W v Police HC Wellington CRI 2008-485-64

[2008] NZHC 1238

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2008-485-64

W

v

NEW ZEALAND POLICE

Hearing:         5 August 2008

Appearances: K I Jefferies for the Appellant

J Murdoch for the Respondent

Judgment:      6 August 2008         at 11 am

JUDGMENT OF MALLON J

[1]      Mr W   was convicted of dangerous driving under s 35(1)(b) of the Land Transport Act 1998 on 15 April 2008.   He appeals against that conviction.   The appeal was filed out of time because of a delay in obtaining approval for legal aid.

[2]      Under s 123(1) of the Summary Proceedings Act 1957 the High Court has a discretion to extend the time for lodging an appeal.  The well established approach to the exercise of this discretion is as set out in Cleggs v Department of Internal Affairs HC AK M1032/84 5 September 1984.  In this case, what is particularly relevant to the exercise of the discretion is the prospects of success on the appeal.

[3]      The conviction arises out of events on the afternoon of 4 February 2007. Mr W   was driving a vehicle on State Highway 2 at a speed well above the

W V NEW ZEALAND POLICE HC WN CRI 2008-485-64 6 August 2008

speed limit.   He was followed by a police officer driving in an unmarked patrol vehicle.  The officer observed Mr W   overtake vehicles and weave through and cut across traffic.  It was some time before the officer was able to catch up and stop Mr W  .

[4]      Mr W   defended the charge.  The police officer’s evidence was that in following Mr W   at various points his speed was 137 km/h, 140 km/h and 130 km/h.  Mr W   disputed this evidence saying his maximum speed was 131 km/h. Mr W   viewed himself as a good driver, able to drive safely at high speeds, and said that for him 160 km/h was safe.  Mr W   considered that the manoeuvres which the officer viewed as unsafe were not unsafe and that, if they had been unsafe, he would not have undertaken them.

[5]      The District Court Judge held that the charge was proven.   In giving his judgment he found that there were two instances where the driving was dangerous. The first was at the point where Mr W   “overtook” a car in the left hand lane and “undertook” a car in the right hand lane.  The Judge accepted the police officer’s evidence that there were only a couple of car lengths between those two vehicles and that it was a “miracle” that there was no contact between these vehicles.  The second point was when, at the Ngauranga flyover, Mr W   sped up to over 130 km/h and wove  between  vehicles  without  slowing  down.     In  each  instance  the  Judge considered on the evidence that a tragedy was overted not only by Mr W  ’s alleged driving skills but also because other drivers kept their heads and did not take any action to change direction or alter their speed.  The Judge said that there was nothing to justify the driving.

[6]      In the notice of appeal it is said that the Judge was incorrect to find that Mr W  ’s driving was dangerous.  In the written submissions filed on his behalf, counsel for Mr W   advises that he was instructed to bring this appeal but that he could not identify any errors of law in the conduct of the hearing or in the decision of the Judge.   He also says that the District Court Judge made no errors, heard and considered  the  evidence  and  was  entitled  to  make  his  findings  of  fact  on  the evidence.  It is said that these findings are unable to be disputed on appeal and that, “whilst excessive speed may not be dangerous in all instances the Judge of course is

entitled to take speed into account given the presence of other traffic and other matters traversed at the hearing”.  At the hearing before me, Mr W  ’s counsel remained of this view and advised that he could not responsibly make any submissions that the appeal should be allowed.

[7]      In these circumstances, and having carefully considered the evidence and the judgment of the District Court, I am of the view that there is no real likelihood that the appeal would succeed.  The findings of fact were open to the Judge.  Mr W   is of the view that his driving was not dangerous because of his driving skills.  There are two responses to that.   First, whether there is dangerous driving is to be determined objectively.  Secondly, even if Mr W   believed he could carry out the manoeuvres safely, as the Judge indicated, that depended at least in part on the reactions of other drivers.  As to speed it is clear from the Judge’s decision that it was not speed alone that gave rise to the finding of dangerous driving.

[8]      I therefore decline to exercise my discretion under s 123(1) of the Summary

Proceedings Act.  Leave to appeal the conviction out of time is refused.

Mallon J

Solicitors:

Jefferies & Raizis, Barristers & Solicitors, PO Box 10-641, Wellington

Luke Cunningham Clere, Barristers & Solicitors, PO Box 10357, Wellington