G v Police HC Hamilton CRI 2006-463-18

[2006] NZHC 943

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2006-463-18

BETWEEN  G

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         15 August 2006

Counsel:         Appellant in person

SA Christensen for Respondent

Judgment:      15 August 2006

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:           Ronayne Hollister-Jones Lellman, P O Box 13063, Tauranga for Crown

G V POLICE HC HAM CRI 2006-463-18  15 August 2006

Introduction

[1]      The appellant was convicted in the District Court at Waihi of failing to give way at an intersection, contrary to r 4.2(3) of the Land Transport (Road User) Rules

2004.   He was fined $300 and ordered to pay Court costs of $130.   He appeals against conviction and sentence.

The evidence

[2]      The charge followed an accident which occurred at a roundabout controlling an interrsection in the town of Waihi.   Four roads converge on the intersection: Seddon  Street,  which  emerged  on  the  other  side  of  the  intersection  as  Seddon Avenue; Moresby Avenue; and Rosemont Road, which is in effect a continuation of Moresby Avenue.

[3]      The principal prosecution witness was Mrs Betty Davis.   She said that at about 5.15 p.m. on 3 May 2005, she approached the intersection  driving  along Moresby Road, intending to proceed straight through and exit into Rosemont Road. As she neared the exit to Rosemont Road, she was hit in the rear left hand side of her vehicle by the appellant’s vehicle which had emerged from Seddon Street.   Both vehicles suffered considerable damage and a child, who was a passenger in Mrs Davis’ vehicle, suffered minor injuries.

[4]      A police officer who was called to the scene, Constable Ewen Graham, also gave evidence.  He confirmed that at the time of the accident the light was fading and it was raining.  He said he spoke to both drivers.  The appellant told him that he had been travelling down Seddon Street in a westerly direction.   He had stopped before entering the roundabout.   Constable Graham said the appellant told him he thought the way was clear and moved off, driving into the side of Mrs Davis’ car. He told the constable that he believed the lights of her car were not on.  However, he admitted to the constable that the accident was his fault.

[5]      The  appellant  himself  gave  evidence  at  the  hearing.    He  asserted  that Mrs Davis had not approached the intersection travelling from Moresby Road but from Seddon Avenue.   His position was that Mrs Davis was making a right turn, although moving around the roundabout, in order to enter Rosemont Road.   He maintained that she had failed to signal her intention to turn right and this had, in all likelihood, been the reason why he had failed to see her.

[6]      At  the  hearing  the  appellant  endeavoured  to  introduce  evidence  from  a Mr Mervyn  Jackison  who  had  made  a  statement  to  the  police.    The  appellant explained to the Community Magistrates that Mr Jackison was unable to come to Court but would have said that he followed Mrs Davis’ car into the intersection; that she had been travelling down Seddon Avenue, not Moresby Avenue as she claimed in evidence; and that she failed to indicate her intention to turn right into Rosemont Road.

[7]      The Community Magistrates were not prepared to allow the appellant to give evidence of what Mr Jackison would have said.  There was no formal application for an adjournment to enable his evidence to be called.  After hearing from the appellant, the Magistrates said they would proceed with the case and if the appellant was unhappy with their decision, he could pursue his rights of appeal.

Decision

[8]      In  a  short  succinct  decision,  the  Community  Magistrates  explained  their reasons for finding the appellant guilty in the following terms:

Mr G   you are charged with failing to give way at a give way sign and we listened to the witness Mrs Davis, who we thought was very plausible.  We believe her when she said she came down Moresby Road.   Regardless of where she came from she obviously had the right of way.  We sympathise with you in that the weather conditions were atrocious, but you still have a responsibility at  a  give  way to  do  just  that,  to  give  way  to  any  traffic approaching on your right.  We therefore find the case proven, because it is Christmas and the conditions we will fine you at the lower end of the scale of $300.00 plus Court costs of $130.00. Thank you.

Further evidence

[9]      The appellant sought to have the evidence of Mr Jackison admitted for the purpose of the appeal.   At previous appearances before this Court, it had been explained to the appellant that if he wished to call a witness to give oral evidence on appeal, he would need to file an application supported by an affidavit.  He did not file an affidavit but wrote a letter which fully explained the reason why Mr Jackison had not been called at the hearing and, in brief terms, what he would be called to say.

[10]     After considering the letter and hearing the appellant and Ms Christensen, I declined the application to call further evidence.  I will now explain my reasons for that decision.

[11]     There is discretionary power, under s 119(3) of the Summary Proceedings Act 1957, to receive further evidence on appeal if that further evidence could not, in the circumstances, have reasonably been adduced at the hearing.  The appellant has explained that he had some difficulty obtaining Mr Jackison’s name and contact details from the police.  He was unable to contact him until some three or four days before the scheduled hearing in the District Court on 21 December 2005.

[12]     Mr Jackison declined to attend the hearing because he was extremely busy during the pre-Christmas period.  The appellant assumed that his presence could be dispensed with and that the appellant could convey the essence of his evidence to the Community Magistrates.  Mr Jackison did, however, later give evidence on behalf of the appellant before a Disputes Tribunal hearing, at which the issue of liability for the damage to the two vehicles was determined adversely to the appellant.

[13]     The evidence is not therefore fresh in the sense that it could not reasonably have been adduced at the hearing.  However, in accordance with the approach which the Courts customarily take when considering applications to introduce further evidence on  appeal,  the  fact  that  the  evidence was  not  fresh  is  not  fatal  to  an application if the evidence is credible and cogent and ought to be before the Court for a proper consideration of the appeal.  In the absence of any brief or affidavit by Mr Jackison, I am not in a position to determine whether his evidence is likely to be

cogent or credible.  However, I am in a position to determine whether or not it would be of any assistance to the appellant for the purpose of the appeal.

[14]     I  have  come  to  the  clear  view  that  it  would  not  assist  him.    Even  if Mr Jackison were to give the evidence that the appellant orally submits he would give, for reasons which I will elaborate on a little later in this judgment, I am satisfied that it would not affect the critical issue of whether or not the appellant had been in breach of the relevant rule.

Submissions

[15]     The appellant argued that his failure to give way should be excused on the basis that Mrs Davis was not proceeding down Moresby Avenue, as she said in evidence and as the Court found she was, but instead approached the intersection from Seddon Avenue.   He claimed that she could not have had her lights on and failed to indicate her intention to turn into Rosemont Road.  He submitted that the route by which she entered the intersection and her failure to indicate would have been established by the evidence of Mr Jackison and would have excused his failure to give way to her vehicle.

[16]     Ms Christensen submitted that whether or not Mrs Davis approached the intersection from Moresby Avenue or Seddon Avenue and whether or not she had signalled her intention to exit the intersection at Rosemont Road, the appellant was rightly convicted.

Discussion

[17]     Rule 4.2(3) of the Land Transport (Road User) Rules 2004 provides:

4.2Giving way where vehicles are controlled by some type of sign or in absence of signs …

(3)A driver approaching or crossing an intersection must give way to any vehicle approaching or crossing the intersection from his or her right.

Although not directly in issue for the purpose of this appeal, a failure to give way at a roundabout is in itself an offence under r 4.6(1) of the Rules which provides:

A driver entering a roundabout must give way to traffic on the roundabout and to traffic approaching from the driver’s right.

These rules confer an unqualified duty on the appellant to give way to any vehicle which was either on the roundabout or entering the roundabout from his right.  In my view,  it  is  of  no  real  consequence  whether  Mrs Davis  was  proceeding  straight through the intersection, as she said, or whether, as Mr Jackison would apparently have said, she was approaching from Seddon Avenue.

[18]     There is nothing to contradict Mrs Davis’ evidence that her lights were on. Even assuming that Mr Jackison’s evidence were to be accepted in its entirety and she had entered from Seddon Avenue and failed to indicate her intention to proceed into Rosemont Road, the appellant would not have been entitled to assume while she was proceeding through the roundabout, that she was intending to proceed into Seddon Street.   He could not have safely acted on that premise unless she had indicated her intention to do so by activating her left hand indicator.   There is no suggestion that occurred.

[19]     The uncontested evidence of the police officer who attended the scene was that the appellant told him he had stopped at the intersection.  Even if, however, I accepted the appellant’s contention and submission that he had merely slowed down and paused, if he were paying proper attention, he could not have avoided seeing Mrs Davis’ car regardless of the direction from which she was approaching.   He collided with the left rear part of her vehicle which indicates that at the time he moved forward Mrs Davis’ vehicle must have been either immediately to his right or just in front of him.

[20]     I have some sympathy for the appellant.  It is clear that the driving conditions at the time were testing.  It would seem that the accident occurred at a time when the light was fading but it was not fully dark and in wet conditions.  Visibility was poor. Momentary carelessness could, and in this case did, have serious consequences.

[21]     The appellant has explained that because, unknown to him, his insurance had expired at the time of the accident, he is facing the burden of having to meet the cost of repairs to his own vehicle, amounting to $4,500, as well as the damage of $2,500 sustained by Mrs Davis’ vehicle which he is paying off at the rate of $25 per week. In the circumstances, I consider that the financial consequences of this incident constitute more than enough punishment for the appellant’s momentary lapse of attention.   Although the fine imposed by the Community Magistrates was clearly justified, even lenient in the circumstances, I consider it appropriate to allow the appeal as it relates to sentence.

Result

[22]     The appeal against conviction is dismissed.  The appeal against sentence is allowed.   I quash the fine of $300.   The order for payment of Court costs must remain.  There will be no other order as to costs.