W v Police HC Auckland CRI 2008-404-9

[2008] NZHC 2289

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-009

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 April 2008

Appearances: Appellant in person

N Williams for Respondent

Judgment:      30 April 2008 at 4:45 p.m.

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 30 April 2008 at 4:45 p.m.. pursuant to r540(4) of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors / Parties:

Mr D A W  , 37 Churchill Avenue, Feilding 4702.

Mr N Williams, Meredith Connell, Office of the Crown Solicitor, Auckland

W V NEW ZEALAND POLICE HC AK CRI 2008-404-009 30 April 2008

[1]      Mr W   appeals against his conviction on 30 November 2007 on a charge of careless operation of a vehicle.   The defended hearing proceeded before two Justices of the Peace in the District Court at Pukekohe.

[2]      At the commencement of the hearing before me, I raised with Mr W  , who appeared on his own behalf, and Mr Williams for the Police, the fact that there was no transcript of evidence.  The transcript of the evidence had not been sent by the District Court to the High Court, as required by s 119 of the Summary Proceedings Act, notwithstanding the fact that the notice of appeal was filed over four months ago.

[3]      Both Mr W   and Mr Williams advised that they were willing to proceed without my having the notes of evidence if I decided that it was appropriate to do so. Mr W   had travelled from Feilding for this hearing.  For this reason, and because there  was  no  opposition  from  either  party,  and  because  my reading  of  the  file indicated that the main point in issue was likely to be capable of being resolved without reference to the notes of evidence, I decided to proceed, subject to review if a difficulty arose.   In the event there has been no difficulty having regard to the nature of the central issue, the submissions and the accommodating approach of Mr W   and Mr Williams.

[4]      The documents from the District Court available to me are the following: the information; exhibit 1, being a statement made by Mr W   to a police officer commencing  at  1:15  p.m.  on  the  day  of  the  incident,  which  occurred  at approximately 12:40 p.m.; the first page of the Police traffic crash report (exhibit 2); a number of photographs taken at the scene of the incident (exhibit 3); and the decision of the Justices of the Peace.

Facts

[5]      Most of the facts relevant to the issue before me can be taken from Mr W  ’s contemporaneous statement.   Mr W   was the only witness as to what occurred.

[6]      Mr W   is a truck driver.  He was 56 at the time.  On 7 June 2007, at 5:20 a.m., he had set out from Palmerston North driving a truck and trailer north.  In his statement to the Police, 35 minutes after the incident, Mr W   said as follows:

A short time ago this afternoon I was driving my truck and trailer through the Pokeno township.

After I drove through Pokeno drove onto a main road going out of the town. I was going towards Tuakau and Pukekohe.

The road was dry as I drove through a bend in the road. The weather was fine at the time.

As I came around a bend in the road a dog suddenly appeared on my left. The dog was actually coming onto the road.

The dog was black and tan and it looked like a huntaway cross.

I swerved slightly to the right.   The dog just disappeared and next then I

knew my trailer unit was pushing me.

I could feel the trailer unit was yawing from side to side. Then there was a great crash as my trailer went onto its side. The truck stopped with the trailer across the road.

Then I called the company on my Radio Telephone and I rang the Police

Communication Centre on *555.

[7]      Other material facts relating to the incident are: the truck was travelling at 65 kph; Mr W   did not cross the centre line; and, when he “swerved slightly to the right” (as Mr W   put it in his statement), there was no oncoming traffic and he was aware of this.  The speed is recorded in exhibit 2 (the Police report).  The other facts are as found by the Justices of the Peace, as set out below.

[8]      There was no evidence bearing on what occurred from a road traffic engineer, or another person with relevant expertise, such as an experienced driver of trucks with trailers.  This was confirmed by Mr Williams who advised me that the Police evidence, in summary, consisted of: Mr W  ’s statement; evidence relating to efforts made by the Police to find a dog as described by Mr W  ; production of the traffic  crash  report  and  the  photographs;  evidence  excluding  causes  such  as

mechanical faults; and general evidence describing what the Police found on arrival at the scene after the accident.

The decision

[9]      It is convenient to set out in full the short decision of the Justices:

[1]       Mr W  , we have listened carefully to the evidence  from two Police witnesses and two defence witnesses and we did take note of your concerns that you were worried that we took a lot of notice to what was said about crossing the centre line.  We accept that prior to the accident you did not cross the centre line and also you were concerned as to the fact of oncoming traffic and we accept that at the time the accident occurred you were not confronted by oncoming traffic.

[2]       However, for reasons unable to be verified with the probability that you saw a dog and were worried that it was going to come out in front of you, you took evasive action.  We feel that your years of driving experience you would have enough knowledge of what you were doing and therefore, we consider that you acted less prudently than a driver should in taking the action considering the weight of your load.  The result was that the trailer unit overturned and caused the road to be blocked.  Therefore, we consider the charges proved and you are convicted.

[3]       In light of what we have heard Mr W  , you are convicted.  You are fined in the sum of $300 with Court costs of $130.00. Stand down.

Mr W  ’s points on appeal

[10]     Mr W   set out a number of points on appeal.   Three of these are not sufficient to warrant allowing the appeal, taken separately or together.   These concerned: differences between what was disclosed to Mr W   before the hearing and evidence given at the hearing; some points of evidence disputed by Mr W  , but not material to the question of carelessness; and concern that the hearing had been disjointed, with the evidence of one police officer taken in the morning and the remaining evidence, including that from Mr W  , being heard in the afternoon after the Justices had dealt with other matters.  The remaining point of appeal was, as expressed by Mr W  :

No evidence was given to prove beyond reasonable doubt that my driving was in any way careless.

This is the point requiring consideration.

Decision

[11]     The question whether the charge of careless driving was established beyond reasonable doubt can in this case be resolved by consideration of Mr W  ’s statement,  the  further  facts  recorded  in  paragraph  [1]  of  the  decision  and  in paragraph  [7]  of  this  judgment,  and  the  reasoning  of  the  Justices  of  the  Peace recorded in paragraph [2] of their decision.

[12]     I consider that Mr W   was entitled to the benefit of the doubt on the evidence and the charge should have been dismissed.

[13]     There was no clear finding as to the nature of the event that confronted Mr W  .   In assessing whether a driver’s reaction is careless, there is likely to be a significant difference between, for example, the sudden appearance of a dog coming onto a road a few metres in front of the vehicle, and a dog appearing on the side of the road 50 metres away.  There will be other variables from case to case.

[14]     The evidence is that Mr W   was confronted with a dog.   It suddenly appeared, coming onto the road.  There was no oncoming traffic.  A swerve to avoid a dog in these circumstances is not axiomatically careless.  Mr Williams relied on O’Reilly v Ministry of Transport (HC HAM, AP81/86, 2 September 1986, Bisson J). That case also involved a driver taking evasive action because of an animal on the road.  The driver said it was an opossum or a cat.  The facts in that case are quite different, as may be seen from the following passage (which includes the passage relied on by Mr Williams):

In the interests of saving the life of the animal he chose to swerve to his right in the face of oncoming vehicles.   That in my view is careless use.   The circumstances did not warrant such a reaction.   A motorist must make a decision to keep to the correct side of the road come-what-may so far as a small animal is concerned rather than to drive on the wrong side of the road in the face of oncoming vehicles …

[15]     In the course of his submissions Mr Williams quite properly accepted that it cannot always be careless for a motorist to take some evasive action when an animal

is on the road or apparently about to come on the road.  He accepted that it becomes a matter of judgment in the particular circumstances.

[16]     Mr W  , in his reply, advised me that the O’Reilly decision had  been referred by the Police prosecutor to the Justices of the Peace.  Although they do not refer to it, it may have had a bearing on their decision.   There will be situations where a driver should continue in a straight line, and possibly also brake, even though an animal may be killed, and to take evasive action would be careless.  But not every situation will be of that nature.  It is not always careless to swerve to avoid an animal on a road and the reasons for swerving may vary.  A driver may swerve to avoid killing the animal.   The O’Reilly decision does not suggest that this will always involve carelessness.  For example, a decision to avoid the animal when there is no oncoming traffic may not be careless.  Furthermore, even if there is oncoming traffic, in my opinion it is unwise to suggest as a general rule that a decision to avoid an animal will always involve carelessness at the least.  An indication as to why it is important to avoid generalisations is implicit in what Bisson J said.  He referred to a driver moving into the face of oncoming traffic to avoid a small animal.  But a driver facing a larger animal, and reasonably believing that he or she could avoid both the animal and oncoming traffic, may not be careless; and it could in fact be prudent, whatever the outcome.   These examples are simply illustrations of the elementary point that each case turns on its own facts and requires consideration of the particular facts.

[17]     A further consideration concerns the Justices’ opinion as to how a prudent driver of Mr W  ’s experience, driving a truck and trailer, would have reacted. This also involves the application of an assumed general standard – here prudent driving  of  articulated  trucks  –  without  consideration  of  the  particular  facts. Particular facts in this regard  are ones of the nature already dealt with, and  in particular the fact that there was no oncoming traffic, as well as the fact that it was a dry road with the truck travelling at 65 kph.

[18]     A further difficulty with the opinion of the Justices as to how an experienced driver of trucks would have reacted is that it is not based on evidence.   It was confirmed in the hearing before me, and as earlier noted in this judgment, that there

was no evidence from an experienced truck driver that the action taken by Mr W   was imprudent, having regard to the weight of the load, or any other relevant consideration in respect of the truck and trailer.  This is not to suggest that every case involving standards of driving requires expert evidence.  Many cases, and perhaps most, will quite properly be decided, at least in part, by the application of general knowledge about driving.  But what was involved in relation to the conclusion here is not one of general knowledge; it involved matters of expertise.

[19]     In my judgment it was not established beyond reasonable doubt that the right hand manoeuvre of the truck in the particular circumstances was careless.

[20]     For these reasons the appeal is allowed, the conviction is set aside and the charge is dismissed.

Peter Woodhouse J