Rayner v Police
[2014] NZHC 2857
•17 November 2014
IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2014-441-33 [2014] NZHC 2857
BETWEEN ADAM PHILIP RAYNER
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 12 November 2014 Counsel:
SM Lott for appellant
M Mitchell for respondentJudgment:
17 November 2014
JUDGMENT OF FAIRE J
Solicitors: Souness Stone Law Partnership, Hastings
Crown Solicitor’s Office, Napier
Rayner v New Zealand Police [2014] NZHC 2857 [17 November 2014]
Table of Contents
Introduction ............................................................................................................[1] Background ............................................................................................................[2]
The District Court decision ....................................................................................[7] Summary of grounds advanced in support of the appeal .......................................[8] Approach to appeal ................................................................................................[9]
Submissions................................................................................................................
Appellant’s submissions [16]
Respondent’s submissions [22] Relevant law .........................................................................................................[23] Discussion ............................................................................................................[27]
Introduction
[1] Mr Rayner appeals his conviction on one charge of dangerous driving under s 35(1)(b) of the Land Transport Act 1998.
Background
[2] On 9 January 2014, Mr Rayner was riding a three wheeled motorised trike on Haumoana Beach. He was towing a trailer with two friends riding in the trailer. Ms Hamilton was walking on the beach with her eight and a half months old miniature fox terrier dog, Rosie. Rosie was not on a leash as the beach was an off leash area. Mr Rayner’s trike ran over Rosie and she unfortunately died as a result.
[3] Mr Rayner was charged with dangerous driving, an offence against s 35 Land
Transport Act 1998.
[4] Ms Hamilton did not contact the police immediately. She says she was triggered into action by TV News reporting on that weekend about quad bikes speeding out of Waimarama. She spoke first to a member of the media who asked
her if she was going to the police. She said she advised that she had made up her mind to go to the police and advised the media person that she would be doing that. This all took place five days after the incident. That had the consequence that the police were not able to attend immediately on the accident scene and collect precise details as to vehicle track and marks as to braking and other signs that would assist in establishing relevant matters pertaining to the incident. There is, in the evidence presented to the District Court, no precise examination of the accident scene as a result.
[5] The parties accept that the part of the beach where the incident occurred is a road for the purposes of the Land Transport Act. Although not known at the time, it was common ground that there were signs which advised that the maximum speed on the area of the beach where the incident occurred was 20 kms per hour.
[6] The accounts of this incident vary. I will comment on that aspect later in this judgment.
The District Court decision
[7] Judge Down gave an oral judgment on 3 July 2014 after concluding a judge alone trial on that day. He recorded a number of areas in the evidence where the defence and the prosecution were not in agreement. He recorded that though there were these disagreements, they did not cause him to doubt the reliability of Ms Hamilton’s description of the actual incident. He found that she was a reliable witness whose evidence was “moderately given”. He concluded that Mr Rayner was driving on a road, namely the beach. He found that Mr Rayner’s driving objectively was dangerous. He found that Mr Rayner was at fault for bringing the dangerous situation into existence. He found that Mr Rayner drove too fast for the conditions and having regard to his knowledge of the condition of his trike. As a result he held that Mr Rayner was guilty of dangerous driving in terms of s 35(1)(b) of the Land Transport Act. He disqualified him from driving for six months and ordered him to pay Ms Hamilton $2,000 reparation.
Summary of grounds advanced in support of the appeal
[8] Ms Nott advanced three principal grounds in support of the appeal, which in summary were the Court:
(a) Erred in its assessment of the reliability of witnesses; (b) Erred in the weight given to the evidence before it; and
(c) Took into account irrelevant evidence and ignored relevant evidence when considering the elements of the offence.
Approach to appeal
[9] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 232(2)(b) and (c), the High Court may only allow an appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that “a miscarriage of justice has occurred for any reason.”
[10] “Miscarriage of justice” is defined in s 232(4) as:
any error, irregularity, or occurrence in or in relation to or affecting the trial that–
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[11] Section 232 emphasises that not every “error or irregularity” causes a miscarriage of justice.1 The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b)
[12] A “real risk” that the outcome was affected exists when “there is a reasonable
possibility that a not guilty (or more favourable) verdict might have been delivered if
nothing had gone wrong.”2
1 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity.”: Matenga v R [2009] NZSC 18 at [30].
2 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
[13] This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.3
[14] In Austin, Nichols & Co Inc v Stichting Lodestar Elias CJ gave guidance as to the approach to be taken on an appeal:4
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[15] In O’Neill v Police,5 it was stated that in coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility, but it must nevertheless review the evidential basis for factual findings carefully.
Submissions
Appellant’s submissions
[16] The appellant accepts that the beach is a road and that the speed limit on the beach is 20 km per hour.
[17] Ms Lott submitted that proof of dangerous driving can be established in two ways, namely:
(a) pinpointing a single dangerous act, established beyond reasonable doubt; or
(b)an inference from proved facts where the inference is so strong as to admit to no other conclusion.
3 R v Sungsuwan, above n 2, at [110].
4 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at [16].
5 O’Neill v Police HC Auckland CRI-2007-404-405, 9 October 2008 at [5]
[18] She submitted that:
(a) the Court has to be satisfied that at the time the driving took place there was a sufficiently distinct and reasonable possibility that an injury to the public, or to a person, could result;
(b) driving at speed is not inherently dangerous driving;
(c) for fault to be found, the Court needs to find that Mr Rayner’s actions failed to meet the standard of care and skill expected from a reasonably competent and experienced driver.
[19] Ms Lott submitted that the Court must determine whether the speed Mr Rayner was driving that evening, namely 8:30 on a January summer’s evening, was or might have been dangerous to the public, or whether the manner in which he was driving was or might have been dangerous to the public or to a person.
[20] As to the speed Mr Rayner was travelling at, Ms Lott submitted that Ms Hamilton’s evidence is unreliable due to her poor vision, lack of expertise in assessing speed, and admission that she was not paying attention to the speed of the bike or details of the incident.
[21] Ms Lott submitted that Mr Rayner’s evidence is more reliable as he has ridden farmbikes for 10-12 years and was able to advise the Court of the speed tests he had conducted. In addition, he was able to clearly describe the mechanical functioning of the bike. Further, his account of the incident was supported by the person who was a passenger in the trailer which was attached to the bike at the time of the incident.
Respondent’s submissions
[22] Ms Mitchell submitted that the Judge preferred the evidence of Ms Hamilton. She submitted that the evidence supported the findings he made. She acknowledged that while there was evidence before the Court which ran contrary to the judge’s findings, in all instances there was also evidence which supported those findings.
She submitted that the fact that the Judge preferred some evidence over other evidence is not an error which justified the quashing of the conviction.
Relevant law
[23] The relevant parts of s 35 of the Land Transport Act provide:
35Contravention of section 7, or section 22 where no injury or death involved
(1) A person commits an offence if the person—
…
(b) drives or causes a motor vehicle to be driven on a road at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person; or
…
(2) If a person is convicted of an offence against subsection (1),—
(a) the maximum penalty is imprisonment for a term not exceeding 3 months or a fine not exceeding $4,500; and
(b) the court must order the person to be disqualified from holding or obtaining a driver licence for 6 months or more.
(3) The imposition of a mandatory disqualification under this section is subject to section 81.
[24] Section 7 of the Land Transport Act provides:
7 Drivers not to be reckless or dangerous
(1) A person may not drive a motor vehicle, or cause a motor vehicle to be driven, recklessly.
(2) A person may not drive a motor vehicle, or cause a motor vehicle to be driven, at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person.
[25] The authors of Brookers Law of Transportation, give a helpful summary of what is required to justify a dangerous driving conviction. There must be an objectively dangerous situation, caused by some fault on the driver’s part. The
authors provide the following comment:6
6 Brookers Law of Transportation (online ed, Brookers) at [LT35.04].
“Fault” does not necessarily involve deliberate misconduct or recklessness, or an element of moral blame. An inexperienced or incompetent driver who makes every effort to drive carefully is at fault when he or she falls below the care and skill that a competent and careful driver would exercise in the circumstances. A slight fault, a momentary lapse, or one that would normally have no danger arising from it will suffice. The fault need not be the sole cause of the dangerous situation, but it must be an operating cause: Stratford v MOT [1992] 1 NZLR 486; (1991) 7 CRNZ 501. Such a fault will often be sufficiently proved as an inference from the facts. If a driver seeks to avoid that inference by proving some special fact relevant to the question of fault, he or she may not be precluded from seeking to do so: R v Gosney [1971] RTR 321, at p 325 per Megaw LJ.
If a competent driver would react to a sudden emergency in the same manner as the accused did, then a conviction for dangerous driving cannot be sustained: Transport Ministry v McIntosh [1974] 1 NZLR 142. The driver must be proved to have driven with knowledge of the circumstances which made the driving dangerous, but need not have directed his or her mind to the danger: Edmonds v Police [1970] NZLR 267.
[26] An offence occurs if it is proven that the driver fell below the standard of care expected of a reasonable and competent driver.7 Dangerous driving may be proved by pointing to a single dangerous act which is proven beyond reasonable doubt. Alternatively, it may be proved by drawing an inference of dangerous driving from proved facts where the inference is so strong as to admit of no other conclusion.8 An
act is dangerous if injury occurs or it is probable that it will occur.9 A dangerous
driving offence is not proved solely by proof of speed. The court must be satisfied that the speed might have been dangerous to the public or to a person.10
Discussion
[27] The following elements must be proved to sustain a conviction for dangerous driving in this case:
(a) Mr Rayner “drove”: this is not disputed.
(b) On a “road”: this is not disputed.
7 At [LT7.03].
8 Stratford v Ministry of Transport (1991) 7 CRNZ 501 at 505.
9 LT7.08.
10 Gutierrez v Police HC Auckland AP269/95, 21 December 1995.
(c) His driving was at a speed or manner that was or might be dangerous to the public or to a person. This involves consideration of three sub- elements:
(i) There was an objectively dangerous situation;
(ii)It was caused by Mr Raynerr failing to meet the standard of care of a reasonable and competent driver;
(iii)That the dangerous situation was dangerous to the public or to a person.
[28] The transcript of evidence discloses that Ms Hamilton was walking her dog on the beach in the evening. There is a dispute as to whether any other persons were walking nearby. Even on Ms Hamilton’s account no one was within 100 metres of her at the time of the incident. Ms Hamilton said she had clear vision and it was not dark. It was, however, 8:30pm on a January evening. Ms Hamilton’s dog, which was an eight and a half months old miniature fox terrier, was off her lead. She had been running along the beach and returning to Ms Hamilton. The part of the beach was an “off leash” part for dogs. Ms Hamilton heard a bike noise coming towards her. She said she could not see the bike at first. She could hear it coming. She said it sounded like it was coming at speed. She said she called her dog back to her. She said that the dog started to walk towards the line of travel of the bike. She called her dog back. But it kept walking towards the bike. She said the bike did not slow down as it drew level with her. She said of the dog:
She [the dog] was just kind of looking as the bike was coming and I – she went to go round the back and I lost sight of her until I saw her rolling out like a ball at the back of the bike onto the beach.
This happened, she estimated, at a distance of about 15 to 20 metres from where she was standing. She ran to the dog. The bike stopped further up from her. She picked up the dog and walked back to the driver who was coming toward her. Both she and the driver of the bike exchanged colourful language to each other about the incident.
[29] She said her impression was that Mr Rayner’s bike was travelling faster than other bikes she had observed during her time at the beach. She gave varying accounts of distance and speed. She also gave her estimate of the time it took the bike to stop.
[30] Mr Rayner gave evidence that he had 10 – 12 years experience riding motorcycles or quad-type bikes. He said that he noticed Ms Hamilton and her dog as he was driving down the beach. He said that the dog charged straight at the front tyre and he tried to stop. He said by the time he stopped, the dog had gone under the tyre.
[31] Mr Rayner referred to the vehicle as a three wheeled trike. With regard to the condition of the vehicle, he said the brakes “work rather well for its age”. He also said that the brakes are not very good when wet. He said he rode the trike slightly higher on the beach so it did not get wet. He agreed that on the day in question the brakes “were a little bit wet”. He did not have a warrant of fitness. He disconnected the handbrake when he first got the trike because it was seized. He was on a learner’s motorcycle licence but had applied for, and received, an exemption to ride the trike at issue in this case.
[32] He said as soon as he saw the dog was close at hand, he braked. He said the trike slowed down when he put pressure on the brakes but that it took 10 - 20 metres to come to a stop. He said he was standing up to put more pressure on the brakes. He said that after this incident he installed a GPS speedometer on his phone to test the speed. The maximum speed he was able to do in third gear was 15 – 17 km per hour. He said at the time he did not know what the speed limit on the beach was, but that he “took it easy” on that stretch of beach so that his passengers did not get hurt by stones. In response to a question of whether he agreed he was travelling at speed because he was not able to stop in time, he said:
no I don’t because the speed limit on the beach is 20 ks per hour and, like I say, if it was a human running around or they had fishing rods, I would have stopped because I, how would you say it, like myself I walk my dog. If I see or hear a motorbike coming, I would call him over to me and hold him long before the motorbikes get near me.
[33] The facts disclose that no member of the public or person was in close proximity the line of travel of Mr Rayner’s bike. It has not been suggested that any of his passengers were put at risk by the manner of travel of the bike. Ms Hamilton, herself, was not put at risk by the force of travel of the bike.
[34] In his statement to Constable Daly, Mr Rayner could not remember if he braked before hitting the dog. Mr Rayner’s friend, Mr Goulding, gave evidence. He was one of the passengers in the trailer being towed by the bike. His assessment was that the bike could not have been going more than 15 – 20 km per hour. He said that the dog charged at the front tyre and Mr Rayner tried to stop.
[35] The notes of evidence record the following exchange:
Q. Did he actually stop the motor vehicle?
A. Eventually, yes, yes but I mean the dog ran out so quickly and attacked the front wheel that there was not much that we could have done.
Q. From when the dog went under the bike how much further, distance in your view, did it travel before it came to a stop, as and I’m talking about the bike, not the dog?
A. Really hard to say, not far, not a long distance or anything, I mean we were stopping as we hit.
[36] I am not satisfied that a clear conclusion as to speed could be taken from the evidence which was adduced to the court. Ms Hamilton relied, firstly, on noise. A photograph of the trike concerned was produced. That tends to support Mr Rayner and Mr Goulding’s evidence that, in fact, it was a loud bike. What is particularly unfortunate in this case is that there was no opportunity given to the police to attend the accident scene and to take precise measurements. There was no opportunity to measure the exact proximity of Ms Hamilton to the line of travel of the vehicle. There are issues about the condition of the trike that do cause some concern. However that, by itself in my view, is not sufficient to draw a conclusion that this trike was being driven in close proximity to where members of the public were, or a person was, in a manner that was dangerous to them. It is very unfortunate that Rosie lost her life as a result of this incident. What I am required to determine, however, is whether when one objectively assesses the evidence that was produced,
bearing in mind when statements about what happened were taken, the Crown has proven this case beyond reasonable doubt. I am not satisfied that the level of evidence that was produced to the District Court was sufficient to prove this charge beyond reasonable doubt.
[37] Accordingly, I reach the conclusion that the appeal must be allowed.
[38] The appeal is allowed.
JA Faire J