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Ryan v Police [2012] NZHC 2487 (26 September 2012)

Last Updated: 2 October 2012


IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2012-470-17 [2012] NZHC 2487

BETWEEN PATRICK MICHAEL RYAN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 25 September 2012

Counsel: G Barnett for Appellant

J C O'Brien for Respondent

Judgment: 26 September 2012

JUDGMENT OF HEATH J


This judgment was delivered by me on 26 September 2012 at 11.00am pursuant to

Rule 11.5 of the High Court Rules


Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, PO Box 13063, Tauranga

Counsel:

G Barnett, PO Box 13455, Tauranga

RYAN V NEW ZEALAND POLICE HC TAU CRI 2012-470-17 [26 September 2012]

Introduction

[1] Mr Ryan appeals against a judgment of the District Court at Tauranga, by which he was found guilty on a charge of dangerous driving. On a separate charge of assault allegedly arising out of an event that occurred after the driving incident, he was found not guilty.

[2] Mr Barnett, for Mr Ryan, takes three points on appeal:

(a) The Judge erred in excluding the reasonable possibility that the complainant, Mr Graham, caused his vehicle to come into contact with Mr Jones’ vehicle.

(b) The Judge erred in finding that Mr Jones manner of driving was the real cause of the collision between the two vehicles and;

(c) The Judge erred in finding that Mr Jones’ driving fell sufficiently below the standard of care and skill expected of a competent and experienced driver, so as to be, objectively, dangerous.

Factual findings

[3] The hearing of the information took place before Judge P A Moran on 4 May

2012. Judgement was given orally at the conclusion of the hearing. In his opening comments, Judge Moran said:

[3] Both Mr Ryan and Mr Graham give diametrically opposed accounts of the circumstances of the collision. In as much as Mr Graham tells me that Mr Ryan cut him off and this caused the collision. Whereas Mr Ryan tells me that, whilst overtaking Mr Graham, Mr Graham speed up and served towards him and thus collided with his vehicle. Both of these accounts cannot be true, obviously. Moreover, there is no room for mistake. Somebody is not telling me the truth.

[4] The Judge described the circumstances leading up to the collision. The events began in Hewletts Road, where there are two lanes of traffic proceeding in

each direction. Mr Graham was driving on the left lane, travelling towards Bayfair. Mr Ryan was on his right.

[5] Mr Graham needed to get into the right hand lane to take the flyover into Maunganui Road. There is one lane each way on the flyover itself. The left hand lane on Hewletts Road connects directly with Maunganui Road and is, generally, used by traffic travelling towards Mt Maunganui.

[6] As he approached the flyover, Mr Graham turned in front of Mr Ryan. Mr Ryan became annoyed. As the two vehicles proceeded over the flyover, Mr Ryan “stood on the horn”, as Judge Moran described it. While there was some dispute about the exact location, it seems clear that, as vehicles were exiting the flyover area, Mr Ryan attempted to overtake Mr Graham’s vehicle at the end of a series of poles separating the Maunganui Road side from the flyover.

[7] Mr Ryan’s evidence was that, as he moved from the single lane off the flyover into the two lanes in Maunganui Road, a slow moving vehicle was in the left lane. That meant that, to overtake Mr Graham, Mr Ryan had nowhere to go except to Mr Graham’s right, onto a median strip marking the delineation of traffic travelling in each direction.

[8] Mr Graham deposed that Mr Ryan came up behind him and overtook very closely. He was not aware of Mr Ryan’s presence until the vehicle was alongside. Mr Graham said that Mr Ryan cut in front of him so closely that, despite his breaking the two vehicles collided; though not heavily. The right hand front corner of Mr Graham’s vehicle impacted on the left rear side of Mr Ryan’s.

[9] Faced with that conflict of evidence, Judge Moran said:

[5] ...

(e) Mr Ryan, however, tells me that he resorted to passing in the median strip, because the car on the left land and Mr Graham immediately outside it, were travelling slowly and he simply wanted to get by. He says that as he came up to overtake Mr Graham’s vehicle, Mr Graham saw him coming in the rear vision mirror, sped up and moved out towards the edge of the median strip in an apparent attempt to obstruct Mr Ryan. Mr Ryan accelerated, saw Mr Graham

swerve his vehicle to the right. That he took evasive action by accelerating and moving to the right, but could not avoid the impact, causing the damage to the vehicles that I have described. I am not able to accept that account.

(f) I turn to the circumstance that Mr Ryan was an angry man and had demonstrated his anger back in Hewletts Road, by standing on the horn when Mr Graham pulled in front of him. There is a conflict of evidence that amount to this: Mr Graham’s version that Mr Ryan overtook him and cut him off, in an apparent retaliatory move for having been cut off back in Hewletts Road, on the one hand. And, on the other hand, Mr Ryan’s version that Mr Graham deliberately swerved into him.

(g) That version of Mr Ryan’s that Mr Graham deliberately swerved into him is inherently unlikely. It is unlikely, because it would mean that Mr Graham deliberately caused the collision between these two vehicles. Whereas, on Mr Graham’s version of events, the collision need not necessarily be deliberate on Mr Ryan’s part, but accidental. Mr Ryan cut him off, but did not intend to make contact. So that is one reason why I accept Mr Graham’s version of these events over that of Mr Ryan. Moreover, the manoeuvre that Mr Ryan describes would be likely to cause a loss of control and even a capsize of vehicles and I do not accept it.

(h) Mr Ryan’s overtaking on the median line is admitted by him. This is not just careless driving, namely driving falling short of the standard of a reasonably prudent driver in the circumstances, it is dangerous driving. It is dangerous, because it involved a close pass. It is dangerous, because it involved pulling onto a median strip dividing traffic flowing in opposite directions. It is dangerous, because it resulted in a collision.

(i) So I accept Mr Graham’s version of events, where there is a significant conflict with Mr Ryan. I reject Mr Ryan’s version of events. I do not accept it. I am sure that Mr Graham’s version is the right one. I am sure that Mr Ryan drove dangerously and he is convicted of dangerous driving.

[10] Although, on appeal, I am entitled to form my own view on the facts, I must have regard to the advantage that the District Court Judge possessed in hearing and seeing the witnesses give evidence.[1] In this case, there is another significant advantage that the District Court Judge enjoyed. During the course of the evidence, witnesses were referred to various photographic images that were not produced as exhibits. I am not prepared to gainsay the views formed by the Judge when, at least in part, they were based on evidence given to him in response to questions based on

particular images of the location and the damage caused to each vehicle.

Legal principles

[11] Section 35(1)(b) of the Act provides:

35 Contravention of section 7, or section 22 where no injury or death involved

(1) A person commits an offence if the person—

...

(b) Drives or causes a motor vehicle to be driven on a road 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; or

....

(my emphasis)

[12] Mr Barnett submits that, on a charge of dangerous driving brought under s 35(1)(b) of the Land Transport Act 1998, the prosecution must prove beyond reasonable doubt a situation in which, viewed objectively, the defendant’s driving was “dangerous”, having been caused by some fault on his or her part. That is not disputed by Ms O’Brien, for the informant.

[13] Counsel each referred to R v Jones,[2] in which the Court of Appeal considered, on a case stated, whether a Judge had properly directed a jury on a charge of dangerously driving a motor vehicle causing death. In giving the judgment of the Court of Appeal, Cooke J said:[3]

As to the limbs of s 55(1) [the equivalent of s 35(1)(b)] referring to

"dangerous", in the judgment delivered by Megaw LJ in Gosney [[1971] 2

QB 674 (CA) at 680] at p 680, the English Court of Appeal said inter alia:

It is not an absolute offence. In order to justify a conviction there must be, not only a situation which, viewed objectively, was dangerous, but there must also have been some fault on the part of the driver, causing that situation. 'Fault' certainly does not necessarily involve deliberate misconduct or recklessness or intention to drive in a manner inconsistent with proper standards of driving. Nor does fault necessarily involve moral blame. Thus there is fault if an inexperienced or a naturally poor driver, while

straining every nerve to do the right thing, falls below the standard of a competent and careful driver. Fault involves a failure, a falling below the care of skill of a competent and experienced driver, in relation to the manner of the driving and to the relevant circumstances of the case.

In the New Zealand Supreme Court that interpretation has been adopted in relation to a charge of dangerous driving under s 57(c) of the Transport Act

1962: Transport Ministry v McIntosh [1974] 1 NZLR 142, 146. On the argument of the present case in this Court it was common ground between

counsel that the Gosney interpretation should also apply to "dangerous" in s

55(1). We accept that this is the correct view. Any other interpretation would be confusing and unwarranted. It is to be noted that s 57(b) and (c) differ

from s 55(1) in requiring the driving to be on a road, in not requiring bodily injury or death, and in including the words "or might be". But those

differences do not affect the meaning of "dangerous". We need add only that on an offence under s 55(1) the nature and degree of the accused's fault will

of course have a bearing on penalty.

The question posed in the case stated is worded:

Was I correct in directing the jury that in respect of the count of dangerous driving proof of knowledge of the existence of dangerous circumstances was necessary on the part of the accused?

For the reasons already given, the question must be answered No.

Analysis

(a) Credibility issues

[14] The first two appeal points raise credibility issues. Mr Barnett submits that, faced with irreconcilable evidence about what happened, the Judge could not have been satisfied beyond reasonable doubt that the incident occurred in the manner described by Mr Graham.

[15] In making that submission Mr Barnett calls in aid Judge Moran’s finding on the assault charge.[4] That charge was dismissed on the grounds that, in the absence of independent evidence “indicative of truth of one side on the other”, the Judge could not be satisfied beyond reasonable doubt that the assault occurred.

[16] Credibility findings are not easy to make in cases where there is divergent oral evidence about what occurred. The modern approach is not to rely on such

things as demeanour or body language but, rather, to focus on the plausibility of the respective versions of events by measuring evidence given by a witness against other evidence accepted by a Judge, whether oral or documentary. Also relevant is the internal consistency, or inconsistency, of a particular witness’s evidence.

[17] That approach to credibility was adopted by Judge Moran in this case. The assault charge was dismissed because of the absence of any evidence that could confirm Mr Graham’s version of events, so as to allow a finding that the elements of the offence of assault had been proved beyond reasonable doubt. Thus, the assault charge was dismissed because the prosecution failed to establish the elements of the offence to the required standard.

[18] The position was different with regard to the charge of dangerous driving. Judge Moran was alive to the context of the collision. It had its genesis in the earlier incident, during which the two vehicles approached the Hewletts Road flyover. Mr Graham’s vehicle turned into a lane occupied by Mr Ryan in a manner that caused annoyance to the latter.[5] The Judge considered that, by the time of the overtaking

manoeuvre as the vehicles exited the flyer, Mr Ryan was an “angry man”.[6]

[19] The Judge came to the view that the version advanced by Mr Ryan was “inherently unlikely”.[7] He reached that conclusion because, if Mr Ryan’s evidence were correct, Mr Graham had taken steps to turn his vehicle into Mr Ryan’s at a time when the latter was overtaking on a busy road. The Judge regarded as more plausible the proposition that Mr Ryan, in overtaking Mr Graham, cut him off and caused a collision, while not intending to make contact. I concur with that view.

[20] Once Mr Graham’s version of events is accepted, it necessarily follows that it was Mr Ryan’s driving that caused the collision. That does not, however, resolve the question whether his driving was dangerous, the remaining point raised by Mr

Barnett.

[21] The precise location of the collision was in dispute before me. However, on the best view of the facts from Mr Ryan’s perspective, the collision must have occurred at a time when the vehicle that he described as being driven slowly in front of Mr Graham moved to its left. That could not have happened until the vehicles were in the process of exiting the flyover, as there is only one lane available each way on it. If the third driver moved to the left at the point where Maunganui Road merges with the exit to the flyover, Mr Graham would have continued to drive in the “flyover lane”. In order to undertake a passing manoeuvre, it would have been necessary for Mr Ryan to go onto the median strip. He accepts that he did so.

[22] Judge Moran formed the view that Mr Ryan’s overtaking manoeuvre constituted dangerous driving for the purposes of s 35(1)(b). He considered that the danger arose from three coexistent facts: a “close pass”, pulling onto the median strip dividing traffic flowing in opposite directions and the resulting collision.[8] I disregard the last factor because, in essence, it is the result of what the Judge found to be dangerous driving, rather than being part of it. It is apparent from the accepted evidence of Mr Graham that Mr Ryan decided to overtake Mr Graham’s vehicle in circumstances that gave rise to a real risk that a collision could have occurred.

[23] While not cited to Judge Moran, there are two basic road rules that support his view that Mr Ryan drove dangerously. First, a driver must not pass or attempt to pass another vehicle moving in the same direction unless the movement can be made safely and with due consideration for other users of the road. In such circumstances, sufficient clear road must be visible to the driver for the passing movement to be completed without impeding or being likely to impede any possible opposing

traffic.[9] Second, save in limited circumstances not relevant in this case, a driver

must not pass or attempt to pass on the right a vehicle that is moving in the same direction when he or she is approaching or passing a “flush median”.[10]

[24] In terms of R v Jones, Mr Ryan was at fault in overtaking on the median line in circumstances where it was not safe to do so. The Judge’s view of the “close pass” reflected the limitations on circumstances in which a driver may pass another travelling in the same direction and his view about passing on the median strip was a common-sense reflection of the relevant traffic rule. Also, Mr Graham was occupying the only available lane at the time of the overtaking manoeuvre; evidence had been given about the relatively high traffic flows in the flyover area at the time of morning when the collision occurred (between 7am and 7.30am) and Mr Ryan gave evidence of oncoming traffic at the time he undertook his manoeuvre. Those circumstances all go to the unsafe nature of the manoeuvre.

[25] Returning to the statutory test: did Mr Ryan drive his vehicle in a manner which, having regard to all the circumstances, was or might have been dangerous to the public or to a person? Once Mr Ryan elected to drive in the manner described, his standard of driving fell below that of a competent and careful driver.[11] Such a driver would not have carried out a manoeuvre of this type. Having regard to all relevant circumstances, the driving was or might have been dangerous to the public (oncoming traffic) or a person (Mr Graham).[12]

Result

[26] The appeal is dismissed.


P R Heath J

Delivered at 11.00am on 26 September 2012



[1] Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 (SC) at para [13].

[2] R v Jones [1986] 1 NZLR 1 (CA).

[3] Ibid, at 3.

[4] Police v Ryan DC Tauranga CRI 2011-070-7758, 4 May 2012 (Judge P A Moran) at para [6].

[5] See paras [4]–[6] above.

[6] Police v Ryan DC Tauranga CRI 2011-070-7758, 4 May 2012 at para [5](f), set out at para [9]

above.

[7] Ibid, at para [5](g).
[8] Ibid, at para [5](h).
[9] Land Transport (Road User) Rules 2004, r 2.6(1).

[10] Ibid, r 2.7(b). The term “flush median” is defined by r 1.6 as “an area marked by white diagonal lines for the purpose of separating opposing traffic that is painted along the middle of the roadway and bounded by approximately parallel, longitudinal white lines. That was the nature of the median strip on which the overtaking manoeuvre occurred.

[11] R v Jones [1986] 1 NZLR 1 (CA) at 3.

[12] Section 35(1)(b) is set out at para [11] above.


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