C v Police HC Christchurch CRI 2007-409-222

[2007] NZHC 1453

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2007-409-000222

C

Appellant

v

POLICE

Respondent

Hearing:         13 December 2007

Counsel:         K W Clay for Appellant

K B Bell for Respondent

Judgment:      13 December 2007

JUDGMENT OF FOGARTY J

[1]      After a defended hearing in the District Court on 5 October the appellant was convicted of operating a motor vehicle on Moorhouse Ave in a race in contravention of s 22A(1) of the Land Transport Act 1998.    The word “race” was discussed by Asher J in R v Morgan High Court Auckland CRI 2005-57-675 10 February 2006, in which, without necessarily laying down a complete test, the Judge said:

A race can develop when two parties become aware of each other, and seek by speed to contest the lead position between each other.

[2]      Both  counsel  before  me  agreed  that  this  is  a  working  definition  for  the purposes of this case and that it requires proof by the prosecution that the two drivers

C V POLICE  HC CHCH CRI 2007-409-000222  13 December 2007

at the least become aware of each other and then seek by speed to contest the lead. In that sense there is a necessary degree of mutuality of a common state of mind. The learned trial Judge appears also to have worked on the same test.   He cited Asher J and in his reasoning found that in his view the facts that the police officers had  established  in  their  evidence  led  necessarily  to  the  inference  that  the  two vehicles were involved in a race.

[3]      The  key  part  of  the  Judge’s  reasoning  appears  in  paragraph  [9]  of  his decision:

[9]       I am satisfied beyond any doubt on the evidence I have heard that the defendant was involved in racing on the night in question.   Although there was no opportunity for the Police Officers to ascertain by direct contact with the other driver what he or she might have said the facts that have been established  lead,  in  my  view,  necessarily  to  the  inference  that  the  two vehicles were involved in a race.  They were accelerating hard – that was the evidence of the Police Officers.  They were going through gear changes and they were driving well in excess of the 50km per hour speed limit which governs the lawful speed in Moorhouse Avenue.  They were involved in that way and driving side by side in adjacent lanes for a considerable distance along Moorhouse Avenue and, in my view, the evidence clearly establishes that they were involved in a race.  For that reason the defendant is convicted.

Within paragraph [9] there are two sentences:

They were accelerating hard … . They were going through gear changes and they were driving well in excess of 50km per hour ...

[4]      In defence of the decision, counsel for the Crown has taken me through the passages of evidence of Constable McClerg, that he was initially alerted by the sound of two cars working very hard and travelling together quickly and to Sergeant Hamilton’s written evidence-in-chief that the cars were accelerating hard against each other and were side by side which he confirmed in cross-examination.

[5]      Sergeant Hamilton was the principal evidence for the prosecution.  Constable McClerg was at one point standing on the sill of the car but was asked by his senior to get into the car, presumably to facilitate a fast take off on pursuit.

[6]      On appeal, Mr Clay argued that there were significant differences between the summary of facts and Sergeant Hamilton’s evidence.  The summary of facts was

prepared by Sergeant Hamilton.  He agreed that that was the case.  In the summary of facts he said:

The Defendant decided to quickly accelerate his car towards another east bound car on his left that contained another group of teenagers.

He managed to catch up to this other car which had also sharply accelerated east on Moorhouse Avenue.

Both vehicles then accererated (sic) hard together in a very loud competitive race for speed.

…

The car that the defendant was racing against then continued to accelerate further and managed to increase its speed …

[7]      In his brief of evidence Sergeant Hamilton said:

While I stood on the flush median on Moorhouse Ave my attention was drawn to two cars that had taken off at speed …

Both cars were accelerating hard against each other, side by side in a noisy race for accereration (sic) and speed towards me …

Both vehicles continued to race towards me and I could hear the loud gear changes as they approached the intersection of Fitzgerald and Moorhouse Ave.

For a few moments when these two vehicles were under full accereration (sic) they temporarly (sic) became the noisest (sic) and loudest vehicles in the area.

As they approached the intersection both vehicles started to slow.

[8]      The    trial  Judge’s  reasoning  that  I  quoted  from  paragraph  [9]  seems  to suggest that the gear changes that were heard by the police officers were at a time when the cars were accelerating hard.  On my reading of paragraph [9] when I first read it I thought he was referring to the gear changes one hears as manually geared cars change gear in the process of picking up speed.

[9]      The brief of evidence of Sergeant Hamilton places hearing the gear changing as the cars are approaching Fitzgerald and Moorhouse Avenue intersection.  That is at the point where, according to the summary of facts, the defendant is slowing down, and according to Sergeant Hamilton’s briefs of evidence the other vehicle is

starting to slow as well.  Although in the summary of facts he suggests the other car continues to accelerate further and increase its speed.

[10]     The facts as presented to the Court have to establish beyond reasonable doubt that at some point, during the period where the vehicles  were travelling in  the immediate vicinity of each other, the drivers became aware of each other and sought by speed to contest the lead position.

[11]     The prosecutor had to eliminate the possibility that the appellant had been speeding initially behind the other car, as suggested in the summary of facts, and that it would  only be when  he  caught  up  with  the  other  car  that  a  race  may have developed.  The other car may not have been paying particularly much attention to him until that point.  We are dealing with only a few hundred metres between one intersection and the other.  If the cars had left the intersection of Madras Street and Moorhouse Ave together and had been observed so leaving and had been observed to be accelerating hard against each other side by side during that time I would have had more confidence that a race had been proved.  But in the face of the evidence that the cars were not observed until they had passed that intersection.   On the internal conflict between Sergeant Hamilton’s summary of his facts and the evidence he gave, I am not satisfied that it has been proved beyond reasonable doubt that the gear changes, that were observed and contributed to the Judge’s finding that they were racing, were at the earlier stages when they would have been speeding, one trying to pass the other, or whether they were gear changes taking place in order to de-accelerate approaching the intersection, at which point they would not have been racing.

[12]     This is a case where I think that Michael C   was likely racing.   His answer to the question “why are you racing” is not particularly convincing but has both an inherent proposition of fact in the question and an ambiguity in the answer which makes that exchange rather unsatisfactory.

[13]     I also note, as is the usual practice of the Court, it is called a summary jurisdiction,  counsel  for  the  prosecution  and  the  defendant  did  not  have  an opportunity to sum up analysing the evidence of the Court hearing.  There may be

cases such as these where a summing up giving an analysis of the evidence would have been of assistance to the Court.  It certainly has assisted me.

[14]     For these reasons I am satisfied the conviction is unsafe and is set aside. However, I am also of the view that Michael C   should not walk from this Court without a penalty for his behaviour and I will discuss the penalty with counsel.  For that purpose Michael , I think you are here, would you go into the dock over there and remain standing.

[Discussion with counsel]

[15]     Michael  C    you  are  charged  with  speeding  reaching  a  speed  of  88 kilometres per hour in a 50 kilometre speed zone on Moorhouse Ave at quarter past one in the morning.    Now you have been acquitted of the charge of operating a vehicle in a race but travelling at that speed at that hour of the morning when quite frankly a lot of other drivers are on the road who are semi-intoxicated or people who are tired, is something of a matter of public concern.   I have heard from your father of the cost to the family of this.  I am sure you will do your best to repay the loyalty and love that the family have shown you, but you also have to pay a fine which I want to come out of your pocket and I want you to experience some direct sacrifice of your own income, in addition to whatever the understanding reached with your parents.

[16]     If you do not pay that fine and you come before the District Court or this

Court you will get an extremely swift and serious rebuff. [17]           I fine you $200.  There will be no order for costs.

Solicitors:

K W Clay, Christchurch, for Appellant

Raymond Donnelly & Co, Christchurch, for Respondent