Abraham v Police

[2012] NZHC 3119

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-42 [2012] NZHC 3119

MICHAEL ABRAHAM

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 November 2012

Counsel:         Appellant in person

C A Anderson for Respondent

Judgment:      22 November 2012

(ORAL) JUDGMENT OF LANG J

[on appeal against conviction and sentence]

MICHAEL ABRAHAM V NEW ZEALAND POLICE HC WHA CRI-2012-488-42 [22 November 2012]

[1]      Mr Abraham faced a charge in the District Court of operating a motor vehicle in a manner that caused the vehicle to undergo sustained loss of traction.  He pleaded not guilty to the charge, but failed to appear on the date allocated for the defended hearing.  Judge Davis then proceeded to hear evidence for the prosecution by way of formal proof. At the conclusion of the evidence, the Judge found the charge proved.[1]

He then adjourned proceedings so that a warrant could be served on Mr Abraham to

attend the Court to be sentenced.  Ultimately, the Judge fined Mr Abraham $350, and ordered him to pay Court costs of $132.89.   In addition, the Judge imposed the mandatory period of six months disqualification from driving.[2]

[1] Police v Abraham DC Kaitaia CRI-2011-029-966, 8 February 2012.

[2] Police v Abraham DC Kaitaia CRI-2011-029-966, 22 March 2012.

[2]      Mr Abraham now appeals to this Court against both conviction and sentence.

The appeal against conviction

[3]      It  is  first  necessary  to  consider  whether  Mr  Abraham  has  advanced  a reasonable explanation for his failure to appear at the defended hearing.

Mr Abraham’s explanation for his failure to appear

[4]      Mr Abraham explained to me that he knew that a fixture had been allocated for the defended hearing.  He advised me, however, that he had family troubles at the time, and that he also suffers from significant health issues.  For those reasons, he said that he simply lost track of the hearing date.  He said that in the past he had made careful checks with the Court to find out when his case was to be heard.  On this occasion, however, he slipped up.

[5]      For present purposes, I am prepared to accept that Mr Abraham has put forward a reasonable explanation for his failure to appear.  I am satisfied that he did not deliberately stay away from the hearing.    Rather, he inadvertently failed to attend. For that reason I will go on to consider whether it is possible a miscarriage of

justice has occurred.

Has a miscarriage of justice occurred?

[6]      In order to determine this issue, it is necessary to have regard to the facts of the case as disclosed by the evidence called at the hearing.

The facts

[7]      The evidence disclosed that Mr Abraham went to a service station in Houhora at around 8 am on 18 August 2011.  Whilst he was filling his vehicle with diesel fuel, a forecourt attendant noticed that smoke was coming from the pump.  The attendant recognised this as a sign that the tank from which the pump was drawing diesel was running low.   The attendant then approached Mr Abraham, and asked him to use another pump.

[8]      This caused Mr Abraham to become angry.   He slammed the pump handle back into the sleeve of the pump, and began muttering to himself.   He then went inside and paid for the diesel he had already pumped into his vehicle.  He then got back into his vehicle, and went to leave the service station.

[9]      At this point several witnesses heard Mr Abraham rev his engine loudly, before leaving the forecourt at speed.   This caused his wheels to spin, thereby leaving a line of black marks on the concrete forecourt.  It also caused stone chips to be thrown against the window of the service station.   The manner in which Mr Abraham drove his vehicle out of the service station and onto the road caused an oncoming vehicle to take evasive action to avoid colliding with him.

The proposed defence

[10]     Mr  Abraham  advised  me  he  accepted  that  he  was  the  person  who  the witnesses saw on the day in question.  He said, however, that he would have sought to clarify several issues if he had attended the defended hearing.  These included the issue as to whether the prosecution had properly proved that the skid marks on the forecourt  came  from  his  vehicle,  and  whether  the  pump  from  which  he  was extracting diesel had actually run out of diesel.  He was also anxious to challenge the

evidence relating to the fact that his wheels threw stones against the window of the service station.   Finally, he would have given evidence that his vehicle was not capable of doing a “wheel spin” in the manner described by the prosecution witnesses.

Decision

[11]     The essential issue in this case was whether or not Mr Abraham drove his vehicle in the manner described by the witnesses for the prosecution.  The witnesses were at one in saying that they saw the wheels of Mr Abraham’s vehicle spinning. Two of the witnesses also said that his vehicle left the skid marks that the police later photographed on the forecourt of the service station.

[12]     In those circumstances, I do not consider Mr Abraham would have been likely to persuade the Judge that his vehicle did not make those marks.  The fact that several witnesses saw the wheels of Mr Abraham’s vehicle spinning also means that it was virtually inevitable that the Judge would find that Mr Abraham operated his vehicle in a manner that caused it to undergo sustained loss of traction.   Mr Abraham’s unsubstantiated belief that his vehicle was not capable of being driven in that way would not, in my view, have been sufficient to overcome the evidence given by the prosecution witnesses.

[13]     For those reasons, I am satisfied that no miscarriage of justice has occurred. Even if Mr Abraham had attended the hearing, the matters he wished to put to the Court would not have been sufficient to raise a reasonable doubt  regarding the essential matters the prosecution was required to prove.  For that reason, the appeal against conviction is dismissed.

The appeal against sentence

[14]     I now turn to consider the appeal against sentence.

[15]     The Judge noted there was nothing sinister in Mr Abraham’s actions.   He described the offending as a “one-off incident” that occurred when Mr Abraham was upset at how he perceived he was being treated by the staff of the service station.

[16]     Mr Abraham confirms that his only income is an unemployment benefit.  He has no savings or other assets of any significance.  In those circumstances, and given the Judge’s acceptance that this was a one-off incident in which no damage was caused and nobody was injured, I consider the interests of justice will be sufficiently met if Mr Abraham is convicted and discharged.

[17]     I quash the fine and the order requiring Mr Abraham to pay Court costs.  The mandatory period of disqualification will remain in force.

Lang J

Solicitors:

Crown Solicitor, Whangarei

Copy to: Appellant