Police v McGarry [2017] NZDC 5654 (17 March 2017)

Last Updated: 8 August 2017

EDITORIAL NOTE: SOME NAMES AND/OR DETAILS IN THIS JUDGMENT HAVE BEEN ANONYMISED.

IN THE DISTRICT COURT AT HAMILTON

CRI-2016-019-002713 [2017] NZDC 5654

NEW ZEALAND POLICE

Prosecutor

v

CONROY TE KARU O RAUKAWA MCGARRY

_Defendant

Date:	17 March 2017
Appearances:	Sergeant J Broom for the Prosecutor G Prentice for the Defendant
Judgment:	17 March 2017

_{ORAL JUDGMENT OF JUDGE D M WILSON QC}

[1] Conroy Te Karu O Raukawa McGarry, you are charged with driving in a dangerous manner causing injury to [the victim] on 4 December 2015. This is a charge brought against you and you start with the presumption of innocence. It should only be set aside if and when the prosecution establish beyond reasonable doubt that you are guilty. The obligation the trial Judge is to be impartial between the police and the person charged and that is the undertaking that I have entered upon.

[2] In order to establish a charge under that section the police must establish that you were driving a motor vehicle. That of course is not contested. The second point is that they must prove beyond reasonable doubt that your driving fell below the

_{standards expected of a reasonably competent driver and that you were responsible}

NEW ZEALAND POLICE v CONROY TE KARU O RAUKAWA MCGARRY [2017] NZDC 5654 [17 March

2017]

for that lapse. The third is that the driving created a dangerous situation and the dangerous driving caused injury to another person. It is a matter of law that there can be more than one cause of a collision. Here in this case you are effectively saying that the cause of the collision was the action of the driver of the SR6 in competing with you when you endeavoured to overtake and then braking so that you could not get back in line.

[3] The evidence of three witnesses was read by consent. Dr Nicholas Smith deposed to the injuries to [the victim] and I hear acknowledge that you yourself were seriously injured in this incident and Constable Karl Dimery attended for blood alcohol samples to be taken and I am advised that they showed there was no alcohol in the system of either you or [the victim]. I want to comment here that the matter that was raised about cannabis is irrelevant to my consideration. It was a significant time before and it would be inappropriate for me to place any weight on it.

[4] Constable Alan Daltry oversaw Constable Gees and she made some measurements. Those measurements were from a suggested impact site, although I am not sure which one she choose and for what it is worth it was 39 metres from the end of the south bound passing lane and 61.5 metres to the final resting place of your car.

[5] The impact was so significant and at such a speed that great damage was caused to both vehicles. Both of you had to be extracted by the fire service because you were trapped in your cars and it must have been a very frightening experience. It certainly was for [the victim] and no doubt it was for you as well. There was always the fear of fire.

[6] There was no crash analysis done by the prosecuting authority and I was advised that the accident was not regarded as serious enough to warrant such attention to detail so I must enter upon my task of judgment the best I can with the evidence that actually was produced.

[7] [The victim] was driving heading north, planning to stay overnight in

Cambridge after work commitments. She left the Fonterra plant in a rental Corolla

about 5.30 and as you and she had both said the driving conditions were very good indeed. There was not too much traffic. At the point where this collision took place there was a 100 kilometre sign posted and the line of traffic that she was in was travelling at about 90 kilometres.

[8] She just passed the intersection with State Highway 29 with a car in front of her about two or three lengths away and she described seeing a “red bullet” coming across the centre line out of the corner of her eye which smashed into her car. She had no time to react. The impact point which is also supported by the photographs was head on but off centre. The noise of the collision made her feel sick. She was panicked and in the car not surprisingly yelling for help and trying to get out and having this fear of fire. Eventually people got her out and she suffered, apart from the emotional trauma of that experience, a broken wrist and finger, haematomas and concussion and burns on her face from the airbags. These constitute injuries for the purpose of this charge. These injuries were caused by the collision between your car and her car.

[9] She did not recall your vehicle sliding towards her and she said that your car did not appear to be turning with the angle of the road given that it was on a slight bend. She said your car was on her side of the road and again this is not really disputed. This is an action that took place on the incorrect side of the road for you. She said she did not see any evasive action.

[10] [Witness 1] was the driver of the SR6. She was heading in the same direction as you. She had one passenger in her car. She was in the left-hand of the two lanes, the right lane being the passing lane that you were in. You were in the process of overtaking a line of traffic and she might have been either you thought, the fourth or fifth car you overtook. The passing line she said came to an end at the top of the hill on a right-hand bend. None of the photographs show this and there was no evidence from the police about it. She saw your car overtake another car in the rear vision mirror and she said that this car was travelling faster than her speed of 95. That links into your own evidence of you doing 105 and then up to 110 to overtake. The vehicle was your red Holden. She said that the overtaking lane stopped at her driver’s door.

[11] She put her foot down to get away. She said there was nowhere to go. Her evidence was that by this time you were beyond the passing lane’s safety. She said she could have touched your car you were so close in overtaking and that you did not drop back. She described it as a dangerous situation that she was in. Either she hit you or the bank. She chose to accelerate. She was very close to the left-hand side of her lane. There was just a bank there. She identified where this was in photograph

31 as being to the right of the constable in the yellow jacket. She said your car crossed the centreline because you had run out of overtaking area and she denied there had been any collision even slight with your car.

[12] Her statement of 18 January 2016 was put to her and there was this passage in the statement: “I couldn't slow down because of the car behind, if the driver of the Holden had wanted to move behind me he could have, there was enough room.” She went on, “There was no overtaking lane available so she did not have the option of slowing down to let you in but she thought you could have moved.”

[13] In my judgment this motorist was put in an impossible position by your overtaking manoeuvre. You have placed at her door the responsibility for this accident but it was your driving that put you on the wrong side of the road overtaking a stream of traffic and you did not look ahead to see if it could be completed satisfactorily and safely.

[14] The proposition was put to Ms [Witness 1] that she was actually competing with you. Indeed that is what you said as well that if she in the slow lane had stayed slow you would have been fine. She denied braking heavily. She said she saw the collision but confronted by her statement acknowledged that she had then said, “I wasn’t aware the red Holden had hit another car until after we stopped and I got out of the car.” A further part of her statement was that, “His bonnet was level with my right rear door when I heard an impact. I thought he had hit me. I didn’t know what he had hit. I saw his car spin out in my rear vision mirror. I thought he was going to hit me. I saw a wheel coming off his car.”

[15] Having had that put to her she acknowledged that perhaps the wheel did not come from your car but maybe it was debris or it came from the other car and indeed

the photographs of the Corolla shows that wheels are missing from it. She said that she pulled over frozen and spewed up but this was not because she was responsible. In re-examination she said that it was after she heard the impact she saw the wheel and she saw your car spinning.

[16] [Witness 2] was about a car length behind the Corolla and her evidence does not really add much except to say that she said she was on 100 kilometres because of the intersection in the area and she had oil over the windscreen and was really frightened that she was going to be involved in the accident. Fortunately she was not.

[17] Constable Gees gave evidence and she spoke to you at the scene and recorded what you said and this is not disputed. You said, “It was my fault, I was overtaking and it just swung out.” When your counsel was asking you to explain that you could not really do so.

[18] During the course of the hearing there was an objection to the expert evidence led from Constable Gees and for the reasons that I stated I ruled that opinion evidence out in fairness to you. She did describe an off centre head-on collision which is completely in line with what the other drivers said. She found marks on the road and debris which she thought was the collision point but that is not something on which notice was given.

[19] The question was then raised in cross-examination with her about what you said in your statement to police. That was this: “I hit him.” You were using “him” because it was the driver of the other car, you did not know it was a woman but you talked about the SR6. “On the rear corner of the driver’s side was my left side passenger’s door.” But as things developed there was no damage on the left side passenger’s door as photograph 17 shows. I will return to that.

[20] In your evidence you said that you had had this 3.5 litre Holden car for about a month at this date and you had stopped at the Mobil Karapiro heading home on a lovely day. You reached the passing line in the area of the Horohoro Bridge at State Highway 1 and you moved to overtake and you overtook three cars. Later in the

evidence you thought maybe there were four before you got to the SR6. You were travelling at 105. You say you got in front of the SR6 but she sped up and you both sped up. You thought there was still heaps of room, 15 metres ahead in front of you and the front of her car would have been by your petrol tank but she sped off up and you eased on your accelerator. You could not pull in behind because there was no room. You tried to feather and pull in behind, you could not. You tried to avoid a collision. You bounced off her car caused by her braking aggressively. She did not brake heavily and if she had followed the road rules by not speeding in the slow lane one of this would have happened, you said.

[21] You were thrown off by the collision with the SR6 and you were terrified of the thought that you might crash into the smaller car coming in the other direction and kill the driver. All you could see was the Toyota’s front bonnet. You had been flung across the road by the collision with the SR6, you said and you were heading head-on towards the Corolla.

[22] You acknowledged that your car was on the Corolla’s correct side of the road and your wrong side. You described how you were pinned by your engine and the serious injuries that you suffered which are still with you.

[23] You acknowledged that you told Constable Gees what she reported, namely that it was your fault. You were overtaking and it just swung out and then you said in your own evidence, “I thought I had killed her, I was on the ground with both ankles by my knees,” and you do not know why you said those things. There was only one contact with the SR6.

[24] As far as your state of mind was concerned you were scared, sick, frustrated at yourself for something bad like taking someone’s life and these were the feelings you had when you were still on the ground as photograph 18 shows.

[25] So what you were thinking about at the time was your responsibility for the accident and your feelings as you record them and report them and what you said to the constable display how you felt at the time. You thought that you were going up the hill, the road was clear in front of the SR6. You had, you acknowledge, seen the

warning signs for the end of the passing lane at 200 metres and you realised you were coming to the end of the passing lane but “clear as wood it went smooth”, you said, until the SR6 sped up and you pushed to 110 kilometres to overtake. If you had not overtaken the car you said you would have hit her in the “arse”. You acknowledged that you had a restricted driver’s licence, that the road was narrowing at that stage and that you ran out of room.

[26] There was some discussion about whether the crease above the indicator of your car was a collision point. That has not really been established. I do not count it against you that you thought the collision was on the passenger’s door if it was actually slightly forward of that. I find on the whole of the evidence that there was a contact between your car and the SR6.

[27] Now I return to the matters that the police must prove if they are to establish their case. The first of those questions is: did the driving fall below the standards expected of a reasonably competent driver? I find that your driving did. You overtook this stream of traffic and you knew that the road was narrowing. You then got into a situation with the SR6 driver where she was panicked by you overtaking in a wholly inappropriate place. You were responsible for that lapse and your driving created a dangerous situation from which it is fortunate no one was killed.

[28] I find that it was your dangerous driving that caused this injury to [the victim]

and accordingly my verdict is guilty.

D M Wilson QC District Court Judge