LORD v NEW ZEALAND POLICE [2022] NZHC 1103

LORD v NEW ZEALAND POLICE [2022] NZHC 1103 [19 May 2022]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2022-454-4[2022] NZHC 1103BETWEEN MATTHEW TOMAS LORDAppellantAND NEW ZEALAND POLICERespondentHearing: 18 May 2022Appearances: P L Murray for the AppellantA M Barham for the RespondentJudgment: 19 May 2022JUDGMENT OF PALMER JSolicitorsPaul Murray Barrister & Solicitor, Palmerston NorthCrown Solicitor, Palmerston NorthWhat happened?[1] On 29 July 2019, the appellant, Mr Matthew Lord flew from Palmerston Northto Auckland to pick up and drive back a 1998 Mitsubishi Lancer EVO 5 he had justbought. Around 7.30 pm he was approximately 10 kilometres south of Taihape onState Highway 1. There he collided with a Mazda 3 driven by the complainant,Ms Dara Graham. Both of them were seriously injured. Ms Graham suffered severeinjuries, fracturing her pelvis, sternum, leg (in several places), heel, ankle andvertebrae. She had multiple bruising. She was in a wheelchair for more than twomonths and had fluid on her lungs.[2] Neither Mr Lord nor Ms Graham had any memory of what happened. On 5October 2021, in the Taihape District Court, Mr Lord defended a charge of aggravatedcareless driving causing injury, under s 39 of the Land Transport Act 1998 (LTA). Thetranscript from the judge-alone trial is not available and the audio quality of therecording is so bad that much of it is inaudible. But Judge J Krebs set out hisunderstanding of the evidence in some detail in his judgment.1 In summary, relevantly:(a) A witness, Mr Lawrence Jensen, gave evidence that he was travellingnorth behind Ms Graham's car, saw Mr Lord's car round a corner andcross the centre line. His evidence was that the headlights of Mr Lord'scar were completely obscured by Ms Graham's car. Her vehicle veeredaway off the road, at which point the left headlight of Mr Lord's carcame into view. Then the two vehicles collided. Mr Jensen's car hitMr Lord's car and pushed it partly back across the centre line into thesouthbound lane.(b) Another witness, Mr Keith Wood, was travelling north behindMr Jensen. He said the weather was fine and clear and road conditionswere reasonable.(c) A third witness, Mr Wade Wilson, was travelling south. While he wastravelling at 100 kilometres per hour he saw Mr Lord's car come up1 New Zealand Police v Lord [2021] NZDC 20643.very quickly behind him and pass him in a passing lane. He saidMr Lord's car made three attempts to pass another car 500 metresahead. Mr Wilson had talked to Mr Lord at the Taihape BP ServiceStation. He noticed the road was slippery with dampness but wasdrivable and he did not have any problem driving, providing he wasdriving to the conditions. It was more slippery as he got close to thescene of the accident.(d) Constable Justin Moore arrived at the scene some minutes after theaccident. His evidence was that the road was wet due to light drizzleand was slippery near the vehicles, which he considered was from theoil and fluids from the crashed vehicles. He took blood tests from MrLord and Ms Graham which were negative for drugs and alcohol.Constable Moore said the corner could be safely negotiated at 100kilometres per hour. He had had seven years' policing experience ofthat road and corner.(e) Mr David Taylor gave evidence as an expert vehicle engineer. He foundno fault in the vehicles that would have contributed to the accident. Hedid not inspect the underside of Mr Lord's vehicle, including the rearsuspension assembly or security of the rear subframe. Mr Taylorconcluded the vehicle would have been in good condition when itobtained its warrant due to the lack of leeway in vehicle checks at theborder. He confirmed that if all the bolts connecting the rear subframeand suspension assembly to the vehicle were loose, the handling of thevehicle could potentially have been affected. In his opinion, aphotograph of damage to the bolts could have been caused by or afterthe accident or after his inspection.(f) Mr Lord also gave evidence. He said that, before he left Auckland, hefilled up the car and noticed it was dripping petrol. He said there wasa crimp in the breather-pipe and he returned the vehicle to the vendorwho quickly repaired it. But, shortly after 1 pm that day, he had sent atext indicating one of the hose clips had been loose and he was "pissedoff" because he was meant to have been on the road by then. In anearlier text exchange, Mr Lord was asked whether he was happy withthe car and he replied "[i]ts fast asf" which he accepted meant it was"fast as fuck".(g) Mr Lord and his mother gave evidence of an inspection of the wreck ofthe vehicle carried out by a friend of his two months after the accident.The friend, who was not called, apparently removed bolts from underthe vehicle. Photographs were produced. One of the bolts had damageto it. Another bolt and washer on the vehicle were depicted in aphotograph. It showed that Mr Lord's fingers could fit between thewasher and the surface of the wheel arch.(h) Mr Paul Bass was called by Mr Lord as an expert crash investigator. Inhis opinion it was clear that the point of impact was in the northboundlane. He considered that if the speed of the vehicle and the frictionvalue of the surface at the time were not known, then exactly whathappened could not be established. He also said vehicles of this sortare prone to understeer. He accepted it was quite possible to travelsafely around the bend at 100 kilometres per hour, whether the road waswet or dry. He could not rule out the possibility that the accident wascaused by an issue with the suspension or by travelling at excessivespeed.[3] The Judge agreed that what exactly had happened could not be established.But he had no doubt that Mr Lord drove his vehicle on the wrong side of the road andconsidered that fell below the standards to be expected of a reasonable and prudentmotorist. He held that was the single causative factor of the accident. He consideredthere was no reasonable doubt about the vehicle's road-worthiness. The Judge heldthe degree of carelessness was high and there were no intervening causes that mighthave been outside the defendant's control. The Judge stated:[69] Nonetheless, it was his driving at the time immediately before theaccident which is in question. It is not possible and not necessary to saywhether the defendant was travelling at excessive speed, although there issome evidence to infer that this was probably the case. It is also not necessaryto establish the exact mechanism by which he was on the wrong side of theroad. However, in the absence of vehicle fault and given the conditions of theroad, I am satisfied that he was not driving to the conditions and was thereforecareless.[70] His carelessness caused the accident. It was aggravated by the fact thathe breached the traffic regulations by driving on the wrong side of the road.In those circumstances, the charge is proved.[4] On 10 March 2022, Judge Krebs sentenced Mr Lord to nine months'supervision with conditions including an unmonitored curfew, drug and alcoholcounselling and a defensive driving course. The Judge also ordered Mr Lord to paythe victim $5,000 in reparations for emotional harm and disqualified him from drivingfor 15 months, backdated to 1 September 2021.[5] Mr Lord appeals his conviction and the drug and alcohol counselling conditionof his sentence.Submissions[6] Mr Murray for Mr Lord, and Ms Barham for the Police, agree on a number ofpoints. They agree the evidence did not establish that Mr Lord was driving in a mannerin breach of the rules or regulations, which is an element of the offence of aggravatedcareless driving. They agree the Judge erred in imposing the alcohol and drugcondition because there was no issue of alcohol or drugs being involved in theoffending. Counsel also agree that the Court could acquit Mr Lord, direct a new trialbe held in the High Court or District Court, enter a conviction for careless drivingcausing injury, or stay the proceedings.[7] Mr Murray also submits the Judge's assessment of the evidence was in error tosuch an extent that a miscarriage of justice occurred. He submits the Judge erred infinding that Mr Lord drove on the wrong side of the road, that he failed to drive to theconditions, and that environmental factors and the condition of the vehicle could beexcluded as causative. In particular, he submits the evidence of Mr Wilson that thearea around the accident was slippery could sustain an inference that conditions at theaccident scene were different from those in the area leading up to it.[8] Ms Barham submits the Court should be cautious in disturbing the findings offact made by the trial judge. She submits the charge of careless driving was availableand the appeal should be decided on the detailed recounting of the evidence in thedecision. She submits that it was open for the Judge to find there was no vehicularfault or road condition that was an intervening cause of the accident outside Mr Lord'scontrol. Given that, she submits the Judge correctly found that Mr Lord must not havebeen driving to the conditions and was therefore careless. She also submits that, ifthere is a re-trial, the charge of aggravated careless driving should be left open.Conviction appeal[9] Under s 232(2) of the Criminal Procedure Act 2011 (the CPA), I must allowthe appeal against conviction if satisfied the Judge erred in his assessment of theevidence to such an extent that a miscarriage of justice has occurred or there has beena miscarriage of justice for any reason. In Sena v New Zealand Police, the SupremeCourt confirmed it is for the appellant to show an error has been made and theappellant court must take into account any advantages a trial judge may have had,meaning an appellate court will exercise "customary caution" to a challenge tocredibility findings based on contested oral evidence.2 But if the appellate court comesto a different view of the evidence, the trial judge must necessarily have erred and theappeal must be allowed.[10] As Mr Murray notes, the Court of Appeal in Kingi v R held that an inadequaterecord is not itself a reason to find a conviction was unsafe or that there was amiscarriage of justice.3 In the event there is reason to suspect something has gonewrong in the trial, the absence of a proper transcript may be material.4[11] The offence of aggravated careless driving causing injury set out in s 39(1)(b)of the LTA requires, relevantly, that a person "causes bodily injury to a person bycarelessly using a motor vehicle while driving the motor vehicle in such a manner2 Sena v New Zealand Police [2019] NZSC 55 at [38]; citing Austin, Nichols & Co Inc v StichtingLodestar [2007] NZSC 103; [2008] 2 NZLR 141.3 Kingi v R [2016] NZCA 160 at [30].4 At [30].as to commit an offence against the regulations or the rules concerning the part ofthe road on which a driver may drive his or her motor vehicle".[12] Mr Murray is correct that Gendall J in Han v District Court at Manukau heldthat an element of the offence is that "it must be shown that a driver acted deliberately"in a manner in breach of the relevant rule or regulation.5 The Judge here made nofinding regarding this and, on the account in the judgment, the evidence was notavailable for him to do so. Consequently, it was an error for the Judge to hold thethreshold for aggravated careless driving causing injury was met, as counsel agree.[13] However, I consider the findings of the Judge mean the elements of the offenceof careless driving (without the aggravation) were made out. Under s 38 of the LTA,"[a] person commits an offence if the person operates a vehicle on a road carelessly orwithout reasonable consideration for other persons using the road, and by that act oromission causes an injury to another person".[14] There is eyewitness evidence that Mr Lord crossed the centre line and collidedwith Ms Graham's car. The Judge considered the expert evidence about the vehicle,the results of the examination of the vehicle by Mr Lord's friend (who was not calledto give evidence though he was available), the warrant of fitness, and evidence of theimportation inspection. On the basis of that evidence the Judge considered there wasno reasonable doubt as to the vehicle's road-worthiness.6 I consider it was open tohim to do so.[15] Given the condition of the road, the Judge concluded Mr Lord was not drivingto the conditions and was careless. Mr Wilson's evidence does not contradict that.His evidence was effectively that Mr Lord was driving aggressively, as the Judgenoted. Other evidence supports that. Mr Wilson said he did not have any problemdriving, providing he was driving to the conditions. Given all that, I do not consideran inference drawn from the greater slipperiness closer to the accident casts reasonabledoubt on the proposition that Mr Lord was not driving to the conditions. I consider itwas open to the Judge on the evidence to find that Mr Lord was careless.5 Han v District Court at Manukau HC Auckland, CIV-2004-404-2710, 3 November 2004 at [10].6 Police v Lord, above n 1, at [66].[16] Given my conclusion that the evidence supports a charge of careless drivingcausing injury, the costs and delay of a retrial, and that much of the sentence has beencompleted, under s 233 and 234 of the CPA, I consider I should substitute a convictionfor careless driving causing injury for the conviction for aggravated careless drivingcausing injury. I consider that it is in the interests of justice to do so.Sentence appeal[17] In relation to the sentence appeal, under s 250 of the CPA, I must allow theappeal if I am satisfied there is a material error in the sentence and a different sentenceshould be imposed. Otherwise, I must dismiss the appeal.[18] Section 50 of the Sentencing Act 2002 states that a court may impose a specialcondition related to a programme provided it is satisfied there is a significant risk offurther offending, that standard conditions would not adequately mitigate that risk andthat the offender requires the programme to reduce the likelihood of further offending.[19] I agree with counsel that the condition requiring drug and alcohol andcounselling is not related to the offending here. The Judge did not discuss the reasonfor this condition in his sentencing remarks. The condition is not related to the risk ofMr Lord reoffending. That was an error. I allow the sentence appeal and quash thecondition.Result[20] I allow the appeal. I quash the conviction for aggravated careless driving andsubstitute a conviction for careless driving causing injury under s 38 of the LTA. Iquash the condition of sentence requiring attendance at an alcohol and drugprogramme. The rest of the sentence is unaffected.Palmer J