R v Police HC Auckland CRI 2006-404-437

[2007] NZHC 384

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-00437

R

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 April 2007

Appearances: JJ Maddox for Appellant

L Hamilton for Respondent

Judgment:      26 April 2007

ORAL JUDGMENT OF ASHER J

Solicitors:

JJ Maddox, PO Box 11-342 Ellerslie Auckland

Meredith Connell, PO Box 2213 Auckland

R V NZ POLICE HC AK CRI 2006-404-00437  26 April 2007

Introduction

[1]      This is an appeal against a conviction entered by Justices of the Peace on

7 November 2006 for careless driving.

Background

[2]      The main witness called by the Crown was the other driver, a Ms Perry.  She stated that she was driving along Himalaya Drive when a red car pulled out in front of her.   She stated that it seemed to come out of nowhere and that she initially thought the vehicle was simply pulling out in front of her.   She collided with the front right-hand door of the appellant’s car, and the two vehicles appeared to drive locked together as they moved towards the other side of the road, where they came to rest against a post.  Her evidence indicates that she did not realise that the vehicle was intending to turn into the other side of the road in front of her, although as it transpired that is what happened.

[3]      The  appellant,  Mr R  ,  is  a  Policeman.    He  was  on  patrol  in  an unmarked red Commodore.  When driving down Himalaya Drive at approximately

40 km an hour he noted another driver on a motorbike who passed him going the other way, whom he wished to follow.  He braked and signalled that he would turn right.  He observed the complainant’s car approaching behind him 10 to 15 metres to his rear.  He proceeded to initiate what was intended to be a three-point turn, where he would bring his car to rest facing into the kerb on the other side of the road before reversing back and completing the manoeuvre after Ms Perry had passed.   Instead, however, when he initiated his turn Ms Perry’s vehicle was on his right, and collided with his front right door.

[4]      It seems that he initiated the turn from the left-hand side of the road.  Because there is some difference between counsel as to how far he was from the side of the road when he initiated the turn, I set out the relevant part of the evidence:

The – how far then would you say – you said something about your vehicle being in the middle of your lane.  In relation to the curb [sic] where was your vehicle at that time, can you recall that ?…..  It’s probably really difficult to demonstrate without a centre line being on these photos Your Worships, but if we took the position of that cone in the centre of the – being the rough

centre, I would have basically as I begun the turn would have been at least centre of the left lane.  So we’re probably talking no more than about half a metre from a dead centre line.

And how far from the left hand curb [sic] do you think ?…..   I would imagine it would have been a good metre, a metre and a half, from the left hand curb [sic] Your Worships.

So when you talked in your statement to the police, you talked about braking heavily, and you also said I braked, checked the blind spot, and then turned right and it was at that time, the next question you answered, that you saw the other vehicle about 10 metres behind you ?….. That’s correct.

I interpret this exchange as indicating that the turn was initiated from about 1 metre to 1.5 metres from the left-hand kerb, although that statement has to be balanced against his earlier statement that his position was probably no more than about half a metre from the dead centre line.

Approach to appeal

[5]      Section 8 of the Land Transport Act provides:

8     Drivers not to be careless or inconsiderate

A person may not drive a vehicle, or cause a vehicle to be driven, carelessly or without reasonable consideration for other persons.

[6]      In approaching this section it is useful to repeat the often quoted stated of

Lord Goddard CJ in Simpson v Peat [1952] 2 QB 24:

The question for the Justices was, was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?  If he was not they should convict.  If on the other hand the circumstances show that his conduct was not inconsistent with that of a reasonably prudent driver the case has not been proved.

[7]      I am aware that in this case experienced Justices of the Peace have had to evaluate the evidence of the two primary witnesses.  In this appeal it is necessary for the appellant to establish clear error of law or fact on their part before this Court should intervene.

Discussion

[8]      Mr Maddox in his careful submissions has made a number of points.  First, he submits that the Justices of the Peace applied the incorrect onus of proof, and did

not take into account the fact that the onus was on the Police to prove the charge beyond reasonable doubt.  He highlights a statement in their Judgment: “We have to try and establish just who is at fault in this accident” (p 29, line 27).

[9]      It is correct that that statement on its own does not contain any recognition of the onus of proof.   However, reading the Judgment overall I am satisfied that the Justices of the Peace did understand and correctly apply the onus and burden.   In considering the evidence they concluded “that was a careless move on your part”, and “you commenced that turn carelessly”.   They appear to  be making positive findings of fact. They concluded “So we do find that the case is proved”.  This latter statement in particular shows that they considered the onus of proof to be on the Police.

[10]     The fact that they did not refer to the standard of proof, namely proof beyond reasonable doubt, in any explicit way does not indicate a failure on their part to appreciate the standard of proof.  Reading the Judgment as a whole I do not consider that they have erred in applying the onus and standard of proof.

[11]     Mr Maddox further submits that the Justices of the Peace did not turn their minds to the possibility of an error of judgment not amounting to carelessness.  This submission is not supported by the terms of the Judgment.   In the extracts I have already referred to the Justices of the Peace made express findings that the appellant was careless and clearly did turn their minds to that element of the offence.

[12]     The third and fourth grounds are that it was an error for the Justices of the Peace to determine that there was no evidence that Ms Perry was actually following Mr R  , and that they misinterpreted the evidence of a Constable on reaction times.  In his oral submissions before me Mr Maddox really developed those points into a general criticism of the approach of the Justices of the Peace on the facts.  It was the essence of his submission that on an overview of what happened it was not possible  to  say  that  Mr R    was  careless.     It  was  submitted  that  what Mr R   did was, after having noted the car following behind him, to indicate a right turn, and proceed to carry it out at a reasonable speed.   The essence of the submission was that this was not a careless act and that it was legitimate to initiate a

three-point turn in those circumstances.  Any carelessness was rather on the part of the following driver who should have veered to the inside and avoided Mr R  ’ vehicle.

[13]     I approach this issue bearing in mind that r 4.2(2) of the Land Transport

(Road User) Rule 2004 provides:

A driver turning or about to turn must give way to any vehicle not making a turn, and a driver turning or about to turn to his or her left must give way to any vehicle approaching from the opposite direction and lawfully turning or about to turn to its right.

I also note that in Lindsay v Police HC Christchurch AP153/94 30 June 1994 and Clifford v Police HC Blenheim AP3/03 6 June 2003, drivers who have commenced U-turns in front of following cars have been held guilty of careless driving, although in both those cases the driver had not seen the approaching following vehicle.

[14]     It was stated also in both of those cases that the obligation of the Court is to consider the actions of the driver who has been charged and not the care or lack of care of the other driver.

[15]     Mr R  ’ action was unusual.  On a quiet residential road he pulled out to turn and moved on to the other side of the road.  He was not turning into another driveway or road (which would have involved some maintenance of speed or indeed acceleration), but rather slowing so that he could place his vehicle front on to the other side of the road and at right angles to a following vehicle.  This is an unusual manoeuvre.  It was clearly misunderstood by the following driver.  She thought he was pulling out from the side of the road and that she should swerve outside him to avoid him.

[16]     In doing so it may well be that she made an error.  However, it was an error that resulted from an unusual driving manoeuvre on the part of Mr R  .  He had an  obligation  in  initiating  a  three-point  turn  for  no  obvious  reason  in  a  quiet residential street, to make sure that any vehicle following him would not collide with him.  It is probably not fruitful to speculate on alternative steps that he could have taken.   It is sufficient to say that there was enough in his actions to  justify the

Justices of the Peace in this case concluding that it was careless for him to suddenly initiate a right-hand turn into the side of the road while being followed by another car.

Conclusion

[17]     I am unable to conclude that the Justices of the Peace made an error in their approach and in the conclusions they drew.  Indeed, I consider that the decision was entirely open to them.  For these reasons the appeal is dismissed.

……………………………….

Asher J