H v Police HC Christchurch CRI 2009-409-160

[2010] NZHC 192

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2009-409-000160

H

Appellant

v

POLICE

Respondent

Hearing:         3 March 2010

Appearances: Appellant in Person

C E Butchard for Respondent

Judgment:      4 March 2010

JUDGMENT OF FOGARTY J

[1]      This is an appeal by Mr H   against conviction and sentence on a charge of careless use.

[2]      He  was  driving  a  motor  home  on  the  Main  West  Coast  Road  out  of Christchurch.  He missed a turnoff.  He pulled to the left, looked ahead, saw there was no oncoming traffic, looked in the rear vision mirror, saw a car approaching but judged it was a significant distance away and began a u-turn.

[3]      In the course of the u-turn when the bus had almost completely crossed past the centre line there was a collision as the car he had seen in the rear windscreen

H V POLICE  HC CHCH CRI 2009-409-000160  4 March 2010

mirror collided with the right rear side of the bus.  It was quite apparent that this car, driven by a Mr Gardner, had braked.  The brakes had locked.  It is quite likely that the driver had had another option of veering to the left and avoiding the bus completely.

[4]      Behind this car was a second car occupied by Mr and Mrs Jackson.   The couple were interviewed by the police officer who came to the scene, Sergeant Edmonds.  He took a statement from Ms Maria Jackson which expressed an opinion that the driver (Mr Gardner) did not react soon enough.

[5]      Mr H   pleaded not guilty and the case went to trial before two Justices of the Peace.  Mr H   conducted the trial on the basis that he and Mr Gardner were equally liable.  He acknowledged, as he had always acknowledged to the police officer, that he had made a misjudgement as to the distance behind the truck of Mr Gardner’s car at the time he decided to turn.  He had not had this motor home for long.   He was not familiar with the fact that the main outside rear vision mirror, being curved, did not give a true reading of distance.

[6]      As  to  the  responsibility  of  Mr  Gardner,  Mr  H    contended  he  had activated the right hand blinkers of the bus and that Mr Gardner had had every opportunity to simply vary the direction of his car by pulling to the left and avoiding the crash.

[7]      As is recorded on the police statement Mr and Mrs Jackson reside in Saudi Arabia.   The sergeant prosecutor objected to Mr H   putting the statement of Mr Jackson in evidence on the grounds that it was unreliable hearsay.   I am quite satisfied  that  it  was  a  reliable  record  of  her  views  taken  immediately after  the accident, at the scene, by a competent police officer, Sergeant Edmonds.  It was the sort of evidence which Parliament had in mind as being admissible hearsay evidence when drafting s 18 of the Evidence Act 2006 which provides:

18       General admissibility of hearsay

(1)   A hearsay statement is admissible in any proceeding if -

(a)the   circumstances   relating   to   the   statement   provide reasonable assurance that the statement is reliable; and

(b)      either -

(i)        the  maker  of  the  statement  is  unavailable  as  a witness; or

(ii)      the  Judge  considers  that  undue  expense  or  delay would be caused if the maker of the statement were required to be a witness.

(2)   This section is subject to sections 20 and 22.

[8]      In these proceedings on appeal Mr H   filed a document entitled:

NOTICE OF APPEAL AND LEAVE OF THE HIGH COURT, TO SUE, FOR CONSIRACY (sic) TO OBSTRUCT, PERVENT (sic), PERVERT AND DEFEAT THE COURSE OF JUSTICE, AND CONSPIRACY TO DEFRAUD THE HEENAN FAMILY TRUST 1960, WITHIN [these] PROCEEDINGS

[9]      It is always open on appeal to argue that the appellant did not receive a fair trial.   Taking the points being made by Mr H   within this frame of reference Mr H   was arguing that he did not get a fair trial because Mr Gardner would not acknowledge  that  the  bus  had  stopped  on  the  left,  that  the  blinkers  had  been activated, and said that the bus had stopped in the course of the turn.   Second, Mr H   objected to some of the findings of the Justices of the Peace on these points.  He also objected to both the interventions of the prosecuting sergeant and of the Judge where he sought to pursue the carelessness of Mr Gardner.

[10]     I  am  satisfied  that  Mr  Gardner’s  evidence  inasmuch  as  it  differed  from Mr H   on these points may be accounted for simply because he did not see the bus stop on the left or see the blinker lights being activated and may have misjudged the slow pace of the bus near the completion of its turn for the bus being stopped. The fact that his observations differed from Mr H   did not mean Mr Gardner was lying.

[11]     Some of the interjections by the police prosecutor were interjections typically made when a layperson is cross-examining a witness, and slipping into making a statement rather than asking a question.  Similarly, the Justices of the Peace sought to confine Mr H   to asking questions.  Finally, and significantly, the Justices of the Peace were quite right to focus on the question of whether or not Mr H   had

been careless rather than on a question which was not there directly in point, whether or not Mr Gardner had been careless.

[12]     Having listened to all Mr H  ’s points I am quite satisfied that he had a fair trial, except in one respect, namely, the refusal of the Court to take in the statement of Mrs Jackson.

[13]     However, that refusal was of no materiality.  It was evidence which went to whether or not Mr Gardner was careless.  It did not excuse Mr H   from making a u-turn.

[14]     Mr H   has always acknowledged in a straight-forward fashion that he made an error of judgment when looking through the side mirror of the truck when estimating Mr Gardner’s distance and judging he had time to make a u-turn.   I have no doubt that objectively that was an error of judgment and that it was open to the Justices of the Peace to accordingly find that there was careless use.

[15]     The conviction appeal fails.

[16]     Turning to the sentence appeal, the Justices of the Peace fined Mr H 

$300  together  with  Court  costs  of  $130,  witnesses’  expenses  of  $100  and Mr Gardner’s airfare from Palmerston North of $278.    These are modest financial penalties for this offence and cannot be disturbed as being in any way excessive.  He was also disqualified from holding or obtaining a driving licence for three months, effective immediately.  It does not fall to me to examine the merit of this sentence because it has been served.

[17]     For these reasons the appeal against sentence is dismissed.

Solicitors:

Raymond Donnelly & Co, Christchurch, for Respondent

cc: Mr D S H