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 of the evidence at trial a miscarriage of justice has occurred, and his conviction is accordingly unsafe.5

Approach on appeal

—appeal against conviction

[6]    Mr Zhu’s appeal against his convictions necessarily is brought under subpart 3 of the Criminal Procedure Act 2011, as a first appeal from the Judge-alone trial conducted by Judge Powell.

[7]    I must allow Mr Zhu’s appeal against conviction if I am satisfied Judge Powell “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or if I am satisfied “a miscarriage of justice has occurred for any reason”. Otherwise I must dismiss the appeal.6

[8]    By ‘miscarriage of justice’ is meant something has occurred in relation to the trial to create a real risk against a more favourable outcome for Mr Zhu, or has resulted in an unfair trial or a nullity.7

[9]    Mr Zhu must persuade me there was a miscarriage of justice before Judge Powell.8 I will make my own assessment of the facts, and decide on any miscarriage of justice in accordance with that assessment.9 In coming to that assessment, I will pay appropriate deference to Judge Powell’s findings, as he had the benefit of seeing and hearing the witnesses give evidence.10

5      Criminal Procedure Act 2011, s 232(2)(b).

6      Criminal Procedure Act 2011, s 232.

7      Criminal Procedure Act 2011, s 232(4); R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110].

8      Green v Green [2016] NZCA 486, [2017] 2 NZLR 321 at [30].

9      Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].

10     Green v Green (above n 8) at [31].

—appeal against sentence

[10]   If Mr Zhu’s appeal against conviction is not successful, I must allow Mr Zhu’s appeal against sentence if I am satisfied, for any reason, there is an error in the sentence imposed on him, and a different sentence should be imposed. In any other case, I must dismiss the appeal against sentence.11

[11]   The approach previously taken by courts on sentencing appeals continues to apply,12 so that the measure of error is the sentence be “manifestly excessive” – a principle “well-engrained” in this Court’s approach to sentencing appeals.13

[12]   I will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles. Whether a sentence is ‘manifestly excessive’ is to be assessed in terms of the sentence given, rather than the process by which it is reached.14

Did the Judge err?

[13]   Whether Mr Zhu was driving dangerously is to be determined objectively, but the prosecution must be able to point to some fault on the part of the driver. The law in this area was recently restated in Mash v Police,¹⁵ a case discussed in Judge Powell’s decision:¹⁶

The prosecution [is] required to prove beyond reasonable doubt that, judged objectively, the driving was dangerous. The prosecution can prove that by pinpointing a single dangerous act, or by inviting the Court to draw an inference from proved facts.

…

However that is not an end of the matter. While the standard is an objective one, the offence of dangerous driving is not an absolute offence. There must have been fault on the part of the driver … which is not explainable by a sudden emergency or by mechanical defects.

11     Criminal Procedure Act 2011, s 250(3).

12     Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [26]-[27].

13     At [33], [35].

14     Ripia v R [2011] NZCA 101 at [15].

15     Mash v Police [2014] NZHC 1223, [2014] NZAR 824.

16     At [25] and [27] (internal citations omitted).

—the sun-strike argument

[14]Judge Powell rejected the sun-strike argument on the evidence before him:17

The CCTV footage also makes it clear that the sun itself could not have been a factor given that the shadows cast by the pedestrians showed that the sun was nearly directly overhead, and even if Mr Zhu had at some point been blinded looking directly up at the lights, the lights at the far end of the intersection would have been clearly visible.

[15]   I agree with the Judge’s observation, having watched the footage myself. This is certainly not the classic case of sunstrike where the sun beams directly into the driver’s eyes through the front windscreen. The position of the sun is such some reflection from vehicles’ front and rear windows is captured at the height of the CCTV cameras, which are positioned significantly higher than the intersection’s traffic lights. This is particularly noticeable in the north-facing CCTV footage, which shows reflections at the height of that camera from the cars across the intersection from where Mr Zhu’s car enters it. There is no indication of any reflection shining into Mr Zhu’s car, despite the south-facing CCTV footage clearly showing the front windscreen and dashboard of Mr Zhu’s car as it drives towards and into the intersection.

[16]   Mr Zhu now wants to adduce fresh evidence on appeal, the bulk of which includes photographs and accompanying details of an alleged conspiracy against him quite irrelevant to this appeal. But some of it is relevant to his sun-strike submission, for instance:

(a)a ‘Q&A’ from the driving test, noting sun strike can occur from reflections off buildings and other windscreens, especially as is common in busy city areas; and

(b)a photograph – without any legible time-stamp – showing sun glare at the back window of an indeterminate vehicle at an unidentified location.

This evidence is not “fresh”, in the sense that there is no reason it could not have been called at trial,18 but in any respect, it does nothing to assist Mr Zhu’s case.

17     Conviction decision at [9](e).

18     R v Bain [2004] 1 NZLR 638 (CA).

[17]   I accept, on a sunny day, the sun can reflect and refract into a driver’s eyes from almost any direction. But it does not excuse driving of the kind we see in this case. Judge Powell also made the point “this was not a case of momentary inattention caused by sudden dazzling or other blindness”. Rather:¹⁹

… It is clear from the CCTV footage that before Mr Zhu’s car was even in sight of the intersection that the light was red, and accordingly Mr Zhu was required to stop.

Indeed Mr Zhu acknowledged that there were pedestrians ahead, yet this did not lead him to stop as he was required to do.

Again the CCTV footage is absolutely clear that the intersection was in a pedestrian phase and by the time Mr Zhu’s car arrived at the intersection, indeed the green part of the pedestrian phase had ended and the warning lights that indicate the end of the pedestrian phase had begun.

Ms An and her then boyfriend Mr Pun who was himself narrowly missed by Mr Zhu indeed started walking some time after the pedestrian phase had begun.

[18]   Even if sunstrike was established on the evidence (which I do not accept), it may offer a defence for a momentary lapse in complying with driving regulations, but not for failing to stop for some 12 seconds into a red light sequence at a clearly visible intersection, and then travelling well into that intersection. Mr Zhu’s driving falls well outside the emergency category identified in Mash.

—the slowing down argument

[19]   Mr Zhu submits he was not driving dangerously because he did his best to reduce his speed after being struck by sun-glare, activating hand and foot brakes to slow down and stop.

[20]   The CCTV footage does not show Mr Zhu progressively dropping his speed as he approaches and enters the intersection. Instead, it shows a relatively steady speed from half way down the preceding block until the point at which the front right side of his car contacts the pedestrian. At that point the car is at least three car lengths into the intersection. In any case, as Judge Powell observed:20

19 Conviction decision at [9].

20 At [10].

The obligation on Mr Zhu was clear, to stop at the red lights, slowing down in those circumstances would never have been good enough particularly given he had seen the pedestrians ahead.

[21]   In short, driving through a red light into a busy pedestrian crossing is precisely the sort of “aggravated or inexcusable breach [which serves to] create a reasonable likelihood of danger to those using the road”.21

[22]   I therefore see no error in the sentence imposed by Judge Powell. The Judge correctly noted Mr Zhu’s offending fell at the lower end of the spectrum in light of the relevant caselaw.22 He imposed the mandatory disqualification period of six months and – recognising this would constitute a real hardship for Mr Zhu in his job as a mechanic – imposed only a $700 fine as well. This sentence is well within range in light of comparable cases.23 It cannot be said manifestly excessive for Mr Zhu’s offending.

Result

[23]Mr Zhu’s appeals against conviction and sentence are dismissed.

—Jagose J

21 At [8].

22 Sentencing decision at [7].

23     At [8]-[9].