Turner v Police

[2012] NZHC 1703

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2012-412-000012 [2012] NZHC 1703

GLEN MATTHEW TURNER

Appellant

v

POLICE

Respondent

Hearing:         21 June 2012

Counsel:         C S Withnall QC for Appellant

M J Grills for Respondent

Judgment:      17 July 2012

JUDGMENT OF WHATA J

[1]      Mr Turner was found guilty of dangerous driving.  In short, the District Court Judge  resolved  that  oncoming  traffic  was  too  close  for  Mr  Turner  to  safely commence and complete an overtaking manoeuvre.   In doing so, his driving fell below  the  standard  of  care  expected  of  drivers  and  his  actions  were  therefore careless.  The appellant challenges that finding on appeal.  The appellant raises three grounds for his appeal.   In summary:

(a)      The Judge failed to take into account relevant evidence, namely that a yellow Volkswagen vehicle safely overtook the vehicle being driven by the complainant.

(b)       The appellant was deprived of a fair trial because the police failed to

TURNER V POLICE HC DUN CRI 2012-412-000012 [17 July 2012]

call the driver of the Volkswagen vehicle and failed to disclose the name and address of that person and thereby deprived the defendant of the opportunity of calling that person as a witness.

(c)      The Judge erred in law by rejecting the defendant’s evidence as to the distance between his vehicle and the complainant’s vehicle at the completion   of   the   overtaking   manoeuvre,   while   accepting   the evidence of the complainant that it was necessary to brake heavily and to pull to the side of the road, when there was no objective evidence to support that conclusion.

District Court judgment

[2]      The District Court described the salient threshold tests and evidence in detail. There is no dispute that the Judge applied the correct legal tests.  Rather, the primary issues relate to the Judge’s treatment of the evidence.  The key factual findings are as follows:[1]

[1] Police v Turner DC Alexandra CRI 2011-002-000438, 7 February 2012.

[47] I do not accept Mr Turner’s evidence and his wife’s evidence relating to the  overtaking  manoeuvre.  Both  witnesses  have  said  that  there  was  a distance of some 120 metres between their vehicle when it pulled back into the line of traffic and the approaching vehicle driven by Mr Mansell. That is a distance which exceeds the length of a rugby field. My clear view is that the Turners have attempted to minimise Mr Turner’s actions and increase the distance between the two vehicles at the time that the overtaking manoeuvre was completed.

[48] Mr Mansell did not brake and pull over to the side of the road in order to allow the vehicle that was following him to pass. The only reason Mr Mansell braked and pulled over to the left hand side of the road was to avoid a collision with the car being driven by the defendant. If Mr Turner had completed the overtaking manoeuvre and there was a gap greater than the length of a rugby field I do not see why Mr Mansell would find it necessary to brake heavily and pull over to the side of the road. I do not find that Mr Mansell  over-reacted  to  the  situation.  He  reacted  in  a  perfectly  normal manner  that  other  reasonable  and  prudent  drivers  would  also  act  if confronted with a similar situation.

[49] I place weight on Mr Mansell’s reaction to what occurred along with the reaction of his mother. Mr Mansell said that he was “shaken” in relation to the incident, while his mother said that she was “terrified” about what had occurred. Those are clearly reactions of two people who felt that they were

about to be involved in a head-on collision. My assessment of those two witnesses  is  that  they  were  simply  ordinary  people  going  about  their business. They had no “axe to grind” against the defendant and there is nothing to suggest they had any characteristics that led them to over-react or exaggerate their evidence.

[50] I am unable to say exactly what distance there was between the two vehicles when they passed and Mr Turner got back into the line of traffic on his correct side of the road. No witness made such a measurement. I do not have to make a finding myself. That distance is not an element of the charge. I  have  to  be  satisfied  beyond  reasonable  doubt  that  the  overtaking manoeuvre was dangerous. The basis of the allegation, and what I have to be satisfied beyond reasonable doubt of, is that the defendant’s overtaking manoeuvre was dangerous because in going onto the incorrect side of the road, the on-coming vehicle of Mr Mansell was unsafely close.

[51] The  defendant’s  actions  were  independently  observed  by  Detective Sergeant Shaw who had been following the defendant, separated by only one vehicle. I acknowledge the criticisms made by Mr Withnall in relation to Detective Sergeant Shaw’s evidence. In particular there were criticisms that Detective Sergeant Shaw would not have been in a position to observe the defendant’s passing manoeuvre because there was a Toyota Landcruiser in front  of  him  and  that  any  observations  of  the  manoeuvre  came  from Detective Sergeant Shaw looking straight at the overtaking manoeuvre rather than seeing the manoeuvre side on.

And further:

[54] Detective Sergeant Shaw’s response to what he had seen is consistent with the evidence of Mr Mansell and his mother. While Detective Sergeant Shaw  could  not  give  an  indication  as  to  the  distance  between  the  two vehicles when they passed, he said his impression was that they were “extremely close”. I acknowledge Detective Sergeant Shaw could not give a distance between the vehicles when they passed and accept the limitations on his powers of observation. If the defendant’s version was correct and there was more than the length of a rugby field when the defendant got back onto the correct side of the road, I do not believe Detective Sergeant Shaw would have activated his lights and subsequently apprehended the defendant.

[55] In terms of the principal issues of fact that are in dispute, while I reject Mr Mansell’s evidence and his mother’s evidence about the overtaking manoeuvre commencing 50 metres from their respective vehicles, I accept their evidence that it was necessary for Mr Mansell to brake heavily and pull over to the side of the road in order to avoid a collision. I reject Mr Turner’s evidence and his wife’s evidence that there was a 120 metre gap between the two vehicles at the time that Mr Mansell completed the overtaking manoeuvre.

[3]      In summary, the Judge preferred the evidence of the complainant and his mother and that of the Detective Sergeant, and found that their natural reactions to

the  circumstances  supported  the  overall  inference  that  Mr Turner’s  driving  was

dangerous in the circumstances.

The issues

[4]      With the benefit of argument the following key issues arise:

(a)      Whether the Judge erroneously failed to take into account evidence that a yellow Volkswagen vehicle safely overtook the complainant’s vehicle.

(b)       Whether the defendant was deprived of a fair trial because:

i.         the police did not call the driver of the Volkswagen vehicle;

ii.The police failed to disclose the name and address of that person and thereby deprived the defendant of the opportunity to call that person as a witness.

(c)      Whether the Judge had an objective basis to prefer the evidence of the complainants over the evidence of the defendant.

[5]      I will address each ground in turn.

Failure to have regard to overtaking by Volkswagen vehicle

[6]      Mr Withnall QC’s primary contention was that in order for the Volkswagen to have overtaken the complainant’s vehicle, there had to be ample room on its side of the road ahead – the opposite north bound lane being occupied by vehicles in front of the appellant’s vehicle, which in turn meant that the appellant’s vehicle had to be back on its correct side of the road.  This is said to objectively negate any suggestion that the overtaking manoeuvre was dangerous.

[7]      A note of the interview with the driver of the Volkswagen was then read to me.  It states:

Yes that was me, I had to swerve around that Prado to avoid hitting it stop. I’ve got no idea why it had to brake so heavily.  It didn’t even indicate when it pulled across.  I was trying to be aware of my following distance.  Because of the Prado’s size I couldn’t see around it or past it at all. After getting past the Prado the next thing I saw was the patrol car lights.  I thought that the Prado must have reacted to that.

[8]      When further questioned the driver could not recall a white station wagon or any vehicle coming towards her at the time in the incorrect lane.

[9]      All of this is said to support Mr Withnall’s submission, namely that if the Volkswagen had time to pass the Prado without even seeing the appellant’s car, then logically the appellant had ample time to complete his overtaking manoeuvre.

[10]     I do not accept this argument for the following reasons:

(a)      The presence of the Volkswagen was plainly a key element of the defence.   It is inconceivable that Judge O’Driscoll did not take into account the defence’s contentions in relation to the Volkswagen in forming a view.   In fact, the Volkswagen vehicle is referred to at paragraph [37] of the judgment, where he records Mr Turner’s evidence that he said that he noticed a Volkswagen Beetle overtake the Prado vehicle and that the vehicle went across the centre line.  He also records the evidence of the defendant’s wife that she noticed the oncoming Prado vehicle slow down and said that a VW Beetle pulled out and passed the Prado vehicle.

(b)The significance or otherwise of the overtaking by the Volkswagen is unclear. As the Judge rightly observed:

[11]      I accept Mr Withnall’s submission that a Court has to be careful not to elevate witnesses’ perceptions and beliefs   to   a   state   whereby   the   Court   accepts   the perceptions and beliefs in finding a charge proved. It is not the witnesses’ assessment of a driver’s conduct that forms the basis of a finding of guilty or not guilty. It is necessary that the conduct of the defendant is such that,

from an objective point of view, the standard of driving falls within the category of being dangerous.

(c)      By parity of reasoning the defendant’s assessment of the actions taken by the Volkswagen must be treated with care.  The statement by the Volkswagen driver is, in my view, neutral as between the versions of events.  As she said she could not see around or past the Prado and could not recall a white station wagon.  It might be said to support the appellant’s contention that he completed the manoeuvre before the Volkswagen came into the frame.  Another available inference is that the appellant forced his way back into the north bound traffic in a dangerous manner so as to avoid both the Volkswagen and the Prado.

(d)As I will observe below, the primary evidence against the defendant is the evidence of the contemporaneous reactions, uncontrived of the complainant and of the police officer.   Further the evidence of the officer was that:

Given that I was aware of the relative size of both the Toyota vehicle driven by Mansell and the Subaru, I could judge that relatively the vehicles were very close together.

The police officer did not resile from this position under cross- examination.   This in my view, legitimately supports an objective conclusion that the manoeuvre was dangerous, whatever the actions of the Volkswagen or the perceptions of its driver.

[11]     Accordingly, this ground of appeal is dismissed.

Failure to call Volkswagen driver/disclose name and address of Volkswagen driver

[12]     Mr Withnall contends that the police, having interviewed the driver of the Volkswagen, failed to call the Volkswagen driver because the evidence of the witness would contradict the allegation that the overtaking manoeuvre was dangerous.

[13]     He complains that the defendant was plainly prejudiced by not having access to the driver of the Volkswagen, and that the failure to properly disclose the details of the Volkswagen driver is inexplicable and contrary to the common law and statutory obligation of disclosure.

[14]     There can be little doubt that the police were obliged to disclose any material that might be adverse to the prosecution.  What is clear is that the police disclosed the fact of the interview with the driver of the Volkswagen vehicle and the notes of that interview.  The appellant now complains the police did not produce that driver as a witness.  I do not accept this complaint.  It was well within the means of the appellant to press the police for the details of the Volkswagen driver, and failing that to seek the assistance of the Court by way of orders for formal disclosure.  Having disclosed the interview notes, the defendant was aware of what the Volkswagen driver might say, and the police officer and the police are entitled to rely on the contents of that interview statement in forming a view as to whether or not the driver of the Volkswagen must present evidence.  Given this transparency, a remedy was available to the appellant.  He did not take it.  There was no breach of procedural justice.

[15]     Furthermore, I perceive no underlying miscarriage of justice.  Assuming that the Volkswagen driver is correct, it does not materially change the critical assessment of whether the defendant’s driving was dangerous.   Rather, as I have said, it is neutral among the competing versions of events, with both positive and adverse inferences available. Thus, such evidence is at best inconclusive.

[16]     Further, it is purely speculative to suggest the driver would add more to the debate.  She did not see the white station wagon.

Whether there was objective evidence that it was necessary for the complainant to brake heavily

[17]     Mr Withnall observes:

(a)       There was no evidence as to the actual distance at which the appellant

had commenced or completed his overtaking manoeuvre.[2]

[2] Acknowledged at para [50] of the judgment.

(b)The  evidence  of  the  complainant  and  his  mother  was  plainly unreliable having estimated erroneously the distance between the vehicles at about 50 metres (an impossibility given the speed that they were travelling – approximately 90 kilometres each).

(c)      In  the  absence  of  reliable  evidence  of  the  distance  between  the appellant’s vehicle and the complainant’s vehicle, the only evidence was that of the complainant’s reaction, based on a perception only.

(d)The   Detective   Sergeant’s   response   was   itself   a   response   to Mr Mansell’s reaction and Mrs Edgar’s evidence was also coloured by the reaction of her son – all of this revealing only a subjective perception of danger, not an objective one.

[18]     I accept that there are problems with the Judge’s reasoning insofar as it is dismissive, as a matter of logic, of the defendant’s estimate of 120 metres.   The Judge emphasised that the distance exceeds the length of a rugby field and that:

[48]     ... If Mr Turner had completed the overtaking manoeuvre and there was a gap greater than the length of a rugby field I do not see why Mr Mansell would find it necessary to brake heavily and pull over to the side of the road.

[19]     The problem with that reasoning is that two cars travelling at approximately

90 kilometres per hour towards each other would cover that distance in little over two or three seconds.  It is not inconceivable therefore that a person may perceive an overtaking manoeuvre at that distance to be dangerous.

[20]     Nevertheless, the critical issue is whether, objectively assessed, the driving was dangerous.   Given the fragility of subjective perceptions, especially those expressed after the event, uncontrived contemporaneous reactions to a driving manoeuvre are, in my view, probative for the purposes of an objective assessment.

When that reaction involves not only a complainant, but an independent third person,

then the reliability of that evidence improves.  In this case both the complainant and a police officer had  similar reactions  to  the overtaking manoeuvre.   The Judge accepted the credibility of their testimony.  That was fairly an assessment for him to make.  I also repeat my observation at [18], that the officer observed they were very close, and saw the complainant’s reaction.

[21]     In those circumstances, I am satisfied that the Judge had an objective basis, namely the contemporaneous reactions of the complainant and the police officer, and the direct observations of the officer, on which to find that the driving manoeuvre undertaken by the appellant was dangerous.

[22]     To the extent that the Sergeant’s evidence is disputed, namely that his line of sight was partially impaired, that was a matter for the trial Judge to assess.  Even on the broad basis for an appeal afforded by Austin, Nichols & Co Inc v Stichting Lodestar,[3] a margin of appreciation is afforded to trial Judges on question of credibility. As Heath J said in Kelly v Police:[4]

[3] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).

[4] Kelly v Police HC Whangarei AP41/01, 23 August 2002.

[21]     Anyone  who  has  had  any  involvement  with  the  trial  process recognises that findings of credibility turn as much on the demeanour of witnesses and the impressions made by them as the actual words they utter. Impressions of the evidence are gathered by a Judge during the course of a trial by a process akin to osmosis. The written words contained in the formal Notes of Evidence represent a body into which the atmosphere and human dynamics of the trial process breathe life. This is why findings of credibility, even where extensive Notes of Evidence are available, will rarely be overturned on appeal ...

[23]     It may be that the defendant perceived his manoeuvre to be a safe one given his estimate of distance, but the conclusion reached by the Judge had a reasonable and objective basis.   Notwithstanding the concerns I expressed at [18] and [19], I

agree with him.

[24]     Given the foregoing, the appeal is dismissed.

Solicitors:

Albert Alloo and Sons, Dunedin, for Appellant (Counsel Acting: C S Withnall QC) Wilkinson Adams, Dunedin, for Respondent