GRACIE v POLICE [2020] NZHC 3300

GRACIE v POLICE [2020] NZHC 3300 [14 December 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000460[2020] NZHC 3300BETWEEN BEVAN ALAN GRACIEAppellantAND NEW ZEALAND POLICERespondentHearing: 14 December 2020Counsel: AJ Haskett for AppellantCR Purdon for RespondentJudgment: 14 December 2020ORAL JUDGMENT OF DOWNS JSolicitors/Counsel:Crown Solicitor, Auckland.AJ Haskett, Auckland.[1] Bevan Gracie was convicted of careless driving causing injury at the end of aJudge-alone hearing.1 Mr Gracie appeals conviction. He contends the evidence didnot exclude the reasonable possibility he drove reasonably and prudently.[2] The facts are simple. So, I can be brief.[3] Daniel Feller was cycling on St Heliers Bay Road at approximately 10 am on18 September 2018. Mr Gracie was driving in the same direction—towardGrampian Road. The two collided as Mr Gracie was turning left into that road.Mr Feller was digitally tracking his speed. It is common ground he was going39 kilometres per hour when he and Mr Gracie collided. It is also common groundthe point of impact was the left rear of Mr Gracie's car, at a shallow angle.[4] Mr Feller was thrown over the handlebars. He suffered a broken tooth, cuts,and concussion. Undoubtedly, the incident was frightening.[5] An independent witness saw the collision, but not how it occurred. She saidMr Feller was travelling quite quickly. Judge B A Gibson was confronted withdiffering accounts. Mr Feller said Mr Gracie drove alongside him, then in front ofhim, then turned left, cutting him off. Mr Gracie said he was driving very slowly—nomore than five kilometres per hour—as he was going to stop for a coffee. Mr Graciesaid he indicated to turn left, checked his mirrors, turned left—and then heard acollision. Mr Gracie's testimony implied Mr Feller was attempting to pass him on theleft; that is, on the inside.[6] Had the Judge accepted Mr Feller's account, conviction was inevitable.However, the Judge appears to have accepted Mr Gracie's account:2Here the evidence, which was undisputed, was that the defendant hadsignalled to turn left into Grampian Road. I accept the cyclist may well havecontributed to the accident but nevertheless the defendant had an obligation tocheck the way was clear before he executed his turn to the left. Section 8 ofthe Land Transport Act 1998 states that a person may not cause a vehicle tobe driven carelessly or without reasonable consideration for other persons. Hehad an obligation to check to see that the way was clear.1 Police v Gracie [2020] NZDC 13068.2 At [6]–[8].Mr Gracie when he gave his evidence said that he checked his mirrors but didnot see the cyclist. He checked his mirrors, but if he did so, he did not see thecyclist who would have been approaching on his left. He said he looked atthe footpath on his left and I agree that that area which on a Saturday inparticular, often has a number of pedestrians or persons seated at Browns Caféis an area where there is a risk of an inattentive driver hitting a pedestrianattempting to cross the road. He also said that he was checking to see whetherthere were cars coming up Grampian Road.My view given his evidence that he was first aware of the cyclist when he feltthe impact is that the defendant has not kept a proper lookout by checking tosee that he did not have anyone coming up on his left and accordingly in thosecircumstances I would have to say, and I do so, that Mr Gracie was on thisoccasion careless. There was a collision, the cyclist was thrown off hisbicycle, he tumbled some six or seven metres and he did suffer injury thoughfortunately not severe and so accordingly I accept that the elements of thecharge of careless driving causing injury have been proven and the defendantis guilty of the same.[7] The Judge also said Mr Feller had right of way. On behalf of the Police,Mr Purdon accepts this was incorrect. Moreover, r 2.8 of the Land Transport(Road User) Rule 2004 provides a driver may not pass another on the left unless theother is stationary or turning right. Neither exception applied.[8] So, on the Judge's factual findings, Mr Feller was attempting to pass on the leftand travelling at speed, while Mr Gracie was slowly turning left intoGrampian Road—with right of way.[9] This constellation is very much like that in Lowen v Police,3 which Mr Purdonvery properly drew to my attention. In that case, a motorcyclist attempted to passMs Lowen on the left as she was turning left to pull into a park. Ms Lowen wasconvicted of the same charge as Mr Gracie. The High Court reversed. Whata Jobserved:4In my view, the cause of the accident lay, on the facts as presented in thejudgment, with the manoeuvre undertaken by the complainant motorcyclist,who was found by the Judge to be contributorily negligent. The evidence wasthat he was travelling at about 50 kilometres per hour (as compared to theappellant's speed at about 25 kilometres per hour), changed from the right laneto the left lane and then sought to overtake the appellant on the left hand sideimmediately adjacent to the kerb. For my part, it is unreasonable to expectthat the appellant was required to take added precautions to deal with suchdrivers (though extra precautionary driving is to be commended).3 Lowen v Police [2012] NZHC 2057.4 At [21]–[22].I am also respectfully unable to agree with the District Court Judge that hadthe driver looked to her left the accident would have been avoided. Thetolerably clear picture that emerges from the facts as found, is that it wouldhave been fortuitous for the appellant to have seen the motorcyclist given theactions of the motorcyclist.[10] These observations are apposite.[11] Judge Gibson appears to have accepted Mr Gracie checked his mirrors but didnot keep "a proper lookout".5 However, it is not clear beyond reasonable doubt areasonable and prudent driver would see a cyclist attempting to pass on the left, atspeed. It follows the appeal must be allowed.[12] I have given thought to whether there should be a re-trial. If Mr Feller'saccount were accepted, conviction would follow. That said, the balance of theevidence is very much in favour of that given by Mr Gracie. Mr Feller was cyclingquickly and apparently trying to pass on the inside lane when Mr Gracie had right ofway. Events are also now two years on.[13] The appeal is allowed. The conviction is quashed. An acquittal is entered...Downs J5 Police v Gracie, above n 1, at [8].