MACKISACK v NZ POLICE [2020] NZHC 57

MACKISACK v NZ POLICE [2020] NZHC 57 [3 February 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-404-000423[2020] NZHC 57BETWEEN ROBERT MACKISACKAppellantAND NEW ZEALAND POLICERespondentHearing: 16 December 2019Appearances: D Grove for the AppellantR Belcher for the RespondentJudgment: 3 February 2020JUDGMENT OF WOOLFORD JThis judgment was delivered by me on Monday, 3 February 2020 at 3.00 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCounsel: D Grove, AucklandIntroduction[1] On 13 June 2019, Judge Sinclair found Robert Francis Mackisack guilty ofone charge of careless driving and four charges of careless driving causing injuryunder the Land Transport Act 1998 (LTA).1 On 20 September 2019, the Judgesentenced him to 200 hours of community work, 12 months' disqualification fromdriving and ordered him to pay $8,000 in reparations.2 Mr Mackisack now appealsagainst both conviction and the Judge's refusal to waive the otherwise mandatorydisqualification period.Factual background[2] On 16 January 2018, the appellant was driving a truck and trailer unit, whenthe trailer unit detached from the truck. The trailer veered across the road and strucka taxi van travelling in the opposite direction. The taxi van was substantially damaged.The four occupants in the taxi van suffered injuries, including lacerations, fractures,sprains, abrasions, ligament damage and concussion. One required surgery. While thetrailer was still in motion, it struck a second vehicle with two occupants inside, causingdamage to the second vehicle, but no injuries to the occupants.District Court decision[3] At the hearing on 13 June 2019, the key issue for the Judge was whether theappellant took reasonable steps to secure the pintle hook coupling attaching the trailerto the truck — that is, whether the appellant exercised the degree of care and attentionthat a reasonable and prudent driver would exercise in the circumstances.[4] At the outset, the Judge considered the defence submission that the accidenthad been caused by a mechanical defect, in which case the onus was on the prosecutionto disprove such defect beyond reasonable doubt or prove that the appellant knew ofthe defect before the accident. The mechanical defect alleged was the possiblepresence of a stone which stopped the locking arm dropping down into the lockedposition.1 Police v Mackisack [2019] NZDC 16960.2 Police v Mackisack [2019] NZDC 20073.[5] Expert witnesses were called by both parties. John Wolf, the prosecutionexpert witness, and Paul White, the defence expert witness, both agreed that the pintlehook was in good working order. In those circumstances, the Judge was satisfied thatthere was no evidence to support a finding of mechanical defect. It was not areasonable possibility.[6] The Judge then recorded that both Mr Wolf and Mr White were agreed on themechanics and operation of the pintle hook. She described it as follows:3[13] The main part of the coupling that attaches the trailer to the truckhas two jaws. The lower jaw is fixed to the towing vehicle and is shaped likea U. The upper jaw pivots to form a closed circle. The upper jaw is locked inthe closed position by a pull-type action. When the coupling is closed, thearm is lowered down and stops the coupling from opening.[14] The pintle hook is fully closed when the locking mechanism is restingflush with the top of the body of the pintle lock. The surface across the top ofthe pintle lock hook is in alignment when the pintle hook is locked. When itis fully retracted and in the locked position, it prevents the upper jaw of thepintle hook from being opened. If the locking jaw is in place and locked, itwill not become disengaged. If the pintle hook is not locked, the latchingmechanism will sit above the horizontal line across the top of the towingcoupling. To release the pintle hook from the vehicle it is necessary to raisethe latch and lift the lock locking pull up. The trailer can only come off thehook if the pintle hook is not correctly latched and secure. [7] The Judge then turned to the two propositions advanced by the appellant tosupport his claim that the prosecution could not prove he was not a careful and prudentdriver:(a) First, that it was possible for a stone to stop the primary lock engaging;and(b) Secondly, a person taking reasonable care may not have been aware thatthe pintle hook locking mechanism had not engaged.[8] As to the first proposition, the Judge accepted that a small piece of debris suchas a stone could stop the locking arm dropping down into the locked position andprevent the pintle hook from fully closing and engaging. She also accepted that a3 Police v Mackisack [2019] NZDC 16960.small stone lodged in the upper casing hole would be difficult to see as the upper jawfaced downwards.[9] As to the second proposition, the Judge referred first to the appellant'sstatement to the Police hours after the accident, in which he described the steps hetook to connect the trailer to the truck. The Judge did not consider it was enough forthe appellant to rely on the fact he had regularly taken steps to ensure the pintle hookwas locked over the course of his driving career.[10] The Judge thought that the appellant's immediate response to the officer incharge when she arrived on the scene was significant. It was spontaneous and relevantto his recall of what he had done that day. He said he must not have clicked it downproperly.[11] Although the pintle hook manufacturer did not provide any specificrecommendations as to what steps should be undertaken to ensure the coupling islocked, the Judge did not consider this assisted the appellant. As the driver andoperator of the truck and trailer unit, it was for the appellant to take whatever stepswere required to ensure the coupling was locked. The appellant said he did not relyon touch, but rather relied on "sight or visuals to check if the coupling was locked".He said he never "runs his hand along the latch to check it is flush. It is a sight thing".[12] Although the defence expert witness, Mr White, gave evidence it was notnormal procedure to run your hand over the coupling to check if it is locked, the Judgecould see no reason why an operator could not, immediately after securing thecoupling, run their hand across the latch to check if it was closed and flush. In theevent that she was wrong about that and the only usual method of ensuring thecoupling was locked was by visual check, the Judge considered the appellant shouldhave viewed the coupling from several angles to check it was locked.[13] The Judge did not agree with the defence submission that there was very littledifference in appearance between a locked and unlocked pull. While even a smallpiece of debris may prevent the mechanism locking, the Judge said it still results inthe latch being raised which could be seen by the operator. From the Judge's view ofthe photographs, it was apparent when the latch was not locked and raised, irrespectiveof the size of the debris. The Judge rejected criticism of the prosecution expertwitness, Mr Wolf, that he did not specifically view the pintle hook from differentangles and undertake calculations as to how that would alter a person's viewing of thelatch.[14] Finally, the Judge said that the description of the accident as a freak accidentneither advanced nor hindered the defence case.[15] The Judge concluded that the appellant did not exercise the degree of care andattention that a reasonable and prudent driver and operator should have in thecircumstances. The Judge considered that he should have run his hand over the upperjaw of the pintle hook or viewed the coupling from several angles. He did not. TheJudge therefore found the charges proven beyond reasonable doubt.[16] The Judge concluded that special reasons why the appellant should not havehis licence disqualified had not been established. She noted that the appellant'scarelessness involved him failing to undertake appropriate checks to ensure that thepintle hook was fully engaged. The Judge said that being able to operate a heavycommercial vehicle unit on a public road which is shared by other members of thepublic came with it a basic duty of care and responsibility so that it did not pose a riskor danger to the appellant or others. The Judge therefore disqualified the appellantfrom holding or obtaining a driver's licence for 12 months.Grounds of appeal[17] The appellant appeals both his conviction and the refusal to grant reliefpursuant to s 81 of the LTA. The grounds of appeal specified were:(a) the Judge erred in not finding that there was a mechanical defect andthat accordingly the onus shifted to the prosecution;(b) the Judge erred in finding that the appellant had acted carelessly when:(i) the circumstances giving rise to the accident were highlyunusual and uncommon;(ii) the prosecution failed to serve expert evidence setting out thebasis upon which the appellant's conduct was careless, failed toengage in expert consultation regarding the issues for trial andfailed to serve reply expert evidence to assist the Court;(iii) the prosecution's expert agreed with the expert evidence served;(iv) the prosecution's expert evidence was not impartial and theJudge failed to discount that evidence given the conduct of theexpert, the officer in charge and the prosecution;(v) the prosecution failed to prove beyond reasonable doubt that theappellant had acted carelessly; and(c) the Judge erred in not finding special reasons existed and therefore nodisqualification should have been ordered pursuant to s 81 of the LTA.Relevant lawAppeal against conviction[18] The appellant has a right of appeal against conviction under s 229 of theCriminal Procedure Act 2011. Pursuant to s 232(2), the appeal must be allowed if theCourt is satisfied that:(b) In the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage ofjustice has occurred; or(c) in any case, a miscarriage of justice has occurred for any reason.[19] Under s 232(4), a miscarriage of justice means: any error, irregularity, or occurrence in or in relation to or affecting the trialthat—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[20] If the appeal court comes to a different view on the evidence, then the trialJudge will necessarily have erred, and the appeal should be allowed.4[21] The appeal court must, however, pay appropriate deference to findings madeby the trial Judge, as he or she had the advantage of hearing the witnesses on questionsof credibility; nevertheless, the appeal court must still review the evidential basis forfactual findings carefully.5[22] Whether a person was careless is a matter of fact, assessed objectively. 6 Inthis context, carelessness is a failure to exercise the degree of care and attention that areasonable and prudent driver would exercise in the circumstances.7 The carelessnessdoes not need to reach the level of negligence.8Appeal against sentence[23] An appeal against sentence is governed by s 250 of the Criminal Procedure Act2011. The appeal must be allowed if the appeal court is satisfied that:(a) for any reason, there is an error in the sentence imposed on conviction;and(b) a different sentence should be imposed.[24] This Court must point to an error made by the District Court, either in theJudge's reasoning or shown by additional material considered on appeal.9 The errormust be adequately significant for the appeal to be allowed — although the Criminal4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [38].5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5] and[13]; and Kueh v R [2013] NZCA 616 at [32].6 See Rayner v Police [2018] NZHC 2276 at [28]–[29].7 Huang v Police [2016] NZHC 1271 at [12].8 At [12].9 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30].Procedure Act 2011 does not require the sentence to be "manifestly excessive", this isa helpful concept when considering the seriousness of the error.Appeal against convictionMechanical defect[25] If a defendant raises the possibility of a mechanical defect as the cause of anaccident on the evidence viewed as a whole,10 the prosecution must prove beyondreasonable doubt that:(a) the defect was not the cause of the accident;11 or(b) despite an unknown mechanical defect, the defendant's actions were asufficiently proximate and material cause of the accident;12 or(c) the defect was known to the driver or should have been discovered withreasonable prudence.13[26] Should the prosecution fail to prove one of the three possibilities listed above,the defendant is entitled to be acquitted.[27] The appellant's submissions in relation to a mechanical defect rest solely onthe possibility of a small stone preventing the pintle hook from properly closing andlocking. The Judge found no evidence of a mechanical defect, as both expert witnessesagreed that the pintle hook was in good working order.[28] There was some debate at the appeal hearing whether the possible presence ofa small stone amounted to a mechanical default. The Crown submits that the term'mechanical defect' cannot be properly extended to circumstances in which a foreignobject, such as a small piece of debris, prevents the proper operation of a mechanism10 R v Spurge [1961] 2 QB 205 (Crim App) at 210–211 and 213, applied by Hurst v Police (1990)5 CRNZ 506 (HC) at 512.11 de Jonge v Ministry of Transport HC Auckland AP269/90, 8 March 1991 at 2.12 Hurst v Police (1990) 5 CRNZ 506 (HC) at 511.13 R v Spurge [1961] 2 QB 205 (Crim App) at 213, applied in Hurst v Police (1990) 5 CRNZ 506(HC) at 512.that is otherwise in good working order. In my view, however, it is not necessary forme to determine whether or not the possible presence of a small stone amounts to a'mechanical defect'. This is because the Crown submits that, in any event, theappellant should have discovered the 'defect' with reasonable prudence. It says thatthe appellant was careless in not checking whether the pintle hook was closed andlocked — I turn to this issue now.Carelessness[29] The key issue for the Judge was whether the appellant was careless whenattaching the trailer. Whether a defendant was careless is a matter of fact, assessedobjectively.14 In this context, carelessness is a failure to exercise the degree of careand attention that a reasonable and prudent driver would exercise in thecircumstances.15 The carelessness does not need to reach the level of negligence.16[30] The appellant characterised the accident as a freak accident. A freak accidentis however an unfortunate event with such a low likelihood of occurring that everyoneis taken completely by surprise when it happens. Here, it is possible to envisage atrailer detaching from a truck. Indeed, this particular trailer had a break away functionwhich caused the trailer's braking system to automatically engage. As the trailermoved away from the truck, the air lines came free, thus triggering the break awayfunction. So this trailer was built with a safety function to minimise risk if and whenit became detached from a truck. Other trailers have a secondary locking mechanismif the primary mechanism fails.[31] There are also always one or more contributing causes to an accident. Here,the pintle hook was obviously not properly locked. It was closed because the appellantwas able to drive away towing the trailer. However, it was not locked because thetrailer became separated from the truck when the unit hit a bump in the road at speedand the pintle hook opened when struck by the towing eye of the trailer.14 Rayner v Police [2018] NZHC 2276 at [28]–[29].15 Huang v Police [2016] NZHC 1271 at [12], citing Simpson v Peat [1952] 2 QB 24 (DC) at 28.16 Huang v Police [2016] NZHC 1271 at [12].[32] The Judge found that the appellant was careless in not ensuring the pintle hookwas locked by either running his hand over the upper jaw of the pintle hook or visuallychecking the latch from different angles to confirm whether the locking handle wasraised (in which case the pintle hook was not locked) or flush with it (in which casethe pintle hook was locked).[33] I am of the view that this finding was open to the Judge and correct. In reachingthis conclusion I have had regard to the following factors:(a) The manufacturer's operating instructions state that, "when locked, thelock handle (A) will rotate and move up until it is flush with the top ofthe latch (see illustrations at right)". The operating instructions theninclude two photographs — one labelled "Correct" and "Locked" andthe other labelled "Incorrect" and "Unlocked". The photographlabelled "Correct" shows the locking handle flush with the top of theupper jaw of the pintle hook. The photograph labelled "Incorrect"shows it raised. The operating instructions clearly invite the operatorto at least visually confirm that the locking handle is flush with theupper jaw of the pintle hook. That position is described as "Correct".(b) The officer in charge recorded in her note book the following commentsmade by the appellant on the day of the accident:Driven from Matakana taking the trailer to get a COF. Hasgot a reg but no cert.This trailer doesn't have a pin like other trailer. I must nothave clicked it down properly. As I came around the corner Ihit a bump and next thing I knew this happened.At least the brakes came on straight away.This suggests that the appellant relied on the pintle hook "clicking" intoplace. In evidence, the appellant did not say he checked that the pintlehook was locked by touch or by sight.(c) It was possible to check that the pintle hook was locked either by touchor by sight. Both the appellant and the defence expert witness,Mr White, at least initially acknowledged that it would not be difficultto check that the pintle hook was locked by touch, although Mr Whitedid later suggest there might be some difficulty or danger in doing so.Confirmation by sight was also possible, although again Mr Whiteraised some difficulties and suggested an operator needed to get downto the height of the pintle hook (knee height) or walk around to the otherside of the truck to check it. He also referred to air lines obscuring theview. I do not however accept that any perceived difficulties excuse anoperator from checking whether the pintle hook was locked.(d) The risks involved in the trailer detaching from the truck whiletravelling at speed on a public road are such that a reasonable andprudent driver would exercise a high degree of care and attention whenattaching the trailer prior to commencing travel. A check, either bytouch or by sight, that the pintle hook was locked would take only a fewseconds and was clearly proportionate to the risks involved. In thecircumstances of this case, the only reasonable conclusion was that theappellant did not take the time to check because he had attached thetrailer so many times before without incident. He assumed it waslocked.Other complaints[34] The appellant raised various other complaints about the conduct of theprosecution and the evidence given by the prosecution expert witness, Mr Wolf. Forthe reasons articulated by the prosecution, I do not have any concerns about these.[35] First, Mr Wolf was not required to meet with the defence expert witness,Mr White, before trial to determine what could be agreed between the experts,including whether or not the charge should proceed to trial. A prosecutor disagreeingwith a defendant's assessment of the expert evidence to be given at trial is notprosecutorial misconduct.[36] Secondly, although Mr Wolf should not have spoken to members of theprosecution team while he was in the process of giving evidence, this was a matterdealt with by way of a voir dire hearing during the trial. The appellant was given theopportunity at that stage to apply for a mis-trial, but his counsel confirmed that thetrial should proceed. Furthermore, it does not appear from the evidence given in thevoir dire hearing that anything objectionable was discussed. No prejudice has beendemonstrated.[37] Thirdly, even if the appellant was taken by surprise by evidence given byMr Wolf in re-examination, there was no prejudice because the trial was thenadjourned part-heard. Before the trial resumed, Mr White filed an additional statementin response to Mr Wolf's evidence. He also gave oral evidence on the points raisedwhen the trial resumed. Mr Wolf was not recalled.[38] For the above reasons, I am not satisfied that there was a miscarriage of justice.Appeal against sentenceDisqualification[39] This Court recently summarised the law in relation to s 81 of the LTA in thefollowing way:17[59] In terms of the sentence appeal, a refusal to waive or lessen anotherwise mandatory disqualification period involves both:18(a) an assessment of fact and application of law in determiningwhether "special reasons" exists; and(b) the exercise of judicial discretion in making an order otherthan the mandatory disqualification.[60] A special reason is defined in R v Crossen as:19A mitigating or extenuating circumstance, not amounting in law toa defence to the charge, yet directly connected with the commissionof the offence, and one which the Court ought properly to take intoaccount when imposing punishment.[61] The principles applying to the application of special reasons are asfollows:2017 Anderson v Police [2018] NZHC 2408.18 Morgan v Police [2013] NZHC 3431 at [13].19 R v Crossen [1939] NI 106 at 112.20 Anderson v Police [2016] NZHC 942 at [15]–[16].(a) special reasons are only factors of particular or exceptionalcharacter;(b) they must arise from the circumstances in which the offencewas committed, or the manner of its commission as a whole,and not circumstances peculiar to the offender;(c) personal circumstances are irrelevant, except to the extentthey influence the events leading up to the commission of theoffence or are part and parcel of the offending itself;(d) the special reason must be of a sufficiently compelling natureto justify a departure from the usual consequences;(e) the special reason must not conflict with the essential purposeof the statutory provision; and(f) where all reasonable or possible alternatives are not explored,it is unlikely that special reasons will be found.[40] The circumstances of this offending are relatively unique. Both expertwitnesses have not come across a similar case in their many years of experience.Crown counsel has not been able to locate any case involving similar circumstancesto those in the present case.[41] The unique circumstances do not, of themselves, meet the test for specialreasons but are indicative that this case is out of the ordinary range of cases. Standingback and looking at all the circumstances, however, I am of the view that the test forspecial reasons has been met. In reaching this conclusion, I have had regard to thefollowing factors:(a) The appellant's driving was not careless or below the standard of areasonable and prudent driver. He has not been shown by the offenceto be a public danger on the road. The mandatory disqualificationprovision was designed to "keep dangerous drivers off the road".21The appellant is not such a driver.(b) The appellant's carelessness arose solely from him not checking, bytouch or by sight, that the pintle hook was locked before he commenced21 See Hitchens v R CA380/03, 25 March 2004 at [10].driving. He may well have been lulled into a false sense of security byrelying over many years on hearing the pintle hook click closed.(c) The defect in the locking mechanism was not obvious. Both theprosecution and defence expert witnesses agreed that a small piece ofdebris, even as small as three millimetres and not apparent to the nakedeye, could stop the locking arm dropping down into the lock positionand prevent the coupling from fully closing and engaging. Specifically,debris such as a small stone could enter the hole in the upper jaw of thepintle lock and become lodged. Photographs revealed damage to theperimeter of the hole. A small stone lodged in the upper casing holewould be difficult to see as the upper jaw faces downwards.(d) Although the manufacturer's operating instructions includephotographs of a "Correct" and "Locked" pintle hook and an"Incorrect" and "Unlocked" pintle hook, no specific instructions areprovided as to how to check whether the pintle hook is locked and whythat is important — it is not expressly spelt out.[42] While special reasons must arise from the circumstances in which the offencewas committed and not circumstances peculiar to the offender,22 I accept and note thatthe appellant has a previously unblemished record and had absolutely no inkling ofany danger when he drove that day. He has also been deeply affected by the accident.He has paid the reparation ordered and has offered to provide one of those injured withspecialist rehabilitative care. In any event, for the reasons listed above, I am satisfiedthat the circumstances of the offence give rise to special reasons under s 81 of the LTA.22 See Brookers Law of Transportation — Land Transport Act (online looseleaf ed, ThomsonReuters) at [LT81.02], citing Anderson v Police [2016] NZHC 942 at [15].Result[43] The appeal against conviction is dismissed. The appeal against sentence isallowed to the extent that the order for 12 months' disqualification is quashed. Allother aspects of the sentence remain._________________________Woolford J