Berry v Police

[2014] NZHC 80

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2013-463-0002

CRI-2012-463-0012 [2014] NZHC 80

BETWEEN  FRANK BERRY

ANTHONY JAMES DEVITT MARTIN WILLIAM DAVIES PETER WILLIAM EVANS CARL VANCE FURNISS JAMES ERIC HIROKI JAMES GREGORY NELSON MARTIN ALLAN PINHEY ATHOL TEWIATA RAIKA

BRIAN ANDREW THOMPSON OWEN WILLIAM WILKINSON Appellants

ANDNEW ZEALAND POLICE Respondent

Hearing:                   7 February 2014

Appearances:           B Hunt for Appellants

A D Hill for Respondent

Judgment:                7 February 2014

(ORAL) JUDGMENT OF LANG J [on appeals against conviction]

BERRY & Ors v NEW ZEALAND POLICE [2014] NZHC 80 [7 February 2014]

[1]      The appellants each faced a charge of dangerous driving.1  They entered pleas of not guilty, and a defended hearing was held before Judge Weir in the District Court at Taupo on 8 October 2012.  In a judgment delivered on 19 December 2012, the Judge found each of the charges proved.2   On 17 January 2013, he fined each of the appellants $600 and disqualified each from driving for a period of six months.3

The appellants now appeal against their respective convictions.

Background

[2]      The charge was laid as a result of an incident that occurred on the afternoon of 15 March 2012.  On that date a police officer travelling on State Highway One in a southerly direction away from Turangi encountered a group of motorcyclists.  He first noticed them whilst he was following a bus.  He observed the bus to pull to the left and apply its brakes.   He then saw the group of motorcyclists travelling in a northerly direction overtaking a vehicle, crossing into the southbound lane whilst doing so.  The officer concluded that the bus had been forced to take evasive action as a result of the overtaking manoeuvre, and he turned his vehicle round and sped up in order to catch up with the motorcyclists.  He caught up with the group just as they were entering a straight stretch of road adjoining the Turangi township.   He then followed the group from that point until they were eventually stopped at a police road block at Five Mile Bay, to the south of Taupo.

[3]      The officer said that during the journey between Turangi and Five Mile Bay he observed two incidents that he considered to amount to dangerous driving by the group.  The first of these occurred when the group travelled through an area of road works.  The posted speed limit at that point was 50 kilometres an hour, but the group of motorcyclists travelled through the area at a speed in excess of 100 kilometres per hour.   Then, in an area near Bully Point, the officer observed the group of motorcyclists overtaking another vehicle and crossing into the southbound lane of the highway to do so.  This caused an oncoming vehicle to swerve to the left and

apply its brakes in order to avoid the group.

1      Land Transport Act 1998, s 35(1)(b).

2      Police v Devitt DC Taupo CRI-2012-069-000454, 19 December 2012.

3      Police v Berry & Ors DC Taupo CRI-2012-069-000454, 17 January 2013.

[4]      The police officer who followed the group maintained radio contact with his communications centre.  As a result, several police cars were sent to Five Mile Bay, where they set up a checkpoint designed to stop the group of motorcyclists.  When the group came into view, a police car pulled out in front of them with lights flashing and the group was shepherded into a layby.  At that point, the police gang liaison officer  for  the Taupo  area  approached  the  group  and  spoke  to  its  leader.    The motorcycle riders and pillion passengers were then asked to stand by their respective motorcycles whilst photographs were taken of them and their motorcycles.   The group was then told that it was likely that charges would follow, and they were allowed to proceed on their way.   They were stopped on the roadside for a total period of approximately 30 minutes.

The appeal

[5]      Counsel for the appellants raised a large number of grounds of appeal.  These included the admissibility of the photographs that the police had taken, having regard to the fact that the motorcyclists were stopped in excess of 15 minutes in alleged contravention of s 114 of the Land Transport Act 1998.

[6]      During the hearing today, however, a much more fundamental defect in the prosecution case was identified.   This related to the failure of the prosecution to prove that the persons named in the informations were the riders of the motorcycles that the police officer observed.   Counsel for the respondent now accepts that the convictions cannot be maintained, and must be set aside.

[7]      This  was  not  an  issue  that  the  Judge  identified  in  his  judgment.    He concentrated on determining whether he could safely infer that the group of motorcyclists that the police stopped at Five Mile Bay were the same persons who had been involved in the earlier incidents observed by the pursuing officer.  He came to the conclusion that he could safely draw that inference, and that each of the persons stopped by the police was a member of the group that had been engaged in acts of allegedly dangerous driving.

[8]      The difficulty that has now been identified is that no prosecution witness fully identified any person named in an information.  Evidence was given that the

police obtained the name and identifying details of Mr Athol Tewiata Raika and Mr Peter William Evans.  Their identifying details were not, however, given in evidence so  that  they could  be linked  to  the persons  named in  two  of the informations. Counsel for the appellants had also objected to any attempt by the prosecution witnesses to identify the defendants in the courtroom.  The prosecutor did not pursue that line of identification.

[9]      Although the prosecution produced a booklet of photographs, apparently over a defence objection, there was no evidence to link the persons depicted in those photographs to the persons named in the informations that were before the Court.

[10]     At the conclusion of argument and before I delivered this decision, counsel for the respondent checked the notebook entries made by the officer who took the names of the motorcyclists stopped by the police at Five Mile Bay.  The officer who made the entries referred to them briefly when he gave evidence, but he did not read them out or produce them as an exhibit.  Counsel for the respondent confirmed from the bar that, with the exception of Mr Raika and Mr Evans, the officer recorded only the surnames of the persons stopped at the roadside.  The officer did not record the full names and identifying details of the remaining motorcyclists.  In addition, he did not list the surnames in the notebook in the order of the persons depicted in the photographs that were produced as exhibits.  For these reasons the prosecution could not prove that the persons depicted in the photographs are the defendants named in the informations.

[11]     This means that the prosecution could not establish that the persons named in the informations were the motorcyclists stopped by the police at Five Mile Bay on

15 March 2012. As a consequence, the appeal must be allowed.

Disposition

[12]     Counsel for the respondent initially submitted that this was an appropriate case to be remitted to the District Court for rehearing.  I expressed my reservations about that course of action, because it would  effectively give the prosecution a second opportunity to adduce evidence that it ought to have adduced at the first hearing.   Ordinarily, a rehearing would not be directed for that purpose.   Having

regard to the additional enquiries that counsel made in relation to the records held by the police, he no longer maintains his submission that the matter should be remitted to the District Court for rehearing.

Result

[13]     The appeals are accordingly allowed. The convictions and orders made in the

District Court are set aside.

Lang J

Solicitors:

Crown Solicitor, Rotorua

Counsel:
B Hunt, Wellington