W v Police HC Palmerston North CRI-2006-454-11

[2006] NZHC 926

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2006-454-11

BETWEEN  W

Appellant

AND  POLICE Respondent

Hearing:         18 July 2006

Appearances: P S Coles for the appellant

S C Holt for the respondent

Judgment:      7 August 2006 at 11.00 a.m.

JUDGMENT OF MACKENZIE J

[1]      This is an appeal against conviction and sentence.  The appellant faced one charge of endangering transport, pursuant to s 203 of the Crimes Act 1961.  After a defended hearing, he was convicted and was subsequently fined $450 and court costs of $130.

[2]      The circumstances were that works were being carried out by a contractor for the Manawatu District Council on Makino Road.  The work involved the demolition and replacement of a bridge.   The road was closed for a period to enable the new bridge to be built.  The contractor had a crane on site.  On Wednesday, 29 January

2003, Mr W   parked the crane in a position partly on and partly off the carriageway of the southbound lane.   At that time, the road was still closed.   The road was re-opened on the following day, with the crane still in the position where Mr W   had parked it.  On 2 February 2003, at approximately 10 p.m., a vehicle driven in a northerly direction collided with the crane and the driver subsequently

died from injuries sustained in the crash.  Following investigation, charges were laid

W V POLICE HC PMN CRI-2006-454-11  7 August 2006

against Mr W  , and also against Mr Palmer, a civil engineer employed by the contractor, who was responsible for traffic management.  Mr Palmer was acquitted on the charge which he faced.  Mr W   was, as I have said, convicted and fined.

[3]      The charges faced by Mr W   and Mr Palmer were both under s 203 (now repealed), which provided:

203 Endangering transport

(1) Every one is liable to imprisonment for a term not exceeding 14 years who, with intent to injure or to endanger the safety of any person,—

(a) Removes anything from or places anything on, in, over, or under any place, or any area of water, that is used for or in connection with the carriage of persons or of goods by land, water, or air; or

(b) Does anything to any property that is used for or in connection with the carriage of persons or of goods by land, water, or air; or

(c) Shoots or throws anything at, into, or upon any vehicle, ship, or aircraft;

or

(d) Causes anything to come in contact with any vehicle, ship, or aircraft; or

(e) Does any other unlawful act, or wilfully omits to do any act which it is his duty to do, in respect of any such place, area of water, or property as aforesaid, or in respect of any vehicle, ship, or aircraft.

(2) Every one is liable to imprisonment for a term not exceeding 5 years who, intentionally and in a manner likely to injure or endanger the safety of any person, does any of the acts referred to in subsection (1) of this section.”

[4]      Both charges were laid under s 203(2).   In respect of Mr W  , the act relied on was the act of parking the crane, being an act under s 203(1)(a).  In respect of Mr Palmer, the allegation was of an omission under subs (1)(e).  It was alleged against  him that  he  was  responsible  for  traffic  management  in  and  around  the construction site and that, having seen the crane in the position it was in, he had a duty to direct it to be moved to a safer location.   He was charged with wilfully omitting to do an act which it was his duty to do, in a manner likely to endanger the safety of any person.

[5]      The learned Judge discussed the elements of the offence which the Crown had to establish in respect of Mr W   in these terms:

30       In the context of the present case, in my view, that requires the prosecution to prove beyond reasonable doubt:

a)        That  Mr  W    did  place  the  crane  in  the  position  on

Makino Road as alleged by the prosecution; and

b)        That when he placed the crane on the road in that position:

i)         He  was  aware  that  the  road  was  soon  to  be  re- opened to traffic; and

ii)        He was aware that the traffic safety measures then in place would remain in place when the road was opened.

c)        That the position of the crane on the road when opened to traffic was likely to injure or endanger the safety  of any person.

[6]      The key element in issue in this appeal is element (b)(ii).  In essence, there are two issues:

(a)      Whether that formulation of the element is correct in law; and

(b)      Whether  the  conclusion  that  that  element  was  satisfied  was  a conclusion which could properly be reached on the evidence.

[7]      In considering both of those issues, a consideration of Mr Palmer’s role is necessary.    The  evidence  was  that  he  was  a  civil  engineer  employed  by  the contractor on the bridge site from 2 December 2002, when the project started.  His role was described as setting out the work for the bridge and road construction, and he was the site traffic management supervisor.  He prepared the traffic management plan, obtained approval and then set out the plan on site.  At the end of each day of work he was responsible for checking and certifying that the site complied with the traffic management plan and with the site safety requirements.  In his statement to the OSH inspector on 14 February 2003, he admitted that Mr W   had consulted him regarding the placement of the crane on Wednesday, 29 January.   The Judge found that the crane was, at the time of the accident, in the position where it had been placed by Mr W  .  The Judge was satisfied beyond reasonable doubt that at night-time the position of the crane was likely to endanger the safety of motorists approaching from the north (i.e. heading south).   He found that, having regard to

Mr Palmer’s responsibilities for traffic management and site safety, Mr Palmer did have a duty to remove the crane from the position where it was placed by Mr W  , and that his omission to remove the crane from that position was likely to cause injury or endangerment to any person.  However, he held that that omission was not wilful, in that he was not satisfied that Mr Palmer had a conscious appreciation that allowing the crane to remain in that position, in those circumstances, was likely to endanger the safety of road users.  On that basis, Mr Palmer was acquitted.

[8]      Those findings in respect of Mr Palmer are relevant to elements (b) and (c) of the charge against Mr W   as formulated by the Judge and set out above.   It is clear from his discussion of element (c) that the Judge applied an objective test to the question whether  the  position  of the  crane  on the  road  was  likely  to  injure  or endanger the safety of any person.  In his discussion of this element, he sets out his reasons for reaching the view that the crane was likely to endanger the safety of motorists  approaching  from the  north,  and  does  not  discuss  the  evidence  as  to Mr W  ’ actual appreciation of the likelihood of injury.  I consider that the Judge was correct in applying an objective test to this element.

[9]      In considering element (b), the Judge did deal with Mr W  ’ state of mind. He referred to Mr W  ’ statements to the OSH inspector, in which he had said that he had parked the crane on the shoulder of the road to get it out of the way so he could get on with his work and didn’t go further on to the shoulder of the road because it was too soft and the crane would sink into the ground, and that “we” opened the bridge on Thursday, 30 January 2003.  The Judge went on to say:

60       In neither statement did Mr W   express any surprise that the road safety measures had not been changed after placement of the crane.

61       Indeed, to the contrary, he indicated he was satisfied that the crane was clearly visible to motorists travelling from either direction, day or night. Further,  he  didn’t  consider  the  fact  that  the  crane  encroached  onto  the roadway created any danger because:

a)        It was coned off and behind all the signs. b)       It had flashing lights on it at night-time. c)      It was big and pretty hard to miss.

62       In  my  view,  it  is  reasonable  to  infer  from  that  evidence  that

Mr W   –

a)        Was  aware  that  the  road  was  to  be  open  to  traffic  on

29 January 2003.

b)        Was aware that there would not be any changes to the traffic safety measures when the road was opened, after he put the crane in that position.

c)        Thought  that  the  positioning  of  the  crane  on  the  corner where it was visible from both directions would act as an additional incentive for traffic to slow down.

d)        Thought that with the existing signs in place, along with it being coned off and with the flashing lights, the position of the crane posed no danger to anyone.

[10]     In  the  light  of  those  findings  and  the  circumstances,  I  turn  to  consider element (b)(ii) as formulated by the learned Judge.  The evidence clearly established that it was Mr Palmer who had ultimate responsibility for ensuring that the traffic management plan was adhered to, and that the road was safe before it was re-opened. The Judge held that circumstances were such that Mr Palmer had a duty to remove the crane from the position where it was placed by Mr W  , and that his omission to remove the crane from that position was likely to cause injury or endangerment to any person.

[11]     On those facts, it is clear that when Mr W   parked the crane his actions did not at that time result in a situation of danger to traffic, because the road was closed.  For a likelihood of danger or injury to arise, two things were required:

(a)      The parking of the crane; and

(b)      The opening of the road without appropriate safety precautions being taken by way of signage or by moving the crane.

Mr W   was responsible for only the first of these.   Mr Palmer was, on the

Judge’s findings, responsible for the second.

[12]     The  offence  alleged  against  Mr  W    is  not  a  continuing  offence. Therefore, the likelihood of danger must have been present, and must be assessed, as

at the time at which he placed the crane.  At that time there was, as I have said, no present danger: the danger was a potential future one.

[13]     The learned Judge has sought to deal with that by formulating element (b)(ii). I think that there are two difficulties with that approach.

[14]     In the first place, he has formulated the question as being whether Mr W   was aware, when he placed the crane, that the traffic safety measures then in place would remain in place when the road was opened.  That requires an awareness not of a then existing state of facts, but of a future situation.  The case was not one where no change in traffic safety measures was, on the facts, possible.  Clearly, the traffic safety measures might have changed in the meantime.   For that reason, I do not consider  that  it  is  right,  as  a  matter  of  law,  in  applying  a  criminal  statute,  to formulate an element of the offence by reference to a present awareness of a potentially changeable future state of affairs.

[15]     Secondly, if I am wrong in that and it is possible to formulate that element of the offence in the way the Judge has done, I consider that his conclusion that that element was satisfied in this case is not a conclusion which can properly be drawn, on the  facts  as  he  found  them.    An  element  in  his  drawing  the  inference  that Mr W   was aware that no change would be made was that Mr W  ’ evidence was that he was satisfied that the crane was clearly visible and did not create any danger.  The Judge has, however, held that there was a likelihood of danger, and that Mr Palmer was in breach of his duty in not taking steps in relation to the crane before re-opening the road.  The result of that is that the Judge has held Mr W   criminally liable in circumstances when, subjectively, Mr W   did not consider there was a likelihood of danger and, for that reason, he assumed that no changes in the traffic safety measures would be made, despite Mr Palmer’s duty to make any necessary changes.  This is not a strict liability offence.  I do not consider that it is correct to hold Mr W   liable, on the basis that he was aware that no change in traffic safety measures would be made, in circumstances where the duty to make any such changes did not rest on him, and he personally was of the view that  such changes were unnecessary as no likelihood of danger existed.    In those circumstances, the necessary mens rea is absent.  The Judge has in essence inferred

that Mr W   was aware that Mr Palmer would breach his duty to render the crane safe, because Mr W   did not think Mr Palmer’s duty required him to take any further steps.  That is not compatible with the imposition of criminal liability.

[16]     For these reasons, I consider that the offence alleged against Mr W   was not made out, and the appeal against conviction is accordingly allowed.

“A D MacKenzie J”

Solicitors

Peter S Coles, Palmerston North, for the appellant

Crown Solicitor, Palmerston North, for the respondent