G v Police HC Christchurch Cri-2010-409-52

[2010] NZHC 1083

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2010-409-000052

G

v

POLICE

Hearing:         17 June 2010

Appearances: Appellant in person

K B Bell for Respondent

Judgment:      21 June 2010

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      The appellant, Mr G  , was charged with a breach of s 79M of the Land Transport Act 1998 in that on 29 November 2009 he failed to pay a passenger service fare for which he was liable.

[2]      After a defended hearing, two Justices of the Peace found the charge proved. Mr G   was fined $150 and ordered to pay Court costs of $130, reparation of $64 and $50 witness fees.

[3]      He now seeks to over-turn that decision.

G V POLICE HC CHCH CRI-2010-409-000052  21 June 2010

The hearing before the Justices

[4]      At the hearing, the prosecution called evidence from the complainant taxi- driver and the police officer who had issued the infringement notice.

[5]      The taxi driver’s version of events was as follows. He testified that at about

2.15 a.m. he was directed to pick up a fare from Russley.  The fare was Mr G   who initially asked to be taken to the Christchurch central business area but when they arrived changed his mind and asked to be driven to the Linwood suburb.  Once at Linwood, Mr G   again changed his mind and said he wanted to be taken to an address in Aranui.  On arrival at the Aranui address, Mr G   told the driver he did not have any money and would go into the house, which belonged to his girlfriend, and obtain some money.  Mr G   then alighted from the taxi but instead of going inside hid in the property behind a fence.

[6]      In his evidence, the taxi driver said he waited for about 30 minutes (amended to 20 minutes in cross-examination) until Mr G   emerged from behind the fence. According to the taxi driver’s evidence, Mr G   then asked to be taken to an ATM so he could pay the fare.  The driver duly drove to an ATM, but claimed that when he told Mr G   the fare was $84, Mr G   refused to pay that much and said he was only prepared to pay $20 if and when the taxi driver took him back to town. The driver testified that by this time he had already called the police because Mr G   was “a bit drunk and angry”, so he drove him to Hampshire Street and waited for the police to arrive.  He said he was out of pocket by $64.

[7]      As  I have  mentioned,  evidence  was  also  given  by a  police  officer.    He testified that at 3.10 a.m. he was directed to an incident on Hampshire Street.  He described Mr G   as under the influence of alcohol.   He observed that the taxi meter was showing over $80 and that Mr G   several times refused to pay it.

[8]      Mr G  , who represented himself at the hearing, also gave evidence.  He denied ever instructing the driver to take him to the Christchurch central area, or to Linwood.  He said he struck a deal with the taxi driver that the driver would take him from Russley to the girlfriend’s address at Aranui, and wait while Mr G   checked whether she was home. If she was not home and provided he did his checking

quickly, the taxi driver agreed he would take him back to town free of charge.  In other words, he would only have to pay the fare from Russley to the Aranui address. Mr G   denied hiding in the Aranui property.   He said it only took him two minutes to ascertain his girlfriend was not there, and so in less than two minutes he had got back into the taxi.  He further testified it was only when he asked the driver why the meter was still running that he realised the taxi driver was reneging on the deal to take him back to town free of charge.

[9]      Mr G   denied being intoxicated, and also asserted that the police officer refused to listen to his explanations.  He further claimed that he had paid $60 to the taxi driver, not just $20.

[10]     In their decision the Justices noted that when cross-examining the taxi driver, Mr G   had never put to him his claims about the purported deal.  Nor did he put to the taxi driver that he had paid him $60 and not just $20.

[11]     The Justices went on to conclude:

[8]       The passenger of a taxi must pay the fare on the taxi meter.  That is why we have taxi meters, so that there is no argument as to the amount of the fare and that everybody pays the same amount for the distance and time travelled by the taxi.

[9]       We find the charges proved.

[10]      Mr G   I see that you do have two convictions relating to alcohol which reinforces the fact that this incident perhaps would not have happened if you had not been intoxicated at the time.  In relation to this charge you are fined  $150  with Court costs of $130 for a  defended  hearing.   There is reparation of $64 to be made to Mr Pesega Moevao of Blue Star Taxis and

$50 witness fees for a full day of the witness in Court.

Grounds of appeal

[12]     Mr G   advanced a number of grounds of appeal. [13]            They can be conveniently summarised as follows:

i)The  Justices  wrongly denied  Mr  G    the  opportunity to make a closing address.

ii)       The police failed to make proper disclosure

iii)      The evidence of the police constable was contradictory. iv)     The Justices asked themselves the wrong question.

Failure to afford Mr G   an opportunity to make a closing address

[14]     Mr G   said his expectation was that at the conclusion of the evidence, he would be given an opportunity to make a closing address.  He told me that when he had  finished  giving his  evidence,  the  Justices  asked  him  whether  he  wanted  to present any legal argument.  He replied that he did not, but asked them whether he would have an opportunity to discuss the evidence.  The Justices responded in the negative.  Mr G   says this was unfair because his case was the last to be heard for the day, and other defendants in earlier cases had been given the opportunity to make a closing address.  He contends the Justices rushed his case and says further that had he been given the opportunity to make a closing address, he would have been  able  to  draw  various  matters  to  the  Justices’  attention  which  would  have resulted in a different outcome.

[15]     In my view, this ground of appeal is unsustainable:

i)Mr G   did not have the right to make a closing address at the conclusion of his evidence: see s67(7) of the Summary Proceedings Act 1957.

ii)The Justices may have exercised their discretion in other cases to allow closing submissions, but without knowing the nature of those cases and the basis on which the discretion was exercised, the mere fact others were allowed to give a closing address cannot in itself be a ground of appeal.

iii)Further, in any event, several of the matters Mr G   told me he had wanted to raise with the Justices in his closing address were matters that were not in evidence and which if he wanted

to rely on should have been put to the prosecution witnesses. Thus, even if he had been permitted to make closing submissions, it would have been too late for him to have raised such matters.

iv)The other matters he would have been permitted to raise (such as the taxi driver’s acknowledgement in cross-examination that he waited 20 minutes rather than 30 minutes as stated in his brief) had already been sufficiently highlighted by Mr G   in the course of cross-examination and would not have made any difference to the outcome.

Police pre-hearing disclosure

[16]     Mr G   was provided with initial disclosure on 5 February 2010.  On 19

March 2010 he made a request for a copy of the police communications data in respect of the call made by the taxi driver to the police.   This information was provided to him before the hearing.  Mr G   says the information disclosed was the record of a call from the taxi driver’s depot to the police, not the taxi driver himself making direct contact.  Mr G   submitted this demonstrated that either the taxi driver was lying when he said he had contacted the police, or that there were two calls, and so the police disclosure was inadequate.  Mr G   also claimed he had asked the police for details as to the time the phone call was made to them, but this had not been provided. Mr G   contended the missing information was important because it would support an argument there was insufficient time for all the things claimed by the taxi driver to have happened.

[17]     In my view it is not open to Mr G   to advance this matter as a ground of appeal.  Although he had information about a call from the depot, he never put it to the taxi driver in cross-examination and never put it to him that it was impossible for him to have driven to the various places he was claiming within the time period. There was no evidence as to the relevant distances.

[18]      Further, as regards the time of the phone call to the police, the written brief of evidence did in fact state the time (3.10am) that the officer was directed to go to the incident. The brief of evidence was provided to Mr G   prior to the hearing. In those circumstances, there can be no complaint about disclosure.

[19]     The taxi driver’s evidence was that he had received the call at 2.15 a.m. to go to Russley.  This was not disputed.  That meant there was almost an hour between the time the taxi driver went to Russley to pick up Mr G   and the time the police officer received the direction.

The evidence and conduct of the police constable

[20]     Mr G   was critical of the conduct of the attending police constable.  Mr G   said the officer never gave him an opportunity to explain his side of the story and that at the hearing the officer misrepresented his level of intoxication. As regards the latter point, Mr G   submitted there was a contradiction in the constable’s evidence because on the one hand the officer was claiming he was intoxicated and yet on the other hand was not sufficiently concerned to take him to the cells.   I disagree.   As the officer explained in cross-examination, while Mr G   was intoxicated and unsteady on his feet, he could still stand and was talking to someone on a cell phone.  Therefore in the officer’s assessment the level of intoxication was not sufficiently high to warrant detaining him overnight. I do not accept that amounts to a contradiction.

[21]     Mr G   also argued that the constable changed his evidence during the course of the hearing about the level of intoxication but the inconsistency has not been recorded in the transcript.  However, Mr G   was unable to detail the alleged inconsistencies or inaccuracies. Nor did he point me to the relevant passage. The recorded questions and answers about intoxication proceed in a logical fashion and there are no obvious gaps or omissions.

[22]     As I have already mentioned, Mr G   feels aggrieved the officer never gave him  a  chance to  explain  his  side  of  the  story.    In  cross-examination,  the constable acknowledged that on the night he accepted the claims made by the taxi

driver.   It would appear he did not pay much credence to Mr G   whom he described as constantly interrupting, arrogant and abusive.

[23]     However,  I  do  not  accept  this  has  prejudiced  Mr  G  .  There  is  no suggestion the Justices took into account the fact that Mr G   did not raise the existence of the alleged deal on the night. It follows that any alleged failure on the part of the officer to give Mr G   an opportunity to tell his side of the story has had no bearing on the outcome. Nor on anyone’s view of it could the officer’s conduct possibly be said to be in the category of conduct warranting a response from the Court.

Did the Justices ask themselves the wrong question?

[24]     A fourth argument raised by Mr G   was that the Justices had identified the wrong issue.  Mr G   submitted the issue was not whether the passenger of a taxi must pay the fare on a taxi meter but whether he and the taxi driver had entered into a special arrangement.

[25]     I agree that was the critical issue but I do not accept the Justices ignored it or that their reasoning processes were wrong.

[26]     Resolution of this case required an assessment of credibility.  It is implicit in the decision that the Justices accepted the taxi driver’s evidence, and because Mr G  ’s claims about a deal had never been put to the taxi driver in cross- examination, they rejected those claims.  They clearly turned their mind to the issue of the alleged deal because they specifically mention it in the decision.

[27]     It is well established that appellate Courts should be reluctant to interfere in issues of credibility when the decision-maker has had the benefit of seeing and hearing the witnesses.

[28]     I have read the transcript myself, and find no reason for interfering with the approach taken by the Justices.

Outcome

[29]     It follows from all of the above that in my view none of the grounds of appeal are sustainable.

[30]     The  appeal  is  accordingly  dismissed  and  the  decision  of  the  Justices confirmed.

Solicitors:

Crown Solicitor’s Office, Christchurch
Copy to Appellant