W v Police HC Hamilton CRI 2008-419-85

[2009] NZHC 477

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2008-419-85

W

Appellant

v

THE POLICE

Respondent

Hearing:         12 March 2009

Appearances: A G Speed for appellant

A M Beveridge for respondent

Judgment:      1 May 2009

JUDGMENT OF ALLAN J

This judgment was delivered by Justice Allan on 1 May 2009 at 3.20 am/pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel:     A G Speed P O Box 941 Shortland Street Auckland 1140

Solicitors:   Almao Douch P O Box 19173 Hamilton 3244

W V THE POLICE HC HAM CRI 2008-419-85  1 May 2009

[1]      On the afternoon of 7 August 2007, the appellant was involved in a collision on a straight stretch of State Highway 3 south of Pio Pio.  His northbound Holden station wagon collided with a southbound Nissan motor car driven by a Ms Barrett, and  carrying  two  passengers.    As  a  result  of  the  crash,  one  of  Ms  Barrett’s passengers, a Ms Kathy Harris, died at the scene.  Ms Barrett herself and the other passenger, Mr Hayden Harris, suffered significant injuries.

[2]      On 12 September 2008, following a defended hearing, the appellant was convicted in the Te Kuiti District Court by Judge Tompkins on three summarily laid charges arising from the accident:  one of careless driving causing death and two of careless driving causing injury.

[3]      On 16 October 2008 the appellant was sentenced to 200 hours community work and disqualified from holding or obtaining a driver’s licence for 18 months from that date.  He now appeals against conviction and, in the alternative, against the length of the period of disqualification.

[4]      For the appellant, Mr Speed submits that the convictions were unsafe because the trial Judge:

a)       paid undue heed to the evidence of two witnesses who were in a following vehicle and who gave evidence of the appellant’s driving in the moments preceding the accident;

b)wrongly dismissed, as irrelevant, tyre marks said by a Police witness to have been made by a fire truck that attended the scene;

c)        failed to resolve conflicts in the expert evidence.

[5]      In respect of the appeal against sentence, Mr Speed simply submits that a period of 18 months’ disqualification was in all the circumstances manifestly excessive.

Background

[6]      At the time of the accident the appellant was driving from New Plymouth to Hamilton, where he was due to attend a meeting.   The collision occurred on a straight, flat stretch of road at about 2.00 pm in relatively fine conditions.  The left front corner of the appellant’s vehicle struck the left front corner of the oncoming vehicle in the southbound lane about a metre from the centre line.  In other words, the appellant’s vehicle was on the wrong side of the road by a very considerable margin.

Discussion

[7]      Judge Tompkins found that there was no relevant mechanical fault that could have contributed to the crash and that neither alcohol impaired driving nor excessive speed were contributing factors.  In those circumstances, the Judge considered that evidence of the manner of the appellant’s driving during the period preceding the crash was significant, as was any evidence as to the likely path of travel followed by each vehicle immediately prior to the crash.

[8]      He accepted the evidence of two witnesses, Ms McGill and Ms Hadfield, to the effect that the appellant was, over the period of approximately five minutes immediately preceding the crash, driving in an assertive fashion that bordered on the risky.  These witnesses were in a following vehicle.   The Judge found that at one stage the appellant’s vehicle veered or  drifted  to  the  left  and  that  it  came  into glancing contact with kerbing on the left hand side of the road before correcting and resuming its proper path of travel.   He found also that at an area of roadworks immediately south of the crash scene, the appellant’s vehicle almost struck one or more orange cones positioned in the centre of the road.

[9]      The Judge further noted that the appellant himself had accepted that while driving through the Awakino Gorge and immediately thereafterwards, he was intent on passing other vehicles.   The Judge considered the appellant to have been an impatient driver, and that his attitude to other traffic was governed to some degree by the appellant’s detailed knowledge of the road, and his awareness that there were few

places in the vicinity of the Awakino Gorge in which a passing manoeuvre could be undertaken with safety.

[10]     Mr Speed argues that little weight ought to have been accorded the evidence of Ms McGill and Ms Hadfield because their vehicle was some distance behind that of the appellant and it would have been impossible for them to have judged any longitudinal distance accurately from their viewing position.  In my view, the Judge was perfectly entitled to conclude that the appellant was driving in an impatient and indeed risky manner prior to the accident.  There is ample evidence to support that conclusion.  Ms McGill and Ms Hadfield each gave precise evidence on the point. Ms McGill, in particular, gave detailed evidence as to the appellant’s habit of closely following the vehicle immediately in front, of braking constantly, of crossing the centre line frequently to see if the road was clear, and of returning suddenly to the correct side of the road when it was not.

[11]     Mr Speed refers to the Judge’s observations at the sentencing hearing to the effect that despite the appellant’s aggressive or assertive driving prior to the crash, neither excessive speed nor alcohol were factors in the crash itself.   While that is correct, it is well established that a trial Judge may take into account in ascribing criminal liability for a driving offence evidence of driving behaviour during the period  immediately  preceding  the  accident.     The  Judge  ultimately  found  the appellant to have been careless.  He was entitled to take into account, in reaching that conclusion, evidence of the appellant’s driving behaviour in the minutes immediately preceding the accident.   He characterised that behaviour as assertive and bordering on risky.

[12]     Mr Speed accepts that there was evidence to support that finding, although he complains that the two witnesses referred to by the Judge were too far away from the appellant’s vehicle to be reliable.  However, in a case in which the evidence ran into a second day, the trial Judge had a significant advantage over this Court;   in my opinion the Judge was fully entitled to rely upon the evidence of Ms McGill and Ms Hadfield.

[13]     Mr Speed’s second point relates to the way in which the Judge dealt with the evidence of tyre marks, said by a Police witness to have been left by a fire truck. Because they were thought by Police witnesses attending the scene to have been irrelevant, little attention was paid to these marks on the day of the accident.   But they appeared in photographs that were subsequently examined by the appellant’s expert witness, Mr McKay.  Although Mr McKay himself did not attend the scene on the day of the accident, he has closely examined a blown-up version of a photograph in which tyre marks are visible.  Mr Speed argues that, on the basis of Mr McKay’s evidence, there is a possibility that the tyre marks, said by the Police to have been left by the fire truck, were, in fact, made by the Nissan motor car and that if they were, then they are consistent with Mr McKay’s evidence, which suggests that the Nissan may have been on the wrong side of the road immediately prior to the accident.

[14]     Judge Tompkins accepted Police evidence as to the origin of the tyre marks. That finding was open to him.  Mr McKay did not attend the scene and was entirely reliant upon an inspection of a blown-up version of a photograph taken at the scene at a time when the tyre marks were thought to have been of no relevance.   Not surprisingly, his evidence on this point was rather more tentative than much of his other testimony.

[15]     Mr McKay and Mr Maddaford, the police expert witness, disagreed on two further issues.  The first related to the origin of two sets of gouge marks left in the road.  Mr Maddaford considered that both gouge marks were left by the underside of the Nissan.  Mr McKay had a different view.  He believed that one set of marks was left  by  the  Holden.    If  it  was,  then  Mr  McKay  regarded  that  gouge  mark  as supporting his theory that the Nissan was at the time of the impact returning from its incorrect side.

[16]     The second issue related to the alleged failure of the Judge to deal adequately with Mr McKay’s expert evidence as to the angle at which the two cars collided. The claimed inadequacies of opposing evidence given by Mr Maddaford, and the strength of Mr McKay’s testimony were such, Mr Speed argues, as to raise at least a

reasonable doubt as to whether Ms Barrett’s vehicle was at all times travelling on the correct side of the road.

[17]     The Judge did not regard Mr  McKay’s  evidence as  raising a  reasonable doubt.  Although Ms Barrett was unable to give any useful evidence of events just prior to impact because she had no reliable memory of it, the Judge considered Mr Harris to be a reliable witness.  Mr Harris said that he had no concern about the manner in which the car in which he was a passenger was being driven prior to impact, that he saw the appellant’s car drift into the wrong lane, and that it came towards them at an angle but changed direction just prior to impact.   The Judge accepted this evidence, as he was entitled to do.

[18]     Moreover, the appellant himself, although adamant  that  he  did  not  drive carelessly, had no specific recollection of the circumstances in which he came, in the seconds prior to impact, to be on the wrong side of the road.  To the contrary, he believed at the time that the accident had occurred on his side of the road;  but it is common ground that that was not the case.  Importantly, he saw the other car directly in front of him just prior to impact.  Given that the impact occurred on his incorrect side of the road, it is a proper inference that the appellant had carelessly driven his car onto the wrong side of the road, though unaware of it.

[19]     The Judge also placed some reliance upon tracks left by the appellant’s ABS braking  system,  the  positioning  of  which  he  thought  was  consistent  with  the appellant having suddenly found himself in the wrong lane and forced to take late evasive action.   He thought that the fact that the ABS braking system tyre marks were roughly parallel to the centre line (broadly accepted by Mr McKay) supported a conclusion that at the point of impact, both vehicles were travelling more or less parallel to the centre line.  The Judge thought that that evidence, coupled with the evidence of the appellant’s “assertive and  somewhat  risky” driving prior  to  the accident,  and  Mr  Harris’  evidence  that  the  Nissan  remained  throughout  on  the correct side of the road, established the Crown’s case beyond reasonable doubt.

[20]     In the result, Judge Tompkins considered that, even if Mr McKay’s evidence as to the relative positioning of the vehicles at impact and the angle at which they

collided was accepted, and the contrary evidence of Mr Maddaford rejected, the outcome of the case remained unaffected.  That was because, in the Judge’s view, Mr McKay’s evidence, even if accepted, did not necessarily place the Nissan motor car in the wrong lane at any point prior to impact.  His evidence was simply, in the Judge’s view, that the angle and point of impact, and the gouge marks, were consistent with the Nissan having earlier been on the wrong side of the road.  But the Judge was satisfied, beyond reasonable doubt, that the other evidence was sufficient to show that the Nissan had never left its lane.

[21]     Mr Speed submits that there is a direct conflict between the evidence of Mr Harris and Mr W   and that, given Mr McKay’s expert evidence, there arose a doubt as to the cause of the accident and, in particular, as to whether the appellant was inattentive.   Given the appellant’s allegedly assertive driving, carelessness or inattention seems unlikely, Mr Speed submits.   Rather, the likelihood is that the appellant was simply attempting to avoid an accident and undertook a manoeuvre which caused him to be in the incorrect lane at the point of impact.  He submits that the Police case did not exclude that as a reasonable possibility and that the appellant ought to have acquitted.

Conclusion

[22]     Despite Mr Speed’s detailed and careful argument, I am not persuaded that the Judge was wrong to convict the appellant.  It was not in dispute that the impact occurred a metre or so across the centre line, on the incorrect side of the road from the appellant’s point of view.   Further, there was ample evidence to support the Judge’s finding that the accident occurred without fault on the part of the other driver.   The weight to be ascribed to the evidence of each witness was largely a matter for the trial Judge, who of course had the advantage of seeing and hearing the witnesses.

[23]     The appeal against conviction will, therefore, be dismissed.

Appeal against sentence

[24]     The Judge disqualified the appellant from holding or obtaining a driver’s licence for a period of 18 months.  No reasons were given for the selection of that disqualification term.   It is to be assumed that this very experienced Judge simply drew upon his knowledge of the level of penalties ordinarily imposed in similar cases.

[25]     Mr Speed submits that the 18 month period is manifestly excessive.   The Court was bound to disqualify the appellant from holding or obtaining a driver’s licence for at least six months but beyond that there is no tariff.  Each case must be considered on its own facts.  However, it is necessary to consider certain sentencing authorities in order to achieve the level of consistency which is an important part of the sentencing process.

[26]     In Mawhinney v Police HC AK AP99/94 13 June 1994, Blanchard J reduced a sentence of 10 months’ disqualification to the minimum of six months where in the course of an overtaking manoeuvre, the appellant, riding a motorcycle, failed to see an oncoming motorcyclist.  Both riders were severely injured.   Blanchard J, citing Coleman v Ministry of Transport HC AK AP40/91 21 March 1991, considered that unless there were aggravating circumstances, a disqualification period in excess of the minimum of six months was not justified.  He found there to be no aggravating circumstances in that case, noting that the mere fact of carelessness itself cannot be an aggravating circumstance.   There was no suggestion in that case of excessive speed or of drinking by the appellant.  Later, in George v Police HC NWP AP14/00

29 June 2000, Nicholson J disagreed that the minimum period of disqualification should be reserved for cases in which there were aggravating circumstances.  Rather, he said:

[20]     … It is primarily a matter in each case of balancing culpability and circumstances.   This progresses to consideration of other aggravating and mitigating circumstances.   In combination there can be a kaleidoscope of circumstances of infinite variety.

[27]     In Orpwood v Police HC CHCH AP97/01 28 November 2001, the appellant had pleaded guilty to two charges of careless driving causing death and two charges

of careless driving causing injury.  The appellant was a professional driver who had driven his vehicle through a stop sign, colliding with another vehicle and so causing the death of two persons and injury to two others.  On appeal, Pankhurst J reduced to

12 months the period of disqualification of two years imposed in the District Court. He took the view that the conduct that caused the death and injury was of moderate to serious carelessness but that the appellant had an excellent driving record and that a longer period of disqualification was unwarranted.

[28]     More recently, in Guthrie v New Zealand Police HC ROT CRI-2007-463-120

6 November 2007, Lang J dealt with an appeal in a case similar to Orpwood.  There the appellant, driving into the setting sun, had proceeded through a compulsory stop sign without stopping and collided with a vehicle towing a trailer.  The appellant’s two passengers were killed and a passenger in the other vehicle was injured.  It was common ground in that case that the speed of both vehicles at the time of the collision was significantly below the speed limit for both roads.  It was likely also that both vehicles had braked just prior to the collision.  The appellant was just 18 years of age and had no previous criminal convictions.  The two persons who died in the accident were his girlfriend and his best friend.  There was a significant body of support for the appellant and a large number of references were supplied to the Court.  But Mr Guthrie held a restricted licence.  He ought not to have been carrying any passengers at all.  Had he complied with the terms of his licence, then no one would have been killed or injured.  The appellant had been sentenced to 250 hours’ community work and was disqualified from holding or obtaining a driver’s licence for a period of five years.  He was also ordered to make reparation totalling $1,200. It was accepted in that case that the period of disqualification was outside the range available to the sentencing Judge.  Lang J concluded that had the appellant not been driving outside the terms of his restricted licence, the appropriate period of disqualification would be 12 months but in the light of that important aggravating factor, a period of two years’ disqualification was imposed.

[29]     In my opinion, the present appellant’s carelessness is to be assessed as no greater than moderate.  There was no question of speed, nor of the consumption of alcohol, nor of any breach of the driving laws, other than the requirement to keep to the left.  Although injured himself, he made attempts at the scene to render assistance

to  those  who  were  distressed.    He  has  a  good  record  and  provided  character references to the sentencing Judge.  This is not a case in which it would have been appropriate to impose the minimum period of disqualification.   But there were no aggravating factors, and disqualification for a period of 12 months was, in my view, sufficient, along with the sentence of 200 hours’ community work, to mark the gravity of the offending.  The appeal will accordingly be allowed to that extent.

Result

[30]     The appeal against conviction is dismissed.  The appeal against sentence is allowed in that the order disqualifying the appellant from holding or obtaining a driver’s licence for a period of 18 months from 16 October 2008 is quashed and is replaced by an order disqualifying him for a period of 12 months from that date.

C J Allan J