Gordon v Police [2016] NZCA 547 (22 November 2016)

Last Updated: 4 December 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA308/2016 [2016] NZCA 547
BETWEEN	CHRISTINE GORDON Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Asher, Dobson and Ellis JJ
Counsel:	M B Meyrick for Applicant J D Slankard for Respondent
Judgment: (On the papers)	22 November 2016 at 11.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.
____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

The application

[1] This is an application for leave to pursue a second appeal from a traffic prosecution originally determined by Judge McAuslan in the Manukau District Court on 22 April 2016. The applicant (Ms Gordon) was charged with operating a motor vehicle carelessly and thereby causing injury. The District Court Judge found the charge proven and duly convicted Ms Gordon.^[1]
[2] Thereafter, an appeal against conviction was heard in the High Court at Auckland in June 2016. That first appeal was governed by s 232(2)(b) of the Criminal Procedure Act 2011 (CPA) and involved a consideration of whether the District Court Judge had erred in her assessment of the evidence to such an extent that a miscarriage of justice had occurred. Gilbert J dismissed the appeal.^[2]
[3] Under s 237(2) of the CPA, this Court must not grant leave for a further appeal unless it is satisfied that the appeal involves a matter of general or public importance, or that a miscarriage of justice may have occurred or may occur unless the appeal is heard. The respondent has filed a notice of opposition to any grant of leave.
[4] On 5 August 2016, the Court directed that the application for leave to appeal was to be determined separately from the proposed appeal, and that it was to be dealt with on the papers. That has now occurred.

The facts

[5] At 5.35 pm on 7 July 2015, Ms Gordon was driving on Atkinson Avenue, Otahuhu, Auckland. The District Court found that her relevant driving conduct was adequately recorded on CCTV footage that was shown at the District Court hearing. She was proceeding without her headlights on in a very dark coloured car. A pedestrian stepped out onto the road in front of Ms Gordon’s car and she collided with him. The victim suffered serious injuries including a broken pelvis, broken legs and bleeding on the brain.
[6] In the District Court, counsel for Ms Gordon, Mr Meyrick, cited r 8.3 of the Land Transport (Road User) Rule 2004, which requires a vehicle’s headlamps to be on during the hours of darkness. The hours of darkness are defined in r 1.6 as the period of time between half an hour after sunset on one day and half an hour before sunrise on the next day, or any other time when there is not sufficient daylight to render clearly visible a person or vehicle at a distance of 100 metres. Mr Meyrick produced evidence at the District Court hearing that sunset on the relevant day was at 5.18 pm, on which basis he argued, under the first limb of the definition, that the accident occurred less than half an hour after sunset.
[7] Ms Gordon was driving on a learner’s licence. The vehicle belonged to her brother, and there was no question of consumption of alcohol before she drove. Her defence was that the victim stepped off the footpath directly into her car so that the collision was caused by his not seeing the vehicle and that there was no want of care on her part as the driver.

The District and High Court decisions

[8] In the District Court, the Judge found that Ms Gordon had seen the victim in her peripheral vision before he was hit, and that she had been driving without her headlights on.^[3] All the other vehicles visible in the CCTV footage at the time of the accident did have their headlights on. The Judge found that the failure of Ms Gordon to have her headlights on in the conditions at the time of the accident clearly amounted to driving which fell below the standard of the reasonable and prudent driver in the circumstances, and that she was certainly driving carelessly.^[4] The elements of the charge were accordingly made out so that the charge was proven.^[5]
[9] In the High Court, Gilbert J considered the Judge’s analysis of the evidence, concluding that there was no error in the Judge’s assessment. Gilbert J found that the evidence established:^[6]

(a) the accident occurred shortly after sunset in the middle of winter;

(b) it was almost dark;

(c) it was raining steadily;

(d) visibility was poor;

(e) the road was wet;

(f) the traffic was heavy;

(g) all other motorists had their headlights on;

(h) the car Ms Gordon was driving was very dark green in colour and therefore would have been difficult to see in darkness;

(i) Ms Gordon intended to put her headlights on because it was dark and thought they were on; and

(j) Ms Gordon did not have her headlights on.

[10] In reliance on those factors, the Judge was satisfied that reasonable and prudent drivers would indeed have had their headlights on at the time.^[7] Gilbert J also rejected an argument to the effect that not having the car’s headlights on was not careless use, as the headlights would not have made any difference. The Judge upheld the District Court Judge’s finding that the victim would not have stepped out on the road directly in front of Ms Gordon’s dark and unlit car, if he had seen it.^[8]
[11] Accordingly, Gilbert J concluded that there was no error in the District Court Judge’s determination that carelessness in failing to turn the headlights on had caused the accident. That failure was a proximate and material cause of the accident and the consequent injuries to the victim. For those reasons, the appeal was dismissed.^[9]

Can grounds for leave be made out?

[12] Mr Meyrick argued that the cause of the relevant accident was an element of the offence and was required to be proven beyond reasonable doubt. He sought to argue that in both Courts, the decisions depended on findings that the failure of Ms Gordon to turn on her headlights was the cause, without requiring that element to be proven beyond reasonable doubt.
[13] Both the District Court and High Court decisions were determined on factual findings that applied the relevant legal principles in an entirely orthodox way. The findings against Ms Gordon in both Courts were on the facts. Nothing in the submissions in support of the application for leave raise any realistic prospect of an error in the approach to the legal elements of the charge in either decision. Nor can there be any tenable suggestion that the analysis of the evidence and factual findings were not clearly open to the Court on the evidence that had been heard.
[14] It follows that we are satisfied that there is no prospect that any miscarriage of justice may have occurred. It was not suggested in Mr Meyrick’s submissions that the appeal could raise any matter of general or public importance.
[15] Accordingly, the application for leave to bring a second appeal is declined.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Police v Gordon [2016] NZDC 7243.

^[2] Gordon v Police [2016] NZHC 1357.

^[3] Police v Gordon, above n 1, at [7].

^[4] At [12].

^[5] At [18].

^[6] Gordon v Police, above n 2, at [9].

^[7] At [10].

^[8] At [13].

^[9] At [14].