MCCOY v POLICE [2022] NZCA 617

MCCOY v POLICE [2022] NZCA 617 [9 December 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA143/2022[2022] NZCA 617BETWEEN JAKE ELIJAH MCCOYApplicantAND NEW ZEALAND POLICERespondentCourt: Gilbert, Brewer and Moore JJCounsel: A J Bailey for ApplicantB So for RespondentJudgment:(On the papers)9 December 2022 at 9.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal against conviction is granted.____________________________________________________________________REASONS OF THE COURT(Given by Moore J)[1] In the District Court at Christchurch, Jake McCoy faced charges of dangerousdriving,1 common assault,2 speaking threateningly,3 resisting arrest4 and two chargesof wilful trespass.5 He pleaded guilty to all but the charge of dangerous driving.1 Land Transport Act 1998, s 35(1)(b).2 Summary Offences Act 1981, s 9.3 Section 21(1)(a).4 Section 23(a).5 Trespass Act 1980, s 4(4).[2] Following a judge-alone trial before Judge J J Brandts-Giesen, Mr McCoy wasfound guilty of dangerous driving.6 He appealed. On 23 February 2022, Osborne Jdismissed his appeal against conviction.7[3] Mr McCoy now seeks leave to bring a second appeal against conviction.The police oppose.The offending[4] For present purposes, it is necessary to summarise only the offendingunderlying the dangerous driving charge.[5] On 10 October 2020, Mr McCoy was driving his ute down a street inChristchurch. The complainant, B, had parked his car on the side of the road, near hisfiancée's house. Before leaving the car, he looked up and saw Mr McCoy drivingaround a roundabout some distance away. He opened his car door and got out.[6] Mr McCoy drove past. As he did, he hurled abuse at B. Then he executed aU-turn and drove back towards B. He stopped in the middle of the road and continuedhis verbal abuse of B, including the delivery of a racial slur.[7] Mr McCoy then drove onto the wrong side of the road and stopped aboutthree or four metres past B's car. The rear of his ute was closest to the back ofB's vehicle. Mr McCoy threatened to smash B's car. B asked him not to.Undeterred, Mr McCoy reversed towards B's car. B stood in between thetwo vehicles. He placed his hands on the ute in an attempt or gesture to Mr McCoy tostop. Mr McCoy stopped. A neighbour, who witnessed the events unfold describedthe speed of the ute as "medium pace" but with "some intent that it was gonna keepgoing".[8] B told Mr McCoy he would call the police. Mr McCoy responded that he didnot care and would be back with some friends. He then drove away. The police laterfound and arrested him.6 Police v McCoy [2021] NZDC 15034 [District Court judgment].7 McCoy v Police [2022] NZHC 252 [High Court judgment].District Court judgment[9] The trial Judge framed the issue as whether Mr McCoy was "driving ina manner which having regard to all the circumstances of the case had been dangerousto the public or a person".8 The Judge had no doubt that Mr McCoy both droveaggressively and behaved in an aggressive manner.9 He accepted that B was notbehind Mr McCoy's ute when he began reversing and that Mr McCoy may well havestopped short of hitting B.10 However, taking into account the aggression Mr McCoywas displaying at the time, he concluded that the driving was in a manner which couldhave been dangerous to B or to the two onlookers on the nearby footpath.11That danger existed in the wider context of how Mr McCoy was drivingand behaving.12 The Judge thus found the charge of dangerous driving proved.13High Court judgment[10] Mr McCoy appealed his conviction. Osborne J considered that the issue onappeal was whether the Judge erred in finding the speed and manner in whichMr McCoy drove, having regard to all the circumstances, was or might have beendangerous to the public or to a person.14[11] Osborne J accepted that the trial Judge may have focused unnecessarily onMr McCoy's aggressive conduct.15 However, he also accepted that the trial Judge wasentitled to have regard to the broader circumstances.16 Osborne J reasoned thatthe Judge did not conclude the driving was dangerous simply because ofthe aggression.17 Rather, that his driving was dangerous in the wider context of howhe was driving.188 District Court judgment, above n 6, at [5].9 At [5]–[6].10 At [8].11 At [8].12 At [9].13 At [9].14 High Court judgment, above n 7, at [43].15 At [45].16 At [45].17 At [45].18 At [46].[12] The High Court concluded that Mr McCoy's use of his vehicle justified the trialJudge's finding that it was dangerous.19 The conviction was sound, and no miscarriageof justice occurred.20Approach to applications for leave to bring a second appeal against conviction[13] Mr McCoy now applies for leave to bring a second appeal against conviction.21Leave must not be granted unless the appeal involves a matter of general or publicimportance or that a miscarriage of justice may have occurred, or may occur unlessthe appeal is heard.22 The threshold for granting leave is high, particularly becausenot every error will carry with it a risk of a miscarriage of justice.23Proposed grounds of appeal[14] Mr Bailey, for Mr McCoy, seeks leave to appeal on two bases:(a) the Judge erred by relying on irrelevant evidence of Mr McCoy'saggressive state of mind in assessing whether his driving wasdangerous, resulting in a miscarriage of justice; and(b) the proposed appeal concerns a matter of general or public importance,namely whether the driver's state of mind is a relevant circumstancewhen assessing whether the driving was dangerous.Should leave be granted?[15] We are satisfied that the proposed appeal raises a genuinely arguable questionof law that is of general or public importance. The statutory test for dangerous drivingis whether a defendant drove a motor vehicle at a speed or in a manner which, havingregard to all the circumstances, is or might be dangerous to the public or to a person.24This includes not only actual and potential danger to persons present but also extends19 At [47].20 At [47].21 Criminal Procedure Act 2011, s 237(1).22 Section 237(2).23 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [38]. See also Larason v Police [2021]NZCA 440 at [18].24 Land Transport Act, ss 7(2) and 35(1)(b).to hypothetical members of the public who might be endangered.25 Whether thedriving was dangerous is to be assessed objectively and there is long-standingauthority that it does not depend on the defendant's state of mind.26 An early statementof this principle may be found in the Court of Criminal Appeal's decision inR v Evans:27... it is no answer to say: 'I did not mean to drive dangerously' if a driverin fact adopts a manner of driving which the jury think was dangerous to otherroad users in all the circumstances, then on the issue of guilt it matters notwhether he was deliberately reckless, careless, momentarily inattentive oreven doing his incompetent best.[16] The danger must nevertheless be the result of some fault on the part ofthe driver.28 The relevant standard for assessing fault is that of the competent andexperienced driver, which is to be measured against the manner of the driving inthe particular circumstances of the case.29[17] We consider it is arguable that the courts below erred in taking into accountMr McCoy's anger and aggression. While the test involves consideration of allthe circumstances, it is seriously arguable that a defendant's general state of mind isnot relevant to whether their driving, assessed objectively, was dangerous.We therefore consider that a miscarriage of justice may result if the appeal is not heard.[18] The proposed appeal raises an issue of general or public importance.Dangerous driving charges are dealt with in the District Court in relativelyhigh volumes. Clarification of the correct approach is therefore desirable to ensurethese types of cases are dealt with efficiently and consistently.25 Whiteman v Ministry of Transport [1980] 2 NZLR 507 (CA) at 511, citing Wagg v Shaw [1962]NZLR 498 (SC) at 499.26 R v Evans [1963] 1 QB 412 at 418.27 At 418.28 Johnston v Police [2022] NZHC 266 at [13].29 At [13], citing R v Jones [1986] 1 NZLR 1 (CA) at 3, citing R v Gosney [1971] 2 QB 674 at 680.See also R v Seymour CA75/97, 11 June 1997; and Andrew Becroft and Geoff Hall (eds) Becroftand Hall's Transport Law (NZ) (online ed, Lexis Nexis) at [LTA35.7].Result[19] The application for leave to bring a second appeal against conviction isgranted.Solicitors:Crown Law Office, Wellington for Respondent