Zhu v Police - [2018] NZHC 1681

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI 2017-404-0433

[2018] NZHC 1681

BETWEEN
ZHIGANG ZHU

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 9 July 2018

Appearances:

No appearance by or on behalf of the Appellant N Porter for Respondent

Judgment:

9 July 2018

ORAL JUDGMENT OF JAGOSE J

Solicitors:
Meredith Connell, Auckland

Copy to:
The Appellant

ZHU v NEW ZEALAND POLICE [2018] NZHC 1681 [9 July 2018]

[1] At 12.50pm on a sunny Saturday afternoon, 4 February 2017, all the traffic lights turned red at the intersection of Queen and Victoria Streets, in Auckland’s central shopping precinct. Many pedestrians began to use the intersection’s ‘Barnes Dance’ crossing, meaning they were crossing in every direction, including diagonally.

[2] CCTV footage from two angles captures what happens next: approximately twelve seconds into the exclusive pedestrian interval for use of the intersection, a car drives north on Queen Street, straight into the intersection, stopping some three or four car-lengths into the intersection. The car was driven by the appellant, Zhigang Zhu.

[3] On any view of the footage, which I have seen, it was exceptionally fortunate the car only brushed one pedestrian at her left ankle, dislodging her shoe from her left foot. The car narrowly missed other pedestrians, including pedestrians with an occupied pushchair. It is quite clear from the footage Mr Zhu has driven straight into the intersection, well into its exclusive pedestrian period. He only slowed and stopped after contacting the one pedestrian, and possibly as a result of the next pedestrian, who appears to bang his hand on the car’s hood. Mr Zhu appears agitated on exiting the car, and maintains that appearance for the balance of the footage.
[4] Following a judge-alone trial before Judge Powell on 20 September 2017,1 Mr Zhu was convicted on one charge of dangerous driving.2 He was sentenced on 31 October 2017, receiving a fine of $700 and a six months disqualification (the minimum mandatory disqualification period for the charge).3

[5] Unrepresented also on appeal, Mr Zhu appeals both his conviction and sentence. He has submitted written submissions but does not appear today for hearing.4 His submissions’ emphasis is clearly on the conviction appeal, in which he says Judge Powell erred in:

(a)rejecting Mr Zhu’s argument he was affected by sun-strike at the time of the accident; and

1      New Zealand Police v Kenny Zhu [2017] NZDC 21452 [“Conviction decision”].
2      Land Transport Act 1998, s 35(1)(b).
3      New Zealand Police v Kenny Zhu [2017] NZDC 25276 [“Sentencing decision”].
4      The Registrar sought to contact Mr Zhu by telephone, when it became apparent he was not in attendance at the time the hearing started, but the call was not answered.

(b)finding Mr Zhu was driving at a dangerous speed or otherwise in a dangerous manner, especially considering Mr Zhu says he was slowing down as he entered the intersection.

I take Mr Zhu to contend Judge Powell so erred in his assessment…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2018] NZHC 1681
Decision Date: 9 July 2018

CaseChat Overview and Summary

Zhigang Zhu appeals his conviction and sentence for dangerous driving, following an incident where he drove into a pedestrian crossing at an intersection with red lights, narrowly missing pedestrians. The case was heard by Jagose J in the High Court of New Zealand. The appellant argues that his Honour erred in rejecting his claim of sun-strike and in finding that he drove at a dangerous speed or in a dangerous manner.

The court first considers the appeal against conviction, which is brought under the Criminal Procedure Act 2011. The appellant must demonstrate a miscarriage of justice occurred, which means something has occurred in relation to the trial to create a real risk against a more favourable outcome or has resulted in an unfair trial or a nullity. The court finds that the appellant’s argument of sun-strike was rejected by the trial judge on the evidence before him and that the evidence the appellant seeks to adduce on appeal is irrelevant. The court also finds that the appellant’s argument that he was slowing down as he entered the intersection is not supported by the CCTV footage, which shows a relatively steady speed until the point of contact with the pedestrian. The court concludes that driving through a red light into a busy pedestrian crossing is precisely the sort of aggravated or inexcusable breach which creates a reasonable likelihood of danger to those using the road.

The court next considers the appeal against sentence. The court finds that the sentence imposed by the trial judge is well within range in light of comparable cases and cannot be said to be manifestly excessive. The court dismisses both appeals.

The final orders of the court are that the appellant’s appeals against conviction and sentence are dismissed.

Orders