MERCER v POLICE [2019] NZHC 1957

MERCER v POLICE [2019] NZHC 1957 [13 August 2019]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-130[2019] NZHC 1957BETWEEN ALEX MERCERAppellantAND NEW ZEALAND POLICERespondentHearing: 23 July 2019Appearances: Appellant in personF Gourlay for RespondentJudgment: 13 August 2019JUDGMENT OF BREWER JThis judgment was delivered by me on 13 August 2019 at 11:00 amRegistrar/Deputy RegistrarSolicitors:Kayes Fletcher Walker (Manukau) for RespondentIntroduction[1] Mr Mercer, who represents himself, appeals a decision of Judge CS Blackiefinding proved that he drove a vehicle on a road at a speed exceeding 100 km/h, whichwas the applicable speed limit.1 This is an infringement offence.[2] Mr Mercer did not dispute in the hearing before Judge Blackie that he exceededthe speed limit of 100 km/h. His case was that he had no choice. Mr Mercer said inevidence that a car he was passing increased its speed towards the end of the passingarea and he decided the only safe course of action was to exceed the speed limit so asto complete his overtaking manoeuvre safely.The appeal[3] Mr Mercer appealed on three grounds:(1) The Judge erred in his assessment of the evidence.(2) The Judge erred in delivering an immediate oral judgment.(3) The prosecutor "used a few leading questions" during examination-in-chief.[4] There is nothing in the second and third grounds of appeal. This was a simplecase. The prosecution called the evidence of the police officer, Constable Carroll, whoissued the infringement notice. Mr Mercer gave evidence himself. District CourtJudges routinely give immediate oral judgments in simple cases where they areconfident of the result.[5] As to the asking of leading questions, Mr Mercer is correct in his assertion thatthere were some leading questions asked by the prosecuting police officer of ConstableCarroll, and Mr Mercer is correct that s 89 of the Evidence Act 2006 prohibits theasking of leading questions in examination-in-chief or re-examination, subject to1 Police v Mercer [2019] NZDC 4592. Judge Blackie dismissed an alleged infringement of failingto keep wholly to the left of a no-passing lane when passing a motor vehicle.exceptions. However, the asking of leading questions in a first appeal context issignificant only if it resulted in a miscarriage of justice. That is to say, the asking ofleading questions created a real risk that the outcome of the trial was affected; orresulted in an unfair trial.2 There is nothing in the examples given to me by Mr Mercer,or elsewhere in the notes of evidence, that give me any concern in this regard.[6] I return to Mr Mercer's first ground of appeal, namely that the Judge erred inhis assessment of the evidence.[7] Mr Mercer's argument is to the effect that the Judge should have accepted hisevidence about his reason for exceeding the speed limit and discharged himaccordingly. Mr Mercer, not being a lawyer, advanced his argument on a commonsense "it is just not right" basis.[8] Judge Blackie acknowledged Mr Mercer's argument, but he did not address it.By his decision the Judge rejected the argument, but he gave no reasons for doing so.That is unfortunate because there is at law a legal exception to the prohibition onexceeding a speed limit which might have applied to Mr Mercer.[9] Rule 5.1 of the Land Transport (Road User) Rule 2004 prohibits a driver fromexceeding the applicable speed limit save for exceptions which do not apply here. Itis a strict liability offence. However, r 1.8 provides a general exception:(1) A person is not in breach of this rule if that person proves that—(a) the act or omission complained of took place in response to asituation on a road; and(b) the situation was not of the person's own making; and(c) the act or omission was taken—(i) to avoid the death or injury of a person; or(ii) if the act or omission did not create a risk of death orinjury or greater damage to any property, to avoiddamage to any property.2 Criminal Procedure Act 2011, s 232.[10] Judge Blackie in his oral judgment summarised the evidence of ConstableCarroll and then the evidence of Mr Mercer. He said of Mr Mercer's evidence:[8] Mr Mercer gave evidence on his own account. He accepted that hehad got himself into a difficult position and the two other motor vehiclestravelling approximately 70 to 80 kilometres an hour less than the maximumpermitted on this particular area, were approaching the end of the dual part ofthe carriageway, he was committed to overtake, he felt obliged to do so as theyslightly sped up. He said that he carried out the overtaking manoeuvre notdeliberative to flout the law, but rather to avoid what he perceived to be adifficult situation which could have got worse had he tried to intercept, that istrying to intercept the other two vehicles by passing between them.[11] The Judge then said:[9] Having heard the evidence I am quite satisfied that this is a propercase for the issue of the ticket and the infringement notice for the speeding. Itis clear that the speed did exceed the regulated 100 kilometres an hour, it isrecorded on the handheld radar device, certificates of accuracy have beenproduced to the Court that the device was operating appropriately, and thereis no real challenge by Mr Mercer to any of the evidence in support.[12] It is entirely opaque as to whether Judge Blackie turned his mind to r 1.8.There is no evidence it was brought to his attention. It might be inferred from hislanguage at paragraph [9] that since the infringement is a strict liability offence theJudge considered proof that Mr Mercer exceeded the speed limit necessarily decidedthe case. This inference is supported by the Judge telling Mr Mercer immediatelybefore he cross-examined Constable Carroll: I only want questions which are relevant to the issue which I have got todetermine, that is whether the speed was as recorded and you were the driverof the vehicle and whether there was a crossing yellow lines, I'm not makingany other determination other than that.[13] Certainly, the Judge said nothing evaluative about Mr Mercer's contention thatit was necessary for him to exceed the speed limit in order to safely complete hisovertaking manoeuvre. He made no findings of credibility.[14] The recent history of appeals against conviction in Judge-alone trials istraversed in the Supreme Court's decision in Sena v Police.3 The Court "broadly"accepted the following line of argument put forward by counsel:43 Sena v Police [2019] NZSC 55.4 At [35]–[36].Put simply, a Judge has to justify their findings. How a decision is reached andwhat was taken into account (and what was not) is of importance. A globalcredibility finding (explicit or implicit) is not enough. Reasons are thejustification for decisions. If the analysis or reasons are deficient, theconclusion is flawed and unsubstantiated.[15] This being a first appeal against conviction, my task is governed by s 232 ofthe Criminal Procedure Act 2011, which provides:(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, thejury's verdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that amiscarriage of justice has occurred; or(c) in any case, a miscarriage of justice has occurred for anyreason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means any error, irregularity,or occurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial wasaffected; or(b) has resulted in an unfair trial or a trial that was a nullity.[16] The Supreme Court in Sena related the giving of reasons by a Judge at firstinstance to s 232 as follows:5 Connell and Eide indicate the kind of reasons which judges should provide.They should show an engagement with the case, identify the critical issues inthe case, explain how and why those issues are resolved, and generally providea rational and considered basis for the conclusion reached. Reasoning whichconsists of a conclusory credibility preference is unlikely to suffice. Thelanguage of s 232(2)(b) reflects an assumption that the reasons given by ajudge will reflect that judge's assessment of the evidence and why thatassessment resulted in a conviction. A failure to provide such an assessmentfrustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); thison the basis that a reasoned judgment is essential to a fair trial. A failure to5 At [36].provide a reasoned resolution of a significant evidential dispute may,alternatively, suggest a misapprehension of the effect of the evidence, forinstance a misapprehension of the significance of the dispute. As we explainlater in these reasons, this case involves such a misapprehension.[17] In this case, I do not know why Judge Blackie found the speeding infringementproved. It might be he found the general exception in r 1.8 not established byMr Mercer. It might be the Judge simply regarded the infringement as being anoffence of strict liability and did not find Mr Mercer had established a total absence offault. Given the Judge did not say anything about either possibility I cannot say.[18] In Sena, the Supreme Court held that appeals in criminal cases would be byway of rehearing, setting parity with the approach to civil cases, consistent with Austin,Nichols & Co Inc v Stichting Lodestar.6 In recent cases of this Court following thedecision in Sena, Judges have looked for themselves to see whether convictions canstand in the absence of reasons by the first instance Judge for their decision.7 I willnow do that.[19] Mr Mercer's relevant evidence-in-chief was:A. There were two cars in front of me and I was driving along, I wasbehind them, yeah, obviously, they were mainly about 70 kilometresan hour and both, all of us were in the slow lane so I indicated right,wait for at least three seconds, went straight, I went 100 kilometres anhour and I should have easily overtaken them and then the – itappeared that the front car had accelerated at the last second so Ibelieve I was going to hit that car.Q. Yes?A. If I slowed down I could've been stuck between those two cars whichcould've caused an accident as well. If I were to slam the brakes mycar could've spun around into the traffic from the other direction,because of that I had to accelerate to make sure I got through uninjuredor, there's no accident [20] In cross-examination Mr Mercer said that when the passing lane was reached"a lot of the other cars took off, I just stayed behind the other two slow ones and then6 At [32], citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR141.7 Webster v Police [2019] NZHC 1335, [2019] NZAR 911; and Marsh v R [2019] NZHC 310.realised that they were going too slow so I just decided to go in the overtaking laneand pass them".[21] Mr Mercer denied there was plenty of room to allow him to merge with thecars he was overtaking so it was unnecessary for him to complete the overtakingmanoeuvre. The cross-examination ended with this exchange:Q. And what I'm saying to you is that there's plenty of room there?A. I had to make a snap decision so I'd rather take the safe option whichresults in no one dying than, yeah, having an accident.[22] The prosecution's evidence did not bear on Mr Mercer's explanation for hisdriving. Mr Mercer properly put his explanation to Constable Carroll in cross-examination. The constable was reluctant to speculate on Mr Mercer's suggestions asto the dangers of him braking hard instead of speeding up, but otherwise did not refuteMr Mercer's case.[23] Mr Mercer did not accept the propositions put to him by the prosecutor incross-examination. Those propositions, of course, are not evidence if they are notaccepted.[24] Mr Mercer's credibility was not challenged.[25] I will accept the evidence of both Constable Carroll and Mr Mercer as reliableand credible and apply it to r 1.8.[26] The act complained of was Mr Mercer exceeding the speed limit. Forr 1.8(1)(a), that had to take place in response to a situation on a road. Mr Mercer'sargument is that the situation was the speeding up of a car he was overtaking. Heresponded to that situation. I accept Mr Mercer exceeded the speed limit to overtakea car that increased its speed.[27] The requirement in r 1.8(1)(b) is that "the situation was not of [Mr Mercer's]own making". It might be said that the overall situation was of Mr Mercer's ownmaking. He chose to overtake towards the end of a passing lane on the assumptionthe cars he would overtake would not increase their speed. When that assumptionproved wrong, his response was to exceed the speed limit. But the focus of r 1.8(1)(a)is on the act or omission complained of (exceeding the speed limit) and that act being"in response to a situation on a road". So, it is not a matter of reading "situation" as"the overall situation". The situation is the immediate situation to which the act oromission complained of responded. In this case, this was the unexpected increase inspeed of the lead vehicle Mr Mercer was overtaking. I conclude that Mr Mercer hassatisfied r 1.8(1)(b). The situation was not of his own making.[28] In reaching this conclusion I have thought about policy considerations.Driving is a dynamic activity. Conditions can change suddenly, and drivers have toreact to them suddenly. Rule 1.8 recognises this and excuses (in this case) exceedingthe speed limit so long as the person charged proves the criteria in the sub-clauses.[29] There is no criterion to the effect "and the person's driving immediatelypreceding their response to the situation was reasonable and prudent". But, if theperson's driving preceding their response to the situation was unlawful, then they canbe charged with that unlawfulness.[30] If the person's driving during their response to the situation was unlawful in away outside the scope of the Land Transport (Road User) Rule 2004 then it cannot beexcused by operation of r 1.8. So, for example, if a driver in responding to a situationexceeds the speed limit carelessly or dangerously, then r 1.8 cannot save them from acharge of careless or dangerous driving.[31] Further, the excuse will not be available if the situation responded to was ofthe person's making. For example, if a person simply misjudges the speed necessaryto complete an overtaking manoeuvre safely.[32] As to r 1.8(c), Mr Mercer's evidence was he acted (by exceeding the speedlimit) to avoid death or injury. There is no evidence to the contrary. It is not necessaryfor Mr Mercer to prove his act was objectively necessary to avoid death or injury, justthat his act was taken (in that he took it for the purpose) to avoid death or injury.Result[33] Judge Blackie erred in not giving reasons as to why Mr Mercer's explanationdid not amount to a defence to the infringement notice. In light of my analysis of theevidence I have concluded that led to a miscarriage of justice.[34] The appeal is allowed. The infringement notice is dismissed.________________________________Brewer J