B v Police HC Nelson CRI 2005 042 2930

[2006] NZHC 573

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2005 042 2930

BETWEEN  B

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         26 May 2006

Counsel:        B Daniell-Smith for the Appellant

J C Bonifant for the Respondent

Date:              26 May 2006

ORAL JUDGMENT OF WILD J

Introduction

[1]      By notice dated 24 February, the appellant appeals against his conviction in the  District  Court  at  Nelson  on  24  February  for  dangerous  driving.    He  was convicted following a defended hearing before Judge Zohrab.

[2]      As they are set out in his notice, the appellant’s grounds of appeal are:

I am appealing conviction for the reason as stated –

1. The Judge had no evidence at all, pointed the Finger Of Blame at me, and

I never done it at all – and I was found guilty of something I never done.

1. The woman said she couldn’t ID me

2.  No number plate taken – no ID.

3.   Judge’s findings only on - “small area” must be you – isn’t good enough

“For Me”.  THIS IS JUSTICE.

B V NEW ZEALAND POLICE HC NEL CRI 2005 042 2930  26 May 2006

[3]      On the morning of 3 August 2005 Ms Cheryl Jefcoate was driving her Pajero stationwagon toward Nelson on State Highway 6.  She was en route from Wakefield to Hope, in the vicinity of Symmonds Road and the Pitfure Stream bridge.  She had her three year old daughter with her in the vehicle.

[4]      In her rear vision mirror she noticed a red sports car approaching fast behind her.   As it caught up with her it pulled out and overtook her, into the path of an oncoming vehicle.   This manoeuvre caused the on-coming car to have to  brake heavily and pull to the left to avoid a head on collision.  Ms Jefcoate, in turn, had to also brake heavily to avoid colliding with the rear of the red sports car as it pulled in ahead of her.  Ms Jefcoate said that, as the red car came alongside her, she glanced sideways at it and noticed that the driver was a man with short dark hair.  She said he gave her what she described as an arrogant little wave.  Immediately the on-coming car had passed, the red sports car again accelerated, and disappeared from her view down the highway ahead.

[5]      Ms Jefcoate said she saw the red sports car again in an area of roadworks further down the highway where there was a 30 kph speed limit.  Still further down the highway, she saw the red sports car pulled over on the side of the highway.  It had been stopped by a police officer and the driver was talking to the police officer. She was in no doubt that it was the same car and the same driver as had overtaken her dangerously shortly before.

[6]      She drove on for a short distance before determining to make a complaint to the police officer.   She executed a U-turn and drove back to the police officer, stopping him by flashing her lights at him.   By this stage the red sports car had driven off:  she saw it go by as she drove back to where the police officer was.  She made a complaint to the police officer that the driver of the red sports car had overtaken  her  dangerously.    She  was  not  able  to  give  the  police  officer  the registration number of the sports car.

[7]      About three weeks later, on 28 August, the police officer saw the red sports car in Nelson.  He stopped it and issued the driver with an infringement notice for dangerous driving on 3 August.

[8]      The  constable  said  that  the  driver  of  the  sports  car  did  not  offer  any explanation, but simply got irate with him, in particular about the time delay since the alleged incident.

[9]      The appellant’s case before Judge Zohrab was “it wasn’t me”.  He appeared for himself.   In his evidence he told the Judge that he had only gone as far that morning as the vegetable stall on State Highway 6, about 300 metres past the Ranzel Road turnoff.   The appellant maintained it was a case of mistaken identity by Ms Jefcoate who  did  not  get  the  registration  number  of the  red  car  and  could  not positively identify the appellant as the driver involved.

Submissions for the appellant

[10]     In his submissions for the appellant this morning, Mr Daniell-Smith accepted that  Judge  Zohrab  identified  identification  and  credibility  as  the  issues.     He submitted that the appellant had been prejudiced by what he termed his own blunders in defending himself before the Judge, but he accepted that the Judge, realising this, had intervened in an effort to ensure that the defence case was put to best advantage.

[11]   Mr Daniell-Smith highlighted various points in the evidence which, he submitted, raised doubts as to identification.   He pointed to parts of Ms Jefcoate’s evidence in which she said that she had never seen a red sports car before and submitted that that was, to say the least, curious, and he submitted not  credible evidence by a witness who had told the Court she had raced cars in the past.   He pointed out that Ms Jefcoate was unsure whether the red sports car was a convertible and was unclear in her evidence as to whether the roof was down or up, a point of obvious importance in terms of identifying the driver.  He also made the point that Ms Jefcoate had not been able to get the registration number of the red car, although she was only a few metres behind it at the roadworks after the incident of dangerous driving which had concerned her.

[12]     There could not be, and is not, any criticism of Judge Zohrab’s approach to the critical  issue of identification.    In his decision,  he reminded himself of the criminal standard of proof and of the need for caution in relation to identification, referring in particular to s67A Summary Proceedings Act.

[13]     The main facts established before the Judge were:

a)       Ms Jefcoate was overtaken by a red sports car.   She thought it was possibly a Mazda but was unsure.  She saw that the driver was a man with short dark hair in the car alone.  He gave her an arrogant wave.

b)       The overtaking manoeuvre constituted dangerous driving on the part of the driver of the red sports car.   Only evasive action by both Ms Jefcoate and the oncoming car avoided a collision.

c)       Ms  Jefcoate  saw  the  car  again  at  roadworks  further  along  the highway.

d)She saw the red sports car for a third time pulled over by a police officer a distance past the roadworks.  She said she was “110% sure that it was the same driver and car”.

e)       Constable Swaney, who pulled the red sports car over, said there were very few of these red Mazda RX6 sports cars about in Nelson:  it was an unusual car.

f)        The appellant in his evidence said his car was not unique.  He deposed “I  have seen  four or five  driving  around  Nelson and  they are  all factory red … There is quite a few of them around.”

g)In evidence the appellant accepted that it was he who had been pulled over by Constable Swaney and given a warning because the Constable

had observed him about to make a dangerous takeover manoeuvre, driving the Constable described as “appalling”.   The appellant could hardly deny that he had been pulled over by Constable Swaney, as the Constable knew him.   This emerged from the appellant’s own evidence.  He said:

But it must have been the fourth, fifth time Mr Swaney has pulled me over since I have come back from Christchurch and being in Paparoa for four years.  I am back in town.  He has pulled me over four or five times …

(Notes of evidence p2)

[14]     Thus, according to the appellant’s own evidence, there were only five or six red Mazda MX6 cars registered in Nelson.  Of that number, he admitted that he was in the locality at the time, and was the driver who had been pulled over by Constable Swaney.

[15]     In terms of credibility, Judge Zohrab was impressed by Ms Jefcoate as a witness and unimpressed by the appellant.  Of Ms Jefcoate the Judge said:

I was impressed by her.  She gave her evidence in a very clear, concise and reserved fashion.  She did not overstate the facts.  She was adamant that the vehicle that she saw is the same vehicle that she saw that slowed at the roadworks and once again was the same vehicle that she saw stopped at the side of the road.

[16]     Of the appellant the Judge observed:

I found him to be an unconvincing witness.   I was not impressed by the manner of his evidence.  I did not accept his evidence.

And:

I put to one side the defendant’s evidence.

[17]     In his notice of appeal the appellant  queries of the hearing  before Judge

Zohrab:  “Is this justice?”.

[18]     The three salient facts established before the Judge were:

a)       The dangerous overtaking was by an unusual red sports car, possibly a Mazda, driven by a man with short dark hair, who was alone in the car.

b)       Ms Jefcoate was 110% sure that it was the same car and the same driver that she saw shortly afterwards pulled over by Constable Swaney.

c)       The appellant admitted that he was the driver who, in his red Mazda sports car, had been pulled over by Constable Swaney and warned by the Constable who had seen him about to overtake dangerously.

[19]     I agree with Judge Zohrab that this sequence of events leaves no room for doubt that it was the appellant who had dangerously overtaken Ms Jefcoate.

[20]     The  appellant  did  not  suggest  he  was  not  a  man  with  short  dark  hair. Although the Judge did not advert to this in his decision, he had the appellant in Court, and could obviously see that the appellant fitted this description.   The only points that the appellant made before the Judge were that Ms Jefcoate could not identify him in Court and did not get his registration number.   My view of those points is that they would go to drive home a nail already driven in beyond any reasonable doubt.

[21]     The appeal against conviction is dismissed.

[22]     Significantly, there is no appeal against sentence.  Judge Zohrab imposed the minimum possible 6 month period of disqualification and ordered the appellant to do

100 hours community work.  I regard that as an extremely lenient sentence to impose on a man convicted of dangerous driving (a manoeuvre which clearly could have resulted in a three car head on collision and imperilled at least four lives), who had the following previous convictions for traffic offences:   nine for driving while disqualified; four for careless driving; four for excess blood alcohol; two for failing to stop or ascertain injury after a non-injury accident; one for dangerous driving.

Solicitors:

Daniell-Smith & Co., Nelson for the Appellant

Crown Solicitor, Nelson for the Respondent