DAVIES v NEW ZEALAND POLICE [2023] NZHC 2831

DAVIES v NEW ZEALAND POLICE [2023] NZHC 2831 [10 October 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-000280[2023] NZHC 2831BETWEEN HAMISH DAVIESAppellantAND NEW ZEALAND POLICERespondentHearing: 22 August 2023Appearances: B M Bosomonth and D J Waxman for AppellantJ L Gibson for RespondentJudgment: 10 October 2023JUDGMENT OF ANDREW JThis judgment was delivered by Justice Andrewon 10 October 2023 at 3.30 pmpursuant to r 11.5 of the High Court Rules 2016Registrar / Deputy RegistrarDate .Introduction[1] Mr Hamish Davies was convicted of one charge of dangerous driving unders 35(1)(b) of the Land Transport Act 1998 following a Judge-alone trial in theAuckland District Court on 18 April 2023.[2] It was alleged that on 29 June 2021, Mr Davies drove at 101 kilometres perhour despite the speed limit being 50 kilometres per hour. He was charged with drivingat a speed which, having regard to all the circumstances, was or might have beendangerous to the public or to a person. Mr Davies contended that he had a defenceavailable, namely an absence of fault, because he was suffering from uncontrolleddiabetes that affected his cognitive functions at the relevant time.[3] Judge Maxwell issued a reserved judgment on 12 June 2023 following writtensubmissions of counsel.1 Her Honour held the absence of fault defence was notavailable and accordingly Mr Davies was found guilty.[4] Mr Davies now appeals that decision on two bases, arguing that:(a) insufficient weight was placed on the evidence of the expert medicalwitness, and this affected the Judge's assessment of the reasonable andprudent driver. Specifically, insufficient weight was placed on materialfacts relating to Mr Davies' likely medical condition at the time ofdriving; and(b) there was an error of law in finding that a person can be held to thestandard of a reasonable and prudent driver whilst suffering frompoorly controlled diabetes.[5] The Police oppose the appeal.1 Police v Davies [2023] NZDC 10131.District Court decision[6] Mr Davies called evidence at trial from Dr Woolford, a retired generalpractitioner. Dr Woolford confirmed that Mr Davies was first enrolled at his medicalpractice at the beginning of March 2022. The previous week, Mr Davies had been tohis former doctor and was diagnosed with diabetes. Mr Davies had chosen to movepractices for the purposes of appropriate care.[7] Dr Woolford explained at the trial that in 2015 Mr Davies had a blood testwhich measured his HbA1c at 44.2 That is a test that measures blood sugar levels, onaverage, over the previous three months. Dr Woolford explained that a year or twolater Mr Davies' reading was 40 and that a normal reading is anything below 40. Areading of between 40 and 50 is considered pre-diabetes. Dr Woolford furtherexplained that if the reading is over 50 a person "probably" has diabetes, but there isnot a diagnosis until that person has two readings over 50.[8] In 2018, Mr Davies had a reading of 57.3 Dr Woolford said in evidence thataccording to Mr Davies' medical notes there was a recommendation by the doctor torepeat the test in three months in order to make a firm diagnosis. However, that didnot occur.[9] The next time Mr Davies had a test was in February 2022. The reading at thattime was 130. Dr Woolford described the rise from 57 to 130 as very dramatic.4 Hedescribed Mr Davies suffering from weight loss, symptoms of thirst and described him"peeing a lot". Mr Woolford gave evidence that those symptoms are all associatedwith diabetes.[10] Dr Woolford was of the view that it was very likely that Mr Davies wassuffering some degree of harm from diabetes at the time of the offending in June 2021.5He was also of the view that it was unlikely that Mr Davies' diabetes was wellcontrolled in June 2021.62 Police v Davies, above n 1, at [24].3 Police v Davies, above n 1, at [25].4 Police v Davies, above n 1, at [26].5 Police v Davies, above n 1, at [31].6 Police v Davies, above n 1, at [34].[11] Judge Maxwell described Mr Davies' defence as follows:7 the submission appears to be that Mr Davies was unknowingly sufferingfrom diabetes which affected his cognitive ability which therefore resulted inhim speeding. That because he was unaware of his diabetes and would nothave otherwise been driving, that this results in an absence of fault on his part.[12] In rejecting the defence of absence of fault, her Honour concluded:8 there is no clear evidence as to the extent to which Mr Davies was sufferingfrom diabetes at the relevant time. There is no medical evidence from thattime. Even if the Court was to accept that he was both suffering from diabetesand it was not well controlled, there is no clear evidence that it affected hiscognitive ability. And even if the Court was to accept that it did affect hiscognitive ability, there is no evidence as to how that somehow did not makehim responsible for speeding which he otherwise acknowledges.Legal principles[13] Appeals against conviction following a Judge-alone trial must be allowed ifthe Judge has erred in their assessment of the evidence to such an extent that amiscarriage of justice has occurred,9 or if a miscarriage of justice has occurred for anyother reason.10[14] The appeal is to be by way of rehearing, and it is for the appellant to show thatan error has been made. In assessing whether there has been an error, an appellatecourt must take into account any advantages the trial judge may have had.11 Becauseof this, where the challenge is to credibility findings based on contested oral evidence,an appellate court will exercise "'customary caution".12[15] A miscarriage is more than an inconsequential or immaterial mistake orirregularity.13 A "real risk" that the outcome was affected exists when "there is areasonable possibility that a not guilty (or more favourable) verdict might have beendelivered if nothing had gone wrong".14 The appellant does not have to establish a7 Police v Davies, above n 1, at [47].8 Police v Davies, above n 1, at [48].9 Criminal Procedure Act 2011, s 232(2)(b).10 Criminal Procedure Act 2011, s 232(2)(c).11 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].12 Sena v Police, above n 11, at [38].13 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].14 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110]."miscarriage in the sense that the verdict actually is unsafe" but instead that there is areal possibility the verdict would be unsafe.Ground one – challenge to the factual findings of the Judge[16] In support of the submission that the District Court Judge gave insufficientweight to material facts relating to Mr Davies' likely medical condition at the time ofdriving, Mr Bosomonth submitted as follows:(a) The New Zealand Transport Agency (Waka Kotahi) Factsheet inevidence before the Court advised road users regarding diabetes and theduty to act "if one knows" he or she has the condition. Specifically, itstates in cases of hyperglycaemia (high blood sugar):Very high blood sugar levels could leave you feeling unwellor tired, and may affect your ability to drive safely. Youshould not drive if you are severely hyperglycaemic.(b) In his evidence, Dr Woolford stated that cognitive impairment is acommon, under-diagnosed complication of diabetes that can interferewith the ability to adequately perform self-management behaviours.Dr Woolford also noted that deficiencies in memory capacity, attentionto detail, planning, ability to reason, decision-making and informationprocessing speed were associated with diabetes.(c) Dr Woolford confirmed in evidence that hyperglycaemia was theoperating factor in Mr Davies' case and that this "may have led to poordecision-making".(d) Dr Woolford also stated in evidence that although he had no actualinformation regarding Mr Davies' mental and physical state in June2021 "we can assume that the diabetes was not well controlled and thatthis may have affected him physically and his mental reasoning".(e) Mr Davies, in his evidence, consistently stated that he was not awarethat he had diabetes nor been told that he had diabetes until March 2022(i.e. after the offending).(f) There was no evidence that Mr Davies' diagnosis had beencommunicated to him on an earlier occasion.(g) Dr Woolford confirmed that it would not be unusual for a patient topresent at a late stage of poorly controlled diabetes whilst beingunaware of concerns.[17] Judge Maxwell had the advantage of seeing and hearing from the witnesses.This included the defendant, who elected to give evidence, Constable Osbourne, whoapprehended him and, of course, Dr Woolford. The learned Judge held that she didnot accept Mr Davies' evidence on the critical issues, including whether he wassuffering from observable symptoms of diabetes.15[18] I accept that the evidence of Dr Woolford establishes a real likelihood that atthe time the defendant was suffering from uncontrolled diabetes. However, as theJudge correctly concluded, even if the defendant was suffering from diabetes at therelevant time and it was not well controlled, there was no clear evidence that thisaffected his cognitive ability.16 At best, the evidence from Dr Woolford suggests thatthe diabetes "may" have affected him physically and his mental reasoning.[19] As Mr Gibson for the Police submitted, Dr Woolford responsiblyacknowledged that because he did not examine Mr Davies at the time, he could notsay whether Mr Davies' poorly controlled diabetes affected his decision-making skillsat the time of the offending. As Judge Maxwell also noted, Dr Woolford could notspecifically say that Mr Davies was significantly impaired at the time such that he didnot know he was speeding. Again, Dr Woolford accepted that he could not answerthat question because he did not see the defendant at the relevant time.17 Furthermore,Dr Woolford was unable to comment on the response given by Mr Davies to the Police15 Police v Davies, above n 1, at [50].16 Police v Davies, above n 1, at [48].17 Police v Davies, above n 1, at [33].as to why he was speeding.18 As Judge Maxwell correctly concluded, all Dr Woolfordcould say was that he thought it was very likely Mr Davies was suffering some degreeof harm from diabetes at the time.19[20] It is thus not correct for Mr Bosomonth to contend that Dr Woolford confirmedin evidence "that hyperglycaemia was the operating factor in Mr Davies' case". Theevidence, as correctly analysed by Judge Maxwell, does not support that conclusion.[21] The evidence of Constable Osbourne, accepted by Judge Maxwell, isimportant. In her evidence, Constable Osbourne stated:(a) Mr Davies never proffered any immediate health issues as anexplanation on the day of the incident.(b) When she questioned him why he was speeding, he noted he had seena van chasing him.(c) There was nothing that identified to her that Mr Davies was not incontrol of the vehicle.(d) She could smell alcohol in the vehicle.(e) There was a can of alcohol in the vehicle.(f) Mr Davies asked if he could continue drinking after he was breathtested.(g) Mr Davies drove home after the event under the supervision ofConstable Osbourne.[22] Judge Maxwell accepted the evidence of Constable Osbourne that even ifMr Davies was suffering symptoms "of some description" they were not such that they18 Police v Davies, above n 1, at [33].19 Police v Davies, above n 1, at [31].could be observed, nor did Mr Davies mention these symptoms.20 Having acceptedthe evidence of Constable Osbourne, her Honour held that she did not acceptMr Davies' evidence on "these critical issues". Her Honour noted that he continuedto drive after the incident.[23] I further note Dr Woolford's evidence that if Mr Davies had been to the doctorsthe day after the incident (as Mr Davies claimed in evidence), Dr Woolford wouldhave had his medical records. There were no such records.[24] I find that there was no error in the Judge's reasoning or in the approach shetook to the expert medical evidence of Dr Woolford. She did not give insufficientweight to that evidence in reaching her conclusions about Mr Davies' likely medicalcondition at the time of driving.Ground two – error in law[25] The second ground of appeal advanced by Mr Davies is that her Honour erredin law in finding that a person can be held to the standard of a reasonable and prudentdriver whilst suffering from poorly controlled diabetes. Mr Bosomonth submitted thatsince Mr Davies did not know of his condition, "he cannot be culpable of a crime whenhe was not able to exercise the duty of care of a reasonable and prudent person whoknows that they have diabetes".[26] I find that there was no error in the approach of Judge Maxwell. Her Honouraccepted, in principle, that a total absence of fault defence might be available to adefendant for the charge at issue. However, it was not made out on the facts. It is theactual circumstances and choices open to a defendant that are of critical importance.[27] The Judge referred to the recent Court of Appeal decision replied upon by thedefence, namely the sleep apnoea case Savieti v Police.21 Her Honour expresslyreferred to the relevant questions identified by the Court of Appeal as follows:2220 Police v Davies, above n 1, at [50].21 Savieti v New Zealand Police [2021] NZCA 176.22 Savieti v New Zealand Police, above n 21, at [34].We consider the correct question was whether it was reasonably possible thatMr Savieti did not recognise that he was sleepy when he was driving. If itwas, then the next question was whether a reasonable person in his positionwould have recognised that he was sleepy.[28] In my view, Judge Maxwell correctly acknowledged that an equivalent two-step process applied here. Again, however, the test was simply not made out on thefacts. The defendant did not establish on the balance of probabilities that anyuncontrolled diabetes he was suffering from affected his cognitive ability at the timeof driving such that he could not be responsible for speeding.[29] In addressing the second limb of the test, namely whether a reasonable personin Mr Davies position would have recognised that he was sufficiently unwell, herHonour held that a reasonable person in his position would have recognised that hewas unwell and should not have been driving (assuming, as her Honour noted, that thedefendant was suffering symptoms at the time of driving).23 Her Honour was entitledon the evidence to reach that conclusion and I agree with her finding.[30] I also note that from as early as 2015, Mr Davies had a relatively high HbA1creading (based on Dr Woolford's evidence). In 2018, he had a reading over 50, namely57, which according to Dr Woolford probably means that the person has diabetes. Atthat time, according to the medical notes, the defendant was advised to repeat the testin three months' time. However, that did not occur. This supports the conclusion thata total absence of fault defence cannot be made out.[31] In her judgment, Judge Maxwell referred to various other authorities reliedupon by the defence. In my view, there was a proper basis for distinguishing theseauthorities and rejecting the defence advanced.[32] I find there is no merit to ground two of the appeal.Conclusion[33] There was no error in the approach of the District Court Judge. The appellanthas not established a miscarriage of justice.23 Police v Davies, above n 1, at [49].[34] The appeal is dismissed.__________________________Andrew J