Z v Police HC Christchurch Cri-2008-409-146

[2008] NZHC 2098

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2008-409-000146

Z

v

POLICE

Hearing:         27 November 2008

Appearances: M M Cole for Appellant

K J Basire for Crown

Judgment:      18 December 2008

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

[1]      This is an appeal against conviction.

[2]      The appellant was convicted in the District Court on one charge of dangerous driving under s35(1)(b) of the Land Transport Act 1998.  He was fined $600, ordered to pay Court costs of $130, and disqualified from driving for six months.  The Judge also ordered the appellant to attend a defensive driving course.

Factual background

[3]      The incident on which the conviction was based occurred at 11.46 p.m. on

Friday 9 November 2007 near the Deans Avenue/Fendalton Road intersection in

Christchurch.

Z V POLICE HC CHCH CRI-2008-409-000146  18 December 2008

[4]      The appellant was driving his motor vehicle west on Harper Avenue with the intention of turning south into Deans Avenue at the intersection.

[5]      For west-bound traffic, the road markings on Harper Ave at the point where the appellant commenced his manoeuvre consist of what was described variously in evidence as a parking lane or hatched median, a left lane and a right lane.  Further on, closer to the intersection, the parking lane “runs out” and becomes a left-hand turning lane for traffic wanting to turn into Deans Avenue.  The other two lanes take the traffic round into Fendalton Road.

[6]      The appellant was travelling in the right lane.  He needed to get out of that lane if he wanted to turn into Deans Avenue.  He accordingly moved across to the left lane.  In order to make the move, the appellant had to accelerate and fit into a gap between two cars.  In his evidence, he said the gap was about one and a half to two car lengths.  He estimated he had to accelerate from 45 kilometres per hour to some 55-60 kilometres per hour to get into the left lane and fit between the two cars.

[7]      The car in front slowed as it approached the corner.  However, the appellant continued accelerating and moved out of the left lane into the hatched median. While in the hatched median, he passed three or four other vehicles on the inside.  Then, at the end of the median where it becomes the turning lane, he carried on and turned into Deans Avenue.  There was a conflict in the evidence as to whether the way was clear for him to do that or whether it was a situation of him forcing his way back into the line of traffic.

[8]      That part of the manoeuvre, involving travelling from the left lane onto the hatched median and turning left, was witnessed by a police officer.  At the time the appellant was travelling in the hatched median, his speed was measured at 84 kilometres per hour.   By the time he entered Deans Avenue where another officer was stationed, his speed was said to be well under 70 kilometres per hour, possibly under 60 kilometres per hour.

[9]      The speed limit in the area is 50 kilometres per hour.  The traffic flows were heavy at the time.

[10]     When  the  police  stopped  the  appellant  in  Deans  Avenue,  the  appellant admitted that what had happened was “a stupid manoeuvre”.

[11]     His explanation for moving onto the hatched median was that after initially changing lanes, he took his foot off the accelerator but the accelerator stuck and did not come back.  His car continued accelerating to 84 kilometres per hour.  There was no time to brake, and he considered that if he did try to brake he would end up colliding with the rear of the car in front of him that had slowed down.  He said he made a judgment call to avoid a collision by going into the hatch median lane.  As soon as there were no cars in front of him and it was safe to brake, he braked heavily and also managed to free the accelerator.

[12]     Evidence was given by a mechanic that the appellant had come in to see him with a faulty accelerator cable.  The mechanic was asked whether acceleration could increase from a speed of 45-55 kilometres per hour to a speed of 84 kilometres per hour if an accelerator cable gets stuck. The mechanic replied that it was possible.

The Judge’s findings

[13]     After traversing various aspects of the evidence, the Judge stated he was not at all satisfied he had been given an entirely accurate account by the defence witnesses and went on to say:

[14]     … So, as a matter of impression, I am of the view that what really happened was that the defendant was travelling in the right lane as he says, he then decides to execute a left turn.   He turns into a gap which was inadequate for him to do safely.  He turns through the gap and onto the flush median, perhaps realising that he was cutting things far too fine.  He finds himself in the flush median which then, apparently for the first time, caused some alarm to his friend.  He then brakes from some 84 kilometres per hour, having attained that speed and moves back into the line of traffic.

[15]     I  entirely  accept  what  the  defendant  first  said  to  Constable Stevenson, that it was a “stupid” manoeuvre, and I am satisfied that it was a manoeuvre so stupid that it was or might have been dangerous to the public, because anything could have gone wrong through this manoeuvre.  Indeed, when the defendant re-entered the line of traffic that was turning left, that was something that ought not to have been done without more care and consideration.  I accept in that respect Constable Stewart’s evidence that the defendant passed in front of other vehicles in that lane and behind other vehicles, so again he is entering into a relatively small gap.

[16]     In short, we have a manoeuvre from the right lane through the left lane onto the hatch median, and attaining the speed of some 84 kilometres per hour in the course of it, and then a decreasing of the speed back to a normal traffic speed and moving back into the left turning lane.

[14]     The Judge then turned to consider whether this view of the matter should be adjusted, having regard to the evidence about the sticky accelerator cable:

[18]     I  have  very  serious  reservations  about  whether  this  cable  was defective at the time and whether it contributed at all to this incident.  I note in that respect that the witness, Mr Trashkov, did not gain any impression of any sort of panic or emergency after the entry of the defendant’s vehicle into the left lane, but he seemed to be under the impression that the real problem first arose when he was travelling on the hatched median.  However, even if I give the defendant the benefit of the doubt in that respect and accept that some sort of undue acceleration occurred through a defect in the accelerator cable while he was in the left lane, albeit briefly, I am not satisfied that he responded at all appropriately.  Instead of executing this odd and dangerous manoeuvre of pulling left onto the hatch median, he ought to have applied his brakes and the clutch and he would have slowed his vehicle  down, assuming they were all in good order, in good time.  If he was unable to do that, it was because he was travelling too fast in the first place to execute the manoeuvre, and had allowed insufficient room to execute the manoeuvre of entering the  left  lane  safely.    This  was  not  an  “agony  of  the  moment” decision, where he pulled left instead of braking.   I am satisfied that the whole manoeuvre was fraught with risk and it ought not to have been carried out.

[19]      I have the general impression, from the defendant’s evidence, that he is a youthful and inexperienced driver and that he took an unnecessary risk and then was unable to recover from it in a way that would have ensured a lack of risk to members of the public.   For these reasons, I conclude that even if the accelerator cable did contribute to undue acceleration of the vehicle, it did not cause or contribute to this incident so as to relieve the defendant from responsibility.  I am satisfied that, even having regard to that factor, his driving standard was so poor that the elements of the charge have been satisfied, that he did drive his motor vehicle on Harper Avenue in a manner which having regard to all the circumstances of the case was or might have been dangerous to the public.  I therefore find the charge proved to the applicable standard of beyond reasonable doubt.

Grounds of appeal

[15]     In appealing the conviction, counsel for the appellant, Ms Cole, advanced the following arguments:

(i) The driving involved in the first phase of the manoeuvre was not careless, let alone dangerous.

(ii) TheJudge’s assessment of the first phase was not the correct test for dangerous driving.

(iii)The acts of driving in phases 2 and 3 were involuntary due to mechanical defect, and could not be said beyond reasonable doubt to be deliberate acts of driving which were objectively dangerous.

(iv)The  Judge’s  assessment  of  the  appellant’s  reaction  to  the sticking accelerator was unduly harsh and unfair.

(v)The Judge intervened excessively, over stated the prosecution evidence when asking questions, and showed bias.

[16]     For  its  part,  the  police  submit  that  the  Judge  ruled  out  the  defence  of mechanical fault and that was a finding open to him on the evidence.  Counsel for the respondent, Ms Basire, pointed to the appellant’s admission that he would not have stopped had the police not stopped him and that he had no problem driving away.  She also pointed to the fact that the mechanic failed to produce any written evidence as to when he was consulted by the appellant about the faulty accelerator cable.   Ms Basire submitted the Judge’s findings were based on an assessment of credibility and did not warrant appellate intervention.

[17]     It was further submitted that the actions of the appellant in attempting to cross lanes as described by himself, his passenger and the police officer clearly amounted to dangerous driving.

The Court’s findings

[18]     It is well established that in order to constitute dangerous driving, the driving must be a deliberate act of driving, that it must fall below the standard of care and skill of a competent and experienced driver, and that it must cause a situation which, viewed objectively, was dangerous: see R v Jones [1986] 1 NZLR 1.

[19]     Secondly, as stated in Stratford v MOT [1992] 1 NZLR 486 at 490-491:

… a conviction may be upheld notwithstanding the absence of identification of a specific act of the driver's which falls below the prescribed standard, such as driving at a speed excessive in the circumstances, or failing to keep a proper  look  out.  Secondly,  in  other  cases  where  the  focus  may  be  on particular actions of that kind the Court may conclude that in one or more such  respects,  or  in  a  combination  of  them,  the  driving  fell  below  the standard required by law, and created a situation of danger. It is self-evident that  if  the  finding  of  dangerous  driving  is  based  upon  a  single  such deficiency, for example failure to keep as far as practicable to the left, it must be established beyond reasonable doubt. It is equivalent to one of the facta probanda. Proof of such a fact may itself be a matter of inference from a number of circumstances. If so, in terms of Thomas v R, it is not necessary that each be established beyond reasonable doubt.

[20]     I agree with Ms Cole that although the Judge expressed strong reservations about whether there was anything wrong with the accelerator, there was no finding unequivocally  excluding  the  possibility  of  mechanical  fault  beyond  reasonable doubt.

[21]     Therefore, contrary to the police submissions, the Judge’s decision has to be assessed on the basis there was a mechanical fault or the possibility of one.   The issue therefore becomes whether the Judge was right to conclude the appellant’s driving was nevertheless dangerous.  That can only be because of four possibilities, either alone or in combination:

(i) The  appellant’s  driving  prior  to  the  mechanical  fault  was dangerous;

(ii)the mechanical fault did not contribute or cause to contribute the dangerous driving;

(iii)the   appellant’s      reaction   to   the   mechanical   fault   was dangerous;

(iv)the appellant’s driving after the mechanical fault ceased to have any effect was dangerous.

[22]     Having  carefully  reviewed  the  transcript,  I  cannot  accept  Ms  Cole’s assessment of the initial phase of the manoeuvre as being without culpability.  In my view, the appellant should not have attempted to squeeze between the two cars on a very busy thoroughfare when a corner was approaching and he had to exceed the speed limit to achieve it.  It was dangerous driving.

[23]      Further, even accepting the appellant had to go into the parking lane in order to avoid a collision, he should have started to brake earlier and bring the vehicle under control instead of forcing his way back into the left turning traffic.  There was no evidence he could not have come to a complete halt before the hatch median becomes the turning lane.

[24]     Ms Cole submitted the Judge was wrong to restate the Constable’s evidence as being to the effect that the appellant had braked heavily and forced his way into the line of left turning vehicles.

[25]     However, that was exactly what the Constable did say in his written brief of evidence which, according to the transcript, was read out to the Court and so formed part of the evidence.  It was evidence which the Judge was clearly entitled to accept, and which he did accept.

[26]     Also in evidence, when the Judge asked the Constable to identify what aspect of the driving had been of particular concern the Constable replied (transcript, page

5, line 22):

Just the speed that he went through on the inside of those other cars that, you know if they hadn’t have been watching or if they had of turned left quicker or sooner than they did they probably would have collided perhaps.

[27]     In my view, it was clearly dangerous in terms of the Stratford test for the appellant, once he reached the safety of the hatch median, to continue in the way he did.  I disagree with the submission that his speed at this time was involuntary.  It was not the situation postulated by the mechanic, where the natural tendency of a person confronted with a sticking accelerator is apparently to press again on the accelerator which only compounds the problem.   It was never suggested that was what the appellant had done.

[28]     This analysis differs slightly from that of the Judge, but the outcome is the same.

[29]     It follows the appeal must be dismissed.

Solicitors:
M M Cole, Christchurch
Crown Solicitor, Christchurch