R v Slater CA557/95 [1996] NZCA 268; [1997] 1 NZLR 211; (1996) 14 CRNZ 189 (12 August 1996)

Last Updated: 12 February 2019

_{IN THE COURT OF APPEAL OF NEW ZEALAND CA 557/95}

THE QUEEN

v.

_{RONALD KEITH SLATER}

Coram: Eichelbaum CJ Thomas J Tompkins J

Hearing: 24 July 1996 at Auckland

Counsel: R B Stewart for Appellant

J C Pike for Crown

Judgment: 12 August 1996

_{REASONS FOR JUDGMENT OF THE COURT DELIVERED BY THOMAS J}

Application for special leave to appeal

Mr Slater applied for special leave to appeal to this Court pursuant to s 144(3) of the

Summary Proceedings Act 1957.

The application was heard on 24 July last. We did not need to call upon Mr Pike, who appeared for the Crown. Leave to appeal was refused and we indicated that we would give our reasons in due course.

The decision in the District Court

In a reserved judgment given by the District Court Judge in the District Court at Waihi, Mr Slater was convicted pursuant to s 56(1) of the Transport Act 1962 with causing bodily injury to a named person by careless use of a motor vehicle. He was fined $300.00, ordered to pay Court costs and witness expenses of $95.00 and $68.00 respectively, and was disqualified from holding or obtaining a driver’s licence for the minimum period of six months commencing on 15 January 1995.

The charge arose out of an accident which occurred at the intersection of Old Tauranga Road with State Highway 2 south of Waihi. Mr Slater’s car collided with a truck and trailer being used in conjunction with a road working gang. The truck was commencing to execute a U-turn in the intersection when Mr Slater’s car came around the bend heading towards it. After skidding for a distance it collided with the truck and trailer. One of the workers in the gang was thrown off the trailer and injured.

After a comprehensive examination of the evidence and a close analysis of the facts, the Judge held that Mr Slater had failed to reach the required standard of the reasonable prudent driver. The Judge held that the “first step” in Mr Slater’s failure to reach the requisite standard of care was his omission to see a 30 km speed road sign which the Judge accepted had been put in place by the road gang. He then found that it was very likely that, at the point Mr Slater had applied his brakes to avoid colliding with the truck and trailer, he was “doing in excess of 60 km/hr and probably closer to something between 80 and 90 km/hr”. Faced with the evidence of Mr Slater, however, to the effect that he had seen the truck and trailer from a distance of 150 metres or so, the Judge inferred that his attention must have been diverted or lapsed for a short but critical period of time prior to the collision. During this period, the

Judge concluded, Mr Slater did not pay proper attention to the road. As a result he did not see the truck doing the U-turn until it was too late.

Having concluded that the truck had not been turning suddenly, the Judge expressed the view that Mr Slater’s lack of attention and his sudden realisation that the truck was in front of him caused him to brake harder than necessary causing his car to skid. He finished his judgment with the following findings of fact:

“...Mr Slater did not see the 30 km/hr sign. He had not slowed down sufficiently. He did not keep a proper look out to see what the truck and trailer were doing and in all these matters he was therefore failing to reach the required standard of the reasonably prudent driver.”

It was this latter aspect of these findings, that is, that Mr Slater failed to keep a proper look out, which led Mr Slater to harbour a grievance which has ultimately brought him to this Court.

Mr Slater’s appeal to the High Court is dismissed

Mr Slater appealed against his conviction to the High Court. His appeal was heard on

16 May 1995 by Hammond J. The learned Judge reserved his decision and delivered a considered judgment on 20 June 1995. He dismissed the appeal. He said that the District Court Judge was entitled to arrive at the conclusion which he did, that is, that Mr Slater had not kept an adequate look out. As a matter of commonsense, he said, Mr Slater had given himself no prospect of avoiding the collision. He could not hold that the finding of the District Court Judge was not available to him on the evidence.

In response to a submission by Mr Slater to the effect that the case in the Court below had been conducted on the footing of excessive speed rather than an allegation of failing to keep a proper look out, and that this possibility had never been put to him in an appropriate way at the hearing, the learned Judge said:

“A charge such as this is not like a claim of negligence under the common law, in which particulars must be strictly pleaded. The charge is of careless use. If upon examination of all the evidence a judge finds there was carelessness in a sense other than what might have been opened upon by the Crown or the police, I do not think objection can be taken thereto. The important point is what the evidence reveals; or more accurately, whether there is evidence upon which the Judge can properly rely. In this case the Judge had sufficient evidence available to him to make his own assessment. And he came to the conclusion that but for the appellant’s inattention, this accident would not have occurred.”

Mr Slater applies for leave to appeal to the Court of Appeal

Dissatisfied with this decision, Mr Slater then sought leave to appeal to this Court pursuant to s 144(2) of the Summary Proceedings Act. This application was also heard by Hammond J. He refused leave in a reserved judgment given on 24

November 1995. Hammond J referred to the dictum of Lord Goddard LCJ in Simpson v Peat [1952] 1 All ER 447, at 449: “The question whether a man is driving carelessly, to use a compendious expression, raises only a question of fact.” He held that the application for leave was no more than an attempt on the part of Mr Slater to reargue questions of fact before the Court of Appeal.

_{Mr Slater applies for special leave to appeal}

Mr Slater then appealed to this Court for special leave to appeal pursuant to subs (3)

of s 144 of the Act.

In his written submission, Mr Stewart, who appeared for Mr Slater, confirmed that the application was made pursuant to s 144 of the Summary Proceedings Act. It is therefore somewhat surprising that he should have submitted that this Court has “an unfettered discretion as to whether leave will be granted in any particular case”. In support he cited the well-known dictum of Salmond J in Rutherfurd v Waite [1923]

GLR 34 to the effect that an applicant for leave must show good cause why leave should be given. Such a cause is said to arise where the appeal would raise some question of law or fact capable of bona fide and serious argument in a case involving some interest, private or public, of sufficient importance to outweigh the cost and delay of a further appeal. This principle, he urged, had been confirmed by Somers J in Cuff v Broadlands Finance Ltd [1987] NZCA 93; [1987] 2 NZLR 343. Somers J said (at 347) that the indicia mentioned by Salmond J are still important. He observed that the section places no fetters on the exercise of the discretion to grant leave and, that being so, the guiding principle in the end must be the requirements of justice.

But these cases do not relate to applications for leave to appeal pursuant to s 144 of the Summary Proceedings Act at all. They relate to applications for leave to appeal pursuant to s 67 of the Judicature Act 1908, a section which provides for appeals from inferior Courts in the Courts’ civil jurisdiction. Section 67 has no application to this case. Nor do the cases to which Mr Stewart referred.

Notwithstanding that the decision to bring the present application may have been based on counsel’s misapprehension, Mr Stewart proceeded with the application under s 144(3).

The requirements of s 144(3) of the Summary Proceedings Act

But the requirements of s 144(3) are crystal clear. They do not require any judicial explanation or clarification. Under subs (3) this Court can grant “special leave” for an appeal to be heard by this Court if it is of the opinion that the question of law which is involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court for decision. Thus, there must be (i) a question of law, (ii) the question must be one which, by reason of its general and public importance or for any other reason, ought to be

submitted to the Court of Appeal, and (iii) the Court must be of the opinion that it ought to be so submitted. It is probably neither necessary nor desirable, however, to break the requirements of the subsection down in this way. Such an analysis merely serves to highlight the essential elements which must be present before leave to appeal can be granted. It is sufficient to pose the statutory question: is there a question of law which, by reason of its general or public importance or for any other reason, ought to be submitted to this Court for decision.

In the course of his judgment refusing leave to appeal, Hammond J referred to three High Court decisions. The first two are Kohu v Police [1989] 5 CRNZ 194, and Skokandich v Police [1994] 3 NZLR 247. These cases were mentioned in support of the proposition that there is a residual discretion under s 144(2) (the wording of which follows subs (3)) to avoid a manifest injustice. With respect, this dictum may convey an erroneous impression. The Court has a residual discretion to refuse to grant special leave even though there is a question of law involved and that question is a question of general or public importance, but it does not have a discretion to grant leave if no question of law arises in the appeal. The Court cannot enlarge the jurisdiction conferred upon it by statute by construing its discretion more broadly than the statute permits. The Court might, perhaps, in certain circumstances decide that a question of law which is not of general or public importance ought to be submitted to the Court for decision because of the words “or for any other reason”. But these words go to the reasons for submitting the question of law to this Court for decision; they do not enable the Court to dispense with the requirement that there must be a question of law. The dictum of Hammond J in the judgment in the Court below is to be regarded as being in error to the extent that it is capable of suggesting otherwise.

The other case Hammond J referred to is Sigglekow v Gibbs [1991] 2 NZLR 215. He quoted Williamson J’s observation (at 217) in that case that s 144(2) has “received flexible interpretation in the past to ensure that justices are avoided”. It is to be noted

that, in that case, the learned Judge was in fact satisfied that the case raised a point of law which was of general importance and his words are therefore obiter. While this Court will, of course, set its mind against the perpetuation of an injustice, the structure provided by Parliament for the resolution of appeals from the District Court pursuant to the Summary Proceedings Act, and the clear words which it has adopted to implement that structure, cannot be disregarded.

Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subs (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.

The present application - there is no question of law

When s 144(3) is properly construed and applied it is plain that the present application is unsustainable. No point of law is involved in the appeal. The trial Judge correctly stated the test for careless driving. What is essentially the target of Mr Slater’s complaint is the Judge’s application of that test to the facts. Hammond J was correct in the Court below in saying that the application is no more than an attempt on the part of Mr Slater to reargue questions of fact.

When pressed to define with more precision the question of law involved in the appeal, Mr Stewart initially stipulated this question:

“Can a defendant in receiving a fair trial be convicted for careless use on the basis of a factual finding which:

(a) was never advanced by the prosecution at trial, and

(b) was never part of the prosecution’s case.”

After an adjournment, Mr Stewart amended the question to read as follows: “1. Careless use involves a wide range of transgressions.

2. A defendant cannot be convicted on the basis of a factual finding if the allegation leading to that finding was not put to the defendant in the course of the hearing.

UNLESS the finding was the only possible finding or inference available on the evidence.

3. If there is more than one possible explanation or inference then as a matter of law the defendant is entitled to have the specific allegation put and to be heard on it before he is convicted.

4. The Court is not free to determine the matter for itself on the evidence without putting the allegation to the defendant and affording him the opportunity to respond.”

Mr Stewart’s effort to extract a question of law, and the discussion which then ensued with the Bench, served to confirm the absence of a point of law which ought to be submitted to this Court. At heart, Mr Slater’s grievance is that, as the prosecution did not explicitly put a question to him to the effect that he was not keeping a proper look out, it was not open to the Judge to draw an inference to that effect from the totality of the evidence before him. As the finder of fact it was clearly open to the Judge to do so. Mr Slater’s evidence-in-chief indicates that he believed that he was attentive from the time he first saw the truck. The suggestion was even made in cross-examination that he might have been travelling at 55 to 60 km per hour, not having seen the 30 km per hour road sign, so as to be able to observe the surrounding countryside. A considerable body of evidence from a number of witnesses relevant to the charge was heard. The trial Judge concluded that the three effective elements in Mr Slater’s careless use of his vehicle was his failure to see the 30 km per hour road sign, his failure to slow down properly, and his failure to keep a proper look out. The latter

conclusion, as with the other findings of fact, were conclusions which the Judge inferred from the facts which he considered had been established in evidence.

Nor do we agree that any question of law arises out of the claim that Mr Slater was not given the express opportunity to respond to the “allegation” that he failed to keep a proper look out. In fact he was. He was charged with careless driving, not some more specific and hypothetical offence of “failing to keep a proper look out”. As to be expected, and as is apparent from both his evidence-in-chief and in cross- examination, he sought to convey the impression that he was driving with reasonable prudence from the time he first saw the truck and trailer. But looking at the evidence as a whole, the Judge decided that, in combination with his failure to see the speeding sign and his failure to slow down sufficiently, Mr Slater’s approach to the truck was the reason for the emergency which developed causing him to brake sharply and skid into the truck and trailer. It is again apparent that the issue is essentially one of fact and that the Judge in effect rejected Mr Slater’s version of events. If, in respect of a charge of careless driving in the circumstances of this case his own counsel has not put to him a specific question relating to whether he kept a proper lookout, neither the prosecution nor the Judge were under any obligation to do so.

Mr Stewart also sought to invoke in aid s 25(a) of the New Zealand Bill of Rights Act

1990, which affirms that a person who is charged with an offence has the right to a fair trial. But it is plain that the fact a defendant has a right to a fair trial does not and cannot convert what is a question of fact into a question of law for the purposes of s

144 (2) and (3). Mr Stewart also adverted to s 25(h) of that Act in the course of argument. Paragraph (h) affirms the right of a person convicted of an offence to appeal according to law to a higher court against the conviction or against the sentence or both. The right to appeal to a higher court, however, is a right which is affirmed “according to law”. It is therefore a right which must be exercised according to the terms of s 144. Furthermore, it may be noted that the provision speaks of a

single right of appeal to a higher court. Paragraph (h) does not confer a “right” of appeal beyond that higher court.

For these reasons the application for special leave to appeal is refused. The applicant is ordered to pay costs of $1,500, together with the respondent’s disbursements and accommodation and travelling expenses, to be fixed by the Registrar failing agreement.

Counsel

A J H Witten-Hannah, Auckland for Appellant

Crown Solicitor, Wellington for Crown