Sumicz v Police
[2020] NZHC 229
•20 February 2020
IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTEPOTI ROHE
CRI 2019-012-965
[2020] NZHC 229
UNDER the Criminal Procedure Act 2011 BETWEEN
ANNE-MARIE SUMICZ
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 14 February 2020 Counsel:
N M Laws for Appellant R D Smith for Respondent
Judgment:
20 February 2020
JUDGMENT OF MALLON J
Introduction
[1] Anne-Marie Sumicz is a bus driver in Dunedin. She is charged with careless driving causing injury.1 This charge arose from an incident in which a pedestrian (the complainant) was injured after a collision with Ms Sumicz’s bus. The principal issue is whether the prosecution is required to specify particulars of the alleged carelessness.
[2] The issue comes before this Court as an appeal from pre-trial rulings in the District Court declining to order the prosecution to provide particulars and declining to dismiss or stay the charge.2 The questions of law in the notice of appeal are:
(a)Question 1: Was the Judge correct to conclude that the charging document adequately informs Ms Sumicz of the substance of the charge
1 Land Transport Act 1998, s 38.
2 Police v Sumicz [2019] NZDC 22767.
SUMICZ v POLICE [2020] NZHC 229 [20 February 2020]
she faces, and otherwise complies with s 17 of the Criminal Procedure Act 2011 (the CPA)?
(b)Question 2: Was the Judge correct to conclude that the charge of careless driving is one of broad compass and it is not necessary to show negligence which requires particularisation of the allegations being made, and that providing specific details of the manner in which it is said Ms Sumicz drove carelessly is not required or helpful?
(c)Question 3: Did the Judge err in concluding as a matter of law that there was some evidence to establish carelessness and that the carelessness caused the complainant’s injuries?
[3] The appeal requires leave.3 Leave is not opposed. I grant leave in part because clarification, if any is needed, on what particulars are required on a charge of carelessness would have general relevance. Additionally, if Ms Sumicz’s arguments are correct, it may result in dismissal of the charge against her. It therefore has importance for her.
The charge
[4]The relevant details in the charging document are as follows:
Date of offence: On the 27th of February 2019
Offence location: At Dunedin
Offence description: Operated a vehicle on a road namely the Octagon, Dunedin carelessly and thereby caused injury to [the complainant]
Legislative reference: Land Transport Act 1998 Section 38
The summary of facts4
[5] At about 3.40 pm on 27 February 2019 Ms Sumicz was driving the bus through the central carriageway in the Octagon, Dunedin in a northerly direction. There was
3 Criminal Procedure Act 2011, s 296.
4 The alleged facts set out under this heading came from an amended summary of facts provided to Ms Sumicz on 18 July 2019.
moderate to heavy vehicular and pedestrian traffic in the area. It was not raining and visibility was good.
[6] Ms Sumicz was intending to cross the intersection at the northern end of the Octagon into George Street, which continues in a northerly direction. The intersection is controlled by lights. The traffic lights were green as Ms Sumicz entered the intersection.
[7] A car travelling in front of Ms Sumicz stopped in the intersection, blocking her passage through it. The front of the bus was in the intersection at this point. The car had stopped because it was intending to make a right-hand turn to continue around the Octagon (in an easterly direction) and traffic (heading in a southerly direction from George Street into the Octagon) was preventing it from making the turn. It is illegal to make a right-hand turn at this intersection. Ms Sumicz sounded her horn at least four times, and yelled at and gesticulated towards the driver of this car.
[8] The complainant was on the footpath on the northwest side of the Octagon, intending to cross at the Octagon/George Street intersection. She looked to the left and right as she waited.
[9] The traffic lights for the north and southbound traffic turned red. The car blocking Ms Sumicz’s passage was then able to complete the (illegal) right-hand turn. Ms Sumicz decided to continue through the intersection on the red light:
[She] accelerated briskly, driving forward, with her gaze still out the right hand window looking at the car that had made the right hand turn. Just as she turned her head forward, while the bus was moving, the [complainant] stepped out onto the road and struck the left side of the bus near the front.
[10] The complainant was wearing headphones, listening to music at a low volume. She entered the crossing on the green walk signal. As she entered the crossing, she looked to her left (for traffic travelling from George Street in a southerly direction). Another pedestrian was yelling at her to warn her about the bus to her right.
[11] The complainant walked into the side of the bus. She was knocked off balance and the back wheels of the bus ran over her left foot. She received two fractures to
her foot. The injuries have caused the complainant to miss work and Polytech, and she has required on-going medical treatment.
The prosecution evidence
[12] There is CCTV footage of the incident. There is footage from inside the bus as well as from the street. The footage shows the incident unfolding as outlined above.5 It also shows that the incident was preceded by Ms Sumicz sounding her horn at the entrance to the Octagon from the south when the complainant, apparently without the right of way, walked in front of the bus.
[13] The footage is supplemented by statements from the complainant; a witness who was also standing on the footpath at the northwest corner of the Octagon (the person who tried to warn the complainant); and another bus driver who was parked on George Street with a view of the Octagon looking to the south.
Procedural background
[14] The charging document was filed in the District Court on 3 May 2019. Ms Sumicz asked the police to particularise the alleged carelessness and how any such carelessness caused the injury to the complainant. The police declined. The police said Ms Sumicz had been careless in a number of ways and that ultimately it would be an issue for the Judge to decide on the evidence.
[15] On 18 July 2019 the prosecution provided an amended summary of facts. On 24 July 2019 Ms Sumicz applied for an order under s 18 of the CPA for particulars. On 5 September 2019 Ms Sumicz applied for an order under s 147 of the CPA that the charge be stayed or dismissed on the ground the charge was defective for want of particulars and it was now too late to lay a new charge.
[16] The two applications were heard together. In submissions to the District Court the police provided a non-exhaustive list of the ways in which Ms Sumicz could be said to have been careless, namely:
5 The footage was played at the hearing of the appeal.
(a)not taking sufficient care;
(b)not being aware of the obvious risk in the circumstances of pedestrians crossing;
(c)being distracted by the vehicle in front of her making an illegal right- hand turn;
(d)being impaired by her anger and frustration at the vehicle in front of her;
(e)entering a controlled intersection when the intended passage or exit was blocked by stationary traffic, in breach of Land Transport Rule 4.5(2); and
(f)moving on a red traffic light.
District Court decision
Sufficient particulars
[17] The District Court Judge noted that s 17 of the CPA required that a charge must contain sufficient particulars to fully and fairly inform the defendant of the substance of the charge. He referred to the Court of Appeal’s decision in Talley’s, which in turn referred to that Court’s decision in Police v Wyatt. Wyatt held that the degree of necessary particularity depended on the nature of the offence and it was the substance, essence or pith of the charge that must be revealed rather than the details relied upon to establish the charge.6
[18] The Judge noted that Wyatt involved a charge of careless driving causing injury that was drawn in almost identical terms to the charging document in the present case. The Court in Wyatt unanimously held there was no requirement for further particulars in that case. The accepted practice for a charge of this nature was to provide particulars
6 Talley’s Group Limited v WorkSafe New Zealand [2018] NZCA 587 at [39] and Police v Wyatt
[1966] NZLR 1118 (CA) at 1133.
of the time and date and this was sufficient. Where the offence was complex more would be required.7
[19] The Judge contrasted this with Talley’s. This involved a charge against an employer for failing to take all practicable steps to ensure the complainant was not exposed to hazards arising out of the operation of the forklift at Talley’s processing plant. The Court held the prosecution was required to particularise the reasonable steps the defendant allegedly could have but failed to take.
[20] The Judge considered Talley’s was reconcilable with Wyatt because it was necessary for the defendant to know the alleged steps it could have but failed to take in order to understand the substance of the charge it faced in the context of complex legislation.8 The Judge gave other examples of complex offences were particulars were required.9
[21] The Judge rejected a submission that Ms Sumicz’s case was unusual or complex because the bus driver was part way into an intersection when its passage was blocked and because of the inattentiveness of the complainant. He considered the decisions of R v Slater and Rayner v Police answered the submission.10 Those cases found that a Court may find carelessness on a different basis from that submitted by the prosecution and particulars of negligence were not required.11 The Judge concluded that it was neither necessary or helpful for the prosecution to provide specific details of the manner in which it was said that Ms Sumicz had driven carelessly.
Dismissal or stay
[22] A dismissal or stay under s 147 of the CPA was not made out. This was because the Judge had found the charge was not defective for want of particulars. The Judge went on to assess the s 147 application in the event that he was wrong about whether
7 Police v Sumicz, above n 2, at [28]-[40], referring to Wyatt at 1130-1133.
8 At [41].
9 Referring to Robertson v Rosenberg [1951] 1 TLR, 417 and Stephenson v Johnson [1954] 1 All ER 369, discussed in Police v Sumicz, above n 2, at [42]-[44].
10 R v Slater [1997] 1 NZLR 211 and Rayner v Police [2018] NZHC 2276, discussed in Police v Sumicz, above n 2, at [47]-[54].
11 Police v Sumicz, above n 2, at [55].
particulars were necessary. He considered a charge defective for a lack of particulars would be protected by s 379 of the CPA. He also considered there was no prosecutorial misconduct in failing to provide the particulars to warrant a stay. He referred to Talley’s in support of these matters.
[23] Lastly, he rejected the argument that there was no evidence that any carelessness caused the injuries to the complainant. The Judge referred to authority that held that the defendant’s careless use must be a material, significant, substantial or real cause as opposed to a minimal cause.12 The Judge referred to the circumstances alleged in the summary of facts and considered it would be open for the fact finder to find that Ms Sumicz’s careless operation of the bus was a material cause of the complainant’s injury.
[24]The s 147 application was therefore dismissed.
Are particulars necessary in this case?
The statutory requirement
[25]Section 17 of the CPA provides:
17Content of charge
...
(4)A charge must contain sufficient particulars to fully and fairly inform the defendant of the substance of the offence that it is alleged that the defendant has committed.
(5)Without limiting subsection (4), the particulars provided under that subsection must include—
(a)a reference to a provision of an enactment creating the offence that it is alleged that the defendant has committed;
…
12 Referring to R v Hennigan [1971] 3 All ER 133 (CA), 55 CR App R262 and Police v Keen HC Masterton M33/72.
[26] When the offence is not representative, the only specific requirement is to specify the enactment that creates the offence.13 The requirement for particulars is expressed in general terms and is directed at informing a defendant “of the substance of the charge.” What is required in any case will depend on the offence and the circumstances.14
[27]Section 18 of the CPA provides:
18Court may order further particulars
(1)A court may, if satisfied that it is necessary for a fair trial, order that further particulars of any document, person, thing, or any other matter relevant to setting out the charge against the defendant be provided by the prosecutor.
(2)Nothing in subsection (1) limits the power of a court under section 133.
[28] This power can be exercised in response to a finding that a charging document does not comply with s 17.15 Sections 17 and 18 are not materially different to the previous requirements in the Summary Proceedings Act 1957.
Submissions
[29] Ms Sumicz (through her counsel) submits the District Court Judge misapplied or misunderstood the case law he discussed. She submits the Judge failed to take proper account of the caveats expressed by all three judges in Wyatt that even a charge of careless driving may sometimes require particulars. She submits the Judge wrongly distinguished Talley’s by only focussing on the complexity of the legislation under which a charge is laid when complexity can also arise on the facts.
[30] Ms Sumicz says complexity, or at least unusualness, arose here. This was because the bus was already part way into the intersection when its path was blocked by the car seeking to turn right illegally. It was also because the complainant did not
13 When the offence is representative, the particulars required under s 17(6) concern particulars as to values, amounts or quantities (where relevant) and the dates on or between which the offending is alleged to have occurred.
14 Talley’s Group Limited v WorkSafe New Zealand, above n 6, at [41] and Police v Wyatt, above n 6, at 1130-1133.
15 Fulton Hogan Ltd v Canterbury Regional Council [2019] NZHC 1767 at [102].
look right as she entered the crossing and, because she was wearing headphones, did not hear the Ms Sumicz sounding the horn or the warning of the fellow passenger. She refers to Road User Rule 11.5.16
[31] Ms Sumicz submits the Judge should have referred to s 24(a) of the New Zealand Bill of Rights. This provides that everyone who is charged with an offence is to be informed promptly and in detail of the nature and cause of the charge. Ms Sumicz says that she does not know the case she has to meet as matters stand. She has instructed an expert. The expert does not know what matters need to be addressed until the case against Ms Sumicz has been clarified. For example, is it contended that she should have kept the bus in its position in the intersection once the car turned right (with the possibility of obstructing traffic entering the intersection from the left on the green light and travelling in an easterly direction)? Or is it contended that she had time to stop the bus before the complainant walked into its path?
[32] Ms Sumicz relies on the Solicitor-General’s prosecution guidelines.17 These guidelines provide that prosecutions should be initiated only where the prosecutor is satisfied that: (1) the evidence is sufficient to provide a reasonable prospect of conviction (the evidential test); (2) prosecution is in the public interest (the public interest test). Ms Sumicz submits the prosecution cannot have complied with the evidential or public interest test if it was unable to supply particulars of the careless that caused the injury.
Assessment
[33] The Court of Appeal in Wyatt held that a charge of careless driving causing injury ordinarily does not require particulars beyond that which was provided in the charging document here. There will nevertheless be the “odd case where the motor driver is unaware of the circumstances that led to his prosecution” (per North P), or where “a defendant can reasonably claim that the justice of his own case requires more” (per Turner J) or where a defendant “is left in doubt as to what really is the
16 Land Transport (Road User) Rule 2004, r 11.5.
17 Crown Law Office Solicitor-General’s Prosecution Guidelines (1 July 2013).
allegation … [and] is embarrassed” (per McCarthy J) where particulars should be ordered.18
[34] Talley’s is not inconsistent with Wyatt. It applied Wyatt in holding that it was the “substance, the essence or pith” of the charge that must be revealed by the particulars. In this case Ms Sumicz is aware she is charged with careless driving causing injury to the complainant in the Octagon on 27 February 2019. She is aware of the incident that has given rise to the charge. She has been provided with the particulars that are ordinarily sufficient for this charge.
[35] These particulars are sufficient to provide her with “the substance, the essence or pith” of the charge she faces. In assessing whether she was careless in a way that caused the injury, the Judge is entitled to assess all the circumstances that led to the injury. Those circumstances will include evidence from the prosecution that:
(a)Ms Sumicz entered the intersection on a green light and was then obstructed by the car seeking to turn right;
(b)the bus was partly in the intersection once the light turned red;
(c)Ms Sumicz’s eyes were on the car turning right when she proceeded to move through the intersection on the red light;
(d)she sounded her horn several times, which had alerted another pedestrian at the intersection and the bus driver parked on George Street to her presence;
(e)the complainant was injured entered the crossing on a green light;
(f)the complainant did not look to the right when she entered the crossing and did not hear the other pedestrian’s warning because she was wearing headphones.
18 Police v Wyatt, above n 6, at 1130-1131 and 1134.
[36] If these facts are proven by the prosecution, whether she is found to have operated the bus carelessly and thereby caused injury will depend on the Judge’s assessment of:
(a)the degree of care and attention that a reasonable and prudent driver would have exercised in these circumstances;
(b)whether Ms Sumicz failed to exercise that degree of care and attention; and
(c)whether any such failure was a material cause of the complainant’s injuries.
[37] It may be that the Judge will find that a reasonable and prudent driver would not have proceeded through the intersection on the red light given the position of the bus when the light changed. It may be that the Judge will find that this alone would not have caused the complainant’s injury. Or it may be that the Judge will find it was reasonable and prudent to proceed through the intersection and this was not in itself carelessness that caused injury. It may be that the Judge will find Ms Sumicz exercised reasonable and prudent care by sounding the horn and this was sufficient care in the circumstances. Or it may be that the Judge will find that a reasonable and prudent driver, who made the decision to proceed through the intersection on the red light, would have looked for pedestrians crossing on a green light as well as or instead of sounding her horn. The Judge would then have to decide if Ms Sumicz’s decision to proceed without looking was a material cause of the complainant’s injury. In making these assessments the Judge would take into account the road rules.19
[38] These are not matters that give rise to complexity requiring particulars. They are matters for assessment on the evidence. The relevant evidence is of a narrow compass. Ms Sumicz has disclosure of the proposed evidence. That evidence is available to her expert, who can give his opinion on why Ms Sumicz’s actions were not careless in all the circumstances or were not causative of the injury. Whether Ms Sumicz’s defence simply tests the prosecution evidence and makes submissions
19 Land Transport (Road User) Rule 2004, r 4.5, 10.1 and 11.5.
on the road rules and the law, or also adduces defence evidence to respond to the prosecution evidence, is a matter for her. In the words of the judges in Wyatt, this is not an “odd case where [Ms Sumicz] is unaware of the circumstances that led to [her] prosecution”; the interests of justice do not require more; and she is not “embarrassed” by the charge.
[39] It was not necessary for the Judge to refer to s 24(a) of the New Zealand Bill of Rights. If the charge complies with s 17 of the CPA, as it does in my view, there is no issue under s 24(a). Ms Sumicz is “fully and fairly” informed of the substance of the charge (s 17). She is aware of the details of the charge she has to meet (s 24(a)).
[40] The Solicitor-General’s prosecution guidelines do not assist Ms Sumicz’s appeal. The fact that the prosecution does not have to specify particulars and initially declined to provide them, does not mean that the police did not follow the guidelines. As discussed under the next heading, the evidence available to the police from the CCTV footage provides a reasonable prospect of conviction. The witness statements also provide such a prospect. Once a prosecutor is satisfied there is sufficient evidence to provide a reasonable prospect of conviction, the presumption is that the public interest requires a prosecution.20 There is nothing to suggest the police failed to exercise their discretion as to whether a prosecution was required in the public interest because they initially declined to provide particulars.
[41] Finally, there appeared to be some confusion in the written submissions about the difference between negligence and carelessness. This confusion may have arisen partly from the framing of the second question of law, which asks whether “it is not necessary to show negligence which requires particularisation of the allegations being made”. A charge of carelessness requires proof that the operator of the vehicle did not exercise the degree of care and attention that a reasonable and prudent driver would have exercised in the circumstances. That is also the standard for a civil claim in negligence if it were available. However, while a civil claim of negligence ordinarily will require particulars, a criminal charge for careless driving ordinarily does not.21
20 Guidelines, above n 17, at 5.7.
21 Slater v Police HC AP15/95 at 11, cited in R v Slater, above n 10, at 191.
Should the charge have been dismissed or stayed
[42] A charge of careless driving causing injury is a Category 2 offence with a maximum period of imprisonment of three months or a fine not exceeding $4,500.22 This means a charging document must be filed within six months after the date on which the offence was committed.23 In this case, the charging document had to be filed by 28 August 2019.
[43] Ms Sumicz submits the charging document was defective because particulars were necessary and no particulars were provided by 28 August 2019. She submits it is now too late to provide them. This submission is answered by my conclusion that no further particulars were required.
[44] Moreover, even had the charge required further particulars, it would not follow that the charge should be dismissed or stayed. A court cannot dismiss a defective charge unless the defect gives rise to a miscarriage of justice.24 As discussed in Talley’s, no miscarriage arises if the particulars are provided by way of a summary of facts served on a defendant. This is the case even if those particulars are served on the defendant out of time.25 In this case, the summary of facts was provided to Ms Sumicz within time.
[45] Ms Sumicz submits the summary of facts does not contain particulars that can establish carelessness causing injury. I do not accept this submission. The summary of facts provides the narrative alleged to give rise to carelessness causative of injury. It refers to Ms Sumicz’s passage through the intersection being blocked by the car turning right; making the decision to proceed through the intersection on a red light, “accelerating briskly”, looking at the car that had made the right-hand turn; and only turning her head forward as the victim stepped out on the crossing on a green light.
22 Land Transport Act 1998, s 38.
23 Criminal Procedure Act 2011, s 25(3).
24 Section 379.
25 In that case the charge was filed on 20 November 2015; the six month limitation period expired on 21 November 2015; the charge (without particulars) was served on the defendant on 1 December 2015 along with a summary of facts. See [11]-[12] and [71]-[74].
[46] On this narrative there is evidence, if accepted at trial, that Ms Sumicz was careless in proceeding through the intersection on a red light without keeping a look out for pedestrians who would have a green light to cross. On this evidence a Judge could find these actions were causative of the complainant’s injuries because, if Ms Sumicz had either stayed at the intersection until the light was green, or looked ahead before and while moving forward through the intersection in time to stop before the complainant entered the crossing, the collision with the complainant would not have occurred. It would be open to the Judge to find this was a material cause of the collision, even though the complainant’s inattentiveness may also have been a cause.26
[47] For completeness I note that particulars can be amended on application by the prosecution or by the Court at any stage before the Court’s decision.27 In deciding whether an amendment should be permitted, the Court will take into account any prejudice to the defendant.28 Had particulars been necessary (which they are not), and had the summary of facts been inadequate (which it is not), it would still be open to the prosecution to apply to amend them.
[48] For all these reasons the Judge was correct to hold that the charge should not be dismissed under s 147. He was also correct that a stay would not be appropriate. The prosecution was acting in accordance with the established legal position by initially declining to provide particulars. In any event, Ms Sumicz has been aware of the case she has to respond to from at least 18 July 2019 when the amended summary of facts was provided to her.
Result
[49]It follows that the answers to the questions of law posed on this appeal are:
(a)Question 1: Was the Judge correct to conclude that the charging document adequately informs Ms Sumicz of the substance of the charge
26 See, for example, Huang v Police [2016] NZHC 1271 at [17]-[18].
27 Criminal Procedure Act, s 133.
28 See Talley’s, above n 6, at [16] and [75]-[78] discussing that an amended summary of facts was filed on 26 August 2016 for which an application under s 133 was necessary.
she faces, and otherwise complies with s 17 of the Criminal Procedure Act 2011 (the CPA)? Yes.
(b)Question 2: Was the Judge correct to conclude that the charge of careless driving is one of broad compass and it is not necessary to show negligence which requires particularisation of the allegations being made, and that providing specific details of the manner in which it is said Ms Sumicz drove carelessly is not required or helpful? The Judge was correct that, in this case, specific details of the manner in which it is said Ms Sumicz drove carelessly were not required.
(c)Question 3: Did the Judge err in concluding as a matter of law that there was some evidence to establish carelessness and that the carelessness caused the complainant’s injuries? No.
[50] Leave to appeal is granted but the appeal is dismissed. The proceeding is referred back to the District Court for a case review, which has been scheduled for 3 April 2020 at 2.15 pm.
Mallon J
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