S v Police HC Tauranga CRI 2008-470-18

[2008] NZHC 2619

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2008-470-18

S

Appellant

v

THE POLICE

Respondent

Hearing:         23 September 2008

Appearances: Z Mohamed for appellant

H Wrigley for respondent

Judgment:      10 October 2008

JUDGMENT OF ALLAN J

In accordance with r 540(4) I direct that the Registrar endorse this judgment with the delivery time of 11 am on Friday 10 October 2008

Solicitors:

Zahir Mohamed, Howick, [email protected]

Crown Solicitor Tauranga: [email protected]

S V THE POLICE HC TAU CRI 2008-470-18  10 October 2008

[1]      The appellant appeals against his convictions for driving with excess breath alcohol pursuant to s 56(1) of the  Land Transport Act 1998  (the Act),  and for dangerous driving (s 35(2) of the Act).  The convictions followed a defended hearing before Judge Harding in the Tauranga District Court on 4 June 2008.

[2]      In respect of the excess breath alcohol charge the appellant argues that, by reason of an alleged breach of his right to be informed of his entitlement to legal advice,  guaranteed  by s  23(1)(b)  of  the  New  Zealand  Bill  of  Rights  Act  1990 (BORA),   evidence  of  the  evidential  breath  test  ought  to  have  been   ruled inadmissible.  In respect of the dangerous driving conviction, while acknowledging that his driving was careless, the appellant contends that the police case did not establish his driving to have been dangerous.

[3]      On the excess breath alcohol charge, the appellant was convicted and fined

$1,400, disqualified from driving for eight months, and then for a further concurrent period of one year and one day, pursuant to the provisions of s 63 of the Act.  On the dangerous driving charge, the appellant was convicted and fined $500 and disqualified for a concurrent period of eight months.  He was also ordered to make reparation in the sum of $329.14.

[4]      The Judge subsequently suspended the disqualification  order  pending the outcome of this appeal.   At the conclusion of the hearing of the appeal I further extended the suspension of the disqualification order until delivery of this judgment. There is no appeal against sentence.

Factual background

[5]      Late on the evening of 29 December 2007, the police set up a breath alcohol checkpoint on Maunganui Road, Mt Maunganui.   The check point covered both north and south bound lanes, and involved the presence of what is popularly known as a “booze bus”, together with several police officers and patrol cars.   Traffic in either direction was controlled by means of orange cones, which were placed in such

a position as to narrow the usable lanes to about four metres in width.  The cones were deployed in a V shape so as to funnel traffic through the checkpoint in a single lane in each direction.  The area was well lit;  the orange cones were highly visible; the patrol cars were marked in conventional police livery and carried reflective strips.   Police officers also wore reflecting jackets.   Over a period of about three hours traffic in either direction was processed without difficulty.

[6]      At  about  2  am  on  30  December  2007,  the  appellant  approached  the checkpoint.   He had been driving sprint cars earlier in the day and was driving a truck and trailer back to a depot in Tawa Street.  There was evidence that the trailer was 2.53m wide and that the total rig was 16.9m long.  The trailer was slightly wider than a typical heavy motor vehicle.

[7]      The appellant drove the truck and trailer through the check point without stopping.  In doing so he collided with and damaged a number of the marker cones which were described as flying through the air in the vortex following the truck.

[8]      The appellant was not waved down and there is no suggestion in the evidence that at any time a police officer endeavoured to stop him as he proceeded through the checkpoint.   However,  as is discussed below, the speed at which he proceeded through the check point, the commotion which attended his passage, and the fact that he struck several cones as he did so, resulted in a police officer following the rig in a patrol car and ultimately apprehending him.

[9]      After the truck had stopped and the appellant had left the vehicle, the officer, Constable  Crockett,  noted  that  the  appellant  appeared  to  sway.    The  constable thought that the appellant might be intoxicated and therefore administered a passive breath test.  The usual procedures were followed.  They culminated in an evidential breath test.   During the course of the breath testing procedure the appellant was advised of his right to a lawyer, pursuant to the provisions of s 23 of the BORA.  The adequacy of that advice forms the basis of the appeal against conviction on the breath alcohol charge.

The section 23 point

[10]     There is no real dispute about the advice conveyed by Constable Crockett to the appellant.   The constable said that he read to the appellant his right to legal advice, by reference to an EBA check list which seems to be in use in parts of the Bay of Plenty.   The check list document was produced in evidence.   There is a section headed “BILL OF RIGHTS”. It reads:

You have been detained for the purposes of an Evidential Breath Test, Blood

Test or both.

You have the right to refrain from making any statement and to remain silent.

You have the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and this right may be exercised without charge under the Police Detention Legal Assistance Scheme.

These rights will continue throughout the Breath/Blood Alcohol procedures. A telephone will be made available for that purpose and before you undergo an evidential breath test, blood test or both.

You will have a reasonable time to consult and instruct a lawyer from the time a telephone is made available to you.

Anything said by you will be recorded and may be given in evidence.

[11]     Constable Crockett’s evidence was that he read that section to the appellant at the roadside, and again at the booze bus.  The Constable said:

I then required him to accompany me to the booze bus or any other such place for the purpose of an evidential breath test or blood test without delay. I read from my EBA checklist on the roadside.   I read to him the Bill of Rights, the reason I read the Bill of Rights advice now is with the change that came about not too recently now.  I find if I think about it in my head I tend to quite often revert to the original one so I choose to read it now and have done ever since it came in.  I advised him of rights to bail and then also moved back, or he agreed to accompany me and we went back to the booze bus situated on Maunganui Road.  Once in the booze bus I carried on with the checklist and read again the same Bill of Rights on that list to the defendant and I believe if I may refer to the notes that I made at the time, I believe that he refused to sign that.

Witness granted leave to refer to notes.

A.        Looking at the Bill of Rights he has in fact signed it Your Honour.

Q.        Just tell the Court what you said to him both at the scene and at that stage as far as Bill of Rights go.

A.        As far as his Bill of Rights go, I said to him at the scene, this is your Bill of Rights I will read it to you and then I read that and then also back at the booze bus I again read the Bill of Rights to him back at the booze bus.

Q.        When you say the scene, whereabouts are you talking about there?

A.        My apologies, the scene I’m referring to is the scene, the point that I actually first met the defendant where I stopped the truck on Tawa Street.

Q.        Just tell us what you said Bill of Rights-wise there, you mentioned that you read from the checklist.

A.        I read from the checklist, advised him that he had the right to refrain from making a statement and had the right to remain silent, that he has the right to consult and instruct a lawyer, he has the right to do that without delay and in private before deciding or not whether to answer questions and that right could be exercised under the Police Legal Assistance Scheme, the Police Detention  Legal  Assistance Scheme and those rights will continue throughout the whole breath or blood alcohol procedures, and also advised him that anything he may say to me could be recorded in evidence, and also telling him that a phone would be made available for the purposes if he deemed it necessary.

[12]     Constable Crockett later said in evidence:

At no stage did [the appellant] request to speak to a lawyer.  In fact he said very little.  I ensured that he understood the form that I had read to him, he indicated to me that he had, and sat there very quietly over that period.

[13]     In examination in chief, the appellant said that at the time of his apprehension he did not know what was meant by the Police Detention Legal Assistance Scheme, and that he was given no instructions beyond those outlined by Constable Crockett as to how he could exercise his rights under the scheme.

[14]     In cross-examination however, the appellant expanded very significantly the detail of his account.  He said:

Q.        you will have reasonable time to consult and instruct a lawyer from the time a telephone is made available to you?

A.        Yes.

Q.        you had plenty of time and he explained it that you could think about it?

A.        But I didn’t know.   I wouldn’t, I would not expect my lawyer to answer the phone, he didn’t give me a list of lawyers to ring or anything like that and I knew  my lawyer in  Auckland  wouldn’t answer the phone at 2.30 in the morning.

Q.       Did you ask Constable Crockett to call a lawyer or not? A. No.

Q.        So would you expect Constable Crockett to give you a list if you said ‘No I don’t want a lawyer’?

A.        Well under the Police Detention Scheme he was supposed to give me a list.

Q.       A list I’m sure would be available to you if you’d asked for one. A. But if I’m not told how would I know.

Q.       So twice you were given your Bill of Rights, you agree? A.         Yes.

Q.       Twice you said you don’t want a lawyer?

A.        The second time I didn’t answer it, that’s why he hasn’t written it down.  If I’d known a list of lawyers were available and I could have rung them and they would have answered, I naturally would have asked for advice.

Q.I put it to you that you refused to speak to a lawyer and never at any time you expressed any interest to talk to one.

A.No, he asked me if I wanted a lawyer and I considered at that stage that to wake up my own lawyer at 2.30 in the morning he would not answer my call.  At no stage was I given or offered a list of lawyers to ring and talk to.

Q.Did you tell Constable Crockett at any point that you wanted to talk to a lawyer?

A.        After he asked me if I wanted to consult a lawyer as I said just then before I thought about it and thought that there was no way that my lawyer would answer the phone at 2.30 in the morning.

Q.       So the answer to my question was? A.     No, I didn’t want to ring my lawyer.

Q.        So as far as Constable Crockett knows or ought to have known because you didn’t say, that you didn’t want a lawyer.

A.       I didn’t know there was a list of lawyers available, free of charge on call.

[15]     As  the  trial  Judge  noted,  there  was,  and  is,  no  challenge  to  Constable Crockett’s evidence as to the substance of the s 23 advice given to the appellant;  nor is it contended that the constable was made aware at any time that the appellant did wish to obtain legal advice.

[16]     The Judge specifically rejected the appellant’s claim that had he known there was a list of lawyers available, and that the phone would be answered, he would have made known his desire for legal advice.  The Judge rejected that evidence on the footing that it developed and grew during cross-examination well beyond what was said in examination in chief, in a manner that was less than convincing.

[17]     Elsewhere in his decision, Judge Harding referred to the appellant’s silence when advised of his right to a lawyer, of the appellant’s signature on the Bill of Rights form, of his acceptance that the constable was given no indication at the time of the appellant’s wish to obtain legal advice, and more generally of his apparent complete lack of interest in getting legal advice at the time.

[18]     Against that background, Mr Mohamed developed a submission to the effect that although the advice given by Constable Crockett might have been technically correct, nevertheless it was not a sufficient compliance with the requirements of s 23 of the BORA – he argued that the reference to the Police Detention Legal Assistance Scheme was confusing, and that what was required was advice given in an unambiguous manner in language understood by ordinary people.

[19]     Mr Mohamed is critical of the police decision to abandon a previous form of advice which read:

If you do not have your own lawyer a list will be provided of on-call lawyers for you to choose from.  These lawyers are available to give advice free of charge.

[20]     Section 23 has been considered on a number of occasions by the Court of

Appeal.  In R v Mallinson [1993] 1 NZLR 528, Richardson J outlined a number of

sequential steps requiring consideration when an assessment is to be made of the adequacy of s 23 advice.  Richardson J said at 530:

(2)  The  temporal  expression  "without  delay''  is  not  synonymous  with instantly or immediately. It is a negative injunction – not to delay – which in the  absence  of  any  further  qualification  necessarily  imports  as  the  test whether the delay is reasonable in all the circumstances having regard to the purpose of the right. The relevant interests which s 23(1)(b) protects are the ascertaining of one's legal rights and obligations and representation by an independent adviser. If the right is to be effective it must be exercisable before the legitimate interests of the person who is arrested are jeopardised. That  includes  not  prejudicing  one's  legal  position  by  words  or  conduct without the opportunity for legal advice.

(3) To be "informed'' of the right to a lawyer is to be made aware of it. The purpose is to provide a fair opportunity for the person arrested to consider and decide whether or not to exercise the right. The obligation on the arrester or other officer concerned is to communicate clearly to the person arrested that he or she has that right. No particular formula is required so long as the content of the right is brought home to the person arrested. To use the language of s 23(1)(b) may save argument later. In the end, whether or not the obligation was satisfied must turn on what was said and what is to be implied from what was said in the particular context and circumstances. Even though no particular words are used the context may make it clear that the right to a lawyer is immediately exercisable; and so, in relation to any subsequent use of answers to police questioning, that the right is exercisable before any questioning begins.

(4) There are three elements of the protective right: the right to consult a lawyer; the right to instruct a lawyer; and the exercise of those rights without delay. In that regard it is important that anyone arrested be made aware that he or she can exercise the right to a lawyer without delay, this is as soon as reasonably possible in the circumstances. The requirement is not satisfied if the person arrested may reasonably be left with the impression that access to a lawyer is not available until after any questioning is finished.

(5) Where the admissibility of a statement made to the police is challenged on the grounds of a specific breach of the Bill of Rights, the Court has to determine whether the accused was accorded the particular right claimed to have been breached. In that situation we consider that the ordinary rules as to onus of proof in relation to the admission of such evidence should apply. Accordingly the burden of establishing the admissibility of the statement rests on the Crown just as it does where, as will often be the case, it is also challenged on fairness grounds. The standard of proof to be applied is a matter upon which full argument will be needed in an appropriate case.

Unless there are circumstances calling for obvious care and further inquiry there is no reason for not taking the accused's answers at face value. If following  advice  as  to  the  right  to  a  lawyer  the  accused  responds affirmatively to the question whether he or she understands the position, the obvious inference is that the accused did indeed understand his or her rights. But more than a bare statement of the s 23(1)(b) right and a bare acknowledgement of understanding is likely to be required where, for example, the person arrested is intoxicated or under drugs or appears to have

a mental or physical disability which could interfere with his or her comprehension of the rights.

(6) The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were justified in assuming that he or she did understand them. To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.

(7) Informing persons arrested of their s 23(1)(b) rights ordinarily carries with it the obvious implication that they are entitled to exercise those rights. But there is no duty on the police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right. The police officer may decide to do so in order to assist in the understanding of the  right.  But  any  duty  to  facilitate  the  manner  of  its exercise is not triggered until there is an indication by the person arrested of the desire to consult a lawyer. What, if anything, is then required of the police will depend on the particular circumstances.

(8) The Bill of Rights is not a technical document. It has to be applied in our society in a realistic way. The question is whether what was done gave practical effect in the particular circumstances to the rights protected by the particular guarantee, here s 23(1)(b). And anyone complaining of a breach of the Bill of Rights must, as the Canadian Courts say, invest the complaint with an air of reality.

[21]     More  recently,  having  considered  Mallinson  and  a  number  of  other authorities, the Court said in R  v Alo [2008] 1 NZLR 168:

[72] We conclude that there is no absolute requirement for the police to advise suspects of the existence of the PDLA scheme. But a failure to give such advice will result in a breach of s 23 if:

(a) The circumstances at the time of the interview, including the suspect’s age, experience and remarks, provide a substantial basis for believing that the suspect might not have appreciated that he or she had a practical ability to obtain legal advice;

(b) The defendant provides an evidential basis for the contention that he or she chose not to take legal advice because of cost considerations; and

(c) The Crown cannot disprove that contention on the balance of probabilities.

We emphasise that common sense is called for. While we accept that it is likely that many, perhaps most, suspects who are interviewed may not know of the details of the PDLA scheme, a suspect who has been given his or her rights under s 23(1)(b) (particularly one who has also been given a list of lawyers and offered assistance to make contact with a lawyer) might be expected to raise the issue of cost if it is a concern.

[73] We do not see this approach as involving a major departure from the existing  pattern  of  authorities  and  thus  we  see  no  need  to  address  the question whether this judgment should have prospective effect.

[22]     The above passage is taken from the judgment of Williams Young P and Arnold JJ given by William Young P.  In that case the police were unable to say in evidence that the suspect had been advised that he was entitled to free legal advice. The majority thought that the omission of that explicit advice did not necessarily amount to a breach of s 23.  In a minority judgment, Chambers J said that the police are under an obligation to inform suspects of the free nature of the current PDLA scheme, and he would have allowed the appeal on that basis.

[23]     Here of course, there is no challenge to Constable Crockett’s evidence that the appellant was advised that advice given under the scheme would be free.

[24]     As Ms Wrigley submits, the majority decision in Alo has effectively been superseded on this point by the Practice Note issued by the Chief Justice, pursuant to s 30(6) of the Evidence Act 2006: [2007] 3 NZLR 297. Rule 2 of that Practice Note provides:

Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:

(a)that the person has the right to refrain from making any statement and to remain silent

(b)       that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme.

(c)       that anything said by the person will be recorded and may be given in evidence.

[25]     The Practice Note commences with a Preamble which provides:

The courts will continue to apply judicially-developed guidelines for police questioning.  The  former  Judges’  Rules  are  (with  some  developments) restated here for the purposes of s 30(6) of the Evidence Act 2006. The obligation to advise that legal advice may be available without charge under the Police Detention Legal Assistance Scheme is new. As well the advice requirements under s 23 of the New Zealand Bill of Rights Act 1990 are

brought into the required caution. Giving such advice prior to a suspect being arrested or detained does not obviate the necessity to repeat the advice upon arrest or detention. The practice note also favours the use of video recording of statements. In other aspects, the practice note is not intended to change existing case law on application of the Judges’ Rules in New Zealand and does not preclude further judicial development. The guidelines in this practice note supplement enactments relevant to police questioning and must be read consistently with those enactments. In particular they do not affect the rights and obligations under the New Zealand Bill of Rights Act 1990. The practice note takes effect on the commencement of section 30 of the Evidence Act 2006.

[26]     Although the Practice Note makes it clear that, as occurred in this case, a suspect must be told that free legal advice is available and to that extent the Practice Note differs from the majority judgment in Alo, nevertheless, that case remains of importance in that it underscores the emphasis found in Mallinson upon the need for a common sense approach to the application of s 23.

[27]     In this present case the form of advice read out to the suspect by Constable Crockett was identical to the language of the caution set out in r 2(b) of the Chief Justice’s Practice Note.  There can therefore be no criticism as to the adequacy of the advice conveyed to the appellant, unless the circumstances were such as to give rise to police facilitation obligations of the sort referred to in step 7 of Mallinson and at [70]-[71] of Alo.

[28]     Here, no such obligations arose.   It is common ground that whatever the appellant may have thought about the need for legal advice while he was being processed, he gave no indication whatever to Constable Crockett that he wished to consider taking legal advice, or that he needed further information from the police on the topic, whether as to costs or otherwise.   He told the constable that he did not want legal advice and he signed the form immediately below the point at which the advice was set out in writing.  Neither is there any suggestion that the appellant, by reason of intoxication or any other disability, may have needed additional facilitative assistance from the police.

[29]     The appellant was advised of his right to consult a lawyer without delay, in private and without charge.  In my view, that was a sufficient discharge by the police of their obligations under s 23.   The fact that legal advice was available under a

scheme of which the appellant was unaware does not convert what would otherwise be a sufficient compliance with s 23 into a breach of the section.

[30]     In my opinion there has been no breach of s 23, but even if that conclusion should be wrong, and the evidence was improperly obtained, it is to be excluded only if it cannot survive the balancing process required by s 30(2)(b) of the Evidence Act.

[31]     In that respect I uphold Ms Wrigley’s submission to the effect that, given the advice conveyed to the appellant complied precisely with the Practice Note, the exclusion of the breath test evidence would be disproportionate to the breach.

[32]     In my view, the Judge’s approach to the admissibility issue that arises here was correct.  The appeal in respect of the breath alcohol conviction accordingly fails.

Dangerous driving

[33]     The police case was based upon the evidence of four police officers who were present at the scene.  Sgt Michael Owen gave evidence of the scene itself.  His evidence was largely undisputed and forms the basis for the summary appearing at the commencement of this judgment.

[34]     Constable Gavin Bennett said that he observed a large truck and trailer unit travelling through the check point at speed.   The truck collided with several road cones and exited the check point without stopping.  He estimated the speed of the truck and trailer unit at 65 kph, the speed limit at that point being 50 kph.   He referred to “a roaring sound” as the rig drove past the booze bus, and said that “the ground shook”.   He also said that the noise of the engine was constant, and no braking was discernible.   The constable also indicated that between six and eight people were standing outside the booze bus on the grass verge, and some of those people were intoxicated.

[35]     Constable Ronald Duytshoff said that he was inside the booze bus at the time

– there was a sudden thundering outside and by looking out of the bus he saw the rear of the rig disappearing down Maunganui Road.  He said that the rig must have

passed through the check point area at great speed and very close to the booze bus because the whole bus “just shook as it went past”.   The constable was unable to make an estimate of speed, because he was inside the bus, but he felt able to say that the noise he heard was not consistent with engine braking.

[36]     Constable Crockett gave the following evidence:

I was walking back from inside the booze bus.  I was travelling back to the checkpoint location and just about to step back into the lane.  I put my head around the front of the truck to ensure it was safe for me to come through and a noise like I’ve never heard before and just a tremendous roaring rush just straight past me and to be honest I was dumbfounded as to what had gone on.   Quickly glancing around I could see other people around, their looks were as I believe I felt, there were some cones that were still in the scene, there were other bits of debris of cone that were being sucked along by the vacuum created by this large truck that were just being sucked along and if you could see them all being pulled through the air behind it as it carried on out of the scene.

[37]     The appellant himself said that he was “ … most likely over the limit but at most 60 kph.  However, it is a large noisy truck, its 22 years old”.

[38]     It is common ground that when the appellant drove his rig through the check points it was unmanned, and the appellant was not the subject of any direction from any police officer as he passed through.

[39]     The appellant’s evidence was that he had used his engine brakes as he passed through the check point, and indeed that the brakes were activated automatically if pressure was removed from the accelerator.  He acknowledged hitting cones at the scene, and also seeing people on the left hand side of the road, and certain other vehicles in the vicinity of the check point as he travelled through it.

[40]     He  also  called  expert  witnesses  who  gave reconstruction  evidence.    The Judge placed little weight on that evidence, as he was entitled to do, in circumstances where there were a number of eye witnesses.  The Judge was not impressed by the appellant as a witness.  He characterised his evidence as “less than convincing” and as being the product of “remanufactured memory rather than a positive recall”.

[41]     In  a  case  like  this,  the  Judge’s  preference  for  other  evidence  must  be accorded considerable weight, having regard to the advantage he had of being able to see and hear the witnesses in person.  The Judge rejected the appellant’s evidence that the noise referred to by police witnesses was to be ascribed primarily to engine braking.  He preferred the evidence of the police witnesses who, it is to be noted, discerned no change in engine pitch as might be expected if engine braking was occurring in the vicinity of the check point.

[42]     Mr Mohamed for the appellant submits that the police witnesses had over- dramatised what occurred, and that this was simply not a case in which it was open to the Judge to conclude that the appellant was guilty of dangerous driving, as distinct from careless driving.

[43]     The appellant was charged with driving in a manner which was dangerous to the public.  The proper approach to a determination of charges of dangerous driving is well settled.  In R v Gosney [1971] 2 QB 674 at 680, the English Court of Appeal said:

… the offence of driving in a dangerous manner is not an absolute offence. In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation.  “Fault” certainly does not necessarily involve deliberate misconduct  or  recklessness  or intention  to drive in a manner inconsistent with proper standards of driving.  Nor does fault   necessarily   involve   moral   blame.      Thus   there   is   fault   if   an inexperienced or a naturally poor driver, while straining every nerve to do the right thing, falls below the standard of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case.   A fault in that sense, even though it be slight, even though it be a momentary lapse,  even  though  normally no  danger would have arisen from it, is sufficient.

[44]     And in Stratford v Ministry of Transport [1992] 1 NZLR 486, Eichelbaum CJ

explained:

On  a  charge  of  dangerous  driving  causing  death  a  finding  that  the defendant's driving fell below the required standard of the reasonably competent driver may be reached by more than one route. First, although the doctrine res ipsa loquitur has no application, the inference from the proved facts may be so strong as to admit of no other conclusion. For example in Police v Chappell [1974] 1 NZLR 225 (a charge of careless driving causing death) a driver proceeding in good road conditions rounded a slight bend, and got into shingle on the side of the road, with the consequence that the car

went out of control, crossed the road, and rolled over, finishing 395 feet past the point where it first entered the shingle. In the absence of any explanation amounting to a reasonable possibility it was held on appeal that he had been rightly convicted. Police v Digby [1971] NZLR 918 is to similar effect. As these decisions show a conviction may be upheld notwithstanding the absence of identification of a specific act of the driver's which falls below the prescribed standard, such as driving at a speed excessive in the circumstances, or failing to keep a proper look-out. Secondly in other cases where the focus may be on particular actions of that kind the Court may conclude that in one or more such respects, or in a combination of them, the driving fell below the standard required by law, and created a situation of danger. It is self-evident that if the finding of dangerous driving is based upon a single such deficiency, for example failure to keep as far as practicable to the left, it must be established beyond reasonable doubt. It is equivalent to one of the facta probanda. Proof of such a fact may itself be a matter of inference from a number of circumstances. If so, in terms of Thomas v R, it is not necessary that each be established beyond reasonable doubt.

[45]     It is common ground between counsel that mere proof of excessive speed will not of itself justify a conviction for dangerous driving.  All the circumstances must be considered.  A substantial excess over a speed limit may be dangerous, by reason of circumstances such as visibility, the state of the traffic and the proximity of other road users.

[46]     The appellant himself accepts that he was travelling at 60kph, some 10kph in excess of the speed limit.  Other witnesses put the speed at closer to 65kph.  So there is a significant measure of agreement to the effect that the appellant was travelling in a heavy and cumbersome rig at a speed in excess of the prescribed speed limit.

[47]     In  my  view  the  following  circumstances  convert  what  would  otherwise amount to a simple breach of the speed limit into a case of dangerous driving:

a)       The appellant was, as Ms Wrigley submits, approaching an obvious hazard.  It must have been plain to him from some distance away that police traffic controls lay ahead.  There was lighting from the booze bus, the traffic cones, and the reflectorised material on vehicles and on police officers.   As the appellant approached the check point the narrowing of the lanes must have become more apparent to him.

b)On the evidence which was preferred by the Judge, the  appellant failed to slow down for the hazard as he approached it.

c)       The appellant must have become aware that he was approaching a breath alcohol check point.  That being so, he would have been aware that there would be a number of people in the vicinity, some of whom might well be affected by alcohol.

d)It was night time;  visibility must have been reduced and additional care was required.

e)       To  some  extent  the  appellant  must  have  been  driving  under  the influence of alcohol, and with faculties impaired.

f)        The appellant hit four cones as he travelled through the check point.

No other vehicles had hit the cones that evening.   The proper conclusion is that the appellant was driving too fast to enable him to negotiate the check point, in circumstances where he must have been affected to some degree by alcohol, and where it was apparent that a hazard lay ahead.

[48]     I accept Ms Wrigley’s submission that this case falls within the first category described in Stratford,  namely, cases in which the proved facts may be so strong as to admit of no other conclusion.  As the Judge found, there was an actual danger to those in the immediate vicinity.

[49]     I  also  accept  Ms  Wrigley’s  submission  that  in  considering  whether  the appellant was driving in a “manner” that was dangerous, it is legitimate to take into account the speed at which the appellant was proved to have been travelling. Otherwise, as she argues, speed could never be considered in combination with other driving behaviour.

[50]     The Judge summarised his conclusions by saying:

In the circumstances I have no difficulty in concluding beyond reasonable doubt that there was dangerous driving here.  Viewed objectively, this was an  actual  and  potentially  dangerous  situation  caused  in  a  nutshell  by Mr S  ’s travelling through a restricted, likely to be peopled and actually peopled area at a speed which was over the speed limit by some 10-15 kph and  in  the  circumstances  dangerous.    That  charge  is  proved  and  the defendant will be convicted.

[51]     In my opinion the Judge’s conclusion was well open to him, and indeed, was inevitable.  This aspect of the appeal also fails.

Disposal

[52]     For the foregoing reasons the appeal is dismissed.  The order granting a stay of the order for disqualification is discharged with effect from 6 am on Wednesday

15 October 2008.

C J Allan J