T v Police HC New Plymouth CRI 2009-443-21

[2009] NZHC 2493

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI 2009-443-000021

BETWEEN  T

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 December 2009

Appearances: The Appellant in person

S Ellis for the Respondent

Judgment:      14 December 2009

ORAL JUDGMENT OF PRIESTLEY J

Solicitors:

S Ellis, Crown Solicitors, P O Box 738, New Plymouth 4340 Fax: [phone]

Copy to:

Mr I B T  , 12 Stanners Street, Eltham 4322.

T V NEW ZEALAND POLICE HC NWP CRI 2009-443-000021  14 December 2009

[1]      On 17 July 2009 the appellant, Mr T  , was convicted in the Hawera District Court on the one charge he faced, namely careless use of a motor vehicle. This charge was laid under s 37(1) of the Land Transport Act 1998.

[2]      The two presiding Justices of the Peace, having convicted the appellant, fined him $500 and directed that he pay Court costs of $130.  Additionally reparation in the sum of $680 was ordered and, pursuant to s 92, the appellant was ordered to attend a compulsory driver improvement course.

[3]      The appellant has challenged both his conviction and the sentence on appeal.

Reasons

[4]      The Justices of the Peace presided over a defended hearing.  The appellant represented himself.  The witnesses called by the prosecution were Mr A P Taylor, who was the driver of the other vehicle (a bright  yellow  courier van  weighing approximately 3 tonnes) involved in the accident, and Constable Mary Parete, who is the sole charge constable stationed at Manaia who arrived on the scene shortly after the accident had occurred.

[5]      Mr T   cross-examined both these witnesses.  He also gave evidence for himself in his defence and was cross-examined by the Police Prosecutor.

[6]      The J.Ps’ decision was short and cryptic.  In its entirety it reads:

Mr T  , we have looked at the evidence and have heard all the evidence. We find that the case is proven and it is proven beyond any doubt.

[7]      In my judgment when Justices of the Peace are presiding over a defended hearing of this nature, it is incumbent on them to give brief reasons.  A bald assertion to the effect that they find the criminal onus has been discharged and the case proved beyond reasonable doubt does not really assist.   One of the obligations of judicial officers is to give reasons (which can on occasions be brief and succinct) so that the parties appearing before them are satisfied that the decision of the Court has some rational basis and is not arbitrary.

[8]      The absence of reasons, however, is not the basis of this appeal.   In her written submissions Ms Ellis, although accepting that no reasons have been given, points out that, on an appeal, the appellate court is obliged to look at all the evidence to decide whether the elements of the charge have been satisfied.  That submission must be right.   (See generally, R v Atkinson [1984] 2 NZLR 381, 383 and R v Awatere [1982] 1 NZLR 644.

The Facts

[9]      The facts are simple.  On 14 November 2008 a collision occurred between two vehicles on South Road, Hawera.  The appellant had stopped at an intersection, Victoria Street, which is controlled by a compulsory stop.  He turned left into South Road.  As he was carrying out this manoeuvre he suddenly realised he was going the wrong way and that his preferred path was 180 degrees in the opposite direction.  He decided to do a U-turn.  He had, of course, at the compulsory stop, checked to his right for oncoming traffic and had not seen any vehicles which were close to him. As he angled his vehicle across South Road to begin his U-turn he was hit by the courier van driven by Mr Taylor.  The impact points seem to have been the front left hand side of the courier van and the front edge of the driver’s door of the appellant’s vehicle.

[10]     Although the courier van driver was knocked unconscious for a few seconds there were fortunately no injuries.  The appellant’s vehicle had two other passengers in it.   A photograph of the collision shows South Road, just short of a pedestrian crossing, strewn with debris, including part of the bumper of the courier van, and a damaged red station wagon, being the appellant’s, with severe impact damage in the position I have described and also a distorted front right wheel.

[11]     There was evidence at the hearing both from Mr Taylor and from the police officer that the appellant had apologised to Mr Taylor and had not seen him.  To the police officer the appellant seems to have accepted that the collision was his fault. He opined that the courier van must have been in his blind spot.

[12]     By the time the matter came to trial the appellant, understandably perhaps, had formed the view that excessive speed on the part of the courier van must have been a significant contributing cause to the accident.  Both at trial and in the appeal today the appellant makes this assumption on, first the distance which a vehicle travelling at 50 kph would cover (13.8 metres per second), secondly the clear hazard which the pedestrian crossing would present to drivers approaching it on South Road (the  diamond  is  apparently  on  the  far  side  of  Victoria  Street),  and  thirdly  the evidence of the appellant that when he had checked for oncoming traffic before he turned out of Victoria Street, there was no close traffic visible travelling towards him.

[13]   Additional matters relied on in the appeallant’s submissions were the investigating police officers had not produced photographs of any skid marks on the road (these might perhaps, depending on the length, have confirmed excessive speed on the part of the courier van); that the two statements produced by the prosecution before trial by way of disclosure had not been signed; and again, the significant speed at which the appellant considers the oncoming vehicle was travelling, it being in his view at least 100 metres away.  The appellant also stressed that the collision occurred when his vehicle was effectively stationary.   He considers the oncoming vehicle should, had the driver been paying sufficient attention, have been able to avoid him by swerving to its right.

Discussion

Conviction Appeal

[14]     The law in this area is well settled.  Many New Zealand authorities rely on the classic dictum of Lord Goddard in Simpson v Peat [1952] 2 QB 24. The standard is that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances. If the standard is breached, there is carelessness.

[15]     Recent helpful authorities also placed before me by Ms Ellis include the oral judgments of Asher J Readings v Police (AK HC CRI 2006-404-00437, 26 April

2007) and of Winkelmann J in Taiatini v Police (HC RO CIV 2005-463-000059, 7

October 2005).

[16]     The circumstances here were that the appellant made a mistake about the direction in which he wished to travel along South Road.  The appellant decided to execute a U-turn.  Although he may have been carrying with him an impression that there was no proximate traffic, and although as an experienced driver he probably did check his rear vision mirror or wing mirror, the fact of the matter is that he failed to see the brightly coloured courier van which was sufficiently close to him to make an accident almost inevitable.   The “circumstances” (a reference to the Simpson v Peat test) were that the appellant was about to perform a U-turn across a busy road. In that situation the degree of care and attention of the reasonable and prudent driver is high.  Checking and double checking that there is no approaching traffic in either direction is what one would expect from a reasonable and prudent driver.  Through what I am sure was a momentary lapse on his part, and possibly lulled into a sense of false security by the memories he carried of his view of the traffic a few seconds previously, the appellant made an error which can only be categorised as careless.

[17]     I am satisfied on the basis of the evidence before them the findings of the Justices of the Peace were correct and open to them.   There are no grounds for interfering with the conviction against the appellant.  As a matter of law, any excess speed by the approaching vehicle does not discharge the duty imposed on a driver to exercise care and attention.  There was no evidence here of excessive speed.   But even if there were, it would have been relevant to penalty, not to guilt.

Sentence Appeal

[18]     The appeal against sentence is more problematic.  First there is the order that the appellant (and I am informed that this would be at his own expense) must attend a compulsory driver improvement course.  The appellant is a mature man aged 62. He was only 61 at the time the accident occurred.   He has no previous traffic convictions.  There is no suggestion here that he falls into that category of driver in respect of whom some form of remedial action or training is required.   He is not sufficiently old to have lost his driving skills.   In all the circumstances I see the

imposition of that component of the sentence as being manifestly excessive.   The order that the appellant attend a compulsory driving course is thus quashed.

[19]     I have no intention of interfering with the fine imposed and the order for costs.    I note,  however,  that  there  is  a  reparation  sentence  of  $680.    Both  the appellant and Ms Ellis are somewhat perplexed as to why this was imposed.  The appellant was insured at the time.  The only evidence on the topic came at trial from Mr Taylor who said:

[As to items in my van] I have been billed from courier post for 11 parcels being damaged, a total cost of about $680.

[20]     There is a prior reference to him paying a $1,000 excess.  The summary of facts, which would have been presented to the Court had the appellant pleaded guilty, has a handwritten reference to “reperation (sic) $1,000 excess insurance $680 broken items in van”.

[21]     Normally one would have expected the $680 figure (assuming its accuracy) to have been covered by the type of comprehensive insurance which courier drivers have.  I intend, in the circumstances, to suspend the $680 reparation sentence until such time (if ever) that satisfactory evidence of that loss on the part of the complainant, Mr Taylor personally, is established.  If such evidence is produced to the satisfaction of the Registrar of the Hawera District Court then the reparation sentence should be paid.   But until that occurs the reparation sentence remains suspended.

……………………

Priestley J