Mash v Police [2014] NZHC 1223 (3 June 2014)

Last Updated: 8 July 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000346 [2014] NZHC 1223

BETWEEN	ROBERT MASH Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	26 May 2014
Appearances:	J Maddox for Appellant B Hamlin for Respondent
Judgment:	3 June 2014

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 3 June 2014 at 2.15 pm, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Meredith Connell, Auckland

Copy to: J J Maddox, Liberty Law Barristers, Auckland

MASH v NZ POLICE [2014] NZHC 1223 [3 June 2014]

[1] Following a defended hearing in the District Court at North Shore Judge L I Hinton found a charge of dangerous driving proved against Robert Mash.¹ On 8

November 2013 the Judge declined Mr Mash’s application for a discharge under s 106 of the Sentencing Act 2002, convicted him and disqualified him for three months.²

[2] Mr Mash appeals against conviction.

Background

[3] At around 8.50 am on Thursday, 17 November 2012 Mr Mash, a serving police officer, was involved in the high speed pursuit of a stolen car. The stolen car, a Subaru, was being driven along a dual carriageway on Oteha Valley Road pursued by three police cars. The speed limit on the carriageway was 60 km/h. Mr Mash was driving the lead police car.

[4] The Subaru crossed through a small gap in the median barriers (described during the course of the hearing as a chicane) onto the wrong side of the road and into the face of oncoming traffic, (although there was no oncoming traffic immediately in front of the Subaru in the lane in which it was in).

[5] Mr Mash, who was following the Subaru at speeds estimated between 113 and 130 km/h, attempted to follow the Subaru through the chicane. However, the left rear wheel of Mr Mash’s police car clipped the concrete edge of the median at the far end of the chicane. Mr Mash lost control of his car which careered across two lanes and between two oncoming vehicles before mounting the kerb and coming to rest against a fence. Mr Mash was unharmed.

[6] The other two police cars continued to follow the direction the Subaru took but stayed on the correct side of the road. The driver of the stolen Subaru was

_{ultimately apprehended.}

¹ _{New Zealand Police v Mash DC North Shore CRI-2011-044-9115, 20 June 2013.}

² New Zealand Police v Mash DC North Shore CRI-2011-044-9115, 8 November 2013.

[7] After an investigation into the crash, Mr Mash was charged with dangerous driving. At Mr Mash’s prosecution a DVD containing the traffic camera footage disclosing the incident was produced. Sergeant Atkinson, who investigated the accident, gave evidence that Mr Mash was travelling at speeds of up to 130 km/h, although under cross-examination he accepted that Mr Mash’s speed could have been less than that. Nevertheless, in his view, it would not have been less than 113 km/h.

[8] Mr Atkinson’s report also referred to the fact that a full mechanical inspection revealed that Mr Mash’s police car was not of a warrantable standard due to a fault within the brake master cylinder resulting in gradual pressure loss upon brake application and pedal creep. At trial Mr Cuthbert, a vehicle inspector, confirmed the defect. He was not able to be conclusive as to the effect that would have on the car’s braking. He accepted there would be some impact on its efficiency.

[9] Senior Constable Savage, who assesses the driving of police staff, gave evidence as to his assessment of Mr Mash’s driving in this case. More relevantly, he said that, while he could not recall having the conversation with Mr Mash, it was his standard procedure to tell every person in the job, including Mr Mash, the police had a policy against driving on the wrong side of the road. Mr Mash gave evidence that the procedure in the United Kingdom, where he had trained, was different.

[10] Mr Mash made a statement after the incident in which he explained the incident occurred when:

I looked onto the opposite side of the road and couldn’t see any traffic coming towards us. I had to make a split second decision and decided to follow the stolen vehicle.

[11] When giving evidence in his defence Mr Mash expanded on that statement. He said that he made a split second decision to follow the Subaru. In short, he said his intention was to stop his car in the lane behind the Subaru. He considered that his car’s flashing headlights and red and blue lights would give some warning to the oncoming traffic of the danger presented by the Subaru.

The Judge’s decision

[12] Mr Maddox submitted that the defence of necessity applied. The Judge called for written submissions on that issue. Ultimately Judge Hinton rejected the defence of necessity and found the charge proved.

[13] In his decision Judge Hinton proceeded on the basis that:

[6] There did not seem to be any dispute that this particular driving was dangerous driving. Mr Maddox for Mr Mash did not take issue with that. Self-evidently the driving appears to be dangerous. The driving was on the wrong side of the road and that would invariably be dangerous and shooting through the chicane at speed to get there, in pursuit of a fleeing vehicle, suggests dangerous driving.

[14] The focus of the Judge’s decision then moved to the defence of necessity or duress of circumstances. The Judge identified the requirements of such a defence as:³

(a) that the defendant perceives a threat of imminent peril of death or serious injury;

(b) that perception must be correct or reasonably based;

(c) the relevant act of the defendant must be in response to the perceived threat. There must be a causal nexus between the threat and the choice to respond by illegal means;

(d) the response must be proportionate; and

(e) there must be no realistic other conduct which was available.

[15] While expressing some doubts about certain of the factors the Judge confirmed he was not satisfied to the requisite standard in relation to requirements (d) and (e). The response was not proportionate and there was a realistic alternative

_{available to Mr Mash. He found the charge proved.}

³ New Zealand Police v Mash, above n 1 at [33].

The appeal

[16] In support of the appeal Mr Maddox submits that:

(a) the Judge was wrong to find that driving on the wrong side of the road would invariably be dangerous as it must depend on the circumstances and context in each case;

(b) there was no evidential basis for the Judge to reject the brake failure thesis as he did;⁴

(c) there was no evidential basis for finding the appellant’s explanations were self-fulfilling as the Judge referred to in passages of the decision;

(d) the Judge was plainly wrong to find that Mr Mash’s actions were “... to be contrary to all police training with regard to pursuing fleeing vehicles. It was simply unacceptable to cross the centre line”;⁵

(e) the Judge was wrong to find that Mr Mash’s perception of the threat was not reasonably based nor that his actions were in response to that threat; and

(f) the Judge was wrong in finding that objectively Mr Mash’s response was not proportionate to the threat or that there was a realistic choice available to him.

[17] If all else failed Mr Maddox submitted that the Judge ought to have exercised his discretion and granted a discharge pursuant to s 106 of the Sentencing Act.

Issues on the appeal

[18] With respect to the points Mr Maddox sought to raise, they can be summarised as raising the following issues:

⁴ At [47].

(a) Was Mr Mash’s driving objectively dangerous?

(b) If it was objectively dangerous, was it due to a sudden emergency or mechanical defect in the police car?

(c) If the driving was otherwise objectively dangerous and not due to a sudden emergency or mechanical defect, was the defence of necessity made out?

Is the defence of necessity available in this case?

[19] It is convenient to deal with the defence of necessity first. Although the defence assumed the major focus in the proceeding before the District Court, I do not consider it to be the major issue in this case. Having reviewed the evidence and the exhibits, including the DVD, I am satisfied that even if the defence was available, the Judge was correct to reject it in this case.

[20] In Kapi v Ministry of Transport the Court of Appeal discussed the application of s 24 of the Crimes Act 1961 and the preservation of the common law defence of necessity under s 20.⁶ The Court considered that, if available, the defence of

necessity would require:⁷

... at least a belief formed on reasonable grounds of imminent peril of death or serious injury. Breach of the law then is excused only where there was no realistic choice but to act in that way. Even then the response can be excused only where it is proportionate to the peril.

[21] In R v Hutchinson the Court of Appeal clarified the defence of necessity was more properly referred to as duress of circumstances.⁸ The Court otherwise confirmed that the elements identified in Kapi would be required but went on to note, as a necessarily implicit additional element, the need to establish a nexus between the imminent peril of death or serious injury and the choice to respond to

_{the threat by unlawful means.}⁹

⁶ _{Kapi v Ministry of Transport (1991) 8 CRNZ 49 (CA).}

⁷ _{At 57.}

⁸ R v Hutchinson [2003] NZ CA 143; [2004] NZAR 303 (CA).

[22] In R v Lamont and R v Akulue the Court of Appeal again left open the issue of whether the defence of duress of circumstances was still available.¹⁰ The Supreme Court in Akulue v R confirmed that the approach of the Court of Appeal was that s 20 excluded a defence of necessity based on threats of harm sourced in other persons before concluding: ¹¹

[30] Against this background it would be inconsistent with the purpose underpinning the codification of our criminal law to treat s 24 as codifying the defence of compulsion only in respect of threats of a kind recognised by the section, leaving a common law defence in respect of threats which do not meet the statutory criteria.

[23] In the present case, even if the defence was available, I consider the Judge was right to reject the defence on the basis that the prosecution could prove beyond reasonable doubt that Mr Mash had an alternative course of action available to him. The clear evidence of that is that the police cars following immediately behind Mr Mash chose not to seek to cross to the wrong side of the carriageway as Mr Mash did but rather continued on the correct side of the road. While accepting that Mr Mash’s decision was made in a split second, nevertheless he had a choice. He could have remained on the correct side of the carriageway. The defence of necessity must fail on that point alone. However, for the reasons that follow, the situation that Mr Mash faced, and his election are relevant to the issue of fault.

Was the driving objectively dangerous?

[24] Mr Mash was charged with driving in a manner which, having regard to all the circumstances of the case, might have been dangerous to the public. The onus is on the Crown to prove the charge beyond reasonable doubt. Mr Maddox submitted that the Judge was, in the circumstances wrong to proceed on the basis that the driving was, self-evidently dangerous. Mr Maddox advised the Court that the point had not been conceded. What was conceded was that, per se, driving on the wrong side of the road could be conceived of as dangerous, however, in context Mr Maddox

_{maintained that Mr Mash’s driving was not dangerous.}

¹⁰ R v Lamont CA442/91, 27 April 1992 and R v Akulue [2013] NZCA 84; (2013) 26 CRNZ 285.

[25] The prosecution was required to prove beyond reasonable doubt that, judged objectively, the driving was dangerous.¹² The prosecution can prove that by pinpointing a single dangerous act, or by inviting the Court to draw an inference from proved facts.¹³ Mr Hamlin clarified that in this case the prosecution did not rely on the loss of control, careering across the two lanes and ultimately hitting the fence. The prosecution case is that the dangerous driving was Mr Mash’s decision to drive onto the wrong side of a dual carriageway at a busy time of the day when there was significant traffic around while travelling at well in excess of the speed limit. The threat of collision was obvious. Mr Hamlin said the loss of control and crash were effectively the consequences of the dangerous driving.

[26] I accept that, put that way, attempting to cross into a carriageway involving two lanes of ongoing traffic while travelling at a speed significantly in excess of the speed limit is objectively dangerous.

Was Mr Mash at fault?

[27] However that is not an end of the matter. While the standard is an objective one, the offence of dangerous driving is not an absolute offence. There must have been fault on the part of the driver, in this case Mr Mash, which is not explainable by a sudden emergency or by mechanical defects.¹⁴

[28] In Transport Ministry v McIntosh the appellants were riding motorcycles on the main street in Masterton just after quarter past 10 at night. Near an intersection they accelerated and, in the area of an intersection, went onto the wrong side of the road to pass two cars which were travelling in the same direction. The appellants were found to have committed three breaches of the relevant traffic code at the time, driving at an excessive speed in a built up area, passing vehicles in the area of an intersection and driving at about 30 miles an hour without safety helmets.

[29] In allowing the appeal against conviction Cooke J (as he was) noted that there was evidence the appellants may have driven in the way they had, i.e. accelerated,

¹² _{R v Evans [1963] 1 QB 412 (CA).}

¹³ _{Stratford v Ministry of Transport [1992] 1 NZLR 486 (HC).}

¹⁴ Transport Ministry v McIntosh [1974] 1 NZLR 142 (SC) and R v Spurge [1961] 2 QB 205 (CA).

pulled out on to the wrong side of the road and passed the cars because one of the cars had veered out to the right in quite a sharp motion.

[30] Cooke J was not prepared to find affirmatively that the version of events given by the appellants and their witness was correct and proved their innocence of the charges laid but, importantly, he was left in doubt as to whether the defendants’ explanation could well be right. He then went on to note:¹⁵

If it were right the case would fall, I think, within the principle recognised in R v Gosney [1971] 2 QB 674; [1971] 3 All ER 220. That decision was concerned with a section in the Road Traffic Act 1960 of the United Kingdom Parliament relating to dangerous driving. ...

[The Court of Appeal] said that the offence of dangerous driving was not an absolute offence: to justify a conviction there must have been not only a situation which viewed objectively was dangerous but also some fault on the part of the driver causing that situation: fault does not necessarily involve deliberate misconduct or recklessness or an intention to drive in a manner inconsistent with proper standards of driving, nor does it necessarily involve moral blame; fault involves failure, that is a falling below the standard of care or skill of a competent and experienced driver. ... If the circumstances of the case were such that, although the driving was objectively dangerous, it was the result of some sudden emergency which caused the driver to make a manoeuvre such as an ordinary competent and experienced driver might well elect, I think a conviction under s 57(c) would not be proper. In the present case, as I have indicated, I would not be prepared to go as far as to find that there was indeed such an emergency; but I am left in such doubt on the point that I am driven to conclude that the prosecution did not prove its case beyond reasonable doubt.

(Emphasis added).

[31] In the present case Mr Mash’s evidence was that when the stolen Subaru went

through the chicane he:

immediately thought that [the Subaru] was going to have a head collision with oncoming traffic, I [assessed] as quickly as I could the situation, there were no pedestrians around and lane 2 of the two lanes was clear for me to place my vehicle behind the stolen vehicle in order to give some warning for the oncoming traffic.

...

Q. So what were you trying to do?

1. I tried to position my vehicle to give those people at least some chance of being able to manoeuvre their vehicle[s] out of the way.

¹⁵ Transport Ministry v McIntosh, above n 14 at 146.

[32] Under cross-examination Mr Mash confirmed his intention:

Q. But if you were sure that that vehicle was going to have a head on collision you’re not only putting yourself and the other members of the public in danger by going onto the other side of the road, but yourself as well, as that vehicle would not be stationary at the time of a collision, would it?

A. Not at all, my intention there was for the oncoming traffic to see me, they wouldn’t see the stolen vehicle, to see me and move out of the way, I was positioned behind the stolen vehicle, I had lane 3, which was the merging lane to turn right, so my vehicle was not in [live] carriage way, or should not have been in the [live] carriageway, I had my vehicle braked correctly. Had I continued forwards on the left- hand side of the road my fear would be that members of the public coming around that roundabout would hear my sirens, he’d seen my lights and automatically, as you always do, you look straight towards where the lights are coming from and then their attention would not be what’s in front of them, the stolen vehicle, but me and then they would have had a head on collision, by positioning my vehicle behind the stolen vehicle they’d be looking directly down towards me and see the stolen vehicle and between me and them move out across the road.

[33] In response to questions from the Court Mr Mash said:

A. Um, I should have been able to stop behind the stolen vehicle, which was my aim, when we were on the correct side of the road, because I was braking, I do the manoeuvre end up on the other side of the road, but stationery, with two of my lights, headlights flashing and red and blue lights flashing and siren going in which case I would have reached my objective of warning those oncoming traffic.

Q. What your car would have done is having got onto the other side of the road, it would have stopped?

A. It would have been stationary, yeah.

...

Q. You would think what you did then was prudent? A. Without a doubt.

[34] So on the evidence, there was an issue for the Court to resolve, namely whether Mr Mash intended to stop once he had passed through the chicane in order to place his car in the lane behind the Subaru to warn oncoming motorists. It was for that reason that he elected to follow the Subaru onto the wrong side of the carriageway.

[35] Because of the way the case was presented before him the Judge did not directly deal with this aspect of the evidence, other than in the context of the defence of necessity. While objectively the driving might have been dangerous, the Judge did not, in the relevant part of his judgment, deal with the issue of the purpose behind Mr Mash’s actions and thus did not deal directly with the issue of fault. Given the evidence before him, fault cannot be inferred, as no doubt it could be in most cases.

[36] To the extent the Judge did deal with the situation Mr Mash faced, he did so in the context of the issue of necessity. The Judge accepted:

[36] ... there could arguably be a perceived threat of imminent death or serious injury which was reasonably based in the circumstances.

Further:

[37] The possibility of an imminent accident ... could not be discounted

... Whether or not Mr Mash did think in a flash of the peril or impending

peril is another matter however.

[37] At most it appears the Judge had some doubts about Mr Mash’s evidence:

[43] Whether or not the decision to cross over the centre line was critically connected with the perceived threat to human life depends on acceptance of Mr Mash’s explanation for crossing over; being to warn persons as opposed to continuing the pursuit, in fact, which would not be in response to the immediate peril.

[44] I frankly have my doubts, having considered the evidence, that Mr Mash in the available split second perceived the relevant threats and peril and that it was reasonably based.

[38] That is not a finding beyond reasonable doubt that Mr Mash did not intend to act in the way he said in response to an emergency.

[39] The Judge went on to suggest that:

[46] On this, it seems to me in summary that the constable in Mr Mash’s position would not have acted in the same manner and I am satisfied to the requisite standard of this. The alternative analysis is a more general proportionality test with the constable losing control and crashing his vehicle caused by brake failure; the manoeuvre being otherwise safe, although possibly dangerous

With respect that passage of the judgment is confusing. It appears to be addressed to the issue of a proportionate response under a defence of necessity.

[40] On the evidence before the Judge I find myself in a similar position to that of Cooke J in McIntosh v Ministry of Transport. While I am not necessarily able to accept Mr Mash’s evidence that he intended to stop after crossing into the lane behind the Subaru to warn other traffic, I do not consider the Judge was in a position to reject Mr Mash’s evidence on that point. He has not directly addressed it and, at least insofar as [46] is concerned, has not given reasons for doing so. Mr Mash was clearly faced with an emergency situation. He had a split second or two at most to react. He could have carried straight on, but on his evidence he decided it was in the interests of the public for him to put his car on the other carriageway and stop it, to alert other drivers. In the words of Cooke J he “elected to act in the way he did”. If that was his intention, then, in the situation of emergency he faced I consider he lacked the requisite fault for the conviction to be sustained. It cannot be said to be beyond reasonable doubt that another competent and experienced police officer would not have elected to act in that way. While the other officers did not do so in this case, that is not conclusive, and of course, by the time they were at the chicane they saw what had happened to Mr Mash.

[41] In response to the proposition Mr Mash intended to stop once he executed the chicane, Mr Hamlin emphasised the speed at which Mr Mash was travelling just before the manoeuvre, between 113 km/h and 130 km/h. There are however two answers to that point. First, it is apparent from the DVD that the other police cars pursuing the stolen Subaru were travelling at very much the same speed because they were only just behind Mr Mash’s car. It is not the speed itself that was dangerous. To the extent it is said that crossing into the other carriageway at that speed was dangerous, the DVD shows that Mr Mash was braking for some time. Almost immediately after he passed the Oteha Valley Road exit just after passing under the motorway his car was under braking right up until the chicane. The brake lights on his car are obvious from the DVD. That then raises the issue of the effectiveness of his braking. The evidence is clear that the brakes on his car were defective. The prosecution report confirms the car was not of a warrantable standard due to a fault within the brake master cylinder resulting in gradual pressure loss upon brake

application and pedal creep. As the Court of Appeal confirmed in Spurge, it is for the Crown to negate a defence based on a mechanical defect. While the brake failing may not be an absolute defence in this case it does answer the criticism that Mr Mash could not have intended to stop once through the chicane as he was travelling too fast to do so. With respect to the Judge he has not dealt with this issue other than saying:

[47] ... For completeness, I rejected any brake failure thesis ...

He does not, however, explain the reason for that.

[42] If, despite the braking Mr Mash’s car was not slowing as much as it should because it was not at a warrantable standard and was experiencing brake failure, the failure to slow down in those circumstances could not be said to be due to any failure by Mr Mash as driver. That is a reasonable possibility which cannot be excluded on the evidence.

Result

[43] For those reasons I am driven to conclude that the charge against Mr Mash was not, in the present case, on the basis of the evidence before the Court, proved beyond reasonable doubt and it should have been dismissed.

Orders

[44] The appeal is allowed. The conviction for dangerous driving is quashed. I

understand that Mr Mash has served the short period of disqualification. In the circumstances the charge is dismissed.

Venning J