JOHNSON v POLICE [2022] NZHC 266

JOHNSON v POLICE [2022] NZHC 266 [24 February 2022]IN THE HIGH COURT OF NEW ZEALANDCHRISTCHURCH REGISTRYI TE KŌTI MATUA O AOTEAROAŌTAUTAHI ROHECRI-2021-409-143[2022] NZHC 266BETWEEN JACOB TYLER JOHNSONAppellantAND NEW ZEALAND POLICERespondentHearing: 10 February 2022Appearances: A J Bailey for AppellantJ H Whitcombe for CrownJudgment: 24 February 2022JUDGMENT OF MANDER JThis judgment was delivered by me on 24 February 2022 at 11 ampursuant to Rule 11.5 of the High Court Rules 2016Registrar/Deputy RegistrarDate: .[1] Following a Judge-alone trial in the Christchurch District Court, Mr JacobJohnson was found guilty by Judge Large of a charge of dangerous driving.1 Heappeals his conviction on the grounds the evidence was insufficient to prove any faulton his part had caused him to drive dangerously and the Judge misdirected himself asto the applicable law. Those errors, it was submitted, resulted in a miscarriage ofjustice.Facts[2] Around 4 am on 3 October 2020, Mr Johnson crashed his motor vehiclethrough a fence and into a paddock after failing to stop at a T-intersection. His vehiclecarried on through the junction, crashed through a gate, and collided with a tree. Thevehicle's speed at the time of the crash was estimated to be 60 kph, and the impactcaused the tree to penetrate about halfway into the engine bay. Mr Johnson was notwearing a seat belt. His head impacted with the windscreen and he received large,deep lacerations to both knees as a result of contact with the dashboard.[3] After Mr Johnson exited the vehicle, he called emergency services. Theattending paramedic described Mr Johnson as confused, with no recall of the crash.He was observed as appearing to be under the influence of alcohol or other substances,with slurred speech and dilated pupils. A blood sample taken from Mr Johnsonshowed that he had MDMA and tetrahydrocannabinol (THC) in his system.[4] Over a month after the crash, Mr Johnson was interviewed by police. He toldthem that he did not smoke cannabis, and suggested the THC in his blood must havecome from second-hand smoke. However, he admitted consuming MDMA, althoughhe was unable to tell police when he took it or in what quantity. Mr Johnson stated hewas driving from Woodend to Ohoka and that he could not recall how he ended up onthe road where he crashed. He did, however, remember waking up from sleep a splitsecond before hitting the tree.1 Land Transport Act 1998, s 35(1)(b).[5] Evidence was adduced that the crash site in Swannanoa was some three to fourkilometres away from any route involving a trip from Woodend to Ohoka, whichwould not require travelling through Swannanoa.District Court decision[6] Much of the evidence adduced before the District Court was not in dispute. Itwas accepted that Mr Johnson was the driver of the motor vehicle that had drivenstraight through the T-intersection and travelled some 50 metres into a paddock beforecolliding with a tree. Judge Large initially framed the issue for his determination asbeing whether or not Mr Johnson had fallen asleep and whether before so doing herealised, or ought to have realised, that he was so sleepy as to render it dangerous tocontinue driving.2[7] The Judge identified the police's case as inviting him to draw the inferencefrom Mr Johnson having ingested MDMA and the circumstances of his driving thathe was so affected by a substance to a point he could have gone to sleep "not throughtiredness alone". After refining the issue to being whether an ordinary, prudent driverhaving ingested MDMA would then drive, Judge Large referred to Mr Johnson'sadmission of having taken MDMA, and that he was found some three to fourkilometres from his intended route.[8] The Judge accepted that, if there was no other evidence of anything other thanof a person falling asleep, a driver could not be convicted of dangerous driving.However, in the present case, because of the acknowledged ingestion of a substanceprior to falling asleep, the Judge found Mr Johnson had departed from the standard ofan ordinary prudent driver. The Judge was satisfied the elements of the charge hadbeen proved.The appeal[9] Three grounds were identified by Mr Bailey on behalf of Mr Johnson insupport of the appeal. First, that the Judge had erred in identifying the test for2 Citing King v Police HC Rotorua AP77/01, 12 March 2002, at [7].dangerous driving as being whether Mr Johnson had "departed from the standard ofthe ordinary prudent driver", which Mr Bailey argued was the relevant standard fordetermining careless driving rather than dangerous driving.[10] Second, Mr Bailey submitted the police's contention that the driving of a motorvehicle after ingesting MDMA was or might be dangerous to the public was wrong inlaw. Mr Bailey argued this was a significant error because it directly bore on theJudge's approach to the case, when he identified the two issues for his determinationas being whether Mr Johnson had fallen asleep or not, and whether an ordinary prudentdriver, having ingested MDMA, would drive a vehicle.[11] Finally, Mr Bailey made the related submission that the Judge had notaddressed the question of whether the consumption of MDMA had been causative ofMr Johnson falling asleep. In the absence of there being any proof to that effect, orany such finding, Mr Bailey submitted that Mr Johnson could not have been convictedof the charge.The police argument[12] Mr Whitcombe submitted that, on the evidence available to the Judge, he wasentitled to draw the inference that Mr Johnson had departed from the standard of anordinary and prudent driver. He highlighted that Mr Johnson had taken MDMA andwas three to four kilometres from his normal route home at 4 am in the morning. Heidentified the "fault" in Mr Johnson's conduct was to have consumed MDMA beforedriving home in the early hours of the morning, when he could reasonably have beenexpected to be tired, and was exhibiting signs of intoxication. It could be inferredfrom the circumstances that Mr Johnson must have been impaired not simply frombeing tired.AnalysisThe applicable standard[13] The relevant provisions of the Land Transport Act 1988 make it an offence fora person to drive a motor vehicle in a manner which, having regard to all thecircumstances, is or might be dangerous to the public or to a person.3 To prove theoffence of dangerous driving, the prosecution must demonstrate that the driving, whenviewed objectively, was dangerous and that there was some fault on the part of thedriver which caused that situation. The relevant standard for assessing fault is that ofthe competent and experienced driver, which is to be measured against the manner ofthe driving in the particular circumstances of the case.4 There is earlier Englishauthority that suggests the applicable standard to be that of the "reasonable andcompetent driver" but that appears to have been superseded by later English and NewZealand cases.5[14] In the present case, Judge Large did reference the standard of a "reasonableand competent driver" which, as Mr Bailey submitted, appears to reflect the test forcareless use.6 However, the Judge, from the outset of his judgment, directed himselfto the need to be "satisfied beyond reasonable doubt that the driving was objectivelydangerous". While I am satisfied the correct test for fault is by reference to acompetent and experienced driver, I do not consider, particularly in the circumstancesof the present case, that this formulation materially differs from that of a reasonableand prudent driver. Moreover, I do not consider any misapprehension as to theapplicable standard would have made any material difference to the outcome of thiscase.Consumption of MDMA[15] The objective test of whether a person has driven a motor vehicle dangerouslyis not satisfied by proof of the mere fact the driver has consumed MDMA at somepoint prior to their journey. It does not necessarily follow, nor is it a reasonableinference to draw, in the absence of medical or expert evidence, that a person's drivingis or has been dangerous simply from the fact that they had previously consumed adrug. Many highly intoxicated drivers are apprehended who fail breath or blood3 Land Transport Act, ss 7 and 35.4 R v Jones [1986] 1 NZLR 1 at 3, citing R v Gosney [1971] 2 QB 674, [1971] 3 All ER 220 at 680;and as approved again in R v Seymour CA75/97, 11 June 1997; see Andrew Becroft and GeoffHall (eds) Becroft and Hall's Transport Law (NZ) (online ed, LexisNexis) at [LTA35.7].5 R v Evans [1962] 3 All ER 1086; cited in Anna Longdill and others Brookers Law ofTransportation (online ed, Thomson Reuters) at [LT7.05].6 Andrew Becroft and Geoff Hall (eds), above n 4, at [LTA35.1]. See McBreen v Ministry ofTransport HC Dunedin M102/82, 27 September 1982; and Love v Police [2012] NZHC 2952.alcohol tests. They may be clearly intoxicated but do not face a charge of dangerousdriving as a result of those bare facts.[16] However, I do not consider in the circumstances of this case there can be anyissue that Mr Johnson's driving was dangerous. The simple fact of his failure tonegotiate the intersection safely and, indeed, to drive through it at speed and crash isan obvious example of dangerous driving. The issue is not whether such driving iscapable of constituting dangerous driving, demonstrably it is, but whether it was theresult of some causal fault on Mr Johnson's part. The ingestion of MDMA may berelevant to proving this element of fault by establishing it formed part of thecircumstances contributing to his failure to meet the standard of a competent andexperienced driver, which caused the dangerous driving.The need to identify fault in Mr Johnson having fallen asleep[17] In the present case, it was common ground that the cause of the immediatecrash was Mr Johnson falling asleep at the wheel. The Judge accepted that was thecase and that dangerous driving cannot be committed by a sleeping driver becausetheir actions are involuntary.7 What is necessary is proof that, before the crash, thedriver realised, or ought to have realised, they are struggling to remain awake and areimpaired to the point they are so tired as to make it dangerous to continue driving.8[18] In R v Seymour, the Court of Appeal held that it was open to a jury to find theappellant breached the standard of "dangerousness" in circumstances where he fellasleep at the wheel after sleeping for only one hour after having worked all day andhad remained awake until 5.30 am. He had also not eaten for 12 hours. Importantly,expert evidence was called to the effect that most people in that situation would havefelt tired, and the appellant would have known he was likely to fall asleep whiledriving.97 Police v Vialle [1989] 1 NZLR 521 (CA); Kroon v R (1991) 55 SASR 476; and Jiminez v R (1992)173 CLR 572 (HCA) cited in Andrew Becroft and Geoff Hall (eds), above n 4, at [LTA35.7(a)].8 King v Police, above n 2, at [7].9 R v Seymour, above n 4.[19] In the present case, the Court did not have the benefit of evidence either of theeffect of MDMA on a driver or how a driver would be feeling, nor whether, as a result,they would have appreciated they were likely to fall asleep. The Judge did not addressthat issue. He relied upon the condition Mr Johnson was found in by the paramedicand other attending officers, the early morning hour at which the crash occurred at alocation away from Mr Johnson's intended route, and the consumption of MDMA toconclude he must have been affected by the drug "to a point where he could have goneto sleep not through tiredness alone". Mr Johnson had therefore departed from, as theJudge put it, "the standard of an ordinary, prudent driver".[20] Mr Bailey emphasised the need for a causal link between an identified faultand the act of dangerous driving — here, falling asleep and therefore driving a vehiclewithout conscious control. As I have already accepted, the deliberate ingestion ofMDMA alone, at least without the benefit of expert evidence, will not establish a levelof impairment that either can be acquainted with the act of dangerous driving, or,relevantly to the present case, can necessarily be linked with falling asleep. However,as the Judge noted, there are other features of Mr Johnson's conduct that can be drawnupon.[21] There is the early hour of the morning, although, as Mr Bailey submitted, therewas no evidence about when Mr Johnson had earlier slept, or his routine over theprevious day. There was, however, evidence that he was in an impaired stateimmediately after the crash. When that later circumstance is combined with the facthe had unknowingly driven his vehicle along an unintended route away from orbeyond his intended destination, which suggests he was in an impaired state, arguably,he should have appreciated that driving in such a condition placed himself and otherroad users in danger. The subsequent crash could well be viewed as the product ofthat impairment and therefore Mr Johnson was at fault for driving in such a condition.[22] The difficulty that arises, however, is that the premise of the prosecution case,and certainly the Judge's reasoning, was the "falling asleep aspect". It followed thata causative link needed to be established between the dangerous aspect ofMr Johnson's driving and an identified fault. In the absence of evidence directlyaddressing the effect of MDMA, in terms of causing tiredness and inducing sleepiness,there is not the necessary causal connection between this identified "fault", namelyoperating a vehicle while in a state of such tiredness that the driver is at risk ofbecoming unconscious at the wheel, and the dangerous act of driving relied upon here.Given the reliance on Mr Johnson having fallen asleep, as opposed to any otherimpairment which might otherwise have been able to be proved from his priorconsumption of drugs and the condition he was found in, I do not consider the Judge'sconclusion was available to him.Conclusion[23] It follows that the trial Judge erred in his assessment of the evidence and amiscarriage of justice has occurred.10 Mr Johnson's conviction for dangerous drivingmust be quashed. I have given careful consideration as to whether I can or shouldsubstitute an offence of driving while under the influence of a drug to such an extentas to be incapable of having proper control.11 However, while the evidence acceptedby the Judge may be capable of sustaining the elements of this offence, given thearguable need for medical or expert evidence and the lack of notice to the defendantof such a charge, I am not satisfied Mr Johnson would not be unfairly prejudiced. Itwas not a course suggested by the Crown and, in the absence of argument, I havedecided not to do so.[24] In terms of disposition of the appeal, Mr Bailey submitted that, given thematter dates back to October 2020, the fact the crash involved no other person, andthat Mr Johnson has already served some four and a half months of a mandatory periodof six months' disqualification, it is not necessary to direct a new trial. Having regardto those considerations, and that it is not immediately apparent the deficit in theprosecution case, namely expert evidence regarding the effect of MDMA on a driver'sconsciousness, can be rectified, I direct the entry of an acquittal and make no order fora new trial.10 Criminal Procedure Act 2011, ss 232(2)(b) and 232(4).11 Land Transport Act 1998, s 58(1).Result[25] The appeal is allowed. Mr Johnson's conviction on the charge of dangerousdriving is set aside.Solicitors:Crown Solicitor, Christchurch