MCCOY v NEW ZEALAND POLICE [2023] NZCA 108

MCCOY v NEW ZEALAND POLICE [2023] NZCA 108 [19 April 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA143/2022[2023] NZCA 108BETWEEN JAKE ELIJAH MCCOYAppellantAND NEW ZEALAND POLICERespondentHearing: 20 March 2023Court: Brown, Lang and Palmer JJCounsel: A J Bailey for AppellantM J Lillico for RespondentJudgment: 19 April 2023 at 2.30 pmJUDGMENT OF THE COURTThe appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] Following a judge-alone trial in the District Court at Christchurch theappellant, Mr McCoy, was convicted on a charge of dangerous driving.1 His appealagainst conviction in the High Court was dismissed.2 He appeals to this Court pursuantto a grant of leave.31 Police v McCoy [2021] NZDC 15034 [District Court judgment].2 McCoy v Police [2022] NZHC 252 [High Court judgment].3 McCoy v Police [2022] NZCA 617 [Leave judgment].Factual background[2] Mr McCoy was charged with driving a motor vehicle in a manner which,having regard to all the circumstances of the case, might have been dangerous to thepublic or a person.4[3] The circumstances of the offending were described by Judge Brandts-Giesenas follows:5[2] The complainant in this matter is [B] whose fiancée apparently lives [in a Christchurch suburb]. He was visiting her and had driven his vehiclewhich he had earlier parked further down the road according to the fiancée He drove this and parked it in a conventional manner outside her home.Before getting out of the vehicle he checked and saw a vehicle in the distancecoming around the roundabout at [a road] which [was] some distance fromwhere the complainant parked. The complainant got out of the vehicle andsays he was clear of it by the time the defendant came to pass it.The complainant's evidence was that the defendant hurled some abuse at him;drove on and did a u-turn at the intersection of [a number of roads] where thereis a roundabout. He then came back towards the complainant's vehicle andstopped in the middle of the road hurling more abuse at the complainantincluding calling him a [racial slur] and then proceeded and stopped thevehicle on the wrong side of the road but just past the complainant's vehicle.The exact distance does not matter much but it appears to have been in thevicinity of three or four metres.[3] The defendant's vehicle was a utility with the back end closest to theback of the complainant's vehicle. The defendant then threatened to damagethe complainant's vehicle. The complainant told him to go away.The defendant continued with his threat and reversed his vehicle towards thatof the complainant but the complainant stepped between the defendant'svehicle and his own vehicle and the defendant stopped his reverse.The reverse, according to a neighbour who saw this, was not fast nor slow.It would be difficult, in my view, to estimate the speed because of the shortdistance covered.[4] The defendant was then told by the complainant that the police werebeing called. The defendant said he did not care and would be back. He saidthat he would be back with his friends, according to the evidence of[the neighbour]. The defendant then drove back towards the [first] roundabout went around the roundabout and came back again and drove off. The policearrived after the defendant had left but the defendant was apprehended.[4] Although the submissions for both sides recorded that Mr McCoy wasapparently aggrieved by the way in which B had opened the door of his parked car as4 Land Transport Act 1998, ss 7(2) and 35(1)(b).5 District Court judgment, above n 1. Mr McCoy was also charged with (and pleaded guilty to) theoffence that, with intent to intimidate, he threatened to injure B and damage his vehicle.Mr McCoy was driving past, we note that the District Court Judge considered that Bwas already out of the car with the door closed and clear of the roadway beforeMr McCoy approached.6The District Court judgment[5] The District Court Judge posed the question: was the display of driving byMr McCoy driving in a manner which, having regard to all the circumstances of thecase, had been dangerous to the public or a person?7 After observing that Mr McCoyhad driven aggressively and that he was aggressive towards not only B but possiblyhis fiancée as well,8 the Judge concluded:[7] The defendant hurled abuse at the complainant; turned at theroundabout as I have said, and drove back and having first parked orstopped in the middle of the road and then got to the side of the road I findthat he did accelerate, or that he did back towards the complainant's vehicleafter threatening to damage it, wisely or unwisely, unfortunately [sic] with nodamage. The complainant got between his vehicle and that of the defendant,and the defendant stopped.[8] I find that the defendant may well have stopped short of hitting thecomplainant and when he started the backing movement the complainant wasnot immediately behind the vehicle. Nevertheless, the aggression that he hadshown before, during, and after this incident were such that in my view he wasdriving in a manner which could have been dangerous or might have beendangerous to the complainant and the two onlookers who were close by on thefootpath.[6] The Judge observed that it was possibly unwise for B to have moved inbetween the two vehicles and that it could be said that he thereby created the danger.However, in the Judge's view the danger that existed lay in the wider context of howMr McCoy was driving and how he was behaving.9 The Judge stated:[9] While he may have said that he was going to damage thecomplainant's vehicle, his general demeanour was such that anything couldhave happened, and this man was dangerous in my view at the wheel of thatvehicle at that time in the manner in which he was driving it. Accordingly, Ifind the charge to be proved beyond reasonable doubt.6 At [5].7 At [5].8 At [5]–[6].9 At [9].The High Court judgment[7] On appeal Mr Bailey, counsel for Mr McCoy, submitted that the District CourtJudge erred because he did not consider the manner of the actual driving but insteadfocused on Mr McCoy's internal aggression and his behaviour. He submitted thatMr McCoy did not intentionally drive his vehicle towards B: he reversed at a lowspeed but stopped reversing when B placed himself between the two vehicles.Mr Bailey contended that, viewed objectively, moving or parking vehicles in closeproximity to other vehicles or people is an everyday occurrence.[8] Osborne J commenced by recognising that whether driving is dangerous is tobe judged objectively and does not depend on the defendant's state of mind.10He stated it must be shown that the situation, viewed objectively, was or might havebeen dangerous and that the driver failed to meet the standard of care expected of acompetent and experienced driver.11 The Judge identified as the issue whether theDistrict Court Judge erred in finding the speed and manner in which Mr McCoy drove,having regard to all the circumstances, was or might have been dangerous to the publicor to a person.12[9] On that question Osborne J reasoned:[45] Although I accept the Judge may have focussed unnecessarily onMr McCoy's aggressive feelings, it was open to the Judge to have a generalregard to the broader circumstances. The Judge did not conclude the drivingwas dangerous simply because of Mr McCoy's aggression. Rather, he foundthat "the danger that existed in [his] view is in a wider context of how thedefendant was driving and how he was behaving".[46] That saw the Judge conclude Mr McCoy's driving was dangerous inthe wider context of how he was driving. The Judge had earlier noted that"[Mr McCoy] stopped in the middle of the road and then proceeded andstopped the vehicle on the wrong side of the road but just past thecomplainant's vehicle." This occurred before Mr McCoy reversed towardsthe complainant's vehicle, with pedestrians nearby.(Footnotes omitted.)10 High Court judgment, above n 2, at [41], citing Ebert v Transport Department [1967] NZLR 459(CA).11 At [41], citing R v Gosney [1971] 2 QB 674 (CA) at 680.12 At [43].Consequently the Judge ruled the conviction had not been shown to be unsound.13Leave to appeal[10] The application for leave to appeal was made on the grounds that:(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 concerned a matter of general or publicimportance, namely whether the driver's state of mind is a relevantcircumstance when assessing whether the driving was dangerous.[11] In its leave decision this Court stated the question whether driving is dangerousis to be assessed objectively, noting there is long-standing authority that it does notdepend on a defendant's state of mind.14 Leave to appeal was granted becausethe Court considered it was arguable that the Courts below erred in taking into accountMr McCoy's anger and aggression. It stated:15While the test involves consideration of all the circumstances, it is seriouslyarguable that a defendant's general state of mind is not relevant to whethertheir driving, assessed objectively, was dangerous.Analysis[12] It is an offence under ss 7(2) and 35(1)(b) of the Land Transport Act 1998 todrive a motor vehicle at a speed or in a manner which, having regard to all thecircumstances, is or might be dangerous to the public or to a person. In Johnson vPolice, an authority cited by Mr Bailey, Mander J succinctly described the applicablestandard:16To prove the offence of dangerous driving, the prosecution must demonstratethat the driving, when viewed objectively, was dangerous and that there wassome fault on the part of the driver which caused that situation. The relevant13 At [47].14 Leave judgment, above n 3, at [15], citing R v Evans [1963] 1 QB 412 (Crim App) at 418.15 At [17].16 Johnson v Police [2022] NZHC 266 at [13] (footnote omitted).standard for assessing fault is that of the competent and experienced driver,which is to be measured against the manner of the driving in the particularcircumstances of the case.[13] The "manner" of driving refers to the way in which a driver operates a motorvehicle, its speed, its manoeuvring and the use of the vehicle's amenities such asexternal lights. Taking that last feature as an example, it would not be dangerous todrive a vehicle without lights activated on a sunny day but it would be decidedlydifferent to do so on an unlit road on a moonless night.[14] Mr Bailey submitted that there is long-standing authority that a defendant'sstate of mind is irrelevant to establishing the charge of dangerous driving.17 However,a defendant must have knowledge of the circumstances which make the drivingdangerous.18 Mr Lillico for the police accepted that determining intention, in the senseof deliberate acts, recklessness or negligence, is not relevant.[15] However, Mr Lillico emphasised that the circumstances that may be consideredare not constrained.19 He referred to the recent decision of the Court of Appeal ofEngland and Wales in R v Holder for the proposition that the standard to be expectedof a careful and competent driver is inextricably linked to and dependent upon thecircumstances in which the driving takes place.20 Travelling at a certain speed may beappropriate and safe in one set of circumstances, having regard to the prevailingweather or road conditions for example, but very dangerous in another.21[16] Mr Bailey's criticism of the District Court decision, particularly by referenceto [9] of that judgment,22 was that it focused on what he described as the "threats anddisorder" rather than the manner in which Mr McCoy was driving his vehicle.Mr Bailey's point was that words alone cannot cause the manner of driving to bedangerous driving. Mr Bailey also criticised the District Court Judge's reliance on17 Citing R v Evans, above n 14, at 418.18 Citing Edmonds v Police [1970] NZLR 267 (SC) at 270–271.19 Sections 7(2) and 35(1)(b) of the Land Transport Act refer to "having regard to all thecircumstances".20 R v Holder [2023] EWCA Crim 5, [2023] 4 WLR 14 at [19].21 At [19].22 Quoted at [6] above.Mr McCoy's derogatory racial language when concluding his driving was dangerous.As Mr Bailey graphically put it in the course of oral argument:If you are driving along, even if you are very angry, even if you are saying toeveryone on the footpath "I'm going to bowl you over, watch out", you mightbe liable for something else — threatening to kill etc — but it wouldn't[be dangerous driving], the manner of the driving is completely fine.The question was posed to Mr Bailey whether the aggression and the threat (to smashone vehicle with another) could inform how one perceived the manner of driving,namely to implement the threat. Having first observed that "we don't knowcompletely what he would have done if there was no one [who] got in between thetwo cars", Mr Bailey emphasised that no matter what a defendant might utter, wordsalone could not render the manner of the driving dangerous.[17] It is well settled that a defendant's general state of mind cannot convertotherwise lawful driving into dangerous driving. However we agree with Mr Lillico'ssubmission that, while the objective test for dangerous driving excludes considerationof mens rea, it does not follow that observable conduct, such as an utterance or gesture,is necessarily irrelevant. The act of reversing a vehicle, even on the wrong side of aroad, towards persons or property may not be dangerous if undertaken with due careand attention. However when it occurs accompanied by a threat to thereby causedamage in a targeted way, such a contemporaneous statement can form part of theobservable circumstances, notwithstanding that the statement also happens to indicatea "state of mind".[18] While a number of the authorities cited to us in argument concerned driversfalling asleep, or who had consumed alcohol or drugs,23 a decision having greatersimilarity to the present appeal is the judgment of the High Court of Justiciary inYoung v Barbour.24 Mr Young was convicted of driving dangerously when he drovebehind the complainant at a distance of about three metres making abusive gestures athim, apparently in rage. The sheriff held that the close driving behind thecomplainant's car was not caused by mere inattention but was a deliberate course of23 Johnson v Police, above n 16; R v Seymour CA75/97, 11 June 1997; and Lodge v Magorian [2012]WASCA 90, (2012) 42 WAR 270.24 Young v Barbour [2002] SCCR 84 (HCJAC).action. It was submitted on appeal for Mr Young that the sheriff had attached undueimportance to the matter of deliberation and that what mattered was not whether hisactions were deliberate, but whether the nature of his driving was such as to fall belowthe requisite standard. It was submitted that, while fear and alarm caused by suchconduct might well be relevant to a charge of breach of the peace, the situation wasentirely different when one was concerned with the charge of driving dangerously.[19] In concluding that the conviction was well founded and dismissing the appeal,the Lord Justice Clerk stated:[6] We have some sympathy with [the appellant's] criticism of thereasoning contained in the sheriff's note and we have some concern as towhether he attached undue importance to the matter of deliberation. However,we do not consider that deliberation can be left totally out of account asexplaining what happened. On the other hand the critical question is the natureand quality of the driving.[20] In the present case Mr McCoy's course of conduct (stopping first in the middleof the road and then proceeding to stop on the wrong side of the road) prior to the actof reversing his vehicle may have fallen short of dangerous driving. However we haveno doubt that, following Mr McCoy's rhetorical question to the general effect whetherB wanted him "to smash your car with my car", the act of reversing from the wrongside of the road towards B's car, an act which prompted B (possibly ill-advisedly) tostep between the vehicles, constituted dangerous driving.[21] While, as in Young v Barbour, the critical question is the nature of the driving,we do not consider that Mr McCoy's apparent intention, disclosed by hiscontemporaneous statements, should be excluded from consideration as a relevantcircumstance. We are satisfied that Mr McCoy drove his vehicle dangerously when,consistent with his stated purpose, he reversed his vehicle towards B's vehicle incircumstances where there was at least one person in the vicinity (B) who may betempted to place himself in danger in order to prevent damage being done to hisvehicle. The fact that there may have been verbal racial abuse prior to the reversingincident cannot add to, but neither can it detract from, the soundness of that conclusion.Result[22] The appeal is dismissed.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent