The criminal charge of careless driving causing injury or death is one of my favourite charges to defend. I can assure you, this isn’t because I enjoy injury or death, but because the nature of the charge is that it could happen to anybody who drives a motor vehicle. As drivers, over time we forget to be afraid of what, when we learned to drive, was intuitively terrifying: we are hurtling down narrow strips of concrete, with masses of other humans in metal objects hurtling all around us; be they coming from the side, behind, or directly in front of us (but a few meters to the right). Not only do other drivers pose a hazard, but, sharing these narrow strips of concrete are cyclists, motorcyclists, and occasionally pedestrians, mobility scooters, horses, animals and children. Not only are our lives in danger every time we get behind the wheel, but so are those around us.
Sometimes, we’re not even on these narrow strips of concrete, but on gravel, grass or sand, yet still for legal purposes on a “road”. Under the Land Transport Act 1998, a road includes “any place to which the public have access, whether as of right or not.” My first ever defended hearing in the criminal courts concerned the question of whether a park to which the public could only gain access by foot was a road. It was. I’ve had a client convicted for riding a children’s 50cc motorbike on a riverbank whilst intoxicated, as it was legally a road. Basically, unless it’s a private driveway or fully private land, it’s likely a road, but I digress.
Under Section 38(1) of the Land Transport Act, “A person commits an offence if the person operates a vehicle on a road carelessly or without reasonable consideration for other persons using the road, and by that act or omission causes an injury to or the death of another person” The maximum penalty is three months imprisonment, and there is a mandatory six month disqualification from holding or obtaining a drivers licence following conviction. In the grand scheme of charges that arise from often serious injury or death, the penalty is very, very low. The reason the penalty is so low is the same reason it is one of my favourite charges to defend: it could happen to anyone, and, there is no criminal intent.
The elements of the charge that the prosecution need to prove beyond reasonable doubt are clear. First, they need to establish that the defendant was in fact driving, on a road. Second, they need to show that the driver was careless, that is, that they departed from the standard of care expected of a reasonable and prudent driver. Third, they need to show injury or death arising from the careless driving. It is the second step that I have had the most success arguing about.
It is sometimes hard to look past the fact of the crash itself, though. I successfully defended a horrific case in 2012. A taxi driver in his van was driving across a pedestrian crossing, when out of nowhere a mobility scooter appeared. His left front bumper connected with the scooter, sending its elderly driver a number of meters down the road. The injuries were not pleasant, and, it was down to chance that the charge laid was “causing injury” not “causing death”. Thankfully, the woman survived, but, did spend a long time in hospital following the crash. In that case, it was very hard to look past the fact that my client had hit an elderly women driving a mobility scooter as she crossed a pedestrian crossing. This was especially so when the mobility scooter in question had a whopping top speed of 6 kilometres per hour, according to the manufacturer. I knew it was going to be a difficult case to defend, but a) my client’s livelihood depended on an acquittal, and b) my client strongly believed that he was not at fault.
After a defending hearing in the Upper Hutt District Court, Judge Walker reserved his decision. Having cross examined the complainant, all the police officers involved, then lead evidence of the accused and made submissions, I felt that it could have gone either way. When we gathered in Court the following week for the Judge to deliver his decision, I was preparing my client for the worst. However, he was promptly acquitted. The Judge, quite rightly, could not be satisfied that my client had breached the standard of care expected of a reasonable and prudent driver. He had properly looked past the fact of the accident itself, and found that a) the mobility scooter did in fact shoot out on to the road, and b) there was no way my client could have seen her, due to another vehicle on the road and the manner in which she entered the crossing without stopping. He couldn’t have done a thing, and was entitled to an acquittal.
More recently, I was instructed to appear for a tradesman in Queenstown. He had been driving his partner in to town one winter evening, around 7.00pm. It was dark, but the weather was fine. As he approached a difficult roundabout in Queenstown’s CBD, he saw a man standing in the road, in the path of oncoming traffic, to his right on a 45 degree angle (where one would look to check for oncoming traffic when entering this round-about). His partner said “what the fuck is that man doing in the middle of the road” or something to that effect, and they slowed and continued in to the roundabout. As they drove through the roundabout, the car connected with two women, who had also been standing in the middle of the roundabout in dark clothing.
It transpired that these three pedestrians who were standing in the middle of the roundabout were tourists from the United States of America. They had been out to dinner, and, judging from the CCTV footage were under the influence of alcohol. Both of the women received fractures for their troubles. The Police viewed my client as having been distracted, and charged him with careless driving causing injury (x2). The tourists promptly flew back to the states, claiming over ten thousand dollars in reparation for hotel fees and business class flights, no doubt after enjoying our free medical care under ACC.
The first issue I took with the prosecution case was the absence of the tourists. The Police intended to proceed on the basis of the CCTV footage, medical evidence, and my client’s partner’s statement. I filed a pre-trial application under a seldom-used provision of our Criminal Procedure Act, requiring the Police to present these witnesses. I flew down to Queenstown to argue the pre-trial. At that hearing, the Judge agreed that they had to be available for cross-examination, and made an Order requiring them to give evidence accordingly. During the course of arguments, Judge Phillips expressed the very common-sense view that the Police would struggle in any event. What a reasonable and prudent driver expects to find in a roundabout at night are vehicles, not drunk pedestrians wearing dark clothing. The Police quite properly elected to offer no evidence in the matter, and my client was acquitted. My client strenuously believed that he was not at fault here, and I agree – he should not be legally responsible for a crash caused by the negligence of the pedestrians.
Like I said, these charges could happen to any of us. In some instances, there is not a defence. In those cases the sooner I’m instructed the better. I’ve successfully obtained diversion for people, obtained discharges without convictions following guilty pleas, and even met with the Police and convinced them not to press charges, but opt for a warning instead.
For the drivers out there, try to remember the apprehension when learning to drive: all it takes is a moment’s inattention to obtain catastrophic results.
That being said, if you have been involved with a crash, and feel strongly that you were not at fault, there’s a possibility you will have a good defence to the charges that may arise. If you have no defence whatsover, I can help you put yourself in the best position to get through the criminal process with as little damage as possible. Feel free to contact me if you want to dicsuss your circumstances.