B v Police HC Christchurch CRI 2008-409-40930

[2008] NZHC 540

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2008-409-040930

B

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         17 April 2008

Counsel:         J P McCarthy for Appellant

T J Mackenzie (and Mr Lesa, visiting from Samoa) for Respondent

Judgment:      17 April 2008

ORAL JUDGMENT OF PANCKHURST J

[1]      Following a defended hearing before Justices of the Peace in the District Court on 13 February the appellant was convicted of failing to stop, having been lawfully required to do so by an enforcement officer.  This is an appeal against that conviction.  It suffers from the problem that during the course of a prolonged hearing before the Justices the tape-recording of the evidence was disrupted.  In the result the evidence of one prosecution witness and the evidence of two defence witnesses is not available to me.  For that reason it is necessary for me to approach the matter on a somewhat different basis than did the Justices.   I shall explain this further in a

moment.

B V NEW ZEALAND POLICE HC CHCH CRI 2008-409-040930  17

April 2008

[2]      The relevant events occurred at 12.25 am on Sunday, 23 September 2007. The appellant was at Sumner village where earlier in the evening he had had something to drink at a bar.   He left the supermarket carpark and turned left onto Nayland Street intending to drive in a generally easterly direction for three blocks before it would become necessary for him to turn left off Nayland Street onto Head Street where he resides at number 3.  However, Mr B  ’s driving was observed by two officers in a police car.  They were proceeding on Nayland Street and, although there is dispute as to exactly where they were when they encountered Mr B  , it is at least common ground that they had to do a U turn before they could follow him. This occurred after the U turn had been effected.

[3]      The officers maintain that they were behind the appellant’s vehicle a short distance after it had left the supermarket carpark.  They estimated it was at about the intersection with Stoke Street which is fully three blocks from where Mr B   executed his left hand turn into Head Street.

[4]      Mr B  ’s case, however is that following the U turn the two vehicles were a considerable distance apart and that by the time the police vehicle caught up to him, he had already travelled almost two blocks and was just short of the intersection with Menzies Street, which is only one block from his home address.

[5]      For present purposes the evidence of most importance which is not available to me is that of two defence witnesses.  They are Messrs Owens and Mr Kilkenny- B  , the latter being the son of the appellant.   They, too, were in the Sumner village at about 12.30 this Sunday morning.  Their evidence is to the effect that their attention  was  attracted  to  what  was  occurring  on  Nayland  Street  and  that  they crossed the supermarket carpark onto the street in time to observe a police car pursuing Mr B  ’s vehicle at considerable speed.

[6]      Generally, I am assured by Mr McCarthy, who conducted the defence in the District Court, their evidence was confirmatory of Mr B  ’s, namely that it was about, or just short of, Menzies Street that the police vehicle came into close proximity with Mr B  ’s vehicle.  Counsel regarded this evidence as of particular significance because, as I say, it confirmed that of the appellant and meant that there

was only a distance of one block, estimated to be about 11 seconds driving time, during which the requirement to stop could have been given and the obligation to do so performed.

[7]      Unquestionably the Justices decided the case on the basis that they preferred the evidence of the police witnesses.  They took the view that there was of the order of three blocks during which Mr B   had ample opportunity to stop.  Moreover, they  accepted  evidence  that  on  two  occasions  the  police  car  drew  alongside Mr B   and motioned to him, requiring him to draw to a stop.  This, of course, was occurring at a time when it is common ground their flashing lights were on and the siren was engaged.   In these circumstances the Justices had no hesitation whatsoever in finding the charge proved.

[8]      With reference to the evidence of Messrs Owens and Kilkenny-B  , they said this:

Thomas Owens, a friend of Edward B  , gave evidence of watching the Police car follow B  ’s father down Nayland Street.   They both gave conflicting evidence of where the Police car was when they first saw it and the speed it was travelling.  They are both young and not qualified to judge speed as they did in Court today.   We have not placed any weight on the evidence of these young people.

Mr McCarthy submitted that this was an entirely inadequate, indeed irrational, basis upon which to dismiss this evidence.  These two young men are both students and it seems men of some intelligence and integrity.   Counsel submitted that it was unacceptable to dismiss their evidence out of hand on the basis of immaturity, when they had given a generally consistent account that their attention was drawn to the relevant events; that they went onto Nayland Street footpath and observed what was occurring, albeit from a distance of a few blocks.

[9]      I tend  to  agree  with  counsel’s  argument.    It  does  seem  to  me  that  this evidence required further consideration and that if it was to be rejected out of hand, the Justices needed to do so on a basis other than saying that they were too young and not qualified to speak of the matters of which they gave evidence.

[10]     In these circumstances, and given that the present is an appeal by way of rehearing on the notes of evidence, I consider that the only appropriate course is to consider the evidence on the assumption that the missing witnesses gave evidence to the  effect  of  that  which  I  have  just  summarised.    In  other  words,  it  becomes necessary to view the case through the eyes of the appellant and his supporting witnesses in order to answer the ultimate question whether, even on the basis of that account, the charge is proved.

[11]     As I have already said, Constable Streiker, who was the passenger in the front passenger’s seat in the police car, gave evidence that the pursuit was over about three blocks  during  the  course  of  which  the  car,  on  two  occasions,  drew  alongside Mr B  ’s vehicle and he was requested by signalling and mouthing of the words to stop.  But, of course, I must view the matter on the basis that that may not have been the situation.   Rather, that the relevant transaction occurred over only one block.

[12]     I focus, therefore, on the evidence of the appellant himself.  There are three passages in his evidence-in-chief which impress me as of particular significance. The first appears at page 30.  He said this:

I don’t believe they came in twice because the physical time difference wouldn’t have allowed them to do it.  They certainly did it once [that is drew alongside Mr B  ’s car].  The time that they were behind the car was, as they said themselves, around about 3-5 seconds and it dawned upon me at that point that yes they wanted to speak with me because there were no other cars on the road and it was, you know it became apparent that maybe they actually wanted me to pull over, even though I didn’t feel as though I’d done anything wrong, at which point within four or five seconds to pull alongside. The officer looks at me and says right “Get out of the way, get out of the way” and then within another five seconds (interrupted)

[13]     The next passage appears at page 31 and just a few lines on.  Mr B   said:

I’ve got parked cars all the way down the side, its early in the evening, and then they’ve pulled alongside and as far as I was aware I was unsure as to whether they wanted me to pull over or whether they were off to another job. At which point they then accelerated past.

The third passage is also on page 31:

Yes  because  it  wasn’t  unequivocal,  it  wasn’t  absolutely  clear  that  they wanted me to pull over.  If I thought they’d got on the megaphone and said would the silver Pulsar please pull over, would the silver Pulsar please pull over, it would have been unequivocal.  But given the fact that it was only

11 seconds between the time that they were behind me and the time they went past and given it was late at night and so on I really was, I didn’t think

they didn’t not want to stop me but I wasn’t absolutely sure that they did want me to stop.

[14]     I note that after these various descriptions of what happened in the block between Menzies and Head Streets, Mr B   in fact turned left into Head Street, continued a short distance and then turned into his home address at number 3.  He then remained seated in the car momentarily until he was confronted by one of the constables, removed from the car and arrested.

[15]     Given  the  evidence  which  remains  and  focusing  upon  the  evidence  of Mr B   in particular, is it safe to conclude in an appellate setting that the evidence was   sufficient   to   prove   the   charge   beyond   reasonable   doubt?      I   accept Mr McCarthy’s submission that a motorist does not commit this offence unless they are aware of their obligation to stop.  At that point, again accepting Mr McCarthy’s submission, the obligation is to stop as soon as is reasonably practicable.  I therefore address those two questions.

[16]     Two aspects of the evidence satisfy me beyond any reasonable doubt that Mr B   knew full well he was being required to stop.  In the first place the three passages from his evidence which I have just read are, it seems to me, a virtual admission of the requisite knowledge.   It is not surprising that he spoke in such terms.   If a police car comes up behind a citizen’s vehicle, engages a siren and flashing lights, pulls alongside and a front seat passenger gestures to stop, it must be self-evident that a requirement has been made.  Indeed, and although they spoke in a different context than confronts me, the Justices at one point in their decision said that “We find this whole matter unbelievable”.  I agree.

[17]     The second matter which most influences me to this conclusion is evidence from Constable Streiker concerning what occurred in the police car after Mr B   had been arrested.  He said that he asked a number of questions:

Q.      Why didn’t you stop.

A.     Wouldn’t make any difference.   Everyone round here drives drunk.

I’m just a good bloke trying to get home.   You’re just collecting revenue and filling your quotas.

Q.     Do you live at 3 Head Street.

A.     I’ve lived there for 30 years and I’m mortgage free.

Q.     Did you not see the lights of the patrol car behind you.

A.     I saw the lights.  You were trying to pass me.  There was no-one else on the road.

Q.     Where have you been drinking tonight. A.   At Wakefields.

Again, this exchange does not impress me as consistent with the defence argument that Mr B   did not have the appreciation that he was being required to stop.  It, too, is tantamount to an admission that he understood the obligation but chose to ignore it because he did not consider the officers had good reason, or need, to speak to him.   In that regard it is a feature of the case that when he was breathalysed it proved that Mr B   was not over the limit and hence, perhaps there is some basis to understand why he took the actions that he did.

[18]     For these reasons I am entirely satisfied that the charge was proved to the required standard.  I reach that view making full allowance for the evidence of the missing defence witnesses and essentially ignoring large parts of the police case and focussing instead upon the evidence of Mr B  .   Even on that basis, which is effectively forced upon me given the mishap in recording the evidence, I am in no doubt that the charge was proved to the required standard.

[19]     For these reasons the appeal is dismissed.   I make no order as to costs, although the case is one which could well have attracted that response.

Solicitors:

Sumner Bay Law, Christchurch for Appellant

Raymond Donnelly & Co, Christchurch for Respondent