Gibson v Police - [2019] NZHC 1920

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-175

[2019] NZHC 1920

BETWEEN
ANTHONY PETER GIBSON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 5 August 2019

Appearances:

D Grove for the Appellant

S Rankin for the Respondent

Judgment:

8 August 2019

JUDGMENT OF GORDON J

This judgment was delivered by me
on 8 August 2019 at 11.30 am, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar Date:

Solicitors: Crown Solicitor, Auckland
Foy & Halse, Auckland

GIBSON v POLICE [2019] NZHC 1920 [8 August 2019]

Introduction

[1] The appellant, Anthony Gibson, appeals both the decision finding him guilty and the refusal to grant him a discharge without conviction on one charge of dangerous driving.1

Background

[2] On 15 November 2016, there was a dispute between Mr Gibson and a Murray Downes regarding Mr Downes’ parked car. Mr Downes and his partner were seated in their car, which was parked on the side of the road, while waiting to pick up a child from a nearby school. Due to the traffic around the school at the time, Mr Downes parked with the back of his vehicle close to Mr Gibson’s driveway, leaving space in front of him to easily move out of the parking space.

[3] Mr Gibson turned up in his Toyota Hilux ute. He was angry at the manner in which Mr Downes had parked his vehicle. He swore at Mr Downes who refused to move his vehicle and indicated that Mr Gibson could park his vehicle in the space in front of Mr Downes’ car. Mr Gibson then moved forward and reversed into the space resulting in contact between the tow bar on Mr Gibson’s ute and the number plate of Mr Downes’ car. The damage caused was not significant.

[4] On 5 September 2018, in an oral decision, Judge Ryan found Mr Gibson guilty of dangerous driving.2

[5] On 27 March 2019, Judge Ryan declined Mr Gibson’s application for discharge without conviction.3 She instead sentenced Mr Gibson to make an emotional harm payment of $350 and disqualified him from driving for six months.

1      Land Transport Act 1998, s 35(1)(b). Maximum penalty: imprisonment for a term not exceeding three months or a fine not exceeding $4,500 (s 35(2)).
2      Police v Gibson [2019] NZDC 18972 [Conviction decision].
3      Police v Gibson [2019] NZDC 5613 [Sentencing decision].

District Court

Decision finding charge proved

[6] The Judge set out the elements of the offence that the Police needed to prove beyond reasonable doubt:4

(a)Mr Gibson was driving;

(b)his driving fell below the standards expected of a reasonably competent driver and that Mr Gibson was responsible for that lapse; and

(c)his driving created a dangerous situation.

[7] After referring to R v Jones,5 the Judge then summarised the legal position by stating that there must be a dangerous situation created by the fault of the driver. His driving must have fallen below the standard of care expected…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZHC 1920
Decision Date: 8 August 2019

CaseChat Overview and Summary

Gibson v Police is an appeal against both the conviction for dangerous driving and the refusal to grant a discharge without conviction. The appellant, Anthony Gibson, appeals the decision finding him guilty of dangerous driving and the decision to refuse his application for a discharge without conviction. Gibson argues that the District Court erred in its assessment of the evidence, particularly in relation to the credibility of the witnesses, and that the consequences of conviction are out of proportion to the gravity of the offence. The Crown submits that the District Court correctly assessed the evidence and applied the relevant legal principles.

The High Court found that the District Court correctly identified that the case turned on findings of credibility and reliability. The Court noted that the District Court relied on the independent witness, Ms Bosnyak, who provided a consistent and compelling account of the incident. The Court rejected Gibson's argument that there was a lack of evidence to support the charge of dangerous driving, as the elements of the offence do not require proof of damage or injury. The Court also held that the District Court correctly assessed the gravity of the offending as low-level, despite Gibson's lengthy criminal history and traffic infringements.

In relation to the application for a discharge without conviction, the Court found that the District Court correctly applied the principles under s 107 of the Sentencing Act. The Court agreed with the District Court's reasoning that the consequences of conviction were not out of proportion to the gravity of the offending, as the New Zealand Transport Agency had already outlined other reasons for declining Gibson's application for a Transport (Goods) Service Licence. The Court held that the reasons provided by the New Zealand Transport Agency were live regardless of the outcome of the s 106 application.

The appeal was dismissed in whole, upholding both the decision finding Gibson guilty of the charge and the decision to refuse the s 106 application for discharge without conviction.

Orders