W v Police HC Rotorua CRI 2009-463-52 [2009] NZHC 992 (29 September 2009)

Last Updated: 18 January 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

_{CRI 2009-463-52}

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 29 September 2009

Appearances: Appellant in person

M Wright for the Respondent

Judgment: 29 September 2009

_{ORAL JUDGMENT OF WOODHOUSE J}

Solicitors:

Mr A R W

Mr M Wright, Gordon Pilditch, Office of the Crown Solicitor, Rotorua

W V NEW ZEALAND POLICE HC ROT CRI 2009-463-52 29 September 2009

[1] Mr W was charged with operating a motor vehicle carelessly on a street in Taupo on 3 December 2008. The charge was under s 37(1) of the Land Transport Act 1998.

[2] The essential allegation of the informant was that Mr W , when parked on a street in the town, opened the door of his car into the path of a truck in the adjacent lane. The truck clipped the outside edge of the door and the door was, to an extent, crumpled back towards the pillar of the car. Mr W was convicted by two Justices after a defended hearing. He was acquitted on a related charge of causing a hazard, arising out of the same facts.

[3] Mr W now appeals against his conviction and against the sentence imposed.

[4] The central part of Mr W ’s defence in the District Court was that although he had unlatched the car door he did not fully open it. Rather, he argued that the door was sucked open by the air movement generated by the passing truck – which was a reasonably large truck. The Justices, having heard all the evidence, rejected that argument.

[5] On appeal Mr W raised four points. However, I have decided it is unnecessary to consider those specific points. This follows from a discussion I had at the outset of the hearing with Mr W , who appeared on his own behalf, and then with Mr Wright, for the respondent. This related to the ultimate issue whether carelessness had been proved beyond reasonable doubt on the assumption that Mr W had opened his door, which was, of course, the finding of fact by the Justices. This query from me arose from some uncontradicted evidence for the prosecution as to the road dimensions, the width of the truck, and the extent to which Mr W ’s car door would have protruded into the carriageway if fully open.

[6] Because this line of inquiry was not indicated by Mr W ’s points on appeal, I took a short adjournment to give Mr Wright an opportunity to review the notes of evidence.

[7] The relevant matters of fact arising from this are as follows. The truck driver was, he said, in the centre of the lane. The lane is 3350 millimetres wide. The truck is 2450 millimetres wide. That leaves a difference in relation to the total lane width of 900 millimetres and, therefore, a clearance of 450 millimetres on the left hand side, if the truck was, as the driver said, in the middle of the lane. The dimensions I have just referred to were expressly referred to by the Justices in their decision.

[8] A further dimension of importance comes from the investigating police officer. He said that the door of Mr W ’s car, if fully open, would have extended approximately 20 to 30 millimetres across the fog line. There are photographs of Mr W ’s car in the position it was parked at the time of the accident. The left hand wheels are pretty well hard up against the kerb and there is a reasonable distance between the right hand side and the fog line.

[9] The obvious consequence of these simple measurements is that if all of the evidence is correct and if the truck proceeded along the centre of the lane, as the driver said it was, the truck would not have hit the car door.

[10] Why the truck hit the door is unclear. But that is the essential point that my initial inquiry was directed at. The onus is on the prosecution to establish the essential elements of this charge beyond reasonable doubt. Having regard to the matters I have referred to, I am not persuaded that the prosecution did establish carelessness beyond reasonable doubt, even assuming Mr W did open his door more than he said he did.

[11] On an appeal I am bound to reach my own conclusion on the evidence, making full allowance for the fact that the Justices heard and saw the witnesses. My finding does not in fact amount to a challenge to the conclusions the Justices reached. Rather, and with respect probably understandably, the Justices did not focus on the ultimate issue because the defence had focused on a different theory altogether. And that theory was rejected. But there is, of course, a need to focus on the ultimate issue, whatever arguments are presented.

[12] Mr Wright submitted that it is incumbent on a parked driver to make sure that the driver’s door can be opened safely. I agree. But with respect, I do not agree with the further submission which, in a sense, amounted to an argument res ipsa loquitor; that is, given the obligation on the driver to make sure, if the door is hit by a car coming from behind, the driver of the parked car will have been careless.

[13] The facts I have outlined indicate a possible way in which that may not be so. It is incumbent on the prosecution to dispel possibilities in respect of to the central issue beyond reasonable doubt. For the reasons I have outlined, in my judgment that did not occur in this case.

[14] For these particular reasons, not related to the matters that were argued in the

_{District Court, the appeal is allowed and the conviction is quashed.}

Peter Woodhouse J