H v Police HC Christchurch CRI 2009-409-5 [2009] NZHC 760 (7 July 2009)

Last Updated: 18 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

_{CRI 2009-409-000005}

H

Appellant

v

POLICE

_Respondent

Hearing: 2 July 2009

Counsel: R G Glover for Appellant

C E Butchard for Respondent

Judgment: 7 July 2009

_{JUDGMENT OF FOGARTY J}

[1] On a Saturday afternoon in June 2008 Mr H approached the intersection of Buccleugh Street with Cashel Street, on a wet surface, his speed estimated by an observer to be between 50 and 60 kilometres per hour. There was another vehicle driving down Buccleugh Street. As Mr H car entered the intersection it swerved, spun and collided with the other car, writing it off.

[2] To a police officer at the scene Mr H said he thought he had had a turn, that he was on medication for epilepsy and gave the name of his doctor. In evidence at the trial he said he could remember turning the corner, seeing the sun, putting his

_{arm up to shield his eyes from the sun but that is all.}

H V POLICE HC CHCH CRI 2009-409-000005 7 July 2009

[3] At the time Mr H did have a chronic medical condition involving an infection of the middle ear, for which he later had an operation. He was on medication for this condition. However, he was not on medication for epilepsy.

[4] His doctor was called by the police apparently to confirm that he was not on medication for epilepsy. However, in the course of cross-examination the doctor agreed it was possible that his medical condition could have caused the erratic driving that led to the accident. He was asked by the Court to enlarge on that possibility and said:

Well given the patients particular pathology of the middle ear it is possible that he could have had some episode of dizziness relating to that. There are other possibilities. I don’t know if it was a hot day but it’s possible to get dizzy from low blood pressure on a hot day, there’s a lot of possibilities but the probabilities, on the probabilities I think an epileptic turn is really unlikely but it is possible, still possible that he had an epileptic turn but unlikely.

[5] On 13 October last, before the trial, and at the request of the Land Transport authority, the doctor wrote to the Land Transport Authority as follows:

13 October 2008

RE: Mr Terence H

2/698 Gloucester St

Christchurch

Age 41y D.O.B. 26 Feb 1967

Phone: [phone]

Dear Sir/Madam

This patient of mine had an accident in June 2008 and was disqualified from driving because of the possibility he may have had a turn. He has had no turns in the past and nil since so the possibility is unlikely and I believe he is fit to drive. Below are my clinical notes relating to this.

... Oct 2008 John Smalley (JS)

Had an accident in June 2008 and disqualified from driving because it was uncertain if he had a turn. At the time he was having some dizzy spells

because of his chronic ear problems but these have resolved following his recent operation.

No history of epilepsy or previous turns

/bp 150/80 pulse 75 reg.

23 Jun 2008 John Smalley (JS)

Was in a MVA.

Turned into a street and the sun was in his eyes. Held his arm up in front to stop the glare and woke up after the accident. Doesn’t know if he had a turn

but is charged with careless use of a MV and disqualified from driving

because of a possible turn.

[6] Judge McMeeken was impressed by the fact that although the accident took place on 7 June it was not until 23 June that Mr Smalley discussed this accident with his doctor. She suspected he was just making an excuse. She relied on the doctor as saying that the possibility of him having a turn:

... is unlikely on the basis that you have not had one before or since.

She then reasoned:

[13] I listened particularly closely to the evidence of the doctor. When I consider his evidence together with the fact that you did not seek medical attention after the accident in respect of having had a seizure of some kind I am not persuaded that in fact you had a seizure that day. Equally I am not persuaded from your evidence and the evidence of the doctor that it was dizziness that led you to drive in the manner that you did. You have said you have a bump on the head after the accident. I am not sure whether the bump on the head has caused you to have no recollection of what happened. The bump on the head does not appear to have been mentioned to the doctor. The driving Mr H on that day fell well below the required standard. The evidence of Mr Lavea was that you were going too fast. You certainly lost control. That may well have been because you were going too fast. Your car spun. The road had been a little wet and you crashed into another car. My view Mr H is that you came around that corner too fast and again I rely on the evidence of Mr Lavea and that you lost control. His evidence was he saw your car turn the corner and that you lost control. He said that you were going fast and your car then began to swerve. I think that that is indeed what [happened] Mr H that you came into Buccleugh Street too fast and as a result of your speed and possibly because at the same time as you came into the street you took one hand off the steering wheel to shield your eyes you lost control and you crashed into another car. I find the charge of careless use to be proved.

[7] Mr Glover’s argument is that Judge McMeeken was applying the wrong test in her analysis. He argued that she was not examining whether the case had been proved beyond reasonable doubt and in that context eliminating any doubt as to a turn or dizziness but rather was making a finding on likelihood or probabilities as to whether or not dizziness led him to drive in the manner that he did.

[8] Ms Butchard submitted that it was implicit in the quoted reasoning that the Judge was exploring whether it had been proved beyond reasonable doubt that he was careless and in that context eliminating a real possibility of dizziness.

[9] The language appearing in paragraph [13] is more consistent with an accidental reversal of the onus of proof requiring the defendant to persuade her that he had a seizure of dizziness that day.

[10] Further, the subject was not explored adequately in evidence. Mr Glover won a concession from the doctor that some other kind of disabling term, for want of a better word, could have caused the erratic driving. The doctor answered “yes that’s possible”. Scientists and other scientifically trained professionals will readily agree possibilities. That may not be sufficient to raise a reasonable doubt. The Judge quite properly did not leave the answer that way and asked the doctor to develop his reasoning. That led to the answer that I have set out above. But what the Judge did not do is reframe Mr Glover’s questioning according to whether or not there could be a reasonable doubt. We do not know how Dr Smalley would have answered that question. However, we do know that his letter of 13 October was taken from his clinical notes which record the patient reporting to him in October that he had been having some dizzy spells because of his chronic ear problems. We do know that he did have chronic ear problems and that there was an operation to resolve them.

[11] The Judge had ample grounds to conclude on the probabilities that this was careless driving. But in the way the evidence came out and the way she reasoned, in an oral judgment, I have come to the conclusion that the verdict is unsafe as I am not at all sure that the correct standard of proof was imposed on the police during the trial. For this reason the conviction is set aside.

[12] I have considered whether or not the case should be retried. Mr H paid reparation and had made those arrangements prior to the trial. The Judge did not disqualify him from driving. She convicted and discharged him.

[13] In these circumstances there is no justification for a further trial. The appeal is allowed.

Solicitors:

R G Glover, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent