the actual purpose of ss (1) is to ensure that a driver must ascertain whether anyone is injured at the time when his own vehicle is stopped and not merely by observation from a moving vehicle.  It follows that the duration of the stop which is required by the Act must be measured at least by the time reasonably necessary in all the prevailing circumstances to enable proper enquiry to be made.

1 R v Bowden [1938] NZLR 247

2 Houghton v NZ Police [1971] NZLR 903

[6]      The accident occurred on 8 July 2009 in one of the south-bound lanes of the northern   motorway   near   the   Greville   Road   on-ramp.      The   complainant, Ms Kleineman, entered the motorway at the Greville Road on-ramp shortly before the accident and the car driven by Mr Paul crashed into the back of her car.

[7]      After the accident Ms Kleineman immediately pulled over to the left hand side of the motorway and stopped to check her car for damage and to make sure her passenger was uninjured.  The evidence from her passenger was that they were only stopped for about 30 seconds.  She then continued along the motorway, coming off at the next exit, Tristram Avenue.  There she saw the other vehicle at the side of the road but did not feel safe and therefore did not stop.

[8]      Mr  Paul’s  evidence  was  that  after  the  impact  his  car  lost  power,  the headlights went out and the power assistance to the braking system was not working. It took him as much as 200 metres to bring the car to a stop, at which time he checked the car for damage.  He did not go back to see if anyone in the other car had been injured but asserted that he had a reasonable excuse because Ms Kleineman’s car was not stopped long enough for him to do so.

[9]      Judge Simpson dealt with this issue in the following way:

[19]      Mr Paul and his passengers (and I accept that there were only three of them in the car) got out of the vehicle, checked they were not injured and checked the vehicle.  Mr Paul had to look under the bonnet and adjust the lead from the battery to the working parts of the engine and the braking system.  In the meantime, Mr Keith Paul, who was also a passenger in the car and the owner of the motor vehicle, said he looked back along the road and could see the other car was now stationary.   He made no move to go back and check what the other car was doing and made no move to assist to get his own vehicle back in working condition.  He apparently just climbed back into the car and the three of them continued their journey.

[20]     It is clear that Mr Gavin Paul (who was the driver at all material times) did not go back along the road to check on the other vehicle or to ascertain if anybody had been injured as a result of the crash.   I think he should have been able to do that and he could have done that once he could see the other car on the road was stationary.  I find that that charge is proved and he will be convicted.

[10]     Mr Utting, for Mr Paul, submitted that the evidence did not support the

Judge’s finding that after Mr Paul’s car had stopped Mr Keith Paul could see that the

other car was stationary.   He submitted that this finding was based on a misapprehension of the evidence as to whether Ms Kleineman’s vehicle was still stationary when Mr Paul’s vehicle finally pulled over.

[11]     I agree that the way the Judge has recorded the evidence at [19] conveys that after Mr Paul’s vehicle had pulled over and the occupants got out, Mr Keith Paul looked back along the road and saw Ms Kleineman’s vehicle stationary. But this is inconsistent with the evidence.  Mr Keith Paul said in evidence:3

A:       We collided with a vehicle and they straightaway pulled over to the side of the road and we slowly pulled over further on down the road.

Q:       So how close were you to the car – maybe I should change the question. So did you see the first car stop?

A:       The car that we hit stopped.

Q:       How much further down the road did you travel after that?

A:       Um, it was a bit further down the road maybe a 100, 200 metres because we had to slow down slowly because we had no power.

Q:       Why didn’t you have any power?

A:       Once we hit the other car in the accident the whole car cut out and no power.

Q:       So after you’d come to a step what happened next?

A:       We got out of the car to make sure that we were alright.  Dad said check that we were all pretty much alive and then I saw the car drive past us which I would presume was the other car.

Q:       How did you know it was that car?

A:       It was pretty much the only car on the road there were no other cars around.

[12]     Under cross-examination he said:

Q:       Did your Dad walk down the road and have a look for the other car? A:     When we had got out of the car and made sure that everyone was

alright when we looked down the road the other car was not there.

Q:       Did you have a look?  Did you go have a look?

3 P47 notes of evidence

A:       I had a look but I saw the car drive past and then we looked and the car wasn’t there so I was made to presume that they’d driven past, there was no other car left.

Q:       What about your Dad, what did he do.   He didn’t go and have a

look?

A:       Well after he and…

Q:       He didn’t go have a look did he?

A:       After he had checked that we were alright he looked around couldn’t

see the other car.

Q:       I put it to you what he did was when you stopped – you guys are alright, you guys are talking soon after the accident has happened, everyone’s yelling out You alright, you alright rah rah, you pull over you get out you look at the car, check each other maybe, rah rah rah. You didn’t even think about going back and having a look and your Dad didn’t either did he?  Didn’t even bother to go for a look to see if the other car was down there?

A:       We looked.

Q:       The visibility’s really good in that part of the world – motorway isn’t it. There’s plenty of street lighting?

A:       You’d be able to see car lights.

Q:       You see they stopped very quickly after the accident, pulled over to the left and stopped.   You guys didn’t, carried on, stopped up the road, didn’t even go back and have a look, didn’t even try your Dad didn’t did he?

A:       We had no brakes.  We pulled over slowly.  You can only pull over slowly if you have no brakes, ripping the handbrake up to slow yourself down is dangerous so we did the safest thing.  We pulled over, we stopped, made sure we were alright, we looked to see if we could find the other car, couldn’t find the car, what else can you do?

[13]     I accept Mr Utting’s submission that the way the Judge has described this evidence suggests that he could see the other vehicle stationary at a point after his father’s vehicle had stopped and he had got out. However, the evidence was clear that Mr Kevin Paul saw Ms Kleineman’s car stop shortly after the accident as his father’s vehicle was travelling past it.  But by the time he got out and looked back he could no longer see the vehicle stationary on the side of the road.   There was no suggestion in the judgement that the Judge did not accept Mr Keith Paul’s evidence. I find that the Judge has made an error in her perception of it.

[14]     Although there was some criticism made of the length of time it took for Mr Paul to stop the vehicle there was no effective challenge to his claim that his vehicle had lost power and that it took him longer than usual to stop.  There was, therefore, insufficient evidence to find that he did not stop as promptly as he could. Given the very short time that Ms Kleineman was stopped I also accept that he could not reasonably have gone back to ascertain whether anyone in that vehicle had been injured.

[15]     The appeal is therefore allowed and the conviction quashed.

P Courtney J