Van Rensburg v Police
[2020] NZHC 1900
•31 July 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000087
[2020] NZHC 1900
BETWEEN AMBER-ELLE JANSE VAN RENSBURG
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 28 July 2020 Counsel:
HE Juran for Appellant
HD Benson-Pope for Respondent
Judgment:
31 July 2020
JUDGMENT OF DOWNS J
This judgment was delivered by me on Friday, 31 July 2020 at 3.30 pm.
Registrar/Deputy Registrar
Solicitors/Counsel: HE Juran, Auckland.
Crown Solicitor, Manukau.
JANSE VAN RENSBURG v POLICE [2020] NZHC 1900 [31 July 2020]
The appeal
[1] Amber-Elle Janse van Rensburg was convicted of careless driving causing injury and failing to stop to ascertain injury.1 Judge CS Blackie disqualified her from driving for 12 months and ordered she pay $500 reparation.2 Ms Janse van Rensburg appeals conviction.
Background
[2] On 7 June 2019, Ms Janse van Rensburg was driving out of a carpark. At the exit, she realised she could not turn in the direction she wanted to travel. She stopped her car. Brandon Johnson, the complainant, was walking nearby. He saw Ms Janse van Rensburg’s car approach the exit. Accounts of what happened next differ in some respects.
[3] Mr Johnson says Ms Janse van Rensburg stopped her car across the footpath, blocking his path. Ms Janse van Rensburg says she did not block the footpath. Mr Johnson moved to walk around the back of the car. Ms Janse van Rensburg put her car in reverse. She began reversing. Mr Johnson says Ms Janse van Rensburg hit him, causing injury. Ms Janse van Rensburg acknowledges hearing a noise but says something hit her car.3
[4] Mr Johnson says he attempted to persuade Ms Janse van Rensburg to stop, but she drove away. Ms Janse van Rensburg says Mr Johnson advanced in a threatening manner, she considered herself at risk, so she drove away.
[5] Mr Johnson promptly contacted Police, sought medical attention, and attempted to find closed-circuit television footage of the incident.
[6] Mr Johnson and Ms Janse van Rensburg testified. The Judge gave an immediate, oral, decision. He carefully summarised the evidence, then found the charges proved. In relation to the first charge, the Judge said:
1 In contravention of the Land Transport Act 1998, ss 22, 36(1)(c) and 38.
2 Police v Janse van Rensburg [2020] NZDC 9009.
3 She said she believed something hit the roof.
[12] Returning to the initial charge of careless driving, as I say the standard is that of an ordinary, prudent motorist. On this particular day you could not be classed as an ordinary, prudent motorist because you were still subject to a learner’s licence, which you had had for some two years and should not really have been driving at all unless you had an approved person under the Land Transport Act 1998 accompanying you.
[13] You said that you checked your mirrors. You may have done so but not sufficiently to not notice Mr Johnson. Clearly, he would have been there. Clearly, he should have been in your view either as he passed down the right- hand side of your car before going round the back or as he approached the back. If you looked in a rear vision mirror on the right-hand side he should clearly have been visible to you. He was there to be seen. The fact was – he was not seen. In my view, a prudent motorist, before engaging reverse, would ensure that the way is clear, not only of other traffic but, of course, when crossing footpaths and things like that, particularly in an area where there are retail outlets as there are here, creating pedestrian traffic. In my view he was there to be seen. He should have been seen and there was a degree of carelessness on your part in not seeing him.
[14] So, I find the ingredients of that charge of careless driving to be proved and we now know that as a result of that carelessness, as a result of your car striking him, it was not him striking you, your car striking him, he suffered a degree of injury.
[7]In relation to the second charge, the Judge said:
[15] In the second charge there is a strong obligation, a very strong obligation indeed, if there has been an accident, no matter how slight, for a person to stop and ascertain whether anyone has been injured. That is a fundamental requirement of the law. As I say if there has been an accident, no matter how slight, one has to stop and check that no-one has been injured.
[16] In this case there had been an impact. You had heard the impact, although you felt that it might have been just a knock on the roof. You saw a man yelling but you, inappropriately in my view, considered him to be a threat when, really, he was simply trying to draw your attention to the fact that he had been hit and had been hurt. He would have had the expectation, as any other person would have done, that you would stop, there would be exchange of details and perhaps assistance sought, medical assistance sought if that had been required.
[17] I do not consider the fact that he was yelling to be sufficient to amount to a reasonable excuse. Sometimes reasonable excuse can be made out where the degree of the impact is so slight or other noise in the vicinity would drown the sound of any contact with a particular vehicle and we hear this sometimes in the cases of big trucks where something is touched in a minor sense by a big truck but the noise of a truck and the noise of the road sometimes obliterates the sound and, therefore, the driver is unaware that anything untoward has occurred.
[18] I cannot say that was the situation here. I find, therefore, that the ingredients of that charge are proved to the standard the law requires of beyond reasonable doubt. So, I find both charges to be proved.
The case for Ms Janse van Rensburg
[8] Mr Juran contends the Judge did not provide reasons for preferring the complainant’s evidence over Ms Janse van Rensburg’s, and he was wrong not to do so, as this is a case about “credibility”.4 Mr Juran put to Mr Johnson at trial he fabricated aspects of his evidence to support an ACC claim, or get strong pain-relieving drugs. (Unsurprisingly, Mr Johnson denied both.)
[9] Mr Juran contends there is inadequate evidence Ms Janse van Rensburg caused the complainant’s injury. He also argues there is inadequate evidence to establish Ms Janse van Rensburg knew there had been an accident; alternatively, the evidence reveals the reasonable possibility of a reasonable excuse for failing to stop.
Analysis
[10] While Mr Juran attacked Mr Johnson’s credibility in the District Court, the extent of conflict in the accounts is much, much overstated. It is beyond doubt Mr Johnson was walking toward Ms Janse van Rensburg’s car as she approached the exit. It is also beyond doubt Mr Johnson walked behind the car while Ms Janse van Rensburg was reversing. Ms Janse van Rensburg says she did not see the complainant. The Judge carefully questioned Mr Johnson on his location using the photographs. That Ms Janse van Rensburg did not see him does not mean he was not there.
[11] Ms Janse van Rensburg accepts she then heard a sound. This is consistent with Mr Johnson’s evidence he was hit as she reversed. Both agree Mr Johnson then remonstrated with Ms Janse van Rensburg.
[12] Mr Johnson sought medical attention the same day. He suffered injury to his upper right shoulder and pain in his lower left hip, thigh and knee. As observed, Mr Johnson promptly contacted Police. He also sought to find closed-circuit television footage.
4 Criminal Procedure Act 2011, s 232(2)(b) and Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
[13]Mr Johnson and Ms Janse van Rensburg had never met before the incident.
[14] Given all this, the proposition Mr Johnson fabricated aspects of what occurred is speculative. It follows the Judge had no obligation to address credibility, because this was not properly in issue. Moreover, the Judge’s reasoning—see [6]—addressed why he found the first charge proved.
[15] Mr Juran’s submission there is inadequate evidence Ms Janse van Rensburg caused the complainant’s injury is also unsustainable. Once contact between complainant and car had been established (beyond reasonable doubt), the only credible explanation for the injuries was they were caused by Ms Janse van Rensburg when reversing.
[16] Mr Juran contends the injuries would be lower down the body given the height of the car. A photograph of the car provides some support for this proposition, but it is taken at an awkward angle. Moreover, Mr Johnson was injury-free before the incident. He said he was injured by the car. He went to the doctor the same day. The doctor identified injuries. The doctor also said Mr Johnson gave this history (admissible to rebut the claim of invention and for proof of truth of content5): “Hit by a car and sustained a sore L) neck, L) side pelvis L) knee and thigh and R) below elbow”. The doctor’s evidence was admitted by consent. The Judge was therefore entitled to infer the injuries were caused by Ms Janse van Rensburg.
[17] Mr Juran contends there is inadequate evidence Ms Janse van Rensburg was aware of an accident that might have caused injury.6 I disagree. Ms Janse van Rensburg reversed in an exit, heard a noise consistent with impact, then saw a distressed person outside her car.
[18] This leaves the one trickier aspect of the case. Mr Juran contends the prosecution did not exclude a reasonable possibility Ms Janse van Rensburg had a reasonable excuse in driving away without stopping and rendering Mr Johnson
5 Evidence Act 2006, s 35.
6 The prosecution must prove the defendant knew of “an untoward event which might have caused injury”; see R v Puru (2001) 19 CRNZ 290 at [34].
assistance.7 I frame the issue this way as, once evidence arises of a possible reasonable excuse, the prosecution must disprove the existence of a reasonable excuse beyond reasonable doubt.8 This was not always so. Before the enactment of the Criminal Procedure Act 2011, a defendant had to establish they had a reasonable excuse in this context.9
[19] In cross-examination, Mr Johnson accepted he was yelling and “waving his arms about” once he had been hit. Mr Johnson said he did so as Ms Janse van Rensburg “was driving away”. Mr Johnson was asked if he was swearing. He said he was “unsure”.
[20] Ms Janse van Rensburg was 18 at the time, and alone in her car. She said she locked the doors as “I was afraid there could be conflict”, and Mr Johnson was “shouting and waving his hands”. The latter aspect marries Mr Johnson’s evidence. In cross-examination, Ms Janse van Rensburg said Mr Johnson was “right … by my door” at this point, and she was “too scared to get out of the car”. Ms Janse van Rensburg acknowledged her “immediate response” was to yell “sorry”.
[21] The Judge was correct to conclude the prosecution had excluded the existence of a reasonable excuse for three reasons.
[22] First, Ms Janse van Rensburg’s evidence she was frightened is inconsistent with what she told the Police later that day. Ms Janse van Rensburg said Mr Johnson was yelling and waving his hands, but he then walked away. Ms Janse van Rensburg she said she drove away as she assumed if Mr Johnson had a problem, “he would have stayed”. Her account to the Police implied this was a storm in a teacup, not she was too frightened to stop because of Mr Johnson’s possible reaction.
7 A driver “must stop and ascertain whether a person has been injured”, and “render all practicable assistance” to the injured person; Land Transport Act 1998, s 22.
8 R v Lee [2006] 3 NZLR 42 (CA).
9 Because of s 67(8) of the Summary Proceedings Act 1957; see King v Police [2016] NZHC 977.
[23] Second, Ms Janse van Rensburg was secure in her car, in a public place, in daylight. Ms Janse van Rensburg could have ascertained from inside her (locked) car whether anyone was injured by yelling with the windows up.10
[24] Third, while the onus of proof ultimately rests on the prosecution in relation to this aspect, care must be taken not to frustrate the statute. The duty to stop is for “the protection and safety of an injured person so that he [or she] might not be left in … injured condition to run the risk of further injury by reason of … being left on the road, or perhaps to die for lack of attention”.11 Standing back, the most that might be said for Ms Janse van Rensburg is that she panicked, and drove away. However, the provision seeks to prevent this very response by insisting, on pain of prosecution, the driver stop, remain and render assistance to the injured. As the Judge said, the requirement is “fundamental”.12
Result
[25]The appeal is dismissed.
……………………………..
Downs J
10 No one asked if Ms Janse van Rensburg had her mobile phone with her.
11 R v Bowden [1938] NZLR 247 (CA) at 254.
12 Police v Janse van Rensburg, above n 2, at [15].
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