Gordon v Police [2016] NZHC 1357 (22 June 2016)

High Court of New Zealand

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Gordon v Police [2016] NZHC 1357 (22 June 2016)

Last Updated: 23 June 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-404-000123 [2016] NZHC 1357

BETWEEN	CHRISTINE GORDON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	21 June 2016
Appearances:	M B Meyrick for Appellant E T Fletcher for Respondent
Judgment:	22 June 2016

_{JUDGMENT OF GILBERT J}

This judgment is delivered by me on 22 June 2016 at 4.30 pm pursuant to r 11.5 of the High Court Rules.

..................................................... Registrar / Deputy Registrar

Solicitors:

Berman & Burton, Auckland

Kayes Fletcher Walker, Manukau

GORDON v NEW ZEALAND POLICE [2016] NZHC 1357 [22 June 2016]

Introduction

[1] Following a judge-alone trial in the Manukau District Court before Judge McAuslan on 22 April 2016, Ms Gordon was convicted of careless driving causing injury.¹ Ms Gordon appeals against her conviction. She contends that carelessness was not proved. Even if it was, she argues that it was not proved to the requisite standard that the carelessness caused the accident and the consequent injuries to the victim.

Approach on appeal

[2] This appeal is governed by s 232(2)(b) of the Criminal Procedure Act 2011. The appeal must be allowed if the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred. A miscarriage of justice includes any error that has created a real risk that the outcome of the trial was affected. In the absence of any such error, the appeal must be dismissed.

Was the Judge wrong to conclude that carelessness was proved?

[3] The Judge heard evidence from the police constable who attended the scene shortly after the accident and who later interviewed Ms Gordon. The Judge had the benefit of a number of photographic exhibits, CCTV footage that recorded the accident and Ms Gordon’s interview with the police. The Judge also heard evidence from Ms Gordon. The victim was unable to recall the incident because of the serious injuries he sustained and did not give evidence.

[4] The accident occurred at about 5.35 pm on 7 July 2015 on Atkinson Avenue in Otahuhu, Auckland. Ms Gordon, who has a learner licence, was driving along Atkinson Avenue without her headlights on. She was driving her brother’s car, a very dark green Holden Calais. The victim was a pedestrian who stepped out onto the road in front of her car. She collided with him causing him serious injuries

_{including a broken pelvis, two broken legs and bleeding on the brain.}

¹ New Zealand Police v Gordon [2016] NZDC 7243.

[5] The Judge found that at the time of the accident, it was dark, it had been raining, the road was wet and all of the other cars travelling on the road had their headlights on.² The Judge found that Ms Gordon fell below the standard expected of the reasonable and prudent driver by driving without having her car headlights turned on.³

[6] Mr Meyrick referred to r 8.3 of the Land Transport (Road User) Rule 2004 which provides that a driver must use the vehicle’s headlamps during the hours of darkness. The hours of darkness are defined by r 1.6 to mean:

(a) a period of time between half an hour after sunset on one day and half an hour before sunrise on the next day; or

(b) any other time when there is not sufficient daylight to render clearly visible a person or vehicle at a distance of 100 m.

[7] In the District Court, Mr Meyrick produced a printout indicating that sunset on 7 July 2015 was at 5.18 pm. On that basis, he contended that there was no legal requirement for Ms Gordon to have her headlights on unless it was established that that there was insufficient daylight for a person or vehicle to be clearly visible at a distance of 100 metres. Mr Meyrick contends that it is not possible to conclude from the CCTV footage whether r 8.3 was breached and he notes that the Judge made no finding about this.

[8] Whether or not r 8.3 was breached, Mr Meyrick accepts that the test is that of a reasonable and prudent driver in all of the circumstances. He submits that Ms Gordon was not careless according to this standard. He contends that, at most, she may have breached r 8.3.

[9] I am not persuaded that the Judge made any error in her assessment of the evidence on this issue. The evidence established:

(a) the accident occurred shortly after sunset in the middle of winter;

_{(b) it was almost dark;}

² _{At [5].}

³ At [12].

(c) it was raining steadily; (d) visibility was poor;

(e) the road was wet;

(f) the traffic was heavy;

(g) all other motorists had their headlights on;

(h) the car Ms Gordon was driving was very dark green in colour and therefore would have been difficult to see in darkness;

(i) Ms Gordon intended to put her headlights on because it was dark and thought they were on; and

(j) Ms Gordon did not have her headlights on.

[10] I consider that the Judge was fully justified in concluding that Ms Gordon fell below the standard expected of a reasonable and prudent driver in failing to have her headlights on and was therefore careless. All other motorists using the road at the time had their headlights on. They apparently considered that this was prudent in view of the fact that it was almost dark and the visibility and driving conditions at the time were poor. Ms Gordon herself considered that her headlights should have been turned on. She said in her interview that her failure to do this “was a mistake”. She said that the reason she believed her headlights were on was that she “wouldn’t drive in the dark without them”. Having seen the CCTV footage, the photographs and considered the evidence, I consider that given the conditions and the fact that it was almost dark, a reasonable and prudent driver would have had their headlights on. This ground of appeal must fail.

Was the Judge wrong to conclude that the carelessness caused the injuries?

[11] The Judge concluded that Ms Gordon’s failure to have her headlights on caused the accident. Her reasoning is summarised in the following two paragraphs of her judgment:

[17] Well it is unfortunate of course that we have not had the benefit of hearing from the complainant, however looking at things as he would have perceived them it would have been difficult to discern the approach of the defendant’s motor vehicle because it’s the only one coming and it has no headlights on; the headlights, the street lights, all the lighting is on the other side of the road looking at that CCTV, not the left-hand side where the defendant was travelling.

[18] I therefore find her headlights not being on is the cause of the accident and there is sufficient causal nexus for the Court to accept that her carelessness in fact did cause the injury to the complainant and I am satisfied beyond reasonable doubt that the charge is proven.

[12] Mr Meyrick accepts that it is clear that the victim did not see the car. However, he suggests that it is not possible to say that it would have made any difference if Ms Gordon had turned the car’s headlights on. He submits that the car was “there to be seen” and that there was ample lighting. He argues that the only reasonable inference is that the victim did not look before stepping out on the road.

[13] I do not accept these submissions. I consider that the Judge was entitled to infer that the victim would not have stepped out on the road directly in front of Ms Gordon’s car if he had seen it. Given its very dark colour and the time of night, the car would have been difficult to see without its headlights on. The almost inevitable inference is that this explains why the victim did not see the car and stepped out directly in front of it. As the Judge observed, the available lighting was from motor vehicles and street lights on the other side of the road. This lighting was not cast on Ms Gordon’s car and would not have assisted the victim in seeing it. If anything, those bright lights are likely to have impeded his ability to see the dark coloured, unlit car coming towards him.

[14] I see no error in the Judge’s conclusion that Ms Gordon’s carelessness in failing to turn the headlights on caused the accident. This failure was a proximate and material cause of the accident and the consequent injuries to the victim. It need

not have been the sole or even the principal cause.⁴ This ground of appeal must also fail.

Result

_{[15] The appeal is dismissed.}

_{M A Gilbert J}

⁴ R v Storey [1931] NZLR 417 (CA).