Turner v The Police HC Rotorua CRI 2008-463-314
[2008] NZHC 2644
•23 October 2008
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI 2008-463-31
COLIN LEN TURNER
Appellant
v
THE POLICE
Respondent
Hearing: 22 September 2008
Appearances: P V McGuire for appellant
J Munro for respondent
Judgment: 23 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 3.30 pm on Thursday 23 October 2008
Solicitors:
Davys Burton, Rotorua for appellant
Crown Solicitor Rotorua for respondent
TURNER V POLICE HC ROT CRI 2008-463-31 23 October 2008
[1] Mr Turner appeals against his conviction and against the length of the term of disqualification imposed in respect of a charge of dangerous driving causing death, of which he was found guilty in the Taupo District Court on 19 February 2008, following a two day defended hearing.
[2] On 16 April 2008, the appellant was sentenced to nine months imprisonment and disqualified from holding or obtaining a driver’s licence for a period of two years. There is no appeal against the sentence of imprisonment which has been served. Mr Turner does, however, appeal against the length of the period of disqualification imposed upon him. His counsel contends that the statutory minimum period of one year is sufficient.
[3] On appeal, the appellant relies on three principal grounds, namely that:
a) the District Court Judge was wrong to find that the appellant’s speed was dangerous;
b)the Judge misdirected himself as to the elements of dangerous driving and in consequence reached the wrong conclusion as to guilt;
c) in all the circumstances the period of disqualification of two years was manifestly excessive.
Factual background
[4] At a little after 9 am on 4 April 2007, the appellant was driving a very heavy vehicle, a Mac truck towing two semi-trailers, towards Napier on the Napier/Taupo Road. The whole rig is known as a B-train. Where the road narrows somewhat and becomes winding, the appellant’s B-train collided head on with a heavy vehicle travelling in the opposite direction. The driver of that vehicle was killed. He had pulled over as far as possible to avoid an accident, but the appellant’s rear trailer had
tipped on its side, so causing the B-train to cross the centre line of the road and into the path of the deceased’s vehicle.
[5] The officer in charge, Senior Constable Sowter, described in evidence the approach to the accident site for a vehicle travelling from Taupo towards Napier. His evidence on this point was accepted by the appellant. He said:
The scene is approached from the northwest by travelling across the Rangitaiki Plains where the road is for the main part a series of long straights connected by sweeping bends. Approximately two kilometres before the crash scene, the road narrows and drops into a valley and follows the Waiaroa Stream. Visibility becomes restricted due to the winding nature of the road and high embankment on the right side facing southeast of the road.
At the entrance to the valley, the road sweeps to the left and there is an 80 kph speed advisory sign in chevron boards marking this bend. About 200 metres from the scene that is the scene of the accident, 65 kph advisory speed signs have been placed to warn motorists of the narrow, winding nature of the road ahead. The road turns to the right followed by a bend to the left, of the crest of a slight rise. Exiting the bend, the road drops slightly.
[6] It is common ground that the weather conditions at the time were good, the surface of the road was dry, and there was nothing about the prevailing conditions that might have contributed to the accident.
The District Court decision
[7] After hearing the case for two days, the learned Judge retired briefly, then returned to deliver an oral decision in which the appellant was found guilty. During the course of a detailed oral judgment, Judge McGuire rejected expert evidence for the defence that suggested that the rear trailer may have overturned by reason of instability caused by a deflated outside rear tyre. The appellant does not attack that finding on appeal. But Ms McGuire for the appellant is critical of the Judge’s approach as he summed up the case and reached his verdict. The Judge said:
47.Given that the defendant knew the road, knew this particular corner, he was, on this day, I find either courting danger by exceeding the speed limit for at least five minutes before, accepted that at some points he was below the speed limit for particular reasons, sharp corners or culverts, or that kind, or he was, at very least, inattentive to what he was doing. But as that decision of Beattie J bears out, it is immaterial. He was aware of the circumstances he was in, and he
failed to act so as to avoid potential danger. This was not a small sedan. This was a B-train with a total weight probably of somewhere between 27-37 tonnes. And, of course, a collision between a B-train and anything was always going to be catastrophic.
48.The risks involved of exceeding the speed limit were there for Mr Turner to be aware of, and he was not aware of them, whether deliberately or not. But he knew the road. He knew what was involved in driving a B-train on that road. He knew this particular corner. And I find that excessive speed in this case resulted in the rear trailer tipping over. Once that occurred, the catastrophe that followed was inevitable.
[8] The argument for the appellant is that the learned District Court Judge has in effect impermissibly resorted to the doctrine of res ipsa loquitur. It is argued that the Judge has wrongly based his decision on evidence of the appellant’s speed in the minutes prior to the accident and has simply assumed that the overturning of the trailer must have been caused by the speed at which the appellant was driving at the time of impact, even though no witness perceived the appellant’s manner of driving as dangerous, either at the time of impact or in the minutes prior to it.
[9] Ms McGuire says that although the Judge has correctly referred to certain relevant authorities in his decision, he has simply overlooked the need for the police to establish beyond reasonable doubt that at the time of the accident, the speed at which the appellant was driving was, in all the circumstances of the case, objectively dangerous.
Legal principles
[10] 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.
[11] And in Stratford v Ministry of Transport [1992] 1 NZLR 486, Eichelbaum CJ
explained at 490-491:
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.
[12] Speed of itself will not be sufficient to justify a conviction. The Crown must establish, beyond reasonable doubt that the appellant’s speed, in all the circumstances prevailing, was at a level that was or might have been dangerous to the public: Bracegirdle v Oxley [1947] KB 349. So the Court must consider the speed at which the appellant is shown to have been driving against the background of road configuration, weather conditions, the proximity of other road users and so forth. But the prosecution is not limited to proof of speed at the precise point of impact. It is entitled also to adduce evidence of excessive speed shortly before the time at which the offence is claimed to have been committed and to ask the Court to
infer that the appellant continued to travel at that speed: R v Dalloz (1909) 1 Cr App
R 258, Robinson v Police HC AK A184/00 27 February 2001 at [21].
[13] On appeal this Court must exercise its own judgment, even where an assessment of fact and degree is required. This Court must form its own opinion rather than simply defer to the opinion of the trial Judge in respect of the acceptability and weight to be accorded to the evidence. Having said that, where findings of fact are credibility dependent, it will ordinarily be appropriate to accord a degree of deference to the trial Judge’s view in the light of the advantage he had of seeing and hearing the witnesses: see generally Austin Nicholls & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC).
Discussion
[14] Evidence about the appellant’s speed came from four different sources. The first witness, Mr Whittaker, was a passenger in a car that for some minutes had been following the appellant’s B-train, prior to the accident. Mr Whittaker gave evidence of travelling at about 100 kph when they caught and followed the B-train. At one point he noticed that as the appellant’s rig crossed a culvert it tended to fishtail, but that it did not cross the centre line of the road and control was quickly regained. At the point of impact he estimated the speed of his own vehicle at about 75 kph but he accepted he was not the driver and was not paying close attention to issues of speed. Neither did he see the impact itself.
[15] The second source was the evidence of Mr Davis, who was driving the vehicle behind Mr Whittaker. The two were work colleagues; they worked for or were associated with Honda, and were carrying out vehicle road testing work. Installed in Mr Davis’s vehicle was sophisticated GPS and computer equipment, able to provide a second by second reading of the distance travelled, of longitude and latitude, of altitude and importantly in this case, speed. The print-out of records derived from Mr Davis’s GPS equipment was produced to the Court. The Judge spent a significant portion of his judgment on an analysis of the GPS material. He noted that over a period of five to six minutes, Mr Davis’s vehicle appeared to have been travelling at between 100-102 kph for the first two minutes (at a time when the
Judge found the road was straighter and easier), and at 89-96 kph over the next four minutes. But there were variations. The speed fell to between 76.7 kph and
96.2 kph in the period of 51 seconds immediately prior to the accident.
[16] The appellant complains that the Judge has, in effect, simply transposed the detailed arithmetical readings produced from Mr Davis’s vehicle, and in a broad sense attributed those same speeds to the appellant. Ms McGuire argues that such an approach cannot be justified, when Mr Davis’s vehicle was not even the car immediately following the B-train, and there must have been inevitable variations in the distance between the B-train and Mr Davis’s car. Therefore, she argues, the value of the GPS evidence must be limited.
[17] The Judge accepted that there would be variations. He said that:
…In a rough and ready sense, I find that they were mirroring the speed of the B-train. There would be variations to that, obviously the pick up and deceleration of a car towing a trailer is a lot more agile than that of a B-train. But in terms of overall averages of speed, I find that the print out from Mr Davis’s car provides a pretty accurate reflection of the speed being travelled by the B-train at the relevant times.
[18] Later he said:
Well, what the GPS evidence tells me, frankly, in a fairly unanswerable way, is that allowance being made for small speed ups and slow downs through the preceding five minutes, the defendant was travelling at an average speed of above the maximum permitted for a B-train, of 90 kph for most of the five minutes preceding the accident. As I have said, in the 51 seconds immediately preceding the accident, I am satisfied he is travelling at a speed of 89.49 kph.
[19] This last observation cannot of course be literally correct. The second by second readings obtained from Mr Davis’s car cannot be translated into findings of fact in respect of the speed of the appellant’s rig, calculated to two decimal places, as the Judge appears to have done. But having said that, in my view the Judge was entitled to have regard to the GPS readings in Mr Davis’s car, because over a period of what seems to have been more than five minutes, they provide, as the Judge acknowledges, “a rough and ready” guide to the speeds attained by the appellant over the period leading up to the accident.
[20] The Judge concluded that:
The defendant was exceeding the speed limit, except where the road circumstances dictated otherwise, for at least five minutes prior to the crash.
[21] That finding cannot be literally justified on the evidence of Mr Davis alone but his evidence is not without significance.
[22] Leading up to the accident scene, Mr Davis noted that the speed of the convoy seemed not to decrease significantly at bends or corners. At the bend just prior to the accident, Mr Davis said his vehicle slowed down to about 70 kph to take the corner, and it is to be remembered that the bend at which the accident occurred, and the immediately preceding bend, carried advisory 65 kph warning signs. Mr Davis did not see the impact itself by reason of the configuration of the road and the placement of the bends.
[23] The probative value of Mr Davis’s evidence is that it tends to establish that the appellant was travelling at about the speed limit for a significant period prior to the accident, and that he tended not to slow down very much at corners or bends. Mr Davis is unable to give any evidence as to the appellant’s driving at the two bends covered by the 65 kph advisory signs, because the B-train was obscured from his view.
[24] The third source of evidence as to speed came from Snr Constable Sowter, an experienced crash investigator, who told the Court that, assuming a load on the rear trailer of 15 tonnes with a height of 4.2m, the tipping speed for the trailer would be between 91-93 kph. When it was suggested to him that some of the goods from the trailer were off-loaded at Taupo, Mr Sowter carried out a second calculation which assumed a 12 tonne load. That produced a speed of 94-96 kph as the likely tipping speed.
[25] As the Judge remarked, these calculations are helpful but have their limitations. The distribution of the load inside the trailer would be relevant, as would the security of the load – it would be important to know whether or not goods had shifted on the journey in such fashion as to exacerbate inherent instability.
[26] But at a general level it can be said that Snr Constable Sowter’s evidence is relevant to a finding of excessive speed, in that it tends to suggest, irrespective of the precise correctness of his calculations, that the appellant was travelling at or near the speed limit when he negotiated, just prior to impact, a bend carrying an advisory speed limit of 65 kph.
[27] The final evidence in respect of speed is that of a Mr Basher who was in the first vehicle behind that driven by the deceased; so he was travelling from Napier towards Taupo. He was the first person to assist the appellant, who was evidently able to release himself from his cab. Mr Basher said he told the appellant to come to the side of the road, and that having done so, the appellant looked towards the accident scene “gave a bit of a groan” and said “I am in the shit now. I had an accident last week, but this one is my fault. I was going too fast and lost it”.
[28] Mr Basher formerly worked for the police or the Ministry of Transport. He told the Court that he was aware that what is said immediately after an accident can be very important; with that knowledge in mind he says he made it his business to remember the precise words uttered by the appellant, repeated them to himself and later wrote them on a piece of tissue paper which he took some care to preserve. Unfortunately, the paper was lost, having been left in a garment which was subsequently washed. But he is adamant that he remembers the precise words spoken by the appellant.
[29] For his part, the appellant says he does recall talking to someone after the accident, but does not remember referring to speed. He accepts though that he did indicate to somebody that he had had an accident the previous week for which the other driver had been at fault. The appellant’s own evidence is that he was travelling at about 50 kph at the time of the impact.
[30] At trial the appellant called expert evidence that suggested the rear trailer tipped over by reason of instability caused by a deflated outside right rear tyre. The Judge found beyond reasonable doubt that that theory of the case had been effectively rebutted by Snr Constable Sowter and by Mr Garvin, a vehicle inspector
called by the prosecution. The Judge said that he was satisfied that a deflated right rear tyre did not cause or contribute to the accident.
[31] That finding is not challenged on appeal. The question is, therefore, whether there was sufficient evidence to establish beyond reasonable doubt that in all the circumstances of the case the appellant was travelling at a speed (and therefore in a manner) that was dangerous to a person, namely the deceased.
[32] In my view, the Judge was well entitled to conclude that the case against the appellant had been proved beyond reasonable doubt. Before the Court there was evidence:
a) of the appellant’s speed assessed in broad terms over a period of some minutes prior to the accident. The Judge was entitled to conclude that the appellant had been travelling at or near the speed limit of 90 kph for much of the period of five minutes or so prior to impact;
b)from Mr Davis that the appellant did not appear to slow down significantly at bends and corners;
c) from Mr Whittaker that the appellant’s rig had fishtailed slightly shortly before the accident , indicating that the rig was perhaps not particularly stable and not entirely under control, and suggesting that the appellant’s speed was too fast in the circumstances at that point;
d)from Snr Constable Sowter that suggested that the appellant must have been travelling at or near the speed limit by reference to calculated tipping speeds for a trailer of this tonnage and height when the recommended speed was much less;
e) of the presence of 65 kph advisory signs, both at the preceding bend, and at the accident site;
f) of the appellant’s admission to Mr Basher that he had been going too fast.
[33] I attach considerable significance to this last piece of evidence. While one must guard against accepting too readily the truth of everything said by someone affected by very recent trauma, the appellant did accept that immediately after the accident he had made to someone (obviously Mr Basher) all of the comments of which Mr Basher speaks, except for the admission as to speed. Given Mr Basher’s background and experience, and the care he says he took over remembering precisely what had been said to him, it is proper in my view to accept his evidence as being correct.
[34] All of this evidence, taken together, justifies the conclusion in my opinion, that the appellant was simply travelling too fast. In the circumstances of this case, to travel at or close to the speed limit in a rig on this size over a portion of the highway governed by 65 kph advisory signs, and with the risk of on-coming traffic, was to drive in a dangerous manner. In my opinion the appellant was rightly convicted.
Period of disqualification
[35] At sentencing on 16 April 2008, the appellant was sentenced to nine months imprisonment and disqualified from holding or obtaining a driver’s licence for a period of two years. The Judge’s sentencing notes indicate that he had engaged in a detailed analysis of the offending with particular emphasis on the evidence of considerable speed prior to impact, in the course of determining that a custodial sentence was necessary. He reached that conclusion despite the appellant’s almost unblemished record, marred only by a conviction for careless driving in 1984, in the context of a lifetime (more than 30 years) of professional driving by this 54 year old man.
[36] The Judge gave no separate reason for determining that two years disqualification was appropriate.
[37] Where no reasons are provided, an appellate Court has no alternative but to approach the issue afresh, rather than simply review the exercise of a discretion.
[38] The Crown has helpfully referred me to the recent decision of the Court of Appeal in R v Hodgson [2008] NZCA 132, in which the Court pointed out that although each case must be determined on its own facts, there appears to have been a significant variation in the periods of disqualification imposed in cases of dangerous driving causing death.
[39] In that case, two young appellants (aged 19 and 20 years respectively) had pleaded guilty to a charge of dangerous driving causing death, in circumstances where they had each pulled away at speed from traffic lights in central Wellington, and one vehicle had struck and killed a pedestrian some 40m from the intersection. The pedestrian was acknowledged to have been significantly intoxicated. The appellants had been sentenced to home detention and were disqualified from holding or obtaining a driver’s licence for a period of four years.
[40] The Court of Appeal did not refer to specific cases in which periods of disqualification were imposed, but concluded that the disqualification period of four years was not consistent with previous decisions. The sentencing Judge had given no reasons specific to the period of disqualification selected. The Court of Appeal quashed the four year disqualification period and substituted a period of three years.
[41] Ms McGuire says that, in this present case, a period of two years is manifestly excessive and there is no warrant for the Court imposing more than the statutory minimum period of one year. Mr Munro for the Crown submits that this case is worse than Hodgson in that it involved excessive speed through winding sections of road in a very heavy rig. By contrast, he points out, the speed attained in Hodgson, albeit on a busy urban road, was no more than 60 kph.
[42] I am not sure that this case is worse than Hodgson but I accept that it is no better. Those who undertake the arduous task of driving heavy vehicles through difficult terrain bear the burden of ensuring that they drive in such a fashion as to present no danger to those around them. The safety of the public is in their hands.
[43] In this case the appellant failed to comply with his obligation. It is necessary to mark that failure by the imposition of an appropriate period of disqualification.
The period of two years selected by the sentencing Judge cannot in my opinion be faulted.
Result
[44] For the foregoing reasons I dismiss the appellant’s appeals against conviction and against the length of the term of disqualification imposed.
C J Allan J
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