R v Police HC Christchurch Cri-2007-409-219

[2007] NZHC 1396

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2007-409-000219

R

Appellant

v

POLICE

Respondent

Hearing:         6 December 2007

Appearances: Appellant appears In Person

S Litt for Crown

Judgment:      6 December 2007

ORAL JUDGMENT OF HON. JUSTICE JOHN HANSEN

[1]      The appellant, Mr R  , appeals against his conviction and sentence on a charge that he operated a vehicle carelessly contrary to s37(1) of the Land Transport Act 1998.

[2]      The incident occurred on the night of 2 February last.  The complainant, Mrs Nabi, was travelling along Vanguard Drive, a road that is said to be 15 metres wide. The appellant was following behind her.   Her evidence was that she intended to make a left turn into her driveway and she stopped to change gear when she was hit

on the left side of the car.  It is unclear, on the evidence, why anyone would have to

R V POLICE HC CHCH CRI-2007-409-000219  6 December 2007

stop a vehicle completely to change gear.  One could speculate, but one will refrain from doing so.

[3]      Mr R  ’s evidence was that while he travelled behind Mrs Nabi she was veering towards the right, that is towards the middle of the road, and because of this he made an assumption that she was going to turn right and he chose to pass her on the left.  There is support in this on the actual areas of the respective vehicles that were damaged.

[4]      The Justices, unfortunately, have made no findings of fact as to what scenario there was.  They have simply said that Mrs Nabi said she indicated, which, if it were true, the defendant should not have attempted to pass and was guilty.  Alternatively they found that if she did not indicate it was still wrong that he was passing on the left-hand side when no indication had been given.  It was said he should have slowed and remained behind.

[5]      Mr  R    has  quite  properly  and  fairly  conceded  today  that  this  was  a situation where both parties were equally to blame.   As I say, it is impossible to ascertain on what basis the Justices convicted: whether there was a turn indicated which was ignored by Mr R  , or no turn was indicated and he attempted to pass on the left side.

[6]      Paragraph LTA37.6 states:

A person must dive at all times in a manner and at a speed so that they are able to deal with any situation which may reasonably confront them.   An error of judgment may or may not amount to careless operation of a vehicle. Contributory negligence is not a defence to a charge of careless operation.

[7]      It seems to me, doing the best I can without having observed the witnesses, that the driving of Mrs Nabi fell well short of what was required.   She certainly appears to have veered to the right.   She stopped to change gear, which is inexplicable.   Having said that, Mr R   should have been able to deal with any situation that could reasonably confront him.  This was reasonably ascertainable.  In the circumstances the fact that she also should have been prosecuted for a similar offence is no defence to Mr R  .

[8]      It follows from that that the appeal against conviction must be dismissed, however the contributory negligence is clearly a factor that goes towards penalty. The Crown submit that given Mr R   has some traffic offences in the past, and given the maximum for this offence the penalty imposed could not be said to be manifestly excessive.   In the normal course of events that would be so, but in the circumstances where it seems clear to me that the complainant was equally to blame, the appropriate case is simply to convict and discharge Mr R  .  That has the effect of cancelling the fine, the Court costs, and the witnesses’ expenses.

Solicitors:

Appellant, Christchurch

Crown Solicitors, Christchurch