W v Police HC Auckland CRI 2006-404-102

[2006] NZHC 1317

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2006-404-102

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         26 October 2006

Appearances: P H H Tomlinson for Appellant

C Parkhill for Crown

Judgment:      27 October 2006

RESERVED JUDGMENT OF RANDERSON J

This judgment was delivered by me on 27 October 2006

At 3.30 pm, pursuant to r 540(4) of the High Court Rules

Registrar/Deputy Registrar

Solicitors:           P H H Tomlinson, Level 4, 2 Durham Street East, Auckland

Crown Solicitors, PO Box 2213, Auckland

W V NEW ZEALAND POLICE HC AK CRI 2006-404-102  27 October 2006

Introduction

[1]      This appeal is against conviction in the District Court on a charge of careless driving causing injury in Wellesley Street, Auckland on 4 May 2005.  Judge Gittos presided at a summary hearing on 24 January 2006 and delivered judgment that day convicting the appellant and ordering her to pay reparation of $1500 and court costs of $130.   In addition, the appellant was disqualified from holding or obtaining a driver’s licence for six months.

Background Facts

[2]      Three vehicles, including one driven by the appellant, were involved in the accident which gave rise to the charge.   All three vehicles were proceeding in a westerly direction down Wellesley Street outside the Auckland University of Technology premises.  There are two lanes for vehicles travelling in this direction with a centre island marking the middle of the street.  Some care is required on the part of drivers travelling down Wellesley Street in this direction because traffic may enter this section of the roadway from the motorway (via a tunnel under Symonds Street) and directly from Symonds Street.

[3]      The first vehicle was a Hyundai driven by a Mr Senala.   He had emerged from the motorway exit and was travelling in the right lane.  He intended to make a left turn into a carpark at AUT.  The second vehicle was a Nissan Primera driven by a Ms Lal.  She was travelling from Symonds Street in the left lane intending to make a left turn into Mayoral Drive.  The third vehicle was a Honda CRV driven by the appellant.  She had also emerged from the motorway exit and was travelling in the right lane down Wellesley Street intending to make a left turn into Mayoral Drive.

[4]      The vehicle driven by Mr Senala began to turn left towards the  carpark entrance.   Ms Lal slowed her vehicle but it was hit in the rear by the appellant’s vehicle.  This caused Ms Lal’s vehicle to turn towards the left.  As she did so the right side of her vehicle scraped the left side of Mr Senala’s vehicle.   Ms Lal’s

vehicle  then  continued  onto  the  footpath  where  it  struck  a  pedestrian  causing multiple injuries.

[5]      The central submission made by Mr Tomlinson for the appellant in support of the appeal is that carelessness was not proved beyond reasonable doubt because there was evidence to support a finding that Ms Lal’s vehicle had moved into the right hand lane in front of the appellant’s vehicle and that this unexpected and unforeseen movement negated the finding of carelessness or, at least, raised a reasonable doubt on that issue.

The Judge’s Findings

[6]      The Judge considered the evidence of the three drivers was of most assistance in deciding the case.  There were three bystanders but the Judge found that in each case, they did not witness the impact itself, their attention being drawn by the sound of the initial impact.  These three bystanders were the victim herself, a witness who was on the footpath on the opposite side of Wellesley Street, and a Mr Winder who was standing in the carpark area at the AUT in an elevated position and observed the progress of vehicles after the initial impact.

[7]      The Judge found the evidence of Ms Lal to be reliable.  Her evidence was that she was travelling in the left hand lane and was required to slow down almost to a stop to give way to Mr Senala’s vehicle as it was turning into the carpark. According to her evidence, she did not move to steer around Mr Senala’s vehicle to its right but simply slowed down.  While her vehicle was pausing in the roadway, it was violently struck from behind by the vehicle driven by the appellant.  According to Ms Lal’s evidence, the collision drove her car forward out of control; she was propelled alongside Mr Senala’s vehicle; and then onto the footpath colliding with the victim on the way.

[8]      The Judge found Mr Senala’s evidence to be somewhat confused and a little unreliable, possibly because of language difficulties.  The Judge found it was evident that Mr Senala’s vehicle had come from the motorway and that he would have been following the same path as the appellant.  The Judge found that it would seem that

Mr Senala’s vehicle must have turned from the right hand lane across the path of the Primera and “that may well have necessitated a somewhat sudden stop on the part of Ms Lal”.

[9]      The Judge accepted it was possible that Mr Senala may have been careless but he considered the question for the Court was whether there was carelessness on the part of the appellant.  The Judge noted the appellant’s evidence was that she was familiar with the route and was well aware of the hazard presented to vehicles merging at that point.   She had referred in her evidence to buses coming from Symonds Street down the left lane wishing to cross into the right hand lane and to proceed to Queen Street.  The Judge noted the appellant’s evidence that when she came to the point where the roads merged, she looked to her left to see whether there were any buses or other obstructions moving to the right and did not see anything. When she turned around to face the front again, she was confronted with Ms Lal’s Primera vehicle immediately in front of her and had no opportunity to avoid a collision.

[10]     The Judge also referred to the evidence of an engineer (a Mr Nalligan) called by the appellant.  He had put forward an hypothesis as to how the accident occurred. This involved Ms Lal’s Primera vehicle moving in front of the Honda driven by the appellant in such a way as to present the appellant with  a  problem  avoiding a collision.  The Judge noted that the witness had not been present to hear the evidence at the hearing and that his view was “somewhat at variance” with the evidence the Judge had heard.  The Judge also noted that Mr Nalligan’s views were necessarily formed by assumptions derived from the statements given to him.   In the circumstances,  the  Judge  considered  it  unwise  to  rely upon  his  views  as  being definitive in relation to the cause of the accident.

[11]     The Judge then stated:

It seems to me that Mr Senala’s white car must have been in a position where it was visible to the defendant at some stage before the collision, and indeed  Mr  Nalligan’s  assumption is based  upon both the drivers  of  the Honda  and  the  Primera  observing  that  as  a  hazard.    That  was  not  the evidence given by Ms W   who was quite frank about the position.  She said that she did not see this car at any stage before the accident.  If it had been  preceding  her  down  the  road,  it  was  there  to  be  seen.    If  it  was

positioned in the roadway between the lanes as Mr Senala says that it was, it was there to be seen, and moreover she expressly says, she looked to the left to see whether there were any buses coming.   Once again, if the Primera were in a position immediately proximate to her behind her, it was there to be seen.  If it was there in front of her, it was there to be seen.  She frankly says she did not see it virtually until she hit it.   That in itself is really presumptively an indication of carelessness.   That is not to say Ms W   was  consciously at  fault  but  the  requirement  of  the  element  of  careless driving is not one which is subjective.   What is required of motorists is a single objective standard which is universal in application.

There is no element of mens rea involved.  If a motorist fails to attain that standard of care, then the charge is properly proved.  That some other person may also have been careless in a way which contributed to the accident is not a reason to relieve the person charged with responsibility.  It may be a cause for a further prosecution of some other person, but if the defendant’s carelessness is shown to have been a contributing or effective cause of the accident, then the charge is properly made out.  These cases are such that the Court can have sympathy with all concerned because as the adage says, accidents do happen, but really it is a matter of failing to keep a proper lookout and/or failing to travel at a speed within which the defendant was able to stop or steer clear of cars and/or obstructions in the roadway ahead. Those are fundamental expectations of care on the part of a motorist and if they are not attained, then carelessness is demonstrated. (original emphasis)

The Appellant’s Submissions

[12]     Mr Tomlinson submitted that the Judge had erred in his assessment of the evidence in a number of respects.   In particular, he submitted that the Judge was wrong to conclude that Ms Lal was a reliable witness because, he said, her evidence was irreconcilable in important respects with other evidence.   Mr Tomlinson was also critical of the failure by the Judge to identify where the initial collision took place on the roadway.

[13]     On the issue of the reliability of Ms Lal, an appellant faces a heavy burden in seeking to overturn a finding by a Judge who has seen and heard the witnesses. Mr Tomlinson’s  main  point  on  this  issue  was  that  Ms  Lal’s  evidence  that  she remained  in  the  left  lane  throughout,  was  inconsistent  with  the  evidence  of Mr Winder who, he said, placed the vehicles at the point of impact in a position straddling the two lanes.  I am not satisfied that Mr Winder’s evidence was to the effect counsel submitted or not reliably so.  As the Judge noted, Mr Winder did not see the initial impact but observed the vehicles movements thereafter.  He said “it looked like” the appellant’s vehicle had run into the back of Ms Lal’s Primera which

had then swerved off to the side pushing Mr Senala’s Hyundai onto the footpath.  He saw these two cars “jammed together bouncing together coming down the road and both veering off to the side and the Honda continued on past them”.  When he saw the vehicles after the initial impact, Mr Senala’s vehicle was in the left hand lane and he thought Ms Lal’s Primera was, at that stage, somewhere between the two lanes. He accepted however that his focus was on the cars hurtling down towards a very busy footpath.   In cross-examination, he repeated his belief that Ms Lal’s Primera was somewhere between the two lanes.   He added “…that’s my recollection of it anyway.  By the way, they were both coming rather than coming down the road they were at that point heading off to the left”.

[14]     Mr Winder’s evidence did not square particularly well with the evidence of Mr Senala who said he had been in the right hand lane and slowed down indicating he was going to turn left into the carpark.  At that point he heard a bang from the back and saw Ms Lal’s Primera sliding down the left hand side of his vehicle.  At that point, Mr Senala considered his vehicle was straddling the two lanes.  Of course, as  Mr  Tomlinson  pointed  out,  this  was  after  the  initial  impact  between  the appellant’s vehicle and Ms Lal’s vehicle but, at least at that point, Ms Lal’s vehicle was plainly in the left lane.

[15]     The appellant’s evidence was that she had driven from the motorway and had not moved from the right hand lane when the collision occurred.  She glanced back over her shoulder to the left to check whether there were any vehicles coming down from Symonds Street and, the instant she looked back, she suddenly saw there was a car right in front of her.  It was only a matter of meters away and it was too late for her to take any evasive action.  She tried to brake or to steer away from the other vehicle but it was inevitable a collision would occur.

[16]     In cross-examination, she accepted she had no specific recollection of seeing Mr Senala’s vehicle at any stage prior to the accident and that she did not see Ms Lal’s Primera until just before the point of impact.  She did not notice the Primera pass her at any stage, observing that she thought this vehicle must have been in her left blind spot.

[17]     Although the Judge did not refer to the appellant’s statement made at the scene to a police constable shortly after the accident, this statement, recorded on paper and signed by the appellant (was to the following effect so far as it is relevant):

I had just left the motorway. I was travelling along Wellesley Street heading into the city.  As I travelled underneath the bridge I was in the middle lane and wanting to be in the left lane.  I am not sure how fast I was travelling, but it would have been close to the speed limit.  As I began to move into the left lane I suddenly collided with the back of another car … I definitely indicated before I moved into the lane to my left, I do not remember seeing any other vehicle in this lane before I moved …

[18]     The  police  constable  accepted  in  cross-examination  the  appellant  was somewhat shocked when she made this statement but, in my view, the Judge was entitled to give some weight to this statement made, as it was, almost immediately after the accident.  The appellant’s statement clearly supports Ms Lal’s account that she did not move out of the left lane.  The appellant stated she had begun to move into the left lane when the collision occurred.   That would be consistent with the damage to the vehicles - the left front of the appellant’s vehicle and the right rear of Ms Lal’s vehicle.

[19]     It is true that the Judge did not make any specific finding as to where the respective  vehicles  were  at  the  point  of  the  initial  collision.    But,  I accept  the submission made by Ms Parkhill for the Crown, that it is implicit in the Judge’s acceptance of Ms Lal as a reliable witness, that he accepted her evidence that she did not move from the left hand lane.  The Judge was entitled to discount the evidence of Mr Winder as to the point of the initial impact because he did not see the initial collision and was focusing on the passage of the two vehicles towards the footpath.

[20]     There is no evidence that Ms Lal braked suddenly or moved her vehicle into the right lane in a way that might have exonerated the appellant.  Mr Tomlinson was at  some  pains  to  point  out  in  his  written  submissions  that  Ms  Lal  had  never suggested she braked suddenly to avoid Mr Senala’s vehicle.  Her evidence was that she saw Mr Senala’s vehicle indicate an intention to turn left into the AUT carpark. She slowed down to allow the vehicle to turn left.  She had come almost to a stop when suddenly her car was struck violently from the rear.  In cross-examination, she said she thought she was travelling at about a fast walking pace when the initial

collision occurred.  She resisted suggestions she was travelling between 20 and 30 kilometers per hour when the accident happened.   Mr Tomlinson also pointed out that neither the evidence of Mr Winder nor the victim supported a sudden stop.

Conclusions

[21]     In these circumstances, the Judge was entitled to conclude that the vehicles driven by Mr Senala and by Ms Lal were there to be seen by the appellant.   The Judge correctly stated that the appellant had admitted not seeing Mr Senala’s vehicle at  any  stage  before  the  accident.    Mr  Tomlinson’s  submission  that  there  is  a difference between not seeing a vehicle and having “no specific recollection” of seeing it is a mere quibble and has no substance.

[22]     Nor do I accept his submission that Mr Senala’s vehicle was not a hazard to the appellant.  As the following driver, her obligation was to keep a proper look out in respect of the vehicle or vehicles in front of her.  That obligation includes, in the circumstances of this case, observing not only the vehicle immediately in front of her own vehicle but also vehicles further ahead which are in sight and which could pose a hazard for example, by slowing down, changing lanes or making a left turn.   It does not matter whether the vehicles travelling ahead are in the same lane or an adjoining one.   In addition to keeping a proper lookout, the appellant’s obligation was to be travelling at a speed which would permit her to stop and avoid a collision should vehicles ahead slow down, stop or change lanes.

[23]     Translated to the present case, it was open for the Judge to find that the appellant  was  careless  in  failing  to  observe  the  two  vehicles  ahead  of  her  in Wellesley Street and failing to travel at a speed which would enable her to stop or steer clear of vehicles or other obstructions in the roadway.  Although, as the Judge observed, the left turn made by Mr Senala’s vehicle from the right lane was the initial cause of the traffic situation which arose, there was no evidence to support the suggestion  that  these  events  happened  so  suddenly that  the  appellant  could  not reasonably have been expected to avoid a collision.

[24]    In these circumstances, the conviction must be sustained and the appeal dismissed.    As  the  Judge  said,  this  is  not  a  case  where  the  appellant  acted deliberately or recklessly.  Rather, it is a case of momentary inattention on a rather difficult piece of roadway.  Many motorists are guilty of inattention of this kind from time to time but, in the present case, it had unfortunate consequences for the victim

and all those involved.

A P Randerson, J Chief High Court Judge