R v Arthur Christopher Pegler

[2003] NZCA 256

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 214/03

THE QUEEN

v

ARTHUR CHRISTOPHER PEGLER

Hearing:21 October 2003

Coram:Elias CJ
Glazebrook J
Baragwanath J

Appearances:  D D Vincent for Appellant

G C de Graaff for Crown

Judgment:10 November 2003 

JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

[1]       The appellant was convicted and sentenced in the District Court at Porirua on 6 November 2002 on a charge of careless driving causing injury.  He was disqualified from driving for eight months and ordered to pay reparation of $500 to a victim.  Goddard J on 7 March 2003 dismissed his appeal to the High Court but later gave leave to appeal to this Court on a question of law.  Mr Pegler represented himself at all stages until this appeal.

[2]       The question as formulated concerned a point not taken before Goddard J, namely whether the District Court and the High Court erred in law in finding that the test of carelessness was made out in the circumstances: that is whether this finding amounted to a res ipsa loquitur finding without any regard for material factors, such as glare of the sun.   

[3]       In her leave judgment Goddard J stated

[11] …Mr Pegler [representing himself] submitted that the District Court Judge had erred by overlooking the issue of the sun but conceded that he had not advanced that omission as a point of appeal in the High Court before me. Therefore that omission (of itself) cannot constitute a point of law arising from my judgment. However the point of law which Mr Pegler says arises from my judgment, is my failure to apply the precedent in Heron J’s favourable judgment concerning a previous charge of careless driving causing injury of which Mr Pegler was convicted: Pegler v Police (AP26/93, HC Wellington, 21 April 1993).

[4]       Leave to appeal on the question reproduced at para [2] above was premised on the leave granted in relation to the other issue, said to require adjudication by this Court on conflicting High Court authority.  In the event however the latter point was abandoned.

[5]       Section 144 of the Summary Proceedings Act 1957 provides

144     Appeal to Court of Appeal

(1)Either party may, with the leave of the High Court, appeal to the Court of Appeal … against any determination of the High Court on a question of law arising in any general appeal:

…

(2)A party desiring to appeal to the Court of Appeal under this section shall… give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

…

(3)On any appeal to the Court of Appeal under this section, the Court of Appeal shall have the same power to adjudicate on the proceedings as the High Court had.

…

[6]       In R v Slater [1997] 1 NZLR 211 at 215 this Court said

Section 144 was not intended to provide a second tier of appeal from a decision of the District Court in proceedings under the Summary Proceedings Act. Neither the determination of what comprised a question of law, nor the question of whether that point of law raised a question of general or public importance, was to be diluted…

[7]       The premise on which the High Court granted leave to appeal having been abandoned by the appellant, this Court is entitled to reconsider the leave decision: R v Smith CA 424/98, 23 March 1999.

[8]       There is no doubt as to this Court’s jurisdiction on a general appeal to entertain a point of law not taken below: Ngati Kahu Trust Board (in liquidation) v Southern Lights Floral Exports Limited [1994] MCLR 450.  Whether that position is altered in the case of an appeal under s144 was not argued. But in any event the fact that in considering a question of law this Court does not have the advantage of the opinion of the High Court is a significant pointer against leave. Were it not for the desirability of putting to rest the res ipsa loquitur argument, which has been relied on repeatedly, we would simply have set aside the leave decision.  Given our conclusion that in any event the appeal must fail on the merits we deal with it on the assumption that jurisdiction exists but without considering that question. 

The facts

[9]       The facts are that just before 3 pm on Friday 8 February 2002 the appellant, while turning right out of a supermarket carpark intended to travel in a general north‑easterly direction on Marae Lane Waikanae.  At the same time the complainant pedestrians Ms Heremaia and Ms Mataitai were crossing Marae Lane from north‑west to south‑east.

[10]     The appellant drove slowly out of the carpark and into collision with the complainants who had crossed the centre line of the road when he began moving.  At the point of impact with the women, whom he had failed to see, he had travelled a maximum of three to four metres and could not have reached a particularly great speed. 

[11]     The appellant’s evidence was that he had stopped at the exit and waited for two vehicles to go past.  He said

…I’d only gone three metres, slowly, because the sun was glaring and I was dead slow and as about one and a half metres in front of me, the old lady appeared to be heading towards me sideways.  She came from the right hand side and there it was, she was going into me at an angle of 45 degrees and I stopped instantly...

[12]     For his first view of one of the complainants to have been on his right, when she had come from his left and traversed his field of vision, meant either that he had failed to look at what should have been apparent or that for some reason his vision was impaired.  The trial Judge found

[14]     …I am satisfied that [the complainants] must have been in the course of the crossing movement when Mr Pegler pulled out.  I am satisfied that Mr Pegler simply did not see them.

[15]     That is exactly what he said to Constable Dredge afterwards.  He said it in two ways.  First, in his explanation of what happened, he said according to Constable Dredge and the quotes he made at the time, “When I left, I intended to drive to Park Avenue.  I waited for two vehicles to pass on Marae Lane, I believe this noise was from spectacles dropping onto the bonnet.  I stopped practically instantaneously.”  What that means is that Mr Pegler was not aware of either of the two ladies until his vehicle had actually struck at least one of them.  Later, when he added to what he had told Constable Dredge, at the end, he said “I moved the car backwards after the collision, I did not see the people.”  That is what he said straight afterwards before he had time to perhaps wonder how this could possibly have happened and before the natural human reaction to absolve oneself of blame came into play.

[16] It is also entirely consistent with what did happen, as known from the physical facts and as known from Mr Woodfield’s evidence.  The ladies were crossing the road.  Mr Pegler stopped at the entranceway and then he simply came out and hit them.  In my view the ladies must have been there to have been seen.  The fact that they may have been careless or in breach of the road code, in at least one or two ways, is not the issue on a charge of careless driving either causing injury or not.  It may well be that these ladies were crossing the road within 20 metres of a pedestrian crossing and should not have been there have been no measurements.  It may well be also, in fact I am certain it was, that they were crossing the road at an angle rather than directly one side to the other.

[17]     The issue in the case is whether it is proven that Mr Pegler was careless, whether his standard of driving, whether he excised the degree of care and attention that a reasonable and prudent driver would exercise in the circumstances.  I am satisfied that a reasonable and prudent driver would have seen the two ladies, and indeed Mr Woodfield, beginning to cross the road and would not have pulled out from the entrance way until they got out of the way.  I am satisfied that Mr Pegler, for reasons unknown, simply failed to see them that day.  That is something that the Courts hear very often.  People simply fail to see either pedestrians or often motor cyclists who are on the road to be seen and these people were.

[18]     In my view Mr Pegler’s driving in that respect fell below the degree of care and attention that a reasonable and prudent driver would exercise.  I am also satisfied that injury to Mrs Mataitai was thereby caused as a result of that.  Mrs Mataitai was struck by the vehicle.  There is absolutely no question that she suffered injury in that collision.  She gave evidence of it herself.  She was taken by helicopter to hospital, in hospital for two or three days, still suffering after effects of the injuries by way of both a blow to her head and also quite serious injury to the ligaments to her knee in her leg.  I am therefore satisfied that the charge is proven.

Submissions

[13]     In his careful submissions Mr Vincent argued that the trial Judge erred in finding the charge proved beyond reasonable doubt.  He submitted that the Judge failed to consider as a reasonable explanation that Mr Pegler’s vision had been obscured by the sun and that the Judge had based his finding of carelessness on the fact of the accident itself, effectively applying the so-called doctrine of res ipsa loquitur in a criminal case when there is clear authority that to do so is impermissible.  He submitted that, in effectively leaving the accident speak for itself and not requiring the prosecution to disprove or discredit other potential causes for the accident, the Judge failed to apply the principle that the Crown must discharge its onus of proof by excluding potential causes consistent with the exercise of reasonable care.

[14]     He submitted that had the Judge duly performed that exercise he would have acquitted the appellant since, he argued, a reasonable and prudent driver whose vision is obscured would not necessarily stop immediately but might proceed slowly into the intersection.  He cited the observation of Blair J in Strawbridge v Mason [1939] NZLR 877, 897-898

The duty of a vehicle blinded from any cause is either to stop or proceed with extreme caution.  A driver driving into the sun cannot but beware of the fact, and it behoves him to drive with special caution accordingly.

He also relied on Police v Robertson (1945) 4 MCD 407, where a driver was dazzled by the lights of an oncoming car and struck a cyclist on the other side of the road, Mr Marsack S.M. stated (at 409)

The question arises to whether the action of the driver at that point was all that could be expected of a reasonably prudent driver.  I think it was.  The chances of the presence of slow-moving traffic ahead of him was small.  As far as he knew the road was clear.  The period covered by his temporary loss of vision was short… to pull over a little further to his left, and to reduce his already low speed, was, in my view, a reasonable compliance with his obligation to take care.

He cited as well Kayser v London Passenger Transport Board [1950] 1 All ER 431, a civil damages case tried by Humphreys J siting alone. The bus driver employed by the defendant had seen pedestrians crossing a London road in a manner that suggested they would have got well across it in front of him before his bus reached them. Although his vision was obstructed by a temporary air raid shelter he continued driving slowly and then realised that one of the pedestrians had turned back. Although he braked immediately the bus struck her and caused her injury. In rejecting the plaintiff’s claim for negligence Humphreys J stated

If it is the duty of a driver, when he is satisfied that people who are crossing the road are well out of any danger from him, to stop until they have touched the curb on the other side, the traffic of London could not go on.  The law must be, and I hold that it is, that, where a driver is satisfied that persons who are lawfully entitled to cross the road – whether they are on a pedestrian crossing or not – are well out of danger from him if he goes on in the normal course, only at such a pace as will enable him to stop almost immediately in the unlikely happening of those persons doing something dangerous and negligent themselves.

[15]     Mr Vincent submitted that the District Court Judge erred in law both in failing to consider whether there was an explanation consistent with the exercise of due care and then in failing to deal with that topic in his decision: Lewis v Wilson & Horton Limited [2000] 3 NZLR 546 at 567 para [82] per Elias CJ

The third main basis for giving reasons is that they provide a discipline for the Judge which is the best protection against wrong or arbitrary decisions and inconsistent delivery of justice.  In the present case it is hard to believe that the Judge would have granted the order if he had formally marshalled his reasons for doing so.

[16]     Accordingly, he argued, this Court should answer the question of law affirmatively and set aside the conviction.

[17]     Ms de Graaff for the Crown submitted that no question of law arose; and in the alternative that there had been no error.

Discussion

[18]     Although the appellant gave as the reason why he was driving slowly that the sun was glaring, he did not in evidence say that he had been blinded by it.  His initial explanation to the police was “I did not see the people”.  That remark is consistent more with simple inattention than with being blinded.  It was open to the Judge to make his essential finding at para [17]

I am satisfied that Mr Pegler, for reasons unknown, simply failed to see them that day.  That is something the Courts hear very often.  People simply fail to see either pedestrians or often motor cyclists who are on the road to be seen and these people were.

On that basis no question of law can arise.

[19]     But if there is to be inferred from the appellant’s evidence that “the sun was glaring” an assertion that that was the reason he failed to see the pedestrians his position is not improved.  As stated in Lewis at para [82]

The reasons may be abbreviated.  In some cases they will be evident without express reference…

If, as the appellant submits, loss of vision through sunstrike was truly at the forefront of the argument at trial, the Judge’s reasons would be taken as a rejection of the proposition that such event could in the circumstances constitute a defence.

[20]     In an earlier passage on page 409 of Police v Robertson Mr Marsack S.M. had stated

In cities such as Palmerston North, where the volume of cycle traffic is very large, a motorist must always keep in mind the possibility, and in fact the probability, that there will be a cyclist ahead of him, and act accordingly.  A driver temporarily blinded to the extent that he cannot discern the road before him must in such cases stop until his vision is restored…

[21]     The appellant’s argument - that it is consistent with the exercise of reasonable care to drive on the road in the immediate vicinity of a shopping centre where pedestrians are to be expected without knowing precisely that the way is clear - is simply untenable.  The remarks of Mr Marsack S.M. about cycle traffic in Palmerston North well over six decades ago apply with even stronger force in the context of interaction between motor vehicles and pedestrians in today’s cities.  The learned trial Judge did not err in law; or indeed in point of fact.  If we had considered that there had been error of law on the part of the District Court Judge, which we do not, we would have declined relief; as Goddard J concluded on the factual appeal the conviction was inevitable.  To risk bringing the power and weight of a motor vehicle into collision with a pedestrian, when there is the option of simply stopping or indeed remaining stationary and lowering the sun visor before moving forward, is wholly unacceptable.

[22]     In parting with the case we would discourage the use of the phrase “res ipsa loquitur” in the criminal context.  We appreciate that it was employed on behalf of the appellant as a synoptic expression to describe a supposed error of approach on the part of the learned District Court Judge.  But as is seen from cases in England and New Zealand including Wright v Wenlock [1971] RTR 228; Ravjohns v Burgar [1971] RTR 234 (note); Police v Chappell [1974] 1 NZLR 225; and Brooks v Police HC Hamilton A103/01 11 September 2002 the use of such expression can become prevalent and in the process waste court time.  The decisions say uniformly that the so‑called principle of res ipsa loquitur, under which in certain circumstances some burden of proof can shift to the defendant, has no application in criminal cases such as this, even though the evidence in a particular case may be such that in the absence of some explanation the only proper inference is careless driving. 

[23]     There is simply no need for the Latin tag in the criminal context.  For the practical reason of avoiding misunderstanding it is better to avoid its use in such cases and focus directly on the simple principles that the prosecution has in all but exceptional cases the onus of proof; and that a decision-maker must take into account relevant factors and give adequate reasons for the decision.

Decision

[24]     The question stated in para [2] is answered no.  The appeal is dismissed.

Solicitors:
Thomas Dewar Sziranyi Druce, Lower Hutt
Crown Law Office, Wellington