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The Queen v Puru [2001] NZCA 229; (2001) 19 CRNZ 290 (27 August 2001)

Last Updated: 12 December 2011

THE QUEEN

V

KEREOPA TE WARU PURU

Introduction

[1] Mr Puru was convicted after a trial of two charges, one of careless driving causing death contrary to s 38 of the Land Transport Act 1998, and the other of failing to stop and ascertain whether any person had been injured after an accident contrary to s 36(1)(b) of the same Act. He has appealed against his convictions. There is no appeal against sentence.
[2] Mr Puru’s trial took place in the District Court before a Judge alone. The offence of failing to stop is an indictable offence; that of careless driving causing death a summary offence. By consent, the charges were heard together. In this Court, we sat as the Court of Appeal to hear the appeal against the conviction on the indictable offence. Having heard that appeal we then, again with the consent of counsel, sat as a Full Court of the High Court to hear the appeal against the conviction on the summary offence. One judgment will suffice.
[3] We propose to dismiss the appeal. It is totally without substance. Much of the argument advanced by Mr Rogers, who appeared for Mr Puru, was based on the evidence of an expert called for the defence at the trial. But that evidence is not, and cannot be, decisive. Expert evidence is no more than evidence of that expert’s opinion. It is, of course, not known to what extent expert opinion prompted the present appeal. It is unfortunate if it did so, for it will no doubt have given rise to false hope by Mr and Mrs Puru that an appeal would succeed, when it had no chance of succeeding. And it will have prolonged the agony of the deceased’s parents and family pending the resolution of the charges. What was required from the outset was a measure of common sense. In our view, the trial Judge, Jeremy Doogue DCJ, provided that common sense in an impressive judgment. That should have been the end of the matter.

The facts

[4] The charges related to a tragic incident which occurred on 10 May 2000. A 12 year old boy, Matthew Taylor, was killed. Matthew was on his way home from school in a bus driven by Mr Puru. The bus is a type of vehicle known as a “bendy” bus; it is about 11 metres long with two sections which pivot at the middle. Matthew was sitting on the back seat with two other boys. At his bus stop on Argyle Road, Browns Bay, Matthew got up to leave the bus. He had his backpack on his back. But he had left his bus pass on the seat. He went back for the pass and was handed it by one of the boys. He then walked to the back door of the bus and down into the step-well. As he left the bus, the back door closed on his backpack. There was no safety device which would have caused the doors to spring open when they encountered an obstacle. The bus started moving and, with his backpack caught in the door, Matthew ran beside the bus trying to free himself. He finally pulled himself free but fell to the road. The rear axle of the bus rolled forward and over his body causing the injuries which resulted in his death. Despite the assistance given by passers-by, Matthew could not be resuscitated.
[5] As the bus moved away from the site of the accident, the children in the bus reacted dramatically. A number had felt the bump as the bus ran over their schoolmate and some had seen Matthew lying on the road. A student sitting at the back of the bus gave evidence that he went forward to speak with the bus driver at the front of the bus. He told Mr Puru that he had run over someone. His evidence was that Mr Puru answered, “Oh shit, did I”, and added nothing further. Two other children also went to speak to the driver. Evidence from other children also confirmed that many pupils called out to the driver telling him that he had run over someone and to stop.
[6] At the time of the accident a minor altercation had taken place between Mr Puru and another student. Before the stop at which Matthew got off, this student was reprimanded by Mr Puru for standing up. He asked her to come forward and wrote her name in a notebook. This episode occurred at about the time Matthew was getting off the bus.
[7] In a video interview with Police on the day the accident, Mr Puru gave his perception of what had happened. He was, he said, unaware that an accident had happened. One boy had spoken to him, but not in a way which suggested that something very serious had happened. At trial Mr Puru said that he thought the boy was referring to something which had happened to a pedestrian and that he did not think it had anything to do with the bus. He remembered another boy speaking with him and saying that someone may have gone under the wheel. Mr Puru also said that one child told him someone had fallen in front of the bus. He thought this boy was joking because he would have seen something if it had happened at the front of the bus.
[8] When asked about the screaming of the children as he was driving away from the bus stop, Mr Puru said that it was not unusual to hear yelling on the bus and that he did not recall hearing anything that made him think that something serious had happened. He confirmed that he would not have felt a bump originating at the back of the bus.
[9] In the Police interview, Mr Puru said it was just before the bus stop at the Browns Bay shops that he started to realise, from the behaviour of the children, that the situation was serious. He was asked why he did not then go back to the scene of the accident. He spoke of the difficulty of turning a “bendy” bus around and of deciding what to do with the children who remained on the bus. He was forbidden by the Yellow Bus Company Manual to abandon the bus and service. Nor did he know the area well. Although he had driven the route on the previous day, it had been six years since he had last driven that particular run. Mr Puru had decided that the best thing to do was to unload the children and then go back. He therefore drove back to Argyle Road after completing his run. He spoke of his shock on reaching the scene of the tragedy some 20 minutes after the accident had taken place.
[10] Mr Puru also made some general points about “bendy” buses and school children as passengers. He mentioned the noise of the engine, which is louder than that of a standard bus. Further, he said that his understanding was that the bus doors would not close on somebody in the way of the doors. He said school children were sometimes very noisy and behaved in ways which are problematic for drivers, including yelling at a driver to stop the bus.

The judgment of the District Court

[11] It is useful to briefly set out the findings of Doogue DCJ in this case.
[12] In relation to the charge of careless driving causing death, the relevant legal principles were not in dispute. A driver is required to meet the standard of a reasonable and prudent driver and the alleged carelessness must be such that it is a cause of death.
[13] The first issue considered in respect of this charge was whether Mr Puru would have been able to see Matthew leaving the bus. Doogue DCJ stated that it was vital for Mr Puru to give careful attention to the areas of the aisle and rear door before he activated the door control to set in motion the closing of the doors, and to keep those areas under surveillance until the doors were closed. He accepted that the view from the step-well mirror was not good. He concluded, however, that the view which would have been available to Mr Puru through the aisle mirror was adequate. If Mr Puru had made a proper inspection of the rear of the bus prior to activating the door control, he would have been able to see Matthew. Had he seen him, he would not have closed the door, or would have opened the doors again to enable Matthew to safely leave the bus.
[14] The learned Judge then addressed the question whether or not the driver’s visibility was obscured because one of the students travelling on the bus was standing near to him at the Argyle Road bus stop. The Judge held that, if this student had been obscuring his view to the rear of the bus, Mr Puru should have ensured that he had a clear view as it was his duty to see that his passengers alighted safely.
[15] Doogue DCJ did not find against Mr Puru in relation to the issue whether Mr Puru should have seen Matthew trapped in the rear door when the bus pulled away from the bus stop. He considered that, if Mr Puru had looked in the left hand rear mirror before moving off from the bus stop, he might have seen Matthew. He stated, however, that this conclusion was not free from doubt. Moreover, it had not been proved beyond reasonable doubt that Mr Puru did not look in the mirror. Because he had concluded, however, that Mr Puru did not make a proper inspection of the rear of the bus before operating the door control and kept that part of the bus in view while the doors were closing, his conduct fell below the required standard. The charge of causing Matthew’s death through careless use of a motor vehicle was therefore found proved beyond reasonable doubt.
[16] It was common ground on the charge of failing to stop that it had to be proved beyond reasonable doubt that the defendant had the requisite knowledge there had been an accident. Doogue DCJ held, with reference to Dickson v Police [1968] NZHC 3; [1968] NZLR 499, that sufficient knowledge is proved if it is demonstrated that the driver knew there had been an untoward event which might possibly cause injury. In accordance with Clunie v Ministry of Transport (Unreported AP 167/88, High Court, Wellington) this is an objective test. The learned Judge noted that plainly a driver should not be required to stop except where it is reasonably possible to do so. The legislature could not have intended the driver to stop in hazardous circumstances which could lead to further accidents. The Judge pointed out, however, that the duty to stop is linked to a duty to ascertain whether a person has been injured and to render all practical assistance to any injured person. Those objectives will only be met if the driver stops at the earliest opportunity to do so.
[17] Doogue DCJ concluded in respect of this issue that the prosecution evidence was overwhelming. Mr Puru knew by the time the bus got to the bridge at the bottom of the hill close to the Browns Bay Shopping Centre, some 30 seconds from the bus stop at which the incident occurred, that a serious accident had taken place.
[18] Mr Puru’s view that he could not stop and leave the bus at Browns Bay because he could not leave the school children was not acceptable as a reasonable excuse. The Judge declined to believe that Mr Puru could not have left the bus. Mr Puru could have made the bus secure and walked or got a ride back to the scene of the accident. Alternatively, the Judge found, Mr Puru could have taken a different and shorter route back to the bus stop. Mr Puru was, therefore, also found guilty of this charge.

The appellant’s submissions

[19] Mr Rogers advanced three grounds in support of the appeal. The first ground of appeal relates to the conviction for careless operation of a vehicle causing death. It was argued by Mr Rogers that this conviction should be set aside as unreasonable or as being unable to be supported having regard to the evidence.
[20] Mr Rogers challenged the trial Judge’s conclusion relating to the obligation on drivers to keep the rear door under surveillance until the doors are closed. He contended that the Judge had made inconsistent findings as to what could be expected of a reasonably prudent driver in the particular circumstances. He also argued that the Judge did not adequately take into account the inadequacy of the safety features of the “bendy” bus and the consequent difficulties faced by a the driver of such a bus. Mr Rogers also argued at length, both in writing and orally, that the Judge misconstrued, and at some points failed to address, the opinion evidence of the defence expert.
[21] The second and third grounds of appeal relate to the conviction for failing to stop. It was contended, first, that the trial Judge misdirected himself as to the element of guilty knowledge necessary to establish the offence and, secondly, that the conviction is unreasonable or cannot be supported having regard to the evidence.
[22] In relation to the first ground, Mr Rogers argued that, in accordance with McBurney v Ministry of Transport (1989) 5 CRNZ 384, at 386, the duty to stop does not arise until the driver has “knowledge” of an “accident” which might possibly have caused injury to a person. He submitted that the test of knowledge is stated in R v Crooks [1981] 2 NZLR 53, at 56:

A person is said to “know” something when he has ascertained, by physical or mental perception, a state of facts or circumstances which creates in his mind a certainty that the point of his inquiry is free from doubt.

[23] It was Mr Rogers’ contention that, according to this test, Mr Puru did not have the requisite knowledge by the time he reached the shopping centre because his inquiry at that time was far from being free from doubt. He also argued that the Judge failed to address the opinion of the expert witness called by the defence that research into driver behaviour shows that once a particular view of circumstances has been formed, very powerful contrary stimuli are required to change that view. This facet is especially likely, it was said, if the alternatives being presented do not appear consistent with other aspects of the circumstances. In this case, therefore, if Mr Puru had thought that he had driven away safely and that no accident had occurred, he could be expected to have considerable difficulty grasping a contrary position.
[24] On the issue of reasonable excuse, Mr Rogers submitted that all the relevant factors were not reflected in Doogue DCJ’s decision.

Our decision

1) Careless use causing death

[25] The appeal against the conviction for careless use causing death is by way of rehearing. The onus is on the appellant to satisfy this Court that the trial Judge was not justified in entering a conviction or that his mind should have been left in a state of reasonable doubt. See Page v Police [1964] NZLR 974. The test is set out in Herewini v Ministry of Transport [1992] 3 NZLR 482, at 489:

Pursuant to s 119 of the Summary Proceedings Act, general appeals are to be ‘by way of rehearing’. On a rehearing the appellate Court can come to its own decisions on questions of fact and law but the onus still lies upon the appellant to satisfy the appellate Court that the decision given in the Court below was wrong.

[26] We cannot fault the Judge’s approach. He applied the requisite test. In doing the same we, too, are left in no doubt that Mr Puru failed to exercise the requisite degree of care required of a reasonably prudent driver in the circumstances of this case.
[27] We regard Mr Puru’s relevant obligations in the circumstances to be beyond argument. His first obligation was to check that the step-well was clear before closing the doors. This precaution was required to avoid closing the doors on a passenger who is leaving the bus and possibly catching the passenger or knocking him or her off balance. For this purpose Mr Puru would use the appropriate mirrors located at the front of the bus. Once satisfied the door had been closed, Mr Puru’s obligation was to ensure that passengers leaving the bus by that door were clear of it before setting it in motion and leaving the curb. For this purpose Mr Puru would again use the appropriate mirror located at the front of the bus.
[28] While it may only have taken a split second or so, Mr Puru undoubtedly suffered a lapse in the care required, especially by a driver of a school bus with children aboard. He failed to see Matthew in the step-well as he was about to leave the bus. The mirrors, while possibly not ideal, were there to enable him to see the step-well. But Mr Puru did not see Matthew. Had he done so he would not have closed the door and Matthew’s backpack would not have been caught. Then, Mr Puru also failed to ascertain that those leaving the bus were clear before setting the bus in motion. We believe that, notwithstanding the Judge’s doubts, had Mr Puru looked into the exterior mirror with the care required he would have seen that Matthew was caught in the door.
[29] We can do no better than repeat Doogue DCJ’s common-sense assessment of the situation:

[16] It is my view that before he closed the rear exit doors of a bus of this kind the driver must be sure that no one is about to enter the door area. If that was not so, then he risks the person being struck by the doors and knocked off balance or being caught in the doors. If a passenger has passed down through the stairwell and out through the doors, the driver must check to make sure that the person has safely exited the rear doors. Otherwise there is a risk that a person may have stumbled and fallen or may be caught in the doors. This seems to me to be no more than applying common sense.

[17] Any view that the driver takes of the rear of the bus before closing the doors must be one that takes place immediately before he activates the door control mechanism. There is no point, for example, in inspecting the rear of the bus, looking away while engaged on some other activity for several seconds and then closing the doors without making a repeat inspection. ... Mr Puru therefore had an obligation when closing the doors at the Argyle Road stop to make a close inspection of the rear of the bus immediately before he activated the control to close the rear doors. ...

...

[24] My decision is that it was vital that Mr Puru give careful attention to the areas of the aisle and rear door before he activated the door control to set in motion in the closing of the doors. It was also essential that he kept those areas under surveillance until the doors were successfully closed. ...

[30] We agree with Doogue DCJ that Mr Puru did not carry out this prudent process.

2) Failing to stop

[31] We can be equally short in dealing with the appeal against Mr Puru’s conviction for failing to stop and ascertain whether a person had been injured after the accident.
[32] We refer first to Mr Rogers’ argument that the trial Judge had misdirected himself as to the guilty knowledge necessary to establish this offence. We do not agree. Doogue DCJ referred to and applied the test in Dickson v Police (supra) and Clunie v Ministry of Transport (supra). In Dickson v Police MacArthur J having referred to the earlier case of R v Bowden [1938] NZLR 247, then said (at 502):

It is clear that a driver cannot be convicted of an offence either under subs. (4) or under subs. (5) unless it is proved that he knew that there had been an accident: R v Bowden (supra). But what is the extent of the knowledge that must be proved in this respect? In my opinion it is sufficient if it is proved that the driver knew that there had been an event untoward so far as he (as the driver of the vehicle) was concerned, which might possibly cause injury or damage “to any person or to any vehicle or to any horse in charge of any person”.

[33] R v Bowden was also referred to in Clunie v Ministry of Transport (supra). Eichelbaum J (as he then was) said (at 6):

...the prosecution must establish as one of the elements of the offence that the circumstances were such that the accused knew that there had been an accident, meaning an event, untoward so far as the motorist is concerned, which may possibly cause injury to the person to whom it happens. That is the way it was expressed in R v Bowden at p 256; when passages on that page are read as a whole the effect is that the prosecution must establish that the defendant’s knowledge is not merely of an accident, but of an accident in circumstances where he knew that it might possibly cause injury to a person.

[34] Mr Rogers observed that the Judge had not referred to McBurney’s case (supra) and submitted that this case, and the decision of R v Crooks (supra), stipulated a different and more severe test. We do not apprehend that to be the case at all. The test is the same. The Crown are required to prove beyond reasonable doubt that the defendant knew that there had been an untoward event which might possibly have caused injury. This was the test applied by the trial Judge, and it was against that test that he held that Mr Puru had failed to stop and ascertain whether a person had been injured. We therefore decline to accept that the Judge misdirected himself in law.
[35] We turn now to Mr Rogers’ submission that the decision of the trial Judge be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence.
[36] Again there is no dispute as to the appropriate test. This Court decided in R v Ramage [1985] 1 NZLR 392, at 393, that, before holding a verdict unreasonable or unsupported on the evidence the Court must be satisfied that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the appellant. It is not enough that the Court might simply disagree with the verdict of the jury. The same general principles apply where the Judge is sitting alone. See R v Connell [1985] 2 NZLR 233, and R v Walters [1993] 1 NZLR 533.
[37] We have no difficulty in holding that there was ample evidence to justify the Judge reaching the conclusion which he did. Indeed, on the evidence we would have reached the same conclusion.
[38] Doogue DCJ found as a matter of fact that Mr Puru had the requisite knowledge of the accident by the time he reached the Browns Bay shopping centre, a relatively short distance away from the bus stop where the accident had occurred. Mr Puru himself acknowledged that by that time he knew something serious had occurred. But he failed to stop. Mr Puru may have stopped the bus to allow other children to disembark or dismount, but he did not stop because of the accident. For this reason, he necessarily failed to take any one of a number of options open to him to ascertain whether anyone had been injured. Instead, he drove on, finished his designated route and only returned to the scene of the accident some 20 minutes after it had occurred.
[39] Mr Rogers submitted in the course of oral argument that subs (1) of s 36 creates three obligations on the driver of a vehicle. One is to stop. Another is to ascertain whether a person has been injured. The third is to render all practicable assistance to any injured person. He referred to the decision in the Magistrate’s Court in Lunn v Coates (1954) 8 M.C.D 304. In that case the information laid under s 41(1) of the Transport Act 1949 read:

Being the driver of a motor-vehicle to wit a motor-car .... along Wilson’s Road did not stop and ascertain whether he had injured any person after an accident had occurred with another vehicle and in which his vehicle was the cause either directly or indirectly, contrary to s.47(1) of the Transport Act, 1949.

[40] The Magistrate held (at 306) that s 47(1) created three obligations: “(1) stop; (2) ascertain if any person is injured; ... (3) then, if any person has been injured, to render assistance. He held that the information charged two distinct offences which were not in the alternative and that the informant had to elect upon which of the two offences he desired to proceed.
[41] In our view the decision is in error. To suggest that it is an offence to fail to stop in itself would be contrary to the object of the provision which is to ascertain whether anyone has been injured and, if so, to secure assistance for those who might be in need of assistance. It would be ludicrous if a person responsible for an accident causing an injury or death to another person could, when charged with failing to stop, defend him or herself by saying that they had in fact stopped even though they had then done nothing to ascertain whether anyone was injured or, if someone was injured, nothing to assist that person. The obligations under s 36(1) are to, first, stop and ascertain whether any person has been injured and, secondly, if someone has been injured, to render assistance to that person. Thus, a driver of a vehicle, after an accident in which a person has been injured or killed, commits an offence if he or she either fails to stop and ascertain whether any person has been injured or if he or she, having stopped, fails to render assistance to a person whom he or she knows has been injured. The plain meaning of the section is to be preferred. No election between stopping, on the one hand, and ascertaining whether any person has been injured, on the other, is contemplated.
[42] Finally, we deal with the question whether, in terms of the subsection, Mr Puru had a reasonable excuse for not stopping. Clearly he did not. On the evidence Doogue DCJ was more than justified in reaching this conclusion. None of the grounds advanced to us by Mr Rogers have sufficient merit to require serious attention. We are content to adopt the reasons given by the trial Judge.
[43] The appeal against conviction for failing to stop and ascertain whether any person had been injured must also fail.
[44] We would again express our concern that this appeal may have caused unnecessary anguish, first, to Mr and Mrs Puru who no doubt will have nurtured unrealistic expectations as to the outcome of the appeal. Shorn of the unnecessary complexity introduced by the expert evidence, the appeal was lacking in merit. It had no prospect of succeeding. Secondly, of course, the appeal has delayed finality being reached and this delay will have caused Matthew’s parents and family even greater anguish. It is for that reason that we have chosen to give an oral decision today, with the imperfections such a decision may bear, rather than reserve it for delivery at a later date.
[45] The appeals against conviction are dismissed. There is no appeal against sentence and therefore the Court has no jurisdiction to inquire into the sufficiency of the sentence.

Solicitors
Crown Law Office, Wellington for Crown