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IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-488-008

BETWEEN	W 
	Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	13 July 2010

Counsel:	RJ Bowden for Appellant
NJ Dore for Respondent

Judgment:	13 July 2010

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:	RJ Bowden, P O Box 1862, Whangarei for Appellant
Marsden Woods Inskip & Smith, P O Box 146, Whangarei for Respondent

W V  POLICE HC WHA CRI-2010-488-008  13 July 2010

Introduction

[1]       After a trial before Judge Maude on 26 January 2010 in the Whangarei District Court, Mr W   was convicted of driving a motor vehicle on a road at a speed which, having regard to all the circumstances of the case, was dangerous to the public, an offence under s 35(1)(b) of the Land Transport Act 1998.  He was fined
$900 and disqualified from holding or obtaining a motor vehicle driver’s licence for a period of six months.  He appeals against conviction and sentence.  In the course of his submissions, however, Mr Bowden abandoned the appeal against sentence.

Background facts

[2]       The charge was laid after Mr W   had been detected on 26 March 2009 riding a Harley Davidson motorcycle with an engine capacity of 1450 cc at a speed of 153 kph on State Highway 14 which runs between Whangarei and Dargaville.  A speed detection device was used, operated from a stationary police car.

[3]       The  evidence  was  that  State  Highway  14  is  a  two-lane  road  in  good condition.   Conditions were good at the time.   The road was dry.   Traffic was described as very light.   There was good visibility.   At the time he was detected, Mr W   was at the commencement of a straight part of the highway of about one kilometre.  There were no driveways in the vicinity but there were two roads nearby which joined State Highway 14.  It was dark at the time.  Sunset had occurred over an hour earlier.

Judge’s decision

[4]       In his decision, the Judge referred to two cases relied on by the defence. Broderick v Police, a successful appeal against conviction on a charge of driving at a dangerous speed in which the appellant had been driving at 159 kph on State

Highway 1 near Whangarei.  Judge Maude also referred to Joad v Policeas authority for the proposition that proof that a defendant had driven in excess of the speed limit will not itself be sufficient evidence to sustain a conviction for dangerous driving. There must be proof of a reasonable likelihood of danger to a person who might be expected to be on the highway.

[5]       The Judge’s reasons for finding that the charge had been established are set out in the concluding two paragraphs of his judgment:

[11]      The view I have come to is that the charge against Mr W   is proven for the following reasons:  firstly, he was riding his motorcycle at a speed of 153 kilometres, secondly, it was dark, thirdly, unlike the case of Broderick,  he  was  riding  the  motorcycle  on  State  Highway  1,  but  also without the advantage that existed in Broderick of there being three lanes available to traffic to avoid danger.   I do not suggest that in Broderick, Mr Broderick had available to him as a lane of right the third lane, but it was a three-lane passage of highway that would give ability for a rider in difficult situations to access.

[12]      This rider, Mr W   as I have indicated, was a learner rider limited to 70 kilometres per hour.   He was also limited to use of a 250 CC motorcycle.  I take judicial notice of the fact that such limits, that is speed and size of motorbike, are imposed on learners for good reason and the good reason is safety.   This defendant chose to ride at significant speed, 153 kilometres  per  hour,  well  beyond  the  limit  for  a  limited  driver  on  a motorcycle well in excess of the CC capacity determined as appropriate for a rider with his experience.  Therefore, for the reasons I have just indicated, I find the charge proved and Mr W   is convicted of the charge.

Appellant’s submissions

[6]       Mr Bowden criticised the Judge’s reasoning in two key respects.   First, he submitted that Broderick was not materially distinguishable on its facts.  Although Mr  Broderick  drove  on  a  three-lane highway,  Mr  Bowden  pointed  out  that  the additional lane was not available to him; it was a passing lane which could be used only by motorists travelling in the opposite direction.  Secondly, Mr Bowden argued that the Judge erred in taking into account that Mr W   was driving on a learner’s licence.  He said there was no evidence as to his level of skill and experience and it was not open to him to conclude that the risk of danger to other road users was increased as a result.

[7]       Mr Bowden submitted that there was nothing other than the speed at which Mr W   was travelling to found the charge of driving at a dangerous speed and that is insufficient.

Crown submissions

[8]       Ms Dore submitted that Judge Maude was entitled to take into account the fact that Mr W   had a learner motorcycle driver’s licence.  She maintained he could take judicial notice of the fact that the restrictions on learner drivers were imposed for good reason.   She pointed out that the Judge did not proceed on the basis that Mr W   was “a poor driver”.  Rather, he proceeded on the basis that, in general, the skill level of learner drivers is such that they cannot drive as safely at a speed that a licensed driver can safely manage.  She submitted that the combination of factors identified by the Judge supported his finding that the speed was dangerous in the circumstances.

Discussion

[9]       The principles which govern the judgment the Court is required to make in a charge  of  this  nature  are  helpfully  summarised  in  Joad  and  were  adopted  by Cooper J in Broderick.   They are:

Whether or not the speed at the material time is dangerous is to be judged objectively and does not depend on the defendant’s state of mind:  R v Evans [1963] 1 QB 412;  [1962] 3 All ER 1086 (CA).  The danger must be more than a mere possibility.  There must be proof of a reasonable likelihood of danger to persons who might reasonably be expected to be on the highway: Transport Department v Giles [1965] NZLR 726.  It is not necessary for the prosecution to prove any person was actually endangered by the defendant’s mode of driving.   The responsibility of the driver is not only to a definite person but also to the hypothetical member of the public who might come into the defendant’s driving:  Wagg v Shaw [1962] NZLR 498.  The mere fact that not many people were likely to be about at the time when the alleged offence took place is not a defence where there is still a sufficiently distinct and reasonable possibility that an accident could result:  Gallagher v Police (HC AK M1264/86, 3 December 1984, Pritchard J).

[10]     In my view, the Judge properly distinguished the facts in Broderick.   He recognised (see [11] of his judgment quoted in [5] above) that the third lane would not be available, as of right, to a speeding driver but that it would provide an escape route in the event of an emergency, thereby lessening the risk of danger.  However, as Ms Dore submitted, a comparison of the facts of the two cases is of limited value as there are other points of distinction, including, relevantly in my view, the fact that in Broderick the alleged offending occurred in daylight.

[11]     In the end, the question in each case is whether, on the basis of relevant considerations, the speed created a likelihood of danger.  In my view, Mr Bowden is right to say that, for this purpose, any assessment of Mr W  ’s driving skills should be excluded.   While it may be inferred that, as a learner driver, he was relatively inexperienced, and demonstrably he was in breach of the terms of his licence – riding a 1450 cc motorcycle at more than double the permissible speed limit - neither factor was shown to add to the risk he posed to other road users.  In the absence of evidence of Mr W  ’s skills and ability, nothing could be taken from the fact that he was the holder of a learner licence.  It cannot be inferred that Mr W   is any more or less competent than any other motorcycle rider.

[12]     The critical issues then are the speed at which Mr W   was travelling and the conditions at the time.  The fact that his speed was significantly in excess of the legal limit is a material factor.   All things being equal, the higher the speed the greater the danger.   Although the speed Mr W   was travelling cannot alone support a conviction, it was high enough to be a weighty consideration by itself.

[13]     Of the conditions at the time, I share the Judge’s view.   Visibility is an important factor.  It was dark and Mr W   would have been visible to other road users  only  by  a  single  headlight.    Although  Mr  Bowden  strenuously  argued otherwise, it seems to me that the ability of other road users to make critical judgments would be severely compromised by a motorcycle moving at night more than 50 kilometres in excess of the normal speed limit.   An oncoming motorist, contemplating a passing manoeuvre for example, or a driver emerging from a side road, could readily be drawn into making a potentially fatal error of judgment.  The

risk of an accident resulting would be heightened by the much reduced reaction time available to Mr W  .

[14]     Although traffic was said to be light at the time, in my view, there were real and present risks posed to other road users by the speed at which Mr W   was travelling on the night.  I agree with the Judge that because of the reduced visibility in night driving conditions, Broderick is readily distinguishable.  The fact that State Highway 14 is a two-lane highway is also a point of distinction for the reason given by the Judge.  Although I have found that he erred in having regard to the assumed capability of Mr W  , I do not think that in the final analysis that led him into error.

Result

[15]     For these reasons, the appeal is dismissed.

[16]     Mr W   was granted a deferment of his sentence of disqualification on

22 February.   The resumption of the sentence of disqualification is deferred until

9.00 a.m. on 14 July 2010 to enable Mr Bowden to advise his client of the outcome of today’s hearing.