Kydd v Police [2012] NZHC 1969 (7 August 2012)

Last Updated: 17 August 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000042 [2012] NZHC 1969

PETER ANDREW KYDD

Appellant

v

NEW ZEALAND POLICE

_Respondent

Hearing: 19 July 2012

Appearances: A G James for the Appellant

A Raj for the Respondent

Judgment: 7 August 2012

_{RESERVED JUDGMENT OF HON. JUSTICE FRENCH}

Introduction

[1] Mr Kydd was charged in the District Court with careless use of a motor vehicle causing injury, contrary to s 38 Land Transport Act 1998.

[2] The charge arose out of a collision between the truck he was driving and a motorcycle.

[3] Mr Kydd defended the charge but, following a hearing, was found guilty. The Judge sentenced him to 200 hours community work, ordered him to pay reparation of $2000 for emotional harm and disqualified him from driving for

_{10 months.}

KYDD V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000042 [7 August 2012]

[4] He now appeals both his conviction and sentence.

Appeal against conviction

The hearing in the District Court

[5] At the hearing, the evidence established that the collision occurred when Mr Kydd was undertaking a U-turn manoeuvre in Worcester Street, Christchurch, the motorcyclist having entered Worcester Street behind him via a left hand turn from Norwich Street.

[6] The collision occurred 63.5 metres from the Norwich Street corner, the motorcycle striking Mr Kydd’s truck on the rear of the right front wheel arch. There was an 8 metre skid mark, located on the road 5.1 metres out from the kerb.

[7] The evidence further established that Mr Kydd left the scene of the accident before the police arrived and was unable to be located. He subsequently made a voluntary appearance at a police station[1] and underwent a video interview.

[8] For his part, the motorcyclist could not remember anything of the accident. He was very seriously injured and his motorcycle extensively damaged.

[9] Both the prosecution and defence adduced expert evidence as to the cause of the accident.

[10] The police expert estimated the pre-braking speed of the motorcycle was between 41.7 and 53.6 kilometres per hour. In the officer’s opinion, the motorcyclist would have been well within Mr Kydd’s line of vision had the latter properly checked behind him. The motorcyclist should have been visible for up to five

_{seconds prior to commencement of the U-turn.}

[11] The defence did not dispute that the motorcycle was in its correct position on the road. However, Mr Kydd argued that because he had checked before commencing his U-turn and never saw the motorbike, the motorcyclist must have been travelling too fast.

[12] Mr Kydd’s evidence to that effect was supported by an engineer specialising in accident reconstruction. Dr Stevenson testified that the police calculations of speed were flawed, and that a likely travel speed range of the motorcyclist prior to braking was 38.6 to 66.4 kilometres per hour.

[13] Dr Stevenson’s conclusion was that if the motorcyclist had turned into Worcester Street at a speed in the vicinity of 20 kilometres per hour and then accelerated at full throttle from the intersection, then the U-turn may well have commenced at a very similar point in time to when the motorcyclist first entered Worcester Street. Therefore, Mr Kydd would likely have had no opportunity to avoid the crash.

[14] Even assuming full throttle acceleration, Dr Stevenson acknowledged there still would have been time for the motorcyclist to have seen the truck commence its U-turn and take some avoidance action. There was, however, no sign of any avoidance action. In Dr Stevenson’s opinion, however, that could possibly be explained by obstruction from parked cars, confusion on the part of the motorcyclist as to what Mr Kydd was intending to do, vision issues such as sun strike, or a combination of the above.

[15] At the conclusion of the hearing, the Judge reserved her decision.

The Judge’s decision

[16] The reserved judgment is very detailed and contains a close analysis of the evidence.

[17] The Judge held that Dr Stevenson’s evidence provided “an evidential foundation” that the collision could theoretically have occurred without Mr Kydd having been careless. However, she went on to say that the doubt created by this evidence was not a reasonable doubt.

[18] Her reasons for so holding were:

(i) It was unlikely that the motorcylist would have been travelling at the upper end of the range (ie, approximately 66 kilometres per hour), having regard to the motorcyclist’s testimony about the age of his motorbike and his usual practice.

(ii) Mr Kydd’s testimony that he had looked over his shoulder to check the road was inconsistent with his statements to the police and she did not accept it. His failure to check over his shoulder was in itself an error, for he would have likely seen the motorcyclist then.

(iii) For Dr Stevenson’s theory to apply, there had to be an explanation as to why the motorcyclist did not take avoidance action.[2] Suggestions about parked cars and sun strike were speculation. Mr Kydd himself said there were no parked cars and he did not suggest any problem with sun strike. Even if the motorcyclist had thought the truck was simply pulling out as opposed to doing a U-turn, there would still have been some avoidance action taken.

[19] The Judge concluded that she was satisfied beyond reasonable doubt that the reason why the motorcyclist hit Mr Kydd’s truck was due to the latter’s carelessness in completing a U-turn manoeuvre in circumstances where he did not properly or

_{prudently check that the road was clear to enable him to do so.}

Grounds of appeal

On appeal, Mr James advanced the following arguments:

(i) The Judge’s statements that there was an evidential foundation but no reasonable doubt were mutually inconsistent propositions.

(ii) The Judge effectively reversed the onus of proof by relying on the fact that the defence was not able to provide an explanation for the lack of avoidance action. It was for the prosecution to exclude the explanations advanced by Dr Stevenson.

(iii) The Judge should not have relied upon the motorcyclist’s testimony about his usual riding practices, having regard to the lack of direct evidence, the fact the motorbike was not able to be tested, and that the police officer at the scene was unable to determine what gear it was in at the time of impact. Further, there was evidence from Dr Stevenson that a motorbike of that model was capable of reaching speeds of

66 kilometres per hour, while the Judge herself expressly found there was “some force” in Dr Stevenson’s opinion that the police’s probable speed range was too narrow. The police officer conceded that Dr Stevenson’s range could have been right.

(iv) Mr Kydd had never claimed that he looked behind his shoulder and there was no inconsistency. What he had said in evidence was entirely consistent with what he had said in his police interview, namely, that he looked in his rear and side mirrors.[3]

(v) The Judge was wrong to find that a careful and prudent driver is required to look over their shoulder to check the road before embarking on a U-turn because the evidence was there were no blind

_{spots. Visibility was clear.}

[20] Mr James emphasised that because the motorcyclist could not remember anything about the accident and because the only independent witness on the scene did not actually witness the collision, there was no direct evidence as to what happened, other than that provided by Mr Kydd who was supported by expert evidence. In those circumstances, Mr James submitted there must be a reasonable doubt.

Discussion

[21] I have carefully considered all of Mr James’s submissions but am not

persuaded that appellate intervention is warranted.

[22] First, it is clear that all the Judge meant by the phrase “evidential burden” was that the defence had adduced sufficient evidence to make an issue worth consideration. There is no necessary inconsistency in saying that while a matter is worth consideration, it is nevertheless not a reasonable possibility. The fact that there were no eye witnesses to the collision other than Mr Kydd does not of itself mean the Judge was bound to accept his evidence and Dr Stevenson’s theory. Nor, having decided to prefer the police theory, does it mean the Judge was obliged to regard Dr Stevenson’s theory as raising a reasonable doubt. She was entitled (indeed required) to independently assess his theory having regard to all the evidence. It is not trial by expert.

[23] I am satisfied that the Judge did not reverse the onus of proof. The absence of any satisfactory explanation for the motorcyclist’s lack of avoidance action significantly undermined the extreme scenario postulated by Dr Stevenson, and in the assessment of the Judge meant it was not a reasonable possibility. That was a conclusion she was entitled to reach on the evidence.

[24] There is no necessary inconsistency between the Judge accepting it was possible the police range of speed was too narrow and at the same time finding that the motorcycle was not at full throttle. The first finding is concerned with consideration about a possible range and the second finding about the extreme of that range based on the evidence considered in its entirety.

[25] In my view, the Judge was entitled to take into account the motorcyclist’s testimony about his invariable practices. It was relevant evidence. The motorcyclist testified that he was a motorcycle enthusiast. His motorcycle was a classic 1989

Harley Davidson Sportster 1200 model and it was his pride and joy. He was adamant that he had never ridden it at full throttle and would never do so for fear of jeopardising the engine. The Judge found the motorcyclist a credible witness. She describes him as “impressive” and “calmly and carefully spoken.” The Judge said she accepted that his invariable practice would likely be never to ride his motorcycle at the speed that would be required before it could be said he was not there to be seen on Worcester Street that day.

[26] In my judgment, the Judge was not precluded from making that finding because of Dr Stevenson’s evidence about the capabilities of the model of motorbike in question. Even if the motorcyclist was wrong about the capabilities of his bike, what matters is that he genuinely believed he needed to be careful and always rode accordingly. Importantly, while accepting his evidence, the Judge also expressly acknowledged that it was not direct evidence and the weight to be given to it had to be tempered accordingly.

[27] As regards the Judge’s treatment of Mr Kydd’s testimony, what Mr Kydd said was:

17. And when you proceeded to do your you-turn [sic] manoeuvre did you do it straight away or otherwise?
    
1. Yes once I looked in my side mirror I proceeded then, I started turning, looked in the mirror, sort of turned my head as I was turning.
   

(Emphasis added)

[28] Understandably, the Judge treated this as a claim he had looked over his shoulder, a claim she did not accept. That such a claim was inconsistent with what he had said in his police interview was never put to Mr Kydd. Equally, defence counsel never put to the interviewing officer that Mr Kydd claimed he had turned his head.

[29] Ultimately, whether there was or was not an inconsistency is immaterial. Apparent inconsistency on this point was not the only reason the Judge regarded Mr Kydd as an unreliable witness.

[30] As required by Austin, Nichols & Co Inc v Stichting Lodestar,[4] I have myself read and independently assessed all the evidence, taking into account the advantage that the Judge had in seeing and hearing the witnesses when it comes to issues of credibility.

[31] The starting point must be that in undertaking a U-turn on a city street, Mr Kydd was undertaking an unusual manoeuvre involving driving across the possible path of following and oncoming vehicles. In those circumstances, it behoved him to keep a particularly careful look out and to remain vigilant.[5] I agree with the Judge that a careful and prudent driver would have checked over their shoulder to ensure absolutely there was nothing there before commencing their turn.[6]

[32] I also agree, for the same reasons given by the Judge, that the motorcycle was in Mr Kydd’s attainable vision. He did not see the motorcyclist but had he taken care, he would have done so. It is not a reasonable possibility that the motorcyclist was travelling at the extreme range of the probable speed identified by Dr Stevenson, and there is no reasonable alternative explanation for his taking no avoidance action, other than the police version of events.

[33] There is the further point too that Mr Kydd’s conduct in leaving the scene was evidence from which an inference of consciousness of guilt could have been drawn. According to the testimony of an independent bystander which the Judge accepted, Mr Kydd made no attempt to help the injured motorcyclist before departing the scene on foot. He must have known the police would be on their way.

_{His subsequent explanation that he was in shock does not strike me as credible.}[7]

[34] In short, I find that not only was the Judge’s conclusion a decision that was

open to her on the evidence, it was a decision I too would have reached. [35] The appeal against conviction is accordingly dismissed.

Appeal against sentence

[36] In her sentencing notes, the Judge observed that the victim’s injuries were extensive and that the impact on his life had been extraordinary. At the hearing, he had given evidence that his brain had been bruised on two sides from the impact. He had suffered memory loss. Part of his collarbone had to be amputated and he now has an artificial ligament to hold it in place. His wrist was shattered and sustained permanent damage. His leg was also damaged, and his testicle crushed. He spent 7 days in hospital and was in the Concussion Clinic for approximately six months. The motorcycle was uninsured and cost him $10,000 to replace.

[37] The Judge noted that Mr Kydd had what she described as a hideous list of previous convictions. In her view, the degree of carelessness was in the mid-range.

[38] The Judge also stated there was no expression of remorse from Mr Kydd. That combined with his previous convictions meant the matter could not be dealt with by way of a fine. Instead, the appropriate sentence was community work.

[39] The Judge further stated that the length of community work would be significant because there needed to be a fairly punitive element to ensure that Mr Kydd did not operate his vehicle in a careless fashion in the future.

[40] She sentenced him to 200 hours community work, which she said was less than what it might otherwise have been because of Mr Kydd’s offer to pay $2,000 emotional harm reparation to the victim. Mr Kydd was also disqualified from driving for 10 months and ordered to pay Court costs and witness expenses.

Grounds of appeal against sentence

[41] Mr James acknowledged that each case turns on its own facts, but submitted that the sentence in this case was manifestly excessive.

[42] In support of that general submission, he referred me to the decision of O’Sullivan v Police,[8] where the same sentence of 200 hours community work was imposed, yet the degree of carelessness was much greater and there had been no emotional harm payment. [9] Mr James argued that the Judge in this case had placed excessive weight on Mr Kydd’s previous convictions. In his submission, the convictions while concerned with driving were “entirely different” in kind. This was Mr Kydd’s first conviction for careless use causing injury. He should have been treated as a first offender and fined with only the minimum period of disqualification.

Discussion

[43] Mr Kydd is 52 years of age. He has been offending in the District Court since 1976, with the most recent conviction in 2010. His previous convictions include 26 driving related offences. Thirteen of these are for driving with excess breath alcohol and eight for driving while disqualified.

[44] In my view, the Judge was clearly entitled to take the previous driving convictions into account and was entitled to place weight on them. As Ms Raj submits, the previous convictions show an irresponsible attitude towards road use and are highly relevant.

[45] I also accept, having regard to all the circumstances including the very serious injuries, Mr Kydd’s previous convictions and a moderate level of carelessness, that 200 hours community work and 10 months disqualification notwithstanding the offer of amends was a sentence within range. It cannot be

_{described as manifestly excessive.}

Outcome

[46] The appeals against conviction and sentence are both dismissed.

Solicitors:

Raymond Donnelly & Co, Christchurch – [e-mail]

A G James, PO Box 13-0180, Christchurch 8141

---

[1] The transcript suggests this occurred over three weeks after the accident, although Mr Kydd claimed otherwise at the appeal hearing.

[2] In the Judge’s view, the position of the skid mark on the road confirmed there had been no

avoidance action.

[3] This submission, made orally at the hearing, differs somewhat from Mr James’s written submission which included a submission that there was no evidence Mr Kydd had not looked behind his shoulder.
[4] _{Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103.}
[5] In Turner v Police HC Rotorua CRI 2009-443-000021, 14 December 2009 at [16], the Court held that a high degree of care and attention, checking and double-checking was required of a person performing a U-turn manoeuvre.
[6] _{A view that is supported in Lindsay v Police HC Christchurch AP153/94, 30 June 1994.}

[7] The drawing of the inference is not prevented by the fact that the police withdrew a charge of failing to stop and ascertain whether any person had been injured, and render assistance.
[8] _{O’Sullivan v Police HC Auckland CRI-2009-404-323, 1 December 2009.}
[9] However, the period of disqualification was 14 months.