McCoy v Police [2023] NZCA 108 (19 April 2023)

Last Updated: 24 April 2023

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA143/2022 [2023] NZCA 108

	BETWEEN	JAKE ELIJAH MCCOY Appellant
	AND	NEW ZEALAND POLICE Respondent

Hearing:	20 March 2023
Court:	Brown, Lang and Palmer JJ
Counsel:	A J Bailey for Appellant M J Lillico for Respondent
Judgment:	19 April 2023 at 2.30 pm

JUDGMENT OF THE COURT

The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Brown J)

Introduction

[1] Following a judge-alone trial in the District Court at Christchurch the appellant, Mr McCoy, was convicted on a charge of dangerous driving.^[1] His appeal against conviction in the High Court was dismissed.^[2] He appeals to this Court pursuant to a grant of leave.^[3]

Factual background

[2] Mr McCoy was charged with driving a motor vehicle in a manner which, having regard to all the circumstances of the case, might have been dangerous to the public or a person.^[4]

[3] The circumstances of the offending were described by Judge Brandts-Giesen as follows:^[5]

[2] The complainant in this matter is [B] whose fiancée apparently lives ... [in a Christchurch suburb]. He was visiting her and had driven his vehicle which he had earlier parked further down the road according to the fiancée ... He drove this and parked it in a conventional manner outside her home. Before getting out of the vehicle he checked and saw a vehicle in the distance coming around the roundabout at [a road] which [was] some distance from where the complainant parked. The complainant got out of the vehicle and says he was clear of it by the time the defendant came to pass it. The complainant’s evidence was that the defendant hurled some abuse at him; drove on and did a u-turn at the intersection of [a number of roads] where there is a roundabout. He then came back towards the complainant’s vehicle and stopped in the middle of the road hurling more abuse at the complainant including calling him a [racial slur] and then proceeded and stopped the vehicle on the wrong side of the road but just past the complainant’s vehicle. The exact distance does not matter much but it appears to have been in the vicinity of three or four metres.

[3] The defendant’s vehicle was a utility with the back end closest to the back of the complainant’s vehicle. The defendant then threatened to damage the complainant’s vehicle. The complainant told him to go away. The defendant continued with his threat and reversed his vehicle towards that of the complainant but the complainant stepped between the defendant’s vehicle and his own vehicle and the defendant stopped his reverse. The reverse, according to a neighbour who saw this, was not fast nor slow. It would be difficult, in my view, to estimate the speed because of the short distance covered.

[4] The defendant was then told by the complainant that the police were being called. The defendant said he did not care and would be back. He said that he would be back with his friends, according to the evidence of [the neighbour]. The defendant then drove back towards the [first] roundabout ... went around the roundabout and came back again and drove off. The police arrived after the defendant had left but the defendant was apprehended.

[4] Although the submissions for both sides recorded that Mr McCoy was apparently aggrieved by the way in which B had opened the door of his parked car as Mr McCoy was driving past, we note that the District Court Judge considered that B was already out of the car with the door closed and clear of the roadway before Mr McCoy approached.^[6]

The District Court judgment

[5] The District Court Judge posed the question: was the display of driving by Mr McCoy driving in a manner which, having regard to all the circumstances of the case, had been dangerous to the public or a person?^[7] After observing that Mr McCoy had driven aggressively and that he was aggressive towards not only B but possibly his fiancée as well,^[8] the Judge concluded:

[7] The defendant hurled abuse at the complainant; turned at the roundabout ... as I have said, and drove back and having first parked or stopped in the middle of the road and then got to the side of the road I find that he did accelerate, or that he did back towards the complainant’s vehicle after threatening to damage it, wisely or unwisely, unfortunately [sic] with no damage. The complainant got between his vehicle and that of the defendant, and the defendant stopped.

[8] I find that the defendant may well have stopped short of hitting the complainant and when he started the backing movement the complainant was not immediately behind the vehicle. Nevertheless, the aggression that he had shown before, during, and after this incident were such that in my view he was driving in a manner which could have been dangerous or might have been dangerous to the complainant and the two onlookers who were close by on the footpath.

[6] The Judge observed that it was possibly unwise for B to have moved in between the two vehicles and that it could be said that he thereby created the danger. However, in the Judge’s view the danger that existed lay in the wider context of how Mr McCoy was driving and how he was behaving.^[9] The Judge stated:

[9] ... While he may have said that he was going to damage the complainant’s vehicle, his general demeanour was such that anything could have happened, and this man was dangerous in my view at the wheel of that vehicle at that time in the manner in which he was driving it. Accordingly, I find the charge to be proved beyond reasonable doubt.

The High Court judgment

[7] On appeal Mr Bailey, counsel for Mr McCoy, submitted that the District Court Judge erred because he did not consider the manner of the actual driving but instead focused on Mr McCoy’s internal aggression and his behaviour. He submitted that Mr McCoy did not intentionally drive his vehicle towards B: he reversed at a low speed but stopped reversing when B placed himself between the two vehicles. Mr Bailey contended that, viewed objectively, moving or parking vehicles in close proximity to other vehicles or people is an everyday occurrence.

[8] Osborne J commenced by recognising that whether driving is dangerous is to be judged objectively and does not depend on the defendant’s state of mind.^[10] He stated it must be shown that the situation, viewed objectively, was or might have been dangerous and that the driver failed to meet the standard of care expected of a competent and experienced driver.^[11] The Judge identified as the issue whether the District Court Judge erred in finding the speed and manner in which Mr McCoy drove, having regard to all the circumstances, was or might have been dangerous to the public or to a person.^[12]

[9] On that question Osborne J reasoned:

[45] Although I accept the Judge may have focussed unnecessarily on Mr McCoy’s aggressive feelings, it was open to the Judge to have a general regard to the broader circumstances. The Judge did not conclude the driving was dangerous simply because of Mr McCoy’s aggression. Rather, he found that “the danger that existed in [his] view is in a wider context of how the defendant was driving and how he was behaving”.

[46] That saw the Judge conclude Mr McCoy’s driving was dangerous in the wider context of how he was driving. The Judge had earlier noted that “[Mr McCoy] stopped in the middle of the road ... and then proceeded and stopped the vehicle on the wrong side of the road but just past the complainant’s vehicle.” This occurred before Mr McCoy reversed towards the complainant’s vehicle, with pedestrians nearby.

(Footnotes omitted.)

Consequently the Judge ruled the conviction had not been shown to be unsound.^[13]

Leave to appeal

[10] The application for leave to appeal was made on the grounds that:

(a) the Judge erred by relying on irrelevant evidence of Mr McCoy’s aggressive state of mind in assessing whether his driving was dangerous, resulting in a miscarriage of justice; and

(b) the proposed appeal concerned a matter of general or public importance, namely whether the driver’s state of mind is a relevant circumstance when assessing whether the driving was dangerous.

[11] In its leave decision this Court stated the question whether driving is dangerous is to be assessed objectively, noting there is long-standing authority that it does not depend on a defendant’s state of mind.^[14] Leave to appeal was granted because the Court considered it was arguable that the Courts below erred in taking into account Mr McCoy’s anger and aggression. It stated:^[15]

While the test involves consideration of all the circumstances, it is seriously arguable that a defendant’s general state of mind is not relevant to whether their driving, assessed objectively, was dangerous.

Analysis

[12] It is an offence under ss 7(2) and 35(1)(b) of the Land Transport Act 1998 to drive a motor vehicle at a speed or in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person. In Johnson v Police, an authority cited by Mr Bailey, Mander J succinctly described the applicable standard:^[16]

To prove the offence of dangerous driving, the prosecution must demonstrate that the driving, when viewed objectively, was dangerous and that there was some fault on the part of the driver which caused that situation. The relevant standard for assessing fault is that of the competent and experienced driver, which is to be measured against the manner of the driving in the particular circumstances of the case.

[13] The “manner” of driving refers to the way in which a driver operates a motor vehicle, its speed, its manoeuvring and the use of the vehicle’s amenities such as external lights. Taking that last feature as an example, it would not be dangerous to drive a vehicle without lights activated on a sunny day but it would be decidedly different to do so on an unlit road on a moonless night.

[14] Mr Bailey submitted that there is long-standing authority that a defendant’s state of mind is irrelevant to establishing the charge of dangerous driving.^[17] However, a defendant must have knowledge of the circumstances which make the driving dangerous.^[18] Mr Lillico for the police accepted that determining intention, in the sense of deliberate acts, recklessness or negligence, is not relevant.

[15] However, Mr Lillico emphasised that the circumstances that may be considered are not constrained.^[19] He referred to the recent decision of the Court of Appeal of England and Wales in R v Holder for the proposition that the standard to be expected of a careful and competent driver is inextricably linked to and dependent upon the circumstances in which the driving takes place.^[20] Travelling at a certain speed may be appropriate and safe in one set of circumstances, having regard to the prevailing weather or road conditions for example, but very dangerous in another.^[21]

[16] Mr Bailey’s criticism of the District Court decision, particularly by reference to [9] of that judgment,^[22] was that it focused on what he described as the “threats and disorder” rather than the manner in which Mr McCoy was driving his vehicle. Mr Bailey’s point was that words alone cannot cause the manner of driving to be dangerous driving. Mr Bailey also criticised the District Court Judge’s reliance on Mr McCoy’s derogatory racial language when concluding his driving was dangerous. As Mr Bailey graphically put it in the course of oral argument:

If you are driving along, even if you are very angry, even if you are saying to everyone on the footpath “I’m going to bowl you over, watch out”, you might be liable for something else — threatening to kill etc — but it wouldn’t [be dangerous driving], the manner of the driving is completely fine.

The question was posed to Mr Bailey whether the aggression and the threat (to smash one vehicle with another) could inform how one perceived the manner of driving, namely to implement the threat. Having first observed that “we don’t know completely what he would have done if there was no one [who] got in between the two cars”, Mr Bailey emphasised that no matter what a defendant might utter, words alone could not render the manner of the driving dangerous.

[17] It is well settled that a defendant’s general state of mind cannot convert otherwise lawful driving into dangerous driving. However we agree with Mr Lillico’s submission that, while the objective test for dangerous driving excludes consideration of mens rea, it does not follow that observable conduct, such as an utterance or gesture, is necessarily irrelevant. The act of reversing a vehicle, even on the wrong side of a road, towards persons or property may not be dangerous if undertaken with due care and attention. However when it occurs accompanied by a threat to thereby cause damage in a targeted way, such a contemporaneous statement can form part of the observable circumstances, notwithstanding that the statement also happens to indicate a “state of mind”.

[18] While a number of the authorities cited to us in argument concerned drivers falling asleep, or who had consumed alcohol or drugs,^[23] a decision having greater similarity to the present appeal is the judgment of the High Court of Justiciary in Young v Barbour.^[24] Mr Young was convicted of driving dangerously when he drove behind the complainant at a distance of about three metres making abusive gestures at him, apparently in rage. The sheriff held that the close driving behind the complainant’s car was not caused by mere inattention but was a deliberate course of action. It was submitted on appeal for Mr Young that the sheriff had attached undue importance to the matter of deliberation and that what mattered was not whether his actions were deliberate, but whether the nature of his driving was such as to fall below the requisite standard. It was submitted that, while fear and alarm caused by such conduct might well be relevant to a charge of breach of the peace, the situation was entirely different when one was concerned with the charge of driving dangerously.

[19] In concluding that the conviction was well founded and dismissing the appeal, the Lord Justice Clerk stated:

[6] We have some sympathy with [the appellant’s] criticism of the reasoning contained in the sheriff’s note and we have some concern as to whether he attached undue importance to the matter of deliberation. However, we do not consider that deliberation can be left totally out of account as explaining what happened. On the other hand the critical question is the nature and quality of the driving.

[20] In the present case Mr McCoy’s course of conduct (stopping first in the middle of the road and then proceeding to stop on the wrong side of the road) prior to the act of reversing his vehicle may have fallen short of dangerous driving. However we have no doubt that, following Mr McCoy’s rhetorical question to the general effect whether B wanted him “to smash your car with my car”, the act of reversing from the wrong side of the road towards B’s car, an act which prompted B (possibly ill-advisedly) to step between the vehicles, constituted dangerous driving.

[21] While, as in Young v Barbour, the critical question is the nature of the driving, we do not consider that Mr McCoy’s apparent intention, disclosed by his contemporaneous statements, should be excluded from consideration as a relevant circumstance. We are satisfied that Mr McCoy drove his vehicle dangerously when, consistent with his stated purpose, he reversed his vehicle towards B’s vehicle in circumstances where there was at least one person in the vicinity (B) who may be tempted to place himself in danger in order to prevent damage being done to his vehicle. The fact that there may have been verbal racial abuse prior to the reversing incident cannot add to, but neither can it detract from, the soundness of that conclusion.

Result

[22] The appeal is dismissed.




Solicitors:
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent

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^[1] Police v McCoy [2021] NZDC 15034 [District Court judgment].

^[2] McCoy v Police [2022] NZHC 252 [High Court judgment].

^[3] McCoy v Police [2022] NZCA 617 [Leave judgment].

^[4] Land Transport Act 1998, ss 7(2) and 35(1)(b).

^[5] District Court judgment, above n 1. Mr McCoy was also charged with (and pleaded guilty to) the offence that, with intent to intimidate, he threatened to injure B and damage his vehicle.

^[6] At [5].

^[7] At [5].

^[8] At [5]‑–[6].

^[9] At [9].

^[10] High Court judgment, above n 2, at [41], citing Ebert v Transport Department [1967] NZCA 6; [1967] NZLR 459 (CA).

^[11] At [41], citing R v Gosney [1971] 2 QB 674 (CA) at 680.

^[12] At [43].

^[13] At [47].

^[14] Leave judgment, above n 3, at [15], citing R v Evans [1963] 1 QB 412 (Crim App) at 418.

^[15] At [17].

^[16] Johnson v Police [2022] NZHC 266 at [13] (footnote omitted).

^[17] Citing R v Evans, above n 14, at 418.

^[18] Citing Edmonds v Police [1970] NZLR 267 (SC) at 270–271.

^[19] Sections 7(2) and 35(1)(b) of the Land Transport Act refer to “having regard to all the circumstances”.

^[20] R v Holder [2023] EWCA Crim 5, [2023] 4 WLR 14 at [19].

^[21] At [19].

^[22] Quoted at [6] above.

^[23] Johnson v Police, above n 16; R v Seymour CA75/97, 11 June 1997; and Lodge v Magorian [2012] WASCA 90, (2012) 42 WAR 270.

^[24] Young v Barbour [2002] SCCR 84 (HCJAC).