Wei v Police

[2017] NZHC 3111

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHARAKEKE ROHE

CRI-2017-406-11 [2017] NZHC 3111

ZHANG RONG WEI

v

NEW ZEALAND POLICE

Hearing:	8 December 2017
Appearances:	Appellant in Person J R Crawford for Respondent
Judgment:	14 December 2017

JUDGMENT OF CLARK J

Introduction

[1]      Mr Wei was found guilty of careless driving causing injury1 following a Judge alone trial before Judge Zohrab.2  Judge Zohrab suspended Mr Wei’s licence for six months and ordered him to pay $800 in reparation.  Mr Wei was also fined $27 to

cover witness expenses.

1      Land Transport Act 1998, s 38: maximum penalty imprisonment not exceeding 3 months or a fine not exceeding $4,500 and disqualification from driving for six months or more.

2      New Zealand Police v Wei [2017] NZDC 20700.

[2]      Mr Wei appeals against conviction and sentence. His stated grounds of appeal are that he does not agree with the decision; he was not careless and did not cause the accident.

Facts

[3]      On 14 January 2017 about 1:30 pm Ms Clarke was driving her vehicle on Port Underwood Road towards Hakahaka Bay. Her young children and one of their friends were in the car.

[4]      Mr Wei was travelling with his wife on Port Underwood Road in the opposite direction.

[5]      Port Underwood Road is a narrow and windy road that has no painted centre line. It has numerous blind corners.  At a windy stretch of road the two vehicles collided on  a blind  corner.    Ms  Clarke suffered  whiplash.    Both  vehicles  were moderately damaged and two of the children received treatment.

[6]      The police charged Mr Wei with careless driving causing injury on the basis his car was on the wrong side of the road when the accident happened.

District Court Decision

[7]      Judge Zohrab formulated the issue as being whether Mr Wei was driving the vehicle carelessly and whether that was the substantial or operative cause of the injury.3  The standard applied was that of a “reasonable and prudent” driver.4  Although in the context of a Judge alone trial where he did not need to explicitly refer to the tripartite direction,5 Judge Zohrab did so. He emphasised to Mr Wei the burden on the prosecution to prove Mr Wei’s guilt beyond reasonable doubt.  Judge Zohrab then set out the evidence before him.

[8]      Ms Clarke’s evidence was that she was driving towards Picton in no particular hurry.  She had an arrangement to meet someone and that person was delayed.  She

was heading uphill at a reasonable speed when she saw Mr Wei’s vehicle on her side of the road. There was a bank immediately to Ms Clarke’s left.  She pulled as far left as she possibly could without hitting the bank.  Her aim was to try and travel through the gap between the bank and Mr Wei’s car to her right on her side of the road, but the two cars collided.6

[9]      Senior  Constable  Richardson  attended  the  scene.     He  has  no  formal qualifications in traffic accident investigation but over his 15 years estimated, on a conservative basis, he would have attended possibly 10 traffic accidents a year so over

150 vehicle crashes in total.  The officer produced a photograph booklet containing photographs from the scene.  Three photographs in the booklet were taken by Ms Clarke. Based on the officer’s experience of traffic accidents he formed the view that Mr Wei was on Ms Clarke’s side of the road at the point of impact and that Mr Wei had caused the accident.

[10]     A consistent path behind Ms Clarke’s left rear wheel could be observed in the foliage and dirt through which her car had travelled. In the officer’s opinion, this path showed Ms Clarke had pulled hard to the left and her car travelled through the vegetation on the side of the road at the base of the bank.7   Further, there was debris (glass and pieces from the vehicles) on her side of the road and from the officer’s experience he knew that when vehicles collided, pieces of the vehicle fell away.

[11]     The third aspect of the officer’s evidence related to what he considered a “tyre yaw mark”.   While defence counsel did not object to this evidence Judge Zohrab disregarded it because he considered the officer’s interpretation of the mark tended to move into a rather more specialised area in which the officer had no particular qualifications.8

[12]     Ultimately, the officer did not accept the possibility the impact could have been on Mr Wei’s side of the road.

[13]     Mr Wei’s evidence was that he was struck on his side of the road and he thought his car was going to roll. He said Ms Clarke was travelling very fast. Mr Wei said his car moved after the collision and so did Ms Clarke’s. Also, he and his wife cleared up some of the glass. The Judge rejected Mr Wei’s evidence as “totally inconsistent with the physical evidence at the scene”.9    Common sense and the officer’s experience suggested the area Mr Wei identified as the point of impact should have been littered with debris.10  As well, there would have been fluids in that area. The Judge assessed Ms Clarke as a straightforward witness who made concessions where appropriate. Her evidence was supported by the independent evidence of the senior constable and the physical evidence left by the track of her car through the foliage to her left.  On the other hand, the Judge rejected Mr Wei’s evidence as “fanciful”.11

The appeal

Appellant’s position

[14]     Mr  Wei  was  not  represented  in  the  hearing  but  filed  concise  written submissions in advance.  His position is that there are three dominant inconsistencies and errors in the District Court Judge’s assessment.

(a)      The final scene does not illustrate what actually took place.  Mr Wei claimed both cars continued to roll for approximately two metres after colliding.   The Judge’s  assessment was based on the final resting positions of both cars.

(b)The area of damage of his vehicle was said to be incorrectly stated by Senior  Constable Richardson.    The  summary  of  facts  incorrectly described the damage as being to the “right hand corner”. Mr Wei submits his car was clearly damaged on the right-hand side, just above the right front tyre. The other car was damaged on the right-hand corner. He could not have hit Ms Clarke’s car as only the side of his car was damaged.

(c)      Mr Wei said he could prove he did not cross onto the wrong side of the road by the position of the back wheels of his car. The final position of both cars was measured by Senior Constable Richardson.   Mr Wei’s right rear wheel was, he submits, 3.3m from the edge on Ms Clarke’s side of the 6m wide road.  Because both cars rolled, Mr Wei says, for about two-metres following the collision his car should therefore be noted as being further to the left-hand side of the road when the incident happened than was shown on the diagram.

Respondent’s position

[15]     Ms Crawford submitted Mr Wei had been unable to identify any error in the

Judge’s assessment of the evidence and there was no miscarriage of justice.

[16]     Ms Crawford submitted the location of the debris, the water mark and the tracking of Ms Clarke’s left rear tyre were all consistent with Ms Clarke’s evidence that Mr Wei had crossed the centre line and collided with her vehicle on her side of the road. Given the experience of Senior Constable Richardson in dealing with traffic crashes, the scene evidence and photographs, and the logical explanation of the incident given by Ms Clarke, the Judge did not err in his assessment of the evidence.

Assessment

[17]     I must allow the appeal if I am satisfied the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.  I must also allow the appeal if, for any other reason, a miscarriage of justice has occurred.12   A miscarriage of justice will have occurred if the irregularities and errors, which Mr Wei alleges, create a real risk that the outcome of the trial was affected or if they have resulted in an unfair trial.13   I must dismiss the appeal in any other case.

[18]     Through an interpreter I questioned Mr Wei closely to be sure I properly understood his concerns and arguments.  I was satisfied by the end of the hearing that

I had  a complete  grasp  of the basis  of Mr Wei’s  appeal  and,  in  particular,  his

12     Criminal Procedure Act 2011, s 232.

explanation as to how his car came to be in the position shown in the photographs namely over the centre “line”.  Mr Wei maintained, as he did at trial, that following the impact his car rolled over the centre line and Ms Clarke’s vehicle rolled back (presumably off, or away from the centre line which Mr Wei says Ms Clarke crossed).

[19]     Even accepting damage to Mr Wei’s car was just above the right-hand wheel and that Ms Clarke’s car was damaged on the right-hand corner, as Mr Wei submitted, this does not support error in Judge Zohrab’s assessment of the evidence.  The Judge paid close attention to the photographs of the damage to the respective cars.   Ms Clarke’s evidence of Mr Wei being on the wrong side of the road and attempting to avoid his car by pulling hard to her left was borne out by the vehicle tracks.

[20]     Mr Wei asks how he could have hit Ms Clarke’s car when the damage to his car was to the right front side. As well, if he had crossed to the wrong side, the final position of his car would have been different.  His car would have been beside, not in front of, Ms Clarke’s car.

[21]     The Judge accepted both the physical evidence and the officer’s opinion based on that evidence that Ms Clarke had pulled hard to the left and followed a path through the vegetation to the side of the road. Even accepting that Ms Clarke’s car had moved backwards from the initial point of impact the officer’s evidence of a clear track on the left-hand side of the road showing the path taken by Ms Clarke’s vehicle is highly significant and virtually conclusive of her position at impact.

[22]     As to the positioning of the vehicles the Judge accepted it was not decisive in itself because they could have moved.  But that did not mean the point of impact was on Mr Wei’s side of the road.  The officer did not accept any possibility the collision occurred on Mr Wei’s side of the road and the Judge was entitled to accept the police officer’s evidence given his extensive experience with traffic crashes.

[23]     Mr Wei speculated during the hearing that Ms Clarke’s water tank which was completely destroyed would not leak immediately following the collision.  It would take at least a few seconds.  So the water marks in the middle of the road provided further clear evidence that her car crossed the centre of the road. This submission was

unsupported by any evidence.   Indeed the theory is at odds with the incontestable evidence of the debris on the road and tyre marks in the foliage on the left of the road.

[24]     Notwithstanding the further evidence and diagrams Mr Wei relied on for the first time in the appeal he has been unable to identify any error in the Judge’s assessment of the evidence.

[25]     I agree  with  the  respondent’s  submission  that  Judge Zohrab  assessed  the evidence carefully and methodically and his factual findings are supported by the evidence at the scene.

[26]     Mr Wei has not shown that Judge Zohrab erred in his assessment of the evidence in any respect much less to the extent a miscarriage of justice has occurred.

Result

[27]     The appeal is dismissed.

Karen Clark J

Solicitors:

O’Doneghue Webber, Nelson for the Respondent