B v Police HC Christchurch CRI 2008-409-220

[2009] NZHC 243

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-000220

B

Appellant

v

POLICE

Respondent

Hearing:         4 March 2009

Counsel:         R G Glover for Appellant

C J Boshier for Respondent

Judgment:      4 March 2009

JUDGMENT OF FOGARTY J

[1]      The appellant was convicted by Judge Bisphan on 9 December in the District Court at Christchurch on one charge of unnecessary exhibition of acceleration.  This is an appeal against the conviction.  Section 36A(1) of the Land Transport Act 1988 provides:

36A     Contravention of section 22A

(1)      A person commits an offence if the person—

(a)operates a motor vehicle in a race, or in an unnecessary exhibition of speed or acceleration, on a road in contravention of section 22A(1);or

B V POLICE HC CHCH CRI 2008-409-000220  4 March 2009

[2]      Section 22A(1) of the Act provides:

22A     Persons not to engage in unauthorised street or drag racing, or other related prohibited activities on roads

(1)A person must not operate a motor vehicle in a race, or in an unnecessary exhibition of speed or acceleration, on a road unless the operation of the vehicle in that manner is authorised by law.

[3]      The Crown case did not depend on the vehicle being in a race but rather it focused on the alternative element of:

… or in an unnecessary exhibition of speed or acceleration.

[4]      The right of appeal is contained in s 115 of the Summary Proceedings Act

1957 and is a general right of appeal against conviction.  The case is heard on the record.  The Court does not approach the conviction with any presumption that it is right.   Here the argument is whether or not the case has been proved beyond a reasonable doubt.   Nonetheless, where there are relevant issues of credibility the findings  of  the  Judge  as  to  credibility,  when  coupled  with  reasons,  are  highly material.

[5]      There is an issue raised here as to whether the Judge was right to treat this case  as  an  issue  of  credibility.    But  before  I  go  to  that  first  issue  I  will  just background the general setting of the incident.

[6]      On 25 May last there were a number of cars which took a route driving down Moorhouse Avenue onto Fitzgerald Avenue and then on to Bealey Avenue.   The case for the police is that one of these cars, a black Nissan, was first observed stopped at a red light on what the police officer, who was from Auckland, believed to be the Lichfield Street intersection of Fitzgerald Avenue.  He was stopped behind the car in an unmarked patrol car, a black Commodore.   According to the police officer driving the car, both his car and the defendant’s car were in the left-hand lane.  He gave evidence of this car, and a car to its right accelerating noisily away and that it clocked up to 72 Kms, the speed limit in that area being 50 Kms.   He did not immediately pull over the car, he said, because he was trying to get the registration number of the car on the right.   He interpolated that he had got the

registration number of the car immediately in front of him, which he said was the defendant’s car.

[7]      Some considerable distance later (Fitzgerald Avenue is a reasonably long avenue, one of the four avenues around the city) he stopped the car when it had turned out of Fitzgerald Avenue and was going down Bealey Avenue, near to the Mobile Service Station.  At that time he took a statement from the defendant.  He recorded in his notebook the registration number of the car ADA398, the name of the defendant, starting with her surname “B  ”, her date of birth, her telephone number and address.   He recorded he gave her her Bill of Rights, that that was understood and then proceeded these questions and answers:

“We have followed you along Moorhouse Avenue to Fitzgerald Avenue. We  have  been  behind  you  at  the  lights  on  Fitzgerald  Avenue.    You accelerated up to 72 kilometres an hour, were you just showing off.”  She’s replied, “Yeah, just having a bit of fun.”.  I’ve asked her, “Is the car yours”. She’s said, “Yes”.  I’ve offered her the opportunity to sign my notebook but she’s refused.

[8]      The defendant and her passenger in the car gave evidence.  Their evidence was that they did not notice the black Commodore behind them until either the intersections  of  Armagh  or  Kilmore,  which  are  several  intersections  past  the Lichfield Street intersection, and that earlier than that they were not in the left-hand lane but were two out.   Their evidence was that although they had exceeded 50 kilometres per hour it was in the low 60s rather 72 and their car could not have accelerated noisily as it was an automatic.  They also interpolated, in the case of the defendant in the course of cross-examination, and in the case of the passenger in the course of his re-examination, that there was another black Nissan car in the cars moving around at this particular time.

[9]      The Judge in his reasoning took the prime issue in the case to be one of credibility.   He noted the number of conflicts that he found between the police constable’s evidence and Ms B   and her passenger.   He noted that a lot of the evidence was consistent and, using the time honoured phrase, having seen and heard the witnesses, he preferred the constable’s evidence, giving as his reasons:

[6]       Having  seen  and  heard  the  witnesses  I  am  satisfied  that  the constable’s evidence is to be accepted here.  He was out on this evening for

the specific purpose of looking at vehicles, that’s his job, and I am satisfied that his evidence is what happened and I reject the evidence of the defendant and Mr Skinner because they would not have been aware of anything untoward  going  on  until  at  least  after  the  Lichfield  Street  intersection, whereas the constable had been following and observing, so as I say, I accept his evidence as to the sequence of events.  I am satisfied that at the Lichfield Street intersection the constable was in behind the defendant’s vehicle and that she left at speed and reached a speed of about 70, 72 k’s it’s a 50 k area, as we all know.

[10]     Mr Glover argued that the Judge had misclassified the case as one coming down to credibility, that the two sets of evidence could be rendered  consistent, particularly when one takes into account the evidence that there were two black Nissans that could have been observed, and there was thus potential for confusing one for the other.

[11]     The constable said that he had taken the number of the black Nissan that he drew up behind, stopped on the red light at the Lichfield Street intersection.  There was  no  disclosure  of  any record  of  the  car’s  number  except  in  the  constable’s notebook, but that was against the time of 0001 and was plainly at the later time when he was interviewing the defendant.

[12]     He was not cross-examined or challenged in any way on his evidence that he had obtained the registration number of the car in front of him, and had not stopped the car immediately because he was trying to get the registration number of the car on the right.  If that evidence is true, that he had obtained that registration number, and there is no particular reason why the constable would want to manufacture that fact, and it is coupled with an explanation as to why he did not stop the car because he was trying to get the second registration number, then it adds weight to the reasoning of the Judge in paragraph [6], that I have set out.

[13]     The police officer was not cross-examined on the possibility of confusion between the two Nissan cars because, as I have explained, that evidence came out in the defence evidence and not in evidence-in-chief.  It is no fault on Mr Glover’s part that he did not put it because it obviously was not in his brief to put to the constable when he gave his evidence.

[14]     The aspect of the case which impresses upon me is the statement taken and recorded in the constable’s notebook.  Ms B   refused to sign the statement but there is no reason to doubt its correctness and in any way to reject its reliability.  It does contain, effectively, an admission of acceleration up to 72 kilometres per hour and that she was showing off.   The Judge also plainly relied upon it because he moves on:

[7]       Furthermore, I am satisfied that what she said when the constable spoke to her is what he had written in his notebook.   She said when questioned that she was, “Showing off and just having some fun”, and I am satisfied that that was in fact what she said, which draws the inference that she was aware that her driving at least was untoward.  So I am satisfied that is the factual situation as outlined by the constable and reject the evidence of the defence witness where it conflicts.

[8]       That finding constitutes in my view an unnecessary exhibition of acceleration by the defendant, because as I say, this was a 50 k area and there was no necessity to exceed that in leaving the intersection and I am satisfied that she got up to about 70 k’s or 72 k’s.  The constable was driving a car that had been calibrated, or whatever the words is, so that the Court can accept that that was the speed reached.  It was not necessary and therefore the defendant falls foul of the section.

[15]     I am left in some doubt as to whether or not the constable’s evidence of noisy acceleration was noisy acceleration created by the defendant’s car.  But that doubt is not sufficient to eliminate proof of the charge beyond reasonable doubt.  In my view the elements of that charge were admitted.  It is true, as Mr Glover has said, that the police brought the case relying on the noisy acceleration but that does not mean that the conviction cannot be sustained by putting aside that aspect of the evidence.

[16]     For these reasons, I am satisfied that there is reliable evidence on the record which proves the charge beyond a reasonable doubt and accordingly the appeal is dismissed.

Solicitors:

R G Glover, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent