Vaifale v Police HC Auckland CRI-2011-404-000051

[2011] NZHC 1429

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000051

BETWEEN  RASELA VAIFALE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         1 November 2011

Appearances: V Letele for Appellant

K Francis for Respondent Judgment:    1 November 2011 at 11:30 AM Reasons:           2 November 2011

REASONS FOR JUDGMENT OF VENNING J

This judgment was delivered by me on 2 November 2011 at 11.30 am, pursuant to Rule 11.5 of the

High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Auckland

Copy to:            V Letele, Manukau

VAIFALE V NEW ZEALAND POLICE HC AK CRI-2011-404-000051 1 November 2011

Introduction

[1]      The appellant appeals against her conviction on a charge of careless use causing injury.   She also initially appealed against the sentence imposed by Judge Rogers of disqualification for six months and fine of $300 and Court costs.

[2]      At the conclusion of the appeal I advised counsel that the appeal would be dismissed and that the disqualification which had been suspended would apply from midnight on 2 November 2011.  I also advised that reasons would follow.  These are the reasons.

Background

[3]      On 3 February 2010, the appellant was the driver of a car on Robertson Road which was involved in a collision with another car in which a Mr Henry was a passenger.   Mr Henry was injured as a consequence.   He required treatment for concussion, a swollen and fractured cheek and a laceration to his eye area which required stitching.

[4]      Following a defended hearing in the District Court at Manukau on 11 October

2010, Judge Rogers found the charge proved and convicted and sentenced the appellant.

[5]      The appeal against conviction was advanced on the ground that the Judge could not have been satisfied the charge had been proved beyond reasonable doubt.

Discussion

[6]      The question of whether or not a person is driving carelessly is a matter of fact.  In the classic case of Simpson v Peat1 Lord Goddard CJ, said:

The question for the Justices was, was the defendant exercising that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances?  If he was not they should convict.  If on the other hand

the circumstances show that his conduct was not inconsistent with that of a reasonably prudent driver the case has not been proved.

[7]      Ms Latele submitted that the car that Ms Vaifale collided with might have been driven by Mr Henry rather than Ms Paepae.  Ms Paepae gave evidence for the prosecution that she was the driver.  Mr Henry confirmed that.  Ms Latele relied on the evidence of Mr Tupou, the driver of a car behind Ms Vaifale’s car.  He said he saw a man in the driver’s seat of the other car after the accident.

[8]      Although the appellant and Ms Latele, on the appellant’s behalf, sought to rely on the evidence of Mr Tupou, his evidence was of little assistance.  He was the third car in line behind the appellant’s car waiting to turn right.  He did not see the crash. The Judge heard his evidence and concluded:

Mr Tupou was unable to provide any probative evidence on the manner in which the vehicle containing Mr Henry was being driven, as he was waiting in a queue of traffic with two vehicles in front of him, and he did not see the oncoming car until the collision.

[9]      The issue of whether Ms Paepae or Mr Henry was driving the car is, in any event, somewhat of a red herring as it is not relevant to the issue of the appellant’s carelessness.

[10]     At most the issue of the driver would have been an issue of credibility.  The Judge had the opportunity to hear and assess the witnesses.  The advantage that the trial Judge had when credibility is in issue is not to be underrated: Austin, Nichols & Co Inc v Stichting Lodestar.2

[11]     Ms Latele also suggested that the car driven by Ms Paepae did not have its headlights on.  But that is not supported by the evidence.

[12]     The appellant’s evidence was that she did not see the car coming towards her. Ms Latele suggested that the car was speeding and/or may not have had its lights on. However, there was no evidence that Ms Paepae’s car did not have its lights on.  The appellant did not give evidence as to that fact.  She just said she did not see it.  It was

put to Ms Paepae in cross-examination that she did not have lights on but she denied that.

[13]     In the present case, the collision occurred when Ms Vaifale attempted to turn from Robertson Road into McKinstry Avenue.  That manoeuvre required her to give way to traffic travelling towards her down Robertson Road.  Ms Paepae’s car was travelling down Robertson Road towards Ms Vaifale.  To complete the manoeuvre Ms  Vaifale  was  required  to  turn  right  across  the  face  of  that  traffic  and  into McKinstry Avenue.   The accident occurred in the course of her carrying out that manoeuvre.  Her explanation during the course of her evidence for the accident was:

Q.        ... Once I see it’s all clear, there’s no other car coming, on-coming car, and then I start to turn, because I know it’s all clear.  And so I can, I did not see any car coming in front at that time.

Q.       So you said you didn’t see any car come at that time, and then?

A.        And then I turn, and then I turn right because I know I’m, I’m safe to turn on McKinstry Road.  But when I’m turning, I, there was a car coming over, over speeding to myself, to my car. And hit me.

[14]     This  is  a  case  where  perhaps  both  drivers  may  have  contributed  to  the accident.  But a decision as to whether or not the appellant’s actions were careless in the circumstances must be made, as noted above, on the standard of a reasonable and prudent driver.  A reasonable and prudent driver would not turn across the face of an oncoming car when the way was not clear to do so.  The fact that the appellant did not see the other car itself suggests carelessness on her part.  There is at the least a degree  of  carelessness  involved  by  the  appellant  which  supports  a  finding  of

carelessness sufficient to establish the charge:  Lindsay v Police.3    There can be no

sensible challenge to the injuries sustained by Mr Henry as described by him.  The charge was made out.

[15]     In support of the discharge without conviction, Ms Latele submitted that the Court has a wide discretion and that, in this case, the gravity of the offending was at the lower end of the scale and that the effect of a conviction on the appellant would

be severely disproportionate to the circumstances of the offending.   She accepted that the disqualification could not be challenged.

[16]     The essence of the submission was that the appellant had a clear record and a conviction would be unduly harsh in the circumstances as it could affect her.

[17]     There was no evidence before the Court to support the submission that there would be any particular effect on the appellant by a conviction for careless use causing injury.   Further, the appellant does not have a clear record.  Although the appellant provided a memorandum to the District Court for sentencing purposes dated 22 November 2010, which confirmed “the applicant has no previous convictions for criminal or traffic” Mr Francis produced a criminal and traffic history for the appellant which shows that on 29 October 2010 the appellant was convicted of theft arising out of an incident on 6 June 2010.  She was sentenced to come up if called upon within six months of that date.

[18]     There was no basis for a discharge without conviction in this case.

[19]     For those reasons, the appeal against conviction and sentence was dismissed. As noted the disqualification will apply from midnight on 2 November 2011.

Venning J