G v Police HC Auckland CRI 2007-404-240

[2008] NZHC 1311

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2007-404-240

G

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         15 August 2008

Appearances: A J Haskett for the Appellant

A Bradley for the Respondent

Judgment:      20 August 2008 at 2:30 p.m.

JUDGMENT OF WOODHOUSE J

This judgment was delivered by me on 20 August 2008 at 2:30 p.m. pursuant to r540(4) of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr A J Haskett, Barrister, Auckland

Ms A Bradley, Meredith Connell, Office of the Crown Solicitor, Auckland

G V NEW ZEALAND POLICE HC AK CRI 2007-404-240  20 August 2008

[1]      Mr G   appeals against his conviction by Judge Holderness in the District

Court on a charge of dangerous driving under s 35(1)(b) of the Land Transport Act

1998.

[2]      The information was amended at the conclusion of the prosecution evidence. As amended, and with the amendment in bold, the charge was that Mr G   “drove a motor vehicle on a road, namely Glenmore Road and then Butley Drive to Fortunes Road in a manner which, having regard to all the circumstances of the case, might have been dangerous to the public”.

Factual background and contentions

[3]      At about 6:30 p.m. on Sunday, 22 October 2006 Mr G   was driving a late model BMW along Glenmore Road, Pakuranga.  The car was owned by a friend of Mr G  , Mr Sonny Sun.  Mr Sun was a passenger.  Another friend of Mr G  , Mr McKay, was also a passenger.  The Police allege that the driving by Mr G   on Glenmore Road was dangerous.  This was based on the evidence of Mr Matthew Hindle.  I will come to that evidence.  The essence of the evidence of Mr Hindle was that the car he was in, driven by his son, was overtaken at high speed by the BMW driven by Mr G   and the BMW dangerously continued on the wrong side of the road for some distance.  Mr G   and Mr McKay said there was no overtaking or speed by Mr G   on Glenmore Road.

[4]      Mr G   drove to the end of Glenmore Road, turned right into Butley Drive, then along Butley Drive to a roundabout at the intersection of Butley Drive with Fortunes Road, Prince Regent Drive and Casuarina Road.   Fortunes Road is opposite Butley Drive on the other side of the roundabout.

[5]      Mr Hindle said his son followed the BMW some distance behind.  Mr Hindle saw the BMW go through the roundabout.  He said that the car “slipped and snaked” through the roundabout in such a manner that Mr Hindle thought the BMW was not going to make it.  Mr G   said that he started through the roundabout at a modest speed and that the BMW self-accelerated after he lifted his foot from the accelerator.

[6]      The BMW crashed on the other side of the roundabout, in Fortunes Road. Before coming to a stop, the BMW sheared a light-pole off at its base.  The BMW ended up approximately 60 to 70 metres from the roundabout with considerable damage to the rear of the car, with steam coming out of the engine, and with the engine still running.

[7]      After the crash, Mr G   and the two passengers got out of the car, there was a discussion between Mr G   and the owner, Mr Sun, and Mr G   then left the scene by walking away into a nearby reserve.

Points on appeal

[8]      For the appellant it was submitted that the Judge erred in six respects:

1.        He should not have amended the information.

2.He was wrong in his conclusion that the driving on Glenmore Road might have been dangerous to the public.

3.He was wrong in his conclusion that the car on Glenmore Road that passed Mr Hindle’s car was the car that crashed on Fortunes Road.

4.He was wrong in his conclusion that the driving on Fortunes Road might have been dangerous to the public.

5.He wrongly reversed the burden of proof on the contention by Mr G   that the car had accelerated of its own accord at the roundabout.

6.He  should  not  have  rejected  the  defence  evidence  on  credibility grounds.

[9]      It is convenient to deal with the relevant findings of Judge Holderness when dealing with each of the main points for the appellant.

[10]     This appeal, in large measure, turns on the evidence.  For this reason it will assist to set out some of this evidence and summarise the rest.   There were four prosecution witnesses: Mr Hindle, two neighbours who heard the crash and came to the crash scene very soon after, and a Police Constable who went to the accident and subsequently spoke to Mr G  .   For the defence there was evidence from Mr G   and Mr McKay.  Mr Sun, the other passenger in the BMW and its owner, did not give evidence.

Matthew Hindle

[11]     Mr Hindle said that at about 6:30 p.m. on 22 October 2006 he was a front seat passenger in his car being driven by his learner driver son on Glenmore Road. He said that his son was driving at about 50 kilometres per hour when they were passed by a dark grey late series BMW.

[12]     Mr Hindle’s evidence about the BMW and the speed of his own car included the following:

I didn’t hear anything until the car or a car flashed past me going enormous speed, really gave me a fright.  My son got a hell of a fright too and I – there were fingers out of the window and I thought I heard you know a shout or something and the car was going very quickly and for quite some distance on the wrong side of the road.   I just said to my son, Christ he’s gonna kill someone …

[The driving was] crazy.

I reckon he was going twice as fast as we were, very quick, I couldn’t – there’s no way – my first instinct was I’ll get the rego and do the star 555 and – but we just couldn’t get close to him he – just bang he’d gone.

I was very conscious of our speed, we would have been doing about –

certainly might have been less than 55, might have been 50, 55.

[He was on the wrong side of the road] I would have said about 5 seconds at the speed he was going, it was coming over a blind rise, I thought boy if someone’s coming over the corner there’s no way he’s gonna miss him but he came up over – over the top of the hill and pulled back in.

Q.And your son may well have been doing less than 50 kilometres per hour, correct?

A.       Yep could have been.

Q.        … so you might well have actually been going less than 50 being a careful learner driver …?

A.Ah, yeah, he doesn’t tend to sort of drive slowly, I’d say he would have been 50.

…

Q.… you’ve said the speed of the vehicle was twice your son’s speed he was travelling at?

A.Well half of it as an estimate all I can say it was bloody fast.  I’m not an expert on speed.

Q.       So it could have been less than that? A.     Than?

Q.       Than twice your son’s speed?

A.       I would have said it was more, but (interrupted)

…

Q.I  put  it  to  you  that  again  [100  kph  for  the  BMW]  it’s  only  a guesstimate it may have actually been less than that the other vehicle was travelling at, whichever vehicle it was?

A.Well certainly my impressions were it literally flashed past me, I was – I was astounded and all I thought was, if there’s a kid on a bike on the wrong side of the road he’s gonna kill him.

[13]     The BMW disappeared out of sight.  After Mr Hindle’s car turned right on to Butley Drive, a BMW came into view again.  Mr Hindle was confident it was the same BMW.   Including the overtaking manoeuvre on Glenmore Road, Mr Hindle said he saw what he believed was the same BMW on three or four occasions before seeing it again as it approached the Butley Road/Fortunes Road roundabout.   Mr Hindle’s evidence of the progress of the BMW approaching and then through the roundabout included the following:

… he was stuck behind two or three cars that were coming up to the next intersection … and I was still waiting to go through that intersection and he had gone through it and by this time the road was quite – quite greasy or the rain had sort of come in a bit more … and at the speed he was going round the roundabout I said to my son, look he’s just not going to make it … I said just follow him so we literally 30 seconds round that roundabout and 50 metres along, there he was in the lamp post.

… I couldn’t have said how fast he was going other than that the car was – was  slipped  and  snaking  round  the  corner  to  the  point  where  I  wasn’t thinking of the speed, all I could think of was he’s not gonna get round.

He looked like he’d gone over the – the lefthand side curb and – and had sort of kept on going in a – in a clockwise direction and he’d spun back round so that the front of the car was sort of facing half way back to where I was coming from, sort of across the road.

And in cross-examination:

Q.… – you saw the BMW on the roundabout and it started to fishtail as it went round the roundabout.

A.        Yeah.

Q.You would be some ways back from the intersection, is that really what you’re describing, it took a bit of time (interrupted)

A.I was actually – there – when he went through the intersection there was a – one car in front of me and he’d booted it and it had gone – it had fishtailed as it was going round and then he continued going round and I lost sight of it when it had left the roundabout.

Q.And also before the roundabout itself, other vehicles had been in front and slowed the vehicle down, is that what you described earlier on?

A.Ah, that when I would have been 500 metres back yeah, coming along Butley Drive, that’s the only reason we caught up to it was the he – he was blocked by a couple of cars at the intersection.

[14]     In his evidence-in-chief, Mr Hindle said he was “a hundred percent sure” that the BMW that passed him on Glenmore Road was the BMW that went through the roundabout and crashed in Fortunes Road.   He was firmly challenged on this in cross-examination.  He said that he thought it was a 7 Series BMW, when in fact it was a 5 Series BMW.  He said that he thought the car may have been dark grey when in fact it was black.  He was not adamant about either matter.  As to the model he said he was not “a car fanatic”.  He accepted that he may have been wrong on the

colour of the car.  But on the central question as to whether it was the same BMW he was quite clear, including the following:

Q.        So it may be the fact that you got the wrong car, it’s not necessarily the same one is it?

A.I didn’t have – if there’s one thing I can be sure of, I didn’t have – I didn’t have the wrong car, it was the same car I saw that overtook me that was in the lamp post without a doubt.

…

Q.       Well that doesn’t really coincide with a dark grey does it, it’s black?

Well would you accept that that, black, is a distinct colour from dark grey?

A.        Uhm, well as I say it’s – it wasn’t – my overall concern wasn’t the colour of the car, I’ve certainly got no doubt in my mind that the car that overtook me on the wrong side of the road for quite some time was the one that ended up in the power pole, it wasn’t even an issue in my mind.

…

A.I would have seen the car once when it overtook me, twice going on three, four times before the accident.

…

Q.… would you accept you may have been mistaken when you say it was one and the same car from what you first saw on a number of occasions was now correct, that’s my point?

A.       No I don’t think I saw two different cars.

Q.No but you can begin to accept you may be wrong, dui you made a mistake?

A.       No.

Q.       You’re that certain are you? A.     I am.

Q.       Are you certain in every way that’s your evidence? A.      Yes.

Stuart David Morgan

[15]     Mr Morgan lived in Casuarina Street near the roundabout.  He said he heard the sound of a motor engine “revving extremely high”.  He said the noise got louder as it approached the roundabout.  He then heard the screech of tyres followed by a loud thud.   He went outside and saw the BMW parked across the road with an extensively damaged rear.  He saw a person get out of the driver’s seat and have a discussion with a passenger that he described as “intense”.   They were joined by another passenger and then a fourth person.  Mr Brown said there was a series of discussions over about four or five minutes.  He said:

And then the driver of the vehicle walked off down Casuarina Road and he turned left and walked up into a reserve … and walked out of sight.

Kenneth John Brown

[16]     Mr Brown  also lived near the roundabout.   He said he heard an engine revving before a screech of tyres and a bang, followed by further revving.  He went outside and saw a black BMW with the engine still revving.   He also observed a conversation between two men, in which one said “‘you’d better get out of here’ or words to that effect” before the other left.

Daniel Johnston

[17]     Mr Johnston is a police constable.  He attended the scene after the BMW had crashed.  He said the car had come to rest approximately 60 or 70 metres from the roundabout.  He was not challenged on that.  He said the BMW had knocked out a light pole, pushing it some 10 or 12 metres away.   He said there was extensive damage to the rear of the BMW, with some to the front bonnet.  He spoke to a person who identified himself as the owner of the car, but the driver of the car was not made known to him at that time.

[18]     Constable  Johnston  said  he  spoke  to  the  appellant  a  month  later,  on  24

November 2006.   The appellant admitted that he had been driving the BMW that crashed on Fortunes Road.  There were the following questions and answers:

Q.       What happened?

A.        Came to a stop at a roundabout, gave way to a red car, proceeded straight ahead then the vehicle started spinning.

Q.       Have you driven his [Sonny’s] vehicle before? A.  Once or twice.

Q.       Have you experienced similar incidents with Sonny’s vehicle? A.  No I am pretty cautious of other peoples’ cars.

Q.Can  you  describe  to  me  exactly  what  happened  when  you  lost control?

A.       Not really it happened so quick.

Constable Johnston asked Mr G   what happened after the accident:

A.A big argument started with Sonny.  I didn’t want to make matters worse so I left because Sonny was upset.  No one else was involved or hurt so I left.

Q.       Did you think you should have reported this to the Police?

A.       Certainly I should have stayed, but Sonny told me to F-off so I did.

Steele G 

[19]     Mr G   said that he had driven down Glenmore Road as part of a line of traffic and did not overtake any cars at all.  He said that he continued in that line of traffic up Butley Drive to the roundabout.   He gave way at the roundabout, then “accelerated off normally”, took his foot off the accelerator and the car “sort of accelerated by itself”, causing the car to spin out into the light stand.  He said he had subsequently measured the light stand as 16 metres from the roundabout.  Mr G   said that the engine continued to rev after the accident, faster than a car would while idling.  He said he and Mr Sun started to argue and that Mr Sun “was obviously very very upset”.  Mr G   said Mr Sun told him to “f-off” and he left the scene.

[20]     Mr  G    took  a  number  of  photographs  of  the  scene  just  before  the defended hearing.  He produced those, together with an aerial photograph of the area and technical specifications for the light stand, which was designed to shear off.

[21]     Under cross-examination, he maintained that he was not the driver of the car that overtook Mr Hindle, and that the car accelerated by itself part way through the roundabout.  He explained the revving noises before the crash as being normal for the BMW because it was “a performance car with four exhaust pipes”.  He accepted that there had been no problems with the car prior to the accident and that there had been no mechanical checks carried out on the car, commissioned either by himself or the Police.

Gordon Ross McKay

[22]     Mr McKay was the back seat passenger in the BMW.  He gave evidence that they drove with the flow of traffic on Glenmore Road.  He said that they would have been travelling at “between 50 and 60 kilometres an hour”.  In examination-in-chief there was the following:

Q.        And when on Glenmore Road how many vehicles if any did Mr

G   overtake? A.  None.

Q.        How sure of that are you?

A.        Positive it’s not exactly a road for overtaking on.

[23]     Mr McKay’s evidence in respect of the roundabout was as follows:

We – there were a few cars in front of us and we slowed down with the – with the cars in front of us and we came to nearly a standstill, not quite I would have said and then as we proceeded through the roundabout I really don’t know what happened after that to be honest.  It’s all a bit of a blur.

[24]     He said the outcome was that they ended up down the road “backwards into a light pole” which he measured with Mr G   as being 15 metres from the roundabout.  After getting out of the car he was surprised that the car “still seemed to be revving at quite a rate”.

[25]     In cross-examination Mr McKay maintained his evidence in relation to the driving on Glenmore Road and at the roundabout and denied that he had lied to help his friend, Mr G  .

Point 1 – the amendment of the information

[26]     Mr Haskett, for the appellant, submitted that the appellant was prejudiced by the amendment.   The submission was, in broad terms, that there  was prejudice because the defence would have been conducted differently if it had been known that there  were  allegations  relating  to  driving  on  Glenmore  Road.    It  was  further submitted that the result of the amendment was that the information was bad for duplicity.

[27]     On the prejudice aspect the appellant referred first to the information said to have been provided to the appellant by the respondent before the hearing began.  For the appellant it was said that “the Summary of Facts alleged that it was the Appellant’s driving on Butley Road that was a concern to another motorist”.  It was also said that “as with the Information and Summary of Facts, Mr Hindle’s brief of evidence and statement to Police were focussed on the accident on Fortunes Road”.

[28]     Neither of those statements is correct.  It is correct that the summary of facts only identifies Butley Road and Fortunes Road by name.   However, the second sentence of the summary of facts says:

The Defendant’s manner of driving at this time was a concern to other motorist  [sic]  who  reported  this  vehicle  dangerously  overtaking  on  the wrong side of the road at speed.

Mr  Hindle’s  brief  of  evidence  makes  abundantly  clear  that  the  allegation  of dangerous overtaking on the wrong side of the road at speed related to Glenmore Road.  Mr Hindle’s brief of evidence was short.  Half of it relates to Glenmore Road. It was as follows:

At the time we were driving south along Glenmore Road.  All of a sudden I was alerted to a loud noise which was all of a sudden along side our motor vehicle.   A black BMW sedan had overtaken us at speed.   This BMW approached us so fast I was not aware what the noise was until the BMW

went past.   The BMW was travelling well in excess of the posted speed limit.  I estimate this speed to be approximately 140 km/hr.  I was astounded of [sic] the speed and manner of driving by the BMW as it caused me and my son great concern.  As the BMW pasted us, the occupants of the vehicle were gesturing at us giving the fingers.

The BMW continued towards the roundabout at the bottom of Glenmore Road.  I couldn’t obtain a rego for the vehicle as it was travelling to [sic] quickly.

[29]     The rest of the brief dealt with the driving along Butley Road and what Mr

Hindle observed at the roundabout and after the BMW had crashed.

[30]     Mr Hindle’s brief of evidence was produced at my request after Ms Bradley for the respondent noted its contents in her submissions.  Mr Haskett did not object to the brief of evidence being produced for the purposes of the appeal.  There could be no basis for objection provided the statements in the brief are not relied on as evidence.  The statements in the brief are not relied on as evidence.  The relevance of the brief is that it makes clear that, before the District Court hearing, Mr G   and his counsel could not have been in any doubt as to the seriousness of the allegations made in respect of the driving on Glenmore Road.

[31]     For the appellant it was further submitted that the defence would have been conducted differently in three respects if the defence had been aware that the information “was to include the amended allegations”.

[32]     The first was that “Mr Hindle would have been vigorously tested on the basis of his opinion of speed” of the BMW when it overtook Mr Hindle’s car.  The short answer to that submission is that Mr Hindle was vigorously cross-examined on this.

[33]     In the District Court Mr G   was represented by Mr Barry Hart and Mr Haskett.   In the written submissions for the appellant it was said that there was further unfairness because Mr Hart’s cross-examination of Mr Hindle about speed was stopped by the Judge. The submission continued:

Clearly the subsequent amendment operated unfairly as to the conduct of the defence and also as to how the Judge intervened.

[34]     This is not borne out by the record.  Following extensive cross-examination of Mr Hindle on speed there was the following:

A.Well certainly my impressions were it literally flashed past me, I was – I was astounded and all I thought was, if there’s a kid on a bike on the wrong side of the road he’s gonna kill him.

Q.        I  understand  that  but  I  want  to  deal  with  the  speed.     You

(interrupted)

THE COURT:

Mr Hart I may be able to assist you.  The witness has made it quite clear that this is his estimate, I certainly would not on the basis of his evidence, make a finding that the speed of the car that went past was a 100 kilometres an hour or a 110.  I certainly would not be in a position to do that.

MR HART: Thank you.

THE COURT:

All I can indicate is that based on this witnesses’ evidence of the estimated speed of his car is that he is confident that the other car went past at a substantially greater speed, but quite what that speed was, I am not in a position at this stage on the evidence to make a firm finding.

MR HART:

Thank you Your Honour.

[35]     There is no basis for the submission that the Judge’s intervention was unfair.

[36]     The second point was that Mr Hindle would have been cross-examined “on the proximity of the overtaking manoeuvre to the blind rise [on Glenmore Road] which was not disclosed prior to his giving evidence”.  I do not consider any unfair prejudice arises in this respect.  The prosecution is not required to provide – and in many respects cannot provide – every detail that might emerge in the course of a witness’s evidence.   It is, in fact, an every-day occurrence in the prosecution of criminal charges that detail emerges which is prejudicial to a defendant which had not earlier emerged from disclosure.   But what is required for this to warrant intervention by an appellate court is unfair prejudice.  None is apparent.  There was nothing to prevent cross-examination of Mr Hindle on this evidence.  If the defence had been unprepared and unable to deal with the issue an adjournment could have been sought, but no exception was taken to this evidence at all.

[37]     The third area of prejudice was said to be that “the defence would have sought to summons Mr Hindle’s son”.  This was a point raised for Mr G   with Judge Holderness when the amendment was being considered.  It was submitted on appeal, although not to Judge Holderness, that the son was, in effect, the only proper witness as to speed.  I do not agree.  Mr Hindle senior was well able to give evidence on the question, particularly as his son was a learner driver and Mr Hindle was, as he said, alert to his son’s speed.   Further, as with the previous point, had it been a material factor for the defence an adjournment could have been sought, but it was not.   It is perhaps understandable that an adjournment was not sought to call Mr Hindle’s son to give evidence for the defence once Mr Hindle senior’s evidence had been given and fully tested.

[38]     I am satisfied that the specific matters raised for the appellant do not indicate any unfair prejudice.   Moreover, it is clear from the District Court record that Mr G   and his counsel were in fact well aware of the need fully to address questions relating to driving on Glenmore Road.  This is apparent not only from the extensive cross-examination of Mr Hindle on the question of speed, but also extensive cross- examination of him as to whether it was Mr G  ’s BMW at all.   Additionally, there was defence evidence in relation to Glenmore Road not only from Mr G   but also from his passenger, Mr McKay.

[39]     Mr Haskett referred to a decision of Asher J in R v Morgan (HC AK, CRI

2005-57-675, 10 February 2006).  That case concerned an application for an accused for better particulars  before trial  on  two  charges  of  manslaughter  from  driving. There was a bare allegation of dangerous driving at Waiuku.  The Judge said, at [38]:

The Defence should not be left to infer the driving errors relied on from the deposition evidence, but should have the Crown set out its position in the indictment.  It is entitled to have the Crown commit to specific allegations of wrongdoing.

[40]     Considerations relevant to an application for particulars before trial cannot be elevated to a general proposition that, if certain particulars have not been given, but are subsequently relied on, there will have been prejudice.   This is made clear by s 43(1) and (5) of the Summary Proceedings Act 1957 which provided:

(1)Subject  to  the  succeeding  provisions  of  this  section,  where  the defendant appears to answer a charge to which this Part of this Act applies, the Court may amend the information in any way at any time during the hearing.

(5)The Court may, at the request of the defendant, if it is of opinion that he would be embarrassed in his defence by reason of an amendment made or proposed to be made under this section, adjourn the hearing of the case.

[41]     Ms Bradley referred to a comment in Brookers Law of Transportation (at

LT35.07).  It is on point:

Late amendments to an information alleging dangerous driving to include additional roads or streets upon which the driving is alleged to have occurred are  unexceptional.     There  is  no  real  basis  in  law  to  object  to  such amendments: see (eg) Ivanoff v Police 4/6/02, Ronald Young J, HC Wellington AP108/02, where the late addition of five separate streets onto the information was held as properly made by the District Court Judge.

[42]     The appellant was entitled to seek an adjournment had there been material prejudice.   There was no application for an adjournment.   Failure to make an application for an adjournment, or to recall a witness, might not be fatal if material unfair prejudice is nevertheless shown on appeal.  However, for the reasons already discussed, I am satisfied there was no unfair prejudice.

[43]     On  the  question  of  amendment  of  the  information  there  was  a  further submission for the appellant that the resulting information was bad for duplicity. The essence of the submission, as developed orally, was that s 35(1)(b) of the Land Transport Act 1998 prohibits dangerous driving “on a road”, but the information as amended referred to three roads.  There is nothing in this submission.  The reference to a singular “road” in s 35(1)(b) does not, as a matter of elementary interpretation, prevent reference to dangerous driving along the course of a number of “roads” – “words in the singular include the plural” and vice versa:  Interpretation Act 1999, s 33.  The information was not alleging two distinct offences, but a course of driving which  might  have  been  dangerous  to  the  public  in  a  number  of  respects.    No objection was taken to the original information, which referred to two named roads on the route.  Nor can there be any objection to the addition of a third named road at the commencement of the route allegedly taken by the BMW driven by Mr G  .

Point 2 – was there dangerous driving on Glenmore Road?

[44]     The submissions for the appellant on this point were directed solely to the question whether Mr Hindle’s evidence established dangerous driving by the BMW described by Mr Hindle.   Other issues, such as the identity of the driver and the credibility of Mr G   and Mr McKay, were dealt with separately.

[45]     The Judge’s Glenmore Road conclusion challenged by the appellant was as follows:

… based on Mr Hindle’s evidence, I am satisfied [the driving] was a highly risky and potentially dangerous overtaking manoeuvre with the BMW travelling on the wrong side of the centre line for a significant distance at a speed substantially greater than the 50 kilometres per hour or thereabouts at which the Hyundai [of Mr Hindle] was travelling.

[46]     The  challenge  by  the  appellant  to  this  conclusion  involved  analysis  of evidence on two points; the evidence relating to speed and the circumstances relating to driving on the wrong side of the road.  This, it was submitted, was insufficient to establish dangerous driving.

[47]     The submissions on the question of speed were to the effect that Mr Hindle could not be sure of the precise speed of his car and for that reason could not be sure of the speed of the BMW.   The scrutiny of the evidence on this was followed by reference to an unreported decision of Gendall J in Von Sturmer v Police (HC WN, CRI 2004-485-19, 6 April 2004).  In that case the Judge commented:

[W]here both [cars] are moving in the same direction the assessment [of speed by a person in one car] is based upon disparity or difference in speed of both vehicles. In that situation the witness has to have an indication of his/her own speed through, e.g. speedometer reading so as to enable the comparison.

[48]     This was relied on for the appellant as if it were a proposition of law.  It was submitted that Mr Hindle’s evidence could not be relied on because he had no accurate measure of the speed of his own car from, for example, inspection of the speedometer.  The comment by Gendall J was not made as a legal proposition, but simply as an indication of one means by which a person in one possible situation – a moving vehicle – could provide a reliable estimate.  It was in a passage dealing with

a range of possibilities.  And it was all obiter.  In that case there was an unchallenged police radar record of speed.  And the supplementary evidence from police officers came from their estimate while in a stationary police car.   I am satisfied, as was Judge Holderness, that Mr Hindle was well able to give reliable evidence as to speed.

[49] The second category of questioned evidence was that relating to the overtaking manoeuvre on Glenmore Road. Mr Hindle’s evidence on this is at [12] above. For the appellant it was submitted that this evidence was insufficient to establish that the driving might have been dangerous because, for example, Mr Hindle was not asked to clarify “which part of the double peaked rise” Mr Hindle was referring to. This submission was related not only to Mr Hindle’s evidence but to the photographs produced in evidence by Mr G and which were put to Mr Hindle. It was further submitted for the appellant that there was, for example, no evidence from Mr Hindle that the overtaking was on a yellow line.

[50]     The submissions in this regard were directed to things which had not been proved.   The argument from this was that possibilities were therefore left open in relation to precisely where the overtaking occurred and some of these locations might not have been dangerous.  There might have been some force in submissions of this nature if the positive evidence from Mr Hindle did not go far enough.  But I am satisfied beyond reasonable doubt that his evidence on the overtaking manoeuvre was sufficient to establish that the driving might have been dangerous.  And it was unchallenged by any other evidence.  In fact, Mr G   in evidence expressly said that he did not challenge Mr Hindle’s evidence except on the question of identification.

[51] There is further evidence which supports my conclusion and the conclusion of Judge Holderness. The first is the photographs of Glenmore Road taken by Mr G . These lend emphasis to Mr Hindle’s evidence that this was a heavily built- up residential street with numbers of side streets and risks in relation to children, amongst others. The risk to children was one expressly identified by Mr Hindle. The other item of evidence was the statement by Mr McKay in his evidence-in-chief, recorded at [22] above: Glenmore Road “was not exactly a road for overtaking on”.

Point 3 – was the Glenmore Road BMW the Fortunes Road BMW?

[52]     Two related issues were raised by the submissions for the appellant on this point.  The first was the sufficiency of evidence for the Judge’s conclusion that Mr G   was the driver of the BMW that passed Mr Hindle’s car on Glenmore Road. The second was whether the Judge had properly applied the law relating to evidence of identity as set out in s 67A of the Summary Proceedings Act 1957.

[53]     On the first issue, Mr Haskett referred to aspects of Mr Hindle’s evidence which, it was submitted, indicated error on Mr Hindle’s part.  For example, it was Mr Hindle’s evidence that he thought the car was grey, whereas the car Mr G   was driving was black.

[54] As recorded at [14] above, evidence of this nature from Mr Hindle was not dogmatic; it was evidence of his recollection, nine months after the event, with acknowledgement from Mr Hindle that he could have been wrong. Errors of recollection of this sort are common enough and do not of themselves demonstrate unreliability in respect of the evidence of a witness on material matters.

[55]     It was submitted that Mr Hindle’s evidence on the identity of the BMW was also suspect because there was no continuous and clear observation by Mr Hindle. For example, at one point there was an estimated separation of 500 metres between the cars, and on other occasions the BMW had gone out of sight.

[56]     In my judgment none of this is sufficient to cast any reasonable doubt on the fundamental issue – whatever detail may or may not have been retained by Mr Hindle, did his evidence assessed overall establish beyond reasonable doubt that the car that overtook him, and to which his attention was undoubtedly drawn on Glenmore Road, was the same as the car that he saw going through the roundabout and subsequently crashed on Fortunes Road.  The evidence from Mr Hindle on this was quite clear: see [14] above.   Mr Hindle was unshaken in forceful cross- examination.   I am satisfied that the Judge was entirely justified in coming to the conclusion that he did come to: Mr G   was the driver of the BMW which overtook Mr Hindle on Glenmore Road.

[57]     There  is  additional  evidence  to  support  this  conclusion,  although  in  my judgment not required.  In particular, there is the evidence of Mr G   himself, and his supporting witness Mr McKay, that Mr G   did drive Mr Sun’s BMW down Glenmore Road.  It is plain from all of the evidence that Mr G   would have been driving down Glenmore Road at about the same time that Mr Hindle was being driven down it by his son.   There is also evidence from several witnesses which makes clear that this BMW was a car that stood out.

[58]     Mr Haskett referred to s 67A of the Summary Proceedings Act 1957.  This provides:

Where any evidence of identity is given against the defendant and the defendant disputes that evidence, the Court shall bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, the possibility that the witness may be mistaken.

[59]     Mr Haskett noted that the Judge did not expressly refer to the caution in s 67A and submitted that the Judge failed properly to apply it to the evidence.  I do not agree.  It is plain from the decision that the Judge considered the issue of identity with care.

[60]     The  remaining  points  for  the  appellant  were  all  directed  to  the  driving through the roundabout between Butley Road and Fortunes Road and the crash that followed.  The sixth point for the appellant is a challenge to the Judge’s credibility findings against Mr G   and Mr McKay.   However, the submissions in that regard were directed to what the Judge said when dealing with the defence evidence as to what occurred at the roundabout.  Earlier in his judgment, Judge Holderness had recorded his conclusion, for reasons there set out, that he did not find Mr G   or Mr McKay “credible or convincing in relation to what occurred in Glenmore Road”.  As I discuss later in this judgment there was no challenge to this finding.

[61]     For the reasons set out to this point I am therefore satisfied that there was no error by the Judge in his conclusion that Mr G   drove on Glenmore Road in a manner that might have been dangerous to the public.  That was sufficient to find the

charge proved and it is sufficient to dismiss the appeal.  I will nevertheless consider the remaining points.

Point 4 – was there dangerous driving through the roundabout into Fortunes

Road?

[62]     The submissions on this point left to one side the question whether the Judge had reversed the onus of proof in relation to alleged mechanical failure (point 5) and the Judge’s credibility findings against Mr G   and Mr McKay (point 6).

[63]     The Judge’s conclusion was as follows:

I am quite satisfied that this accident was caused as a result of excessive speed and quite inappropriate speed given that this was a roundabout that was being negotiated on the part of the defendant.  As the defendant himself explained, to proceed through this roundabout in the direction which he was travelling, it was necessary for him to do a left turn followed by a right turn and then another left turn, so that to some extent it was an ‘S’ bend type manoeuvre, although none of the bends were in any way extreme.   The defendant undertook that manoeuvre I am satisfied at substantial speed and I am satisfied that that is the reason why he lost control of the vehicle and that is the reason why he collided with the lamp stand.  I am quite satisfied that on the evidence the prosecution has proved that the defendant’s driving fell below the care and skill of a competent and experienced driver and that this dangerous situation might have been dangerous to the public.   I therefore find the information proved.

[64]     For the appellant it was submitted that there was insufficient evidence to justify a conclusion of excessive speed on the approach to the roundabout.  Once that was disposed of the only available evidence of dangerous driving was “action within the roundabout and in that regard there was simply no evidence of excessive speed”.

[65]     In respect of the approach to the roundabout it was submitted that “a careful analysis of the evidence shows that it does not allow a conclusion of excessive speed on the approach to the roundabout”.   That general submission was followed by analysis of particular points of evidence from the three witnesses – Mr Hindle, and the local residents, Mr Morgan and Mr Brown, who heard the revving engine and screech of tyres followed by the loud noise of the crash.

[66]     In large measure the submissions in respect of the driving at the roundabout involved point by point analysis.  It is commonplace in a trial that a single piece of evidence, taken in isolation, may be inadequate proof – for example, a neighbour heard the noise of a car but did not actually see the car, or Mr Hindle could not say how fast the car was going.  However, it is the combined effect of the evidence of all of the witnesses which needs to be considered.   The relevant evidence is not just what was observed separately by Mr Hindle and heard separately by each of Messrs Morgan and Brown, but also the combined effect of the evidence from all of them. Further evidence of significance to  be  added  to  this,  and  not  mentioned  in  the submissions for the appellant, comes from what could be observed after the crash and the inferences that could then be drawn.  This includes the fact that the light pole was sheared off at its base (albeit designed to do so) and shifted approximately 12 metres into a tree, and the fact that the BMW ended up approximately 60 or 70 metres from the roundabout and approximately 45 to 55 metres from where the car hit the light pole.

[67]     I am  satisfied  the Judge was  justified  in  his  conclusion  that  the  driving through the roundabout was also driving that might have been dangerous to the public.

Point 5 – reversing the burden of proof on the question of mechanical failure

[68]     This submission for Mr G   was concerned with the contention that there had been a mechanical failure – the BMW had accelerated of its own accord as Mr G   was driving through the roundabout and after he had taken his foot off the accelerator.

[69]     The  appellant  submitted  that  the  Judge  had  misdirected  himself  in  a fundamental way by requiring the defence to prove that the driving through the roundabout and the subsequent crash was caused by a mechanical failure.   It was submitted that an evidential foundation for mechanical failure was laid by the evidence of three prosecution witnesses as well as the evidence of Mr G  .  Both Mr McKay and Mr Brown gave evidence that, after the crash, the engine of the BMW was still revving.  Mr Hindle’s evidence relied on for the appellant was that

the BMW “slipped and snaked” through the roundabout after being blocked by cars at the roundabout.   This evidence was sufficient, it was submitted, to require the prosecution to prove beyond reasonable doubt that it was not a case of mechanical failure, but the Judge put the onus on the defence to establish that it was.

[70]     The submission for the appellant was directed to the following passage in the judgment:

In relation to the mechanical malfunction defence.  Mr Haskett has placed reliance upon the judgment of Morris J in Curtis v Police (unreported Auckland Registry A81/01, 31 August 2001).  That is a brief decision of His Honour in which he allowed an appeal and quashed a conviction entered by Justices who had, His Honour was satisfied, reversed the onus of proof in relation to a defence contention that there had been a jamming of the accelerator of the vehicle concerned.   With the greatest of respect to the judgment of Morris J in Curtis that is not the final word as it were in relation to defences involving assertions of mechanical defect or mechanical malfunction.  In a somewhat more recent case William Young J, as he then was, dismissed an appeal where the defence of mechanical defect or malfunction had been rejected in the District Court.  The defence theory in that case Read v Police (HC CH, 10 December 2003) was that the accident had been caused by a failed shock absorber and a partially deflated tyre.  As I have mentioned that defence was rejected in the District Court as not being supported by cogent evidence.  Young J held that the Judge in the District Court had been entitled to act on the basis that conventional forensic practice in such situations required the calling of expert evidence.  It had not been called,  nor  had  the  theory  involving  mechanical  defect  been  put  to  the relevant prosecution witnesses for comment, it was simply proffered by the defence. That is essentially the situation in this case.

[71]     I accept that this passage, read in isolation, and without reference to the two High Court cases referred to, might raise a question whether the Judge was misdirecting himself on the burden of proof.  However, I am satisfied that the Judge did not misdirect himself.

[72]     As Mr Haskett correctly submitted, the first requirement is that a proper evidential foundation be laid for the defence argument.  I am satisfied that what the Judge was saying was that there was insufficient evidence in this to require the prosecution to disprove mechanical failure beyond reasonable doubt.  This may be seen, in part at least, by the Judge’s reference in the passage cited above to the absence of “cogent evidence” in the second case he referred to, Read v Police.

[73]     The Judge in fact made a positive finding that there was not a sufficient evidential foundation for the mechanical defect defence.  Immediately following the passage in the judgment challenged in Mr Haskett’s submissions, the Judge said the following:

Mr Haskett rightly refers to the evidence of at least one of the civilian witnesses that there was a continuation of the revving of the BMW after the accident.    However,  in  my  view  the  Court  can  safely  [rely]  upon  the evidence of Mr Hindle.   He watched the BMW as it was driven into and through the intersection.  He said that it was being driven at speed.  He said that his immediate thought was that it would not make it through the roundabout.   That evidence, coupled with the evidence of what Messrs Morgan and Brown heard as the roundabout was approached, satisfies me that this was a case involving significantly excessive speed in relation to a roundabout, which obviously had to be negotiated with skill and care.   It seems to me to be inherently improbable that the defendant would have left the  scene  of  this  accident  if  it  had  occurred  because  the  car,  to  his knowledge, had malfunctioned.  Furthermore, it seems to me that it is in no way altering or reversing the onus of proof to suggest that if this was the reason  for  the  accident,  the  defendant  would  have  made  that  clear  to Constable Johnston when he was asked what had occurred.  The defendant made no mention of any mechanical malfunction and there is simply no evidence before the Court, apart from the assertions made by the defendant himself and to a [lesser] extent by Mr McKay, that there was indeed any mechanical malfunction.  I have already indicated that neither the defendant nor his witness struck me as credible or convincing witnesses.  I am quite satisfied that this accident was caused as a result of excessive speed and quite inappropriate speed given that this was a roundabout that was being negotiated on the part of the defendant.

[74]     The Judge’s reasoning and conclusions in this passage are concerned with two matters.  One is the evidence of what was seen and heard by three independent witnesses, Messrs Hindle, Morgan and Brown.   The other is the evidence of Mr G   that the car had accelerated of its own accord.   The Judge rejected Mr G  ’s evidence.  Although the appellant dealt with the question of credibility as a separate point, it is central to the finding on the mechanical failure issue.   These things cannot always be analysed in compartments.  One type of evidence – that of observers – bears on the credibility of the direct evidence of the defendant.   For reasons I will come to, I am satisfied that there was no error by the Judge in his conclusions on credibility, including disbelief of Mr G  ’s evidence that the car had accelerated of its own accord.   If that evidence is rejected, the only evidence remaining for the defendant to support mechanical failure was the fact that the car’s engine was still running at high speed after the crash.  That by itself could not justify

mechanical failure as a reasonable hypothesis.  It certainly could not do so when the mere fact that the engine of a crashed car was revving is put into the context of all of the other evidence relating to the quality of Mr G  ’s driving.

Point 6 – rejection of defence evidence

[75]     It was submitted that the Judge erred in rejecting the evidence from Mr G   and Mr McKay.  The conclusions of the Judge challenged by the appellant are  those recorded in [73] above, from the sentence commencing: “It seems to me to be inherently probably that the defendant would have left the scene of the accident

…”.

[76]     The submission for the appellant was developed by analysis of three separate aspects of the Judge’s reasoning: Mr G  ’s leaving the scene, the absence of a statement by Mr G   to Constable Johnson about a mechanical malfunction, and rejection of the evidence of Mr McKay.

[77]     The submissions for the appellant on the first two points referred to evidence which, it was said, raised a reasonable possibility of conclusions contrary to those reached by the Judge.  I do not intend to analyse the evidence.  Material parts are recorded earlier in this judgment.  I am satisfied that the Judge was justified in the individual conclusions he reached on the first two points.

[78]     The  third  point  concerned  rejection  of  Mr  McKay’s  evidence.     The submission was that there was a bald rejection without reasons.  This is not borne out by the judgment.    The passage  challenged  in  the submissions  for  the appellant omitted the next sentence in the judgment.  It is recorded at para [73] above and was as follows:

I have already indicated that neither the defendant nor his witness struck me as credible or convincing witnesses.

[79] It is unsatisfactory to have a submission which simply ignores a critical part of the judgment. What the Judge was referring to there were critical findings of credibility in relation to driving on Glenmore Road. I referred to this at [60] above.

In this earlier part of the judgment the Judge discussed the evidence of Mr Hindle at some length, held that he was entirely satisfied as to the reliability of Mr Hindle’s evidence, and held that the BMW on Glenmore Road was the BMW driven by Mr G   which crashed on Fortunes Road.  The Judge then summarised the evidence of Mr G   and Mr McKay relating to the driving on all three roads and said:

I have already indicated my finding in relation to the defendant’s denial of any overtaking manoeuvre on Glenmore Road.  I did not find the evidence of either the defendant or his witness Mr McKay credible or convincing in relation to what occurred in Glenmore Road.

[80]     As I have also recorded earlier, there was no challenge to this finding; there were certainly no submissions directed to it.  It was, of course, open to the Judge to reject the evidence of Mr G   and Mr McKay relating to Glenmore Road but still accept their evidence in respect of the roundabout.  But it was equally open to him to assess the credibility of Mr G   in particular, on the mechanical fault issue, in the light of the credibility finding earlier made in respect of Glenmore Road.  So far as Mr McKay is concerned, he gave no evidence of awareness of a possible mechanical failure while they were going through the roundabout, or of anything else: see [23] above.

[81]     I am satisfied that there was no error by the Judge on this final point of credibility.

Other matters

[82]     The appeal in form was an appeal against sentence as well as conviction.  No submissions were advanced on the question of sentence and the appeal in that regard should be dismissed.

[83]     Mr G   was fined and disqualified from driving for six months.   The disqualification was deferred pending the appeal.  The disqualification should now be imposed, on reasonable notice to Mr G  .

[84]     There were no submissions on costs and I will therefore reserve leave on the question.

Result

[85]     The appeals against conviction and sentence are dismissed.

[86]     The order of disqualification from driving is to commence on 29 August

2008.

[87]     Any  question  of  costs  is  reserved.     If  the  respondent  seeks  costs  a memorandum in that regard should be filed and served within one month of the date

of this judgment.

Peter Woodhouse J