Land Transport Act 1998, s 7 & 35 – dangerous driving – appeal against conviction – appellant threatened to damage complainant’s vehicle before reversing towards it, stopping when complainant stepped in between two vehicles – was the appellant’s driving, having regard to all the circumstances of the case, dangerous to the public or a person? – is driver’s state of mind relevant to charge of dangerous driving? – is observable conduct, such as an utterance or gesture by a driver, irrelevant?
McCoy v Police  NZCA 108
Jake McCoy was convicted of dangerous driving contrary to s 35(1)(b) and s 7(2) Land Transport Act 1998. The complainant and his vehicle were parked on the side of the road. McCoy drove past and hurled abuse before performing a u-turn, returning, hurling more abuse (including a racial slur), and eventually stopping his vehicle on the wrong side of the road close to the complainant’s vehicle.
McCoy then threatened to damage the complainant’s vehicle (posing a rhetorical question as to whether the complainant wanted him to “smash your car with my car”) and reversed his vehicle towards it. The complainant stepped between the two vehicles and McCoy stopped. As a result of this incident, McCoy was charged with two offences: with intent to intimidate, he threatened to injure the complainant and damage his vehicle (pleaded guilty), and dangerous driving (pleaded not guilty).
The issue was whether McCoy’s driving (reversing) was “in a manner, which, having regard to all the circumstances of the case, might have been dangerous to the public or a person”.
The District Court concluded it was, relying on McCoy’s general demeanour and aggression. On appeal against conviction (McCoy v Police  NZHC 252), Osborne J held that whilst the District Court judge may have focussed unnecessarily on McCoy’s aggressive feelings, it was open to the judge to have general regard to the broader circumstances. The appeal was dismissed.
McCoy successfully applied to the Court of Appeal for leave to appeal (McCoy v Police  NZCA 617). In granting leave, the Court of Appeal identified the issue as being whether the driver’s state of mind was a relevant circumstance when assessing whether the driving was dangerous. This was a matter of general or public importance.
Applicable principles – dangerous driving – driving a motor vehicle in a manner which, having regard to all the circumstances, is or might be dangerous to the public or to a person – what does “manner” of driving mean? – is state of mind irrelevant to establishing a charge of dangerous driving? – what are the circumstances that may be considered? – is conduct by a driver (e.g., utterances or gestures) irrelevant?
Held: Appeal against conviction dismissed. Whilst the objective test for dangerous driving excludes consideration of mens rea, it does not follow that observable conduct (e.g., utterances or gestures) is irrelevant.
Contemporaneous statements can form part of the observable circumstances, notwithstanding that they also happen to indicate a ‘state of mind’. McCoy’s apparent intention, as disclosed by his contemporaneous statements, should not be excluded from consideration as a relevant circumstance.
McCoy drove his vehicle dangerously when consistent with his stated purpose, he reversed his vehicle towards the complainant’s vehicle in circumstances where there was at least one person in the vicinity (the complainant), who may be tempted to place himself in danger in order to prevent damage to his vehicle.