JANSE VAN RENSBURG v POLICE [2020] NZHC 1900

JANSE VAN RENSBURG v POLICE [2020] NZHC 1900 [31 July 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000087[2020] NZHC 1900BETWEEN AMBER-ELLE JANSE VAN RENSBURGAppellantAND NEW ZEALAND POLICERespondentHearing: 28 July 2020Counsel: HE Juran for AppellantHD Benson-Pope for RespondentJudgment: 31 July 2020JUDGMENT OF DOWNS JThis judgment was delivered by me on Friday, 31 July 2020 at 3.30 pm.Registrar/Deputy RegistrarSolicitors/Counsel:HE Juran, Auckland.Crown Solicitor, Manukau.The appeal[1] Amber-Elle Janse van Rensburg was convicted of careless driving causinginjury and failing to stop to ascertain injury.1 Judge CS Blackie disqualified her fromdriving for 12 months and ordered she pay $500 reparation.2 Ms Janse van Rensburgappeals conviction.Background[2] On 7 June 2019, Ms Janse van Rensburg was driving out of a carpark. At theexit, she realised she could not turn in the direction she wanted to travel. She stoppedher car. Brandon Johnson, the complainant, was walking nearby. He sawMs Janse van Rensburg's car approach the exit. Accounts of what happened nextdiffer in some respects.[3] Mr Johnson says Ms Janse van Rensburg stopped her car across the footpath,blocking his path. Ms Janse van Rensburg says she did not block the footpath.Mr Johnson moved to walk around the back of the car. Ms Janse van Rensburg puther car in reverse. She began reversing. Mr Johnson says Ms Janse van Rensburg hithim, causing injury. Ms Janse van Rensburg acknowledges hearing a noise but sayssomething hit her car.3[4] Mr Johnson says he attempted to persuade Ms Janse van Rensburg to stop, butshe drove away. Ms Janse van Rensburg says Mr Johnson advanced in a threateningmanner, she considered herself at risk, so she drove away.[5] Mr Johnson promptly contacted Police, sought medical attention, andattempted to find closed-circuit television footage of the incident.[6] Mr Johnson and Ms Janse van Rensburg testified. The Judge gave animmediate, oral, decision. He carefully summarised the evidence, then found thecharges proved. In relation to the first charge, the Judge said:1 In contravention of the Land Transport Act 1998, ss 22, 36(1)(c) and 38.2 Police v Janse van Rensburg [2020] NZDC 9009.3 She said she believed something hit the roof.[12] Returning to the initial charge of careless driving, as I say the standardis that of an ordinary, prudent motorist. On this particular day you could notbe classed as an ordinary, prudent motorist because you were still subject to alearner's licence, which you had had for some two years and should not reallyhave been driving at all unless you had an approved person under the LandTransport Act 1998 accompanying you.[13] You said that you checked your mirrors. You may have done so butnot sufficiently to not notice Mr Johnson. Clearly, he would have been there.Clearly, he should have been in your view either as he passed down the right-hand side of your car before going round the back or as he approached theback. If you looked in a rear vision mirror on the right-hand side he shouldclearly have been visible to you. He was there to be seen. The fact was – hewas not seen. In my view, a prudent motorist, before engaging reverse, wouldensure that the way is clear, not only of other traffic but, of course, whencrossing footpaths and things like that, particularly in an area where there areretail outlets as there are here, creating pedestrian traffic. In my view he wasthere to be seen. He should have been seen and there was a degree ofcarelessness on your part in not seeing him.[14] So, I find the ingredients of that charge of careless driving to beproved and we now know that as a result of that carelessness, as a result ofyour car striking him, it was not him striking you, your car striking him, hesuffered a degree of injury.[7] In relation to the second charge, the Judge said:[15] In the second charge there is a strong obligation, a very strongobligation indeed, if there has been an accident, no matter how slight, for aperson to stop and ascertain whether anyone has been injured. That is afundamental requirement of the law. As I say if there has been an accident, nomatter how slight, one has to stop and check that no-one has been injured.[16] In this case there had been an impact. You had heard the impact,although you felt that it might have been just a knock on the roof. You saw aman yelling but you, inappropriately in my view, considered him to be a threatwhen, really, he was simply trying to draw your attention to the fact that hehad been hit and had been hurt. He would have had the expectation, as anyother person would have done, that you would stop, there would be exchangeof details and perhaps assistance sought, medical assistance sought if that hadbeen required.[17] I do not consider the fact that he was yelling to be sufficient to amountto a reasonable excuse. Sometimes reasonable excuse can be made out wherethe degree of the impact is so slight or other noise in the vicinity would drownthe sound of any contact with a particular vehicle and we hear this sometimesin the cases of big trucks where something is touched in a minor sense by abig truck but the noise of a truck and the noise of the road sometimesobliterates the sound and, therefore, the driver is unaware that anythinguntoward has occurred.[18] I cannot say that was the situation here. I find, therefore, that theingredients of that charge are proved to the standard the law requires of beyondreasonable doubt. So, I find both charges to be proved.The case for Ms Janse van Rensburg[8] Mr Juran contends the Judge did not provide reasons for preferring thecomplainant's evidence over Ms Janse van Rensburg's, and he was wrong not to doso, as this is a case about "credibility".4 Mr Juran put to Mr Johnson at trial hefabricated aspects of his evidence to support an ACC claim, or get strongpain-relieving drugs. (Unsurprisingly, Mr Johnson denied both.)[9] Mr Juran contends there is inadequate evidence Ms Janse van Rensburg causedthe complainant's injury. He also argues there is inadequate evidence to establishMs Janse van Rensburg knew there had been an accident; alternatively, the evidencereveals the reasonable possibility of a reasonable excuse for failing to stop.Analysis[10] While Mr Juran attacked Mr Johnson's credibility in the District Court, theextent of conflict in the accounts is much, much overstated. It is beyond doubtMr Johnson was walking toward Ms Janse van Rensburg's car as she approached theexit. It is also beyond doubt Mr Johnson walked behind the car whileMs Janse van Rensburg was reversing. Ms Janse van Rensburg says she did not seethe complainant. The Judge carefully questioned Mr Johnson on his location usingthe photographs. That Ms Janse van Rensburg did not see him does not mean he wasnot there.[11] Ms Janse van Rensburg accepts she then heard a sound. This is consistent withMr Johnson's evidence he was hit as she reversed. Both agree Mr Johnson thenremonstrated with Ms Janse van Rensburg.[12] Mr Johnson sought medical attention the same day. He suffered injury to hisupper right shoulder and pain in his lower left hip, thigh and knee. As observed,Mr Johnson promptly contacted Police. He also sought to find closed-circuittelevision footage.4 Criminal Procedure Act 2011, s 232(2)(b) and Sena v Police [2019] NZSC 55,[2019] 1 NZLR 575.[13] Mr Johnson and Ms Janse van Rensburg had never met before the incident.[14] Given all this, the proposition Mr Johnson fabricated aspects of what occurredis speculative. It follows the Judge had no obligation to address credibility, becausethis was not properly in issue. Moreover, the Judge's reasoning—see [6]—addressedwhy he found the first charge proved.[15] Mr Juran's submission there is inadequate evidence Ms Janse van Rensburgcaused the complainant's injury is also unsustainable. Once contact betweencomplainant and car had been established (beyond reasonable doubt), the only credibleexplanation for the injuries was they were caused by Ms Janse van Rensburg whenreversing.[16] Mr Juran contends the injuries would be lower down the body given the heightof the car. A photograph of the car provides some support for this proposition, but itis taken at an awkward angle. Moreover, Mr Johnson was injury-free before theincident. He said he was injured by the car. He went to the doctor the same day. Thedoctor identified injuries. The doctor also said Mr Johnson gave this history(admissible to rebut the claim of invention and for proof of truth of content5): "Hit bya car and sustained a sore L) neck, L) side pelvis L) knee and thigh and R) belowelbow". The doctor's evidence was admitted by consent. The Judge was thereforeentitled to infer the injuries were caused by Ms Janse van Rensburg.[17] Mr Juran contends there is inadequate evidence Ms Janse van Rensburg wasaware of an accident that might have caused injury.6 I disagree.Ms Janse van Rensburg reversed in an exit, heard a noise consistent with impact, thensaw a distressed person outside her car.[18] This leaves the one trickier aspect of the case. Mr Juran contends theprosecution did not exclude a reasonable possibility Ms Janse van Rensburg had areasonable excuse in driving away without stopping and rendering Mr Johnson5 Evidence Act 2006, s 35.6 The prosecution must prove the defendant knew of "an untoward event which might have causedinjury"; see R v Puru (2001) 19 CRNZ 290 at [34].assistance.7 I frame the issue this way as, once evidence arises of a possible reasonableexcuse, the prosecution must disprove the existence of a reasonable excuse beyondreasonable doubt.8 This was not always so. Before the enactment of theCriminal Procedure Act 2011, a defendant had to establish they had a reasonableexcuse in this context.9[19] In cross-examination, Mr Johnson accepted he was yelling and "waving hisarms about" once he had been hit. Mr Johnson said he did so asMs Janse van Rensburg "was driving away". Mr Johnson was asked if he wasswearing. He said he was "unsure".[20] Ms Janse van Rensburg was 18 at the time, and alone in her car. She said shelocked the doors as "I was afraid there could be conflict", and Mr Johnson was"shouting and waving his hands". The latter aspect marries Mr Johnson's evidence.In cross-examination, Ms Janse van Rensburg said Mr Johnson was "right by mydoor" at this point, and she was "too scared to get out of the car".Ms Janse van Rensburg acknowledged her "immediate response" was to yell "sorry".[21] The Judge was correct to conclude the prosecution had excluded the existenceof a reasonable excuse for three reasons.[22] First, Ms Janse van Rensburg's evidence she was frightened is inconsistentwith what she told the Police later that day. Ms Janse van Rensburg said Mr Johnsonwas yelling and waving his hands, but he then walked away. Ms Janse van Rensburgshe said she drove away as she assumed if Mr Johnson had a problem, "he would havestayed". Her account to the Police implied this was a storm in a teacup, not she wastoo frightened to stop because of Mr Johnson's possible reaction.7 A driver "must stop and ascertain whether a person has been injured", and "render all practicableassistance" to the injured person; Land Transport Act 1998, s 22.8 R v Lee [2006] 3 NZLR 42 (CA).9 Because of s 67(8) of the Summary Proceedings Act 1957; see King v Police [2016] NZHC 977.[23] Second, Ms Janse van Rensburg was secure in her car, in a public place, indaylight. Ms Janse van Rensburg could have ascertained from inside her (locked) carwhether anyone was injured by yelling with the windows up.10[24] Third, while the onus of proof ultimately rests on the prosecution in relation tothis aspect, care must be taken not to frustrate the statute. The duty to stop is for "theprotection and safety of an injured person so that he [or she] might not be left in injured condition to run the risk of further injury by reason of being left on the road,or perhaps to die for lack of attention".11 Standing back, the most that might be saidfor Ms Janse van Rensburg is that she panicked, and drove away. However, theprovision seeks to prevent this very response by insisting, on pain of prosecution, thedriver stop, remain and render assistance to the injured. As the Judge said, therequirement is "fundamental".12Result[25] The appeal is dismissed...Downs J10 No one asked if Ms Janse van Rensburg had her mobile phone with her.11 R v Bowden [1938] NZLR 247 (CA) at 254.12 Police v Janse van Rensburg, above n 2, at [15].