H v Police HC Palmerston North CRI-2008-454-29

[2009] NZHC 2515

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2008-454-29

H

v

NEW ZEALAND POLICE

Hearing:         21 October 2009

Appearances: Mr Watson for Mr H 

Ms Killeen for New Zealand Police

Judgment:      18 December 2009         at 12.30 pm

JUDGMENT OF MALLON J

Introduction

[1] Mr H successfully defended a charge of reckless operation of a motor vehicle under (s 35(1)(a) of the Land Transport Act 1998). His subsequent application for costs (under s 5 of the Costs in Criminal Cases Act 1967) was dismissed by the District Court. He now appeals against that dismissal.

Background

[2]      The charge Mr H   faced arose out of an incident on 18 November 2006. In the early evening Mr H   was in his vehicle stopped at a Give Way sign at the

H V NEW ZEALAND POLICE HC PMN CRI-2008-454-29  18 December 2009

intersection of State Highway One and Otaki Gorge Road.  Behind him, in another vehicle, was his neighbour – Mr Moffatt.  There was a “nose to tail” impact between the two vehicles.   Mr H   left the scene without getting out of his vehicle. Mr Moffatt proceeded to the Otaki police station and reported the matter.  Constable Parke was on duty at the station.  Mr Moffatt told Constable Parke that Mr H   had reversed his vehicle into Mr Moffatt’s vehicle and had then taken off.  He told the officer that he had ongoing problems with Mr H  .  He gave the officer the names, and cell phone number of, two people who had been in a parked vehicle on the same road, as potential witnesses to the incident.

[3]      The police did not go to the scene to investigate the incident.  The evidence at the defended hearing was that the police would not normally attend scenes involving traffic incidents where minor damage to vehicles is sustained.  It was also thought that there would not be much evidential value in a scene examination.  The evidence was also that the Otaki Police Station was not “flush with resources” and may not have had a camera to take scene photographs with at that time.

[4]      Constable Parke made several attempts on the evening of the incident to contact the witnesses on their cell phone because Mr Moffatt had told him they were tourists and would be leaving the country.  These attempts were unsuccessful.

[5]      I am not clear from the information on the file whether any attempt was made to contact Mr H   at this time.   However on 18 December 2006 Mr H   telephoned the Otaki police station.  Police Sergeant Bigwood was on duty and took the call.  He took a note of the conversation.  That note records that Mr H   told him  that  Mr  Moffatt  had  followed  him  for  about  10  kms  before  ramming Mr H  ’s vehicle from behind.   The note also records that Mr H   told Police Sergeant Bigwood that he (ie. Police Sergeant Bigwood) “[d]idn’t have the balls” to investigate the matter, and that the officer would not investigate it properly and would only believe Mr Moffatt.  The note also records that the Police Sergeant invited Mr H   to come in and make a statement but he declined and rang off.

[6]      On  8  January  2007,  in  the  early  afternoon,  Constable  Parke  contacted

Mr H   by telephone.  The constable said that he needed to speak to him about

the incident reported by Mr Moffatt.   Constable Parke’s note of the conversation records Mr H   as stating “I have told Bigwood I am not dealing with you about this, there is too much history for a boy to be dealing with it.  I am not giving you a statement.”  Constable Parke’s response was “[f]ine I will deal with this matter in my own way”.

[7]      On that day an information charging Mr H   with reckless operation of a motor vehicle was laid.

[8]      On  14  February  2007  Mr  H    advised  his  insurance  company  that Mr Moffatt had followed him and, while Mr H   was looking to see a clear exit onto State Highway 1, struck him from behind.   Mr H   said he had left the scene because Mr Moffatt’s son had previously assaulted him.

[9]      In  February 2007  Mr  H    engaged  counsel  to  represent  him  on  the charge.  Disclosure was obtained and Mr H   entered a not guilty plea.

[10]     In about May 2007 Mr H   engaged Mr McCormack, a traffic crash investigator.  Mr McCormack prepared an expert report dated 11 May 2007.  In that report he commented that in any investigation into a crash there needed to be a scene investigation to identify any evidence that may be available, such as tyre friction marks.   Mr McCormack noted that there was nothing in the disclosure to indicate that the police had conducted a scene investigation.  Based on an examination of the rear  bulbs  of  Mr  H  ’s  vehicle  from  photographs  which  Mr  H    had supplied to Mr McCormack, he concluded that “it is more likely Mr Moffat has driven his vehicle into the rear of Mr H  ’s vehicle”.

[11]     The report was provided to the prosecution on 27 May 2007.  The report was accompanied by a letter from Mr H  ’s counsel inviting the prosecution to withdraw the information.   The letter said that on the basis of the report it was apparent that the prosecution was fatally flawed.  It said that if the information was not withdrawn in a timely manner an application for costs, including the travelling costs and witness expenses of the investigator, would be made.

[12]     On  about  1 June  2007 the  report  was reviewed  by Constable  Pelosi,  an experienced police officer with expertise in motor vehicle accidents.   He, together with Senior Constable Maddaford, prepared a two page memorandum setting out their views of the expert report.  They noted reasons why a scene investigation may have yielded no evidence.   Their view was that the conclusion based on the photographs of the rear light bulbs was highly suspect.   They considered that the matter would depend solely on the Court accepting Mr Moffatt’s evidence over that of Mr H  .

[13]     The defended hearing was scheduled for 12 June 2007.   The parties were ready to proceed and Mr McCormack had travelled from Auckland to attend.  The hearing did not proceed because of the heavy Court schedule that day.  It proceeded on 31 January 2008.   The prosecution called evidence from Mr Moffatt, Police Sergeant Bigwood, Constable Parke and Constable Pelosi.   The defence called evidence from Mr McCormack.   Despite Mr Moffatt being cross-examined on the basis that Mr H   “will say” various things, Mr H   did not give evidence. As a result the only evidence of Mr H  ’s version of events was the comment he made to Police Sergeant Bigwood on 18 December 2006 that Mr Moffatt had followed him and rammed him from behind.

[14]     In cross-examination Mr Moffatt acknowledged that the tourists who he had approached as possible witnesses were not able to assist because they had not seen the impact of the two vehicles.   Mr Moffatt also acknowledged that he has had ongoing issues with Mr H   over five years.  These included several civil court disputes over property.   He also accepted that Mr Moffatt had obtained a costs judgment against Mr H   in 2006, had issued bankruptcy proceedings to obtain payment and had received payment just prior to the incident.   He accepted that Mr H   had made a complaint to the police in 2005 about an assault on him by Mr Moffatt’s son but also said that Mr Moffatt had made a complaint to the police about an assault by Mr H  .  The cross-examination of Mr Moffatt made no in- roads on Mr Moffatt’s evidence about how the impact had occurred.

[15]     The District Court Judge dismissed the charge for the following reasons:

[8]       The onus of proof in a charge of this nature is that the charge needs to  be  proved  to  a  standard  of  proof  of  beyond  reasonable  doubt.    The evidence before the Court indicates that there is bad blood between you and Mr Moffatt.   There is no argument that a collision between the vehicles occurred.  There is a dispute as to who drove into who.  The obligation is upon the police to prove beyond reasonable doubt that it was you that drove into Mr Moffatt.   There were no independent witnesses to the incident whatsoever.  Mr Moffatt says you drove into him but you have made it clear from what you said to the police that that is a version you do not agree with.

[9]       On the basis of the evidence that has been presented to the Court I am not able to find that the charge has been established to a standard of proof beyond reasonable doubt. The charge is therefore dismissed.

[16]     Then followed Mr H  ’s application for costs.

The statutory provisions

[17] Section 5(1) of the Costs in Criminal Cases Act gives the Court a discretion to make an order for costs in favour of a successful defendant. Section 5(2)(a) to (g) sets out seven mandatory considerations for the Court but these are said not to limit the Court’s discretion under s 5(1). Section 5(3) provides that there is no presumption for or against the granting of costs in any case. Section 5(4) provides that a defendant is not to be granted costs by reason only of an information against him being dismissed. Section 5(5) provides that a defendant is not to be refused costs merely because the proceeding was properly brought and continued.

[18] The mandatory considerations in s 5(2) are as follows:

(a)Whether  the  prosecution  acted  in  good  faith  in  bringing  and continuing the proceedings:

(b)Whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence:

(c)Whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty:

(d)Whether generally the investigation into the offence was conducted in a reasonable and proper manner:

(e)Whether the evidence as a whole would support a finding of guilt but the information was dismissed on a technical point:

(f)Whether the information was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty:

(g)       Whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.

The application for costs

[19] Mr H ’s application relied on the factors set out in s 5(2)(b), (d) and (e) of the Costs in Criminal Cases Act. In summary the submission was that due to the conflicting statements of Mr H and Mr Moffatt the prosecution did not have sufficient evidence to convict Mr H and that once the prosecution had the expert report they ought to have realised that the prosecution case was fatally flawed. Mr H ’s counsel referred the Court to Brown v Police HC Auckland CRI-2003-

404-194 31 October 2007 at [41]-[52] in support of his application.

[20]     In dismissing the application the District Court Judge set out his reasons as follows:

[12]      There was no indication that the prosecution acted other than in good faith in bringing and continuing the proceeding before the Court.   The prosecution had the evidence of Constable Pelosi as an expert witness to counter the suggestion in the report prepared by the expert witness for the defence.  The prosecution also had a credible witness in Mr Moffatt to give evidence before the Court.  There is also no suggestion that the prosecution failed to take proper steps to investigate any matter coming into its hands which might have suggested that the defendant might not be guilty.  In all respects the investigation of the police into the offence gave the appearance of being conducted in reasonable and proper manner.

[13]      It was the decision of the defendant to employ Mr McCormack as an expert witness.  The evidence in his crash report and the evidence he gave during the  defended  hearing was  not  determinative or  persuasive  in  the charge being dismissed.

[14]      The matter was decided on the basis of the evidence of the witnesses other than the expert witnesses and of the Court not being persuaded that the evidence reached the standard of proof of beyond reasonable doubt.

My assessment of the appeal grounds

[21]     Because an order for costs is discretionary, on this appeal Mr H   must satisfy me that, in dismissing his application for costs, the District Court Judge acted on a wrong principle, failed to take into account a relevant matter, took into account an irrelevant matter, or was plainly wrong.

[22] Mr H submits that the Judge failed to take into account all the factors he was required to consider under s 5(2). He says that the Judge briefly touched on some of the factors, failed to expressly refer to others and failed to consider or cite Brown despite that authority having been referred to him. He says that in these circumstances I should consider the matter afresh. Mr H ’s submissions go through each of the s 5(2) factors setting out why he considers they support his application for costs.

[23] In my view, no grounds to interfere with the Judge’s decision are made out. The matters the Judge refers to in para [12] of his costs judgment relate to the mandatory factors set out in s 5(2)(a) to (d). The matters the Judge refers to in para [13] of his costs judgment relate to the mandatory factors set out at s 5(2)(f) and (g) and also support the Judge’s assessment of the factors at s 5(2)(a), (c) and (d). The Judge did not refer to the factor at s 5(2)(e) but it did not apply and so was not relevant. The Judge’s discussion of the relevant matters was brief but it was adequate to the occasion. It is clear from that discussion that the Judge considered the relevant mandatory considerations and was of the view that this was not a case where his discretion should be exercised in favour of Mr H .

[24]     There is no requirement on a Judge to cite a case or discuss it just because one of the parties has referred the Judge to the case.  The point in Brown was that, had the police given the report from the defendant’s expert full and proper consideration, then the chances were that the police would have concluded that the defendant had not driven carelessly.   Here the police did consider the report from Mr McCormack but disagreed with it.  The reasons for disagreeing were set out in a memorandum and discussed in the evidence at  the defended hearing before the District  Court  Judge.    The  Judge’s  reasons  at  paras  [12]  and  [13]  of  his  costs

judgment deal with this point.   If the Judge did not find the expert report determinative then there was no reason for the police to have either, or to have withdrawn the information on the basis of it.

[25]     Mr H   submits that the report ought to have made it plain to the police that their investigation was inadequate.   But Mr McCormack’s view that a scene examination was required was not the view of the police.  Their view was that there was no need to go to the scene of an accident where only minor damage had been sustained.   The police are able to make this sort of decision balancing available limited  resources  and  likely evidential  value.    The failure to  carry out  a scene examination does not mean the investigation was inadequate.   Further, the police expressly considered Mr McCormack’s  comments about the absence of a scene examination.   They noted the reasons why there may have been no evidence, that even if there had been any evidence it would not be able to be reliably identified by that time and that the outcome of the prosecution would depend on the Court accepting Mr Moffatt’s evidence over Mr H  ’s.

[26]     Mr H   says that the police ought to have investigated Mr Moffatt and there is no evidence that they did.   Mr H   says this is particularly the case when, if Mr H  ’s version was correct, Mr Moffatt’s actions were dangerous – it may have led to Mr H   being pushed out onto State Highway 1 and into traffic. Mr H   submits that this (and the failure to investigate properly at the start and once they had the investigator’s report) is evidence of a blinkered view (as referred to in Ham v R (1998) 16 CRNZ 199).  The difficulty here for Mr H   is that he was not willing to provide a statement to the two officers who gave him that opportunity.  It is difficult to see what more the police reasonably could be expected to do.  It was not for Mr H   to dictate, for example, who from the police should be assigned to the investigation of this minor incident.

[27]     Looked at overall, the police had Mr Moffatt’s statement, who had been concerned enough about the incident to have driven to the police station to report it. The  police  had  made  several  attempts  to  contact  the  two  possible  witnesses. Mr H   had not reported the matter but rather had driven off.  The police made two attempts to obtain a statement from Mr H  .  The police were aware that

there  was  some  history  between  Mr  H    and  Mr  Moffatt  and  also  that Mr H   denied Mr Moffatt’s version of events.   From all of this there was a prima  facie  case  against  Mr H    and  no  reason  not  to  proceed  to  charge Mr H   and leave it to the court to determine credibility.   Having decided to proceed, there was no reason to alter that decision on the basis of Mr McCormack’s view that there should have been a scene examination and/or his view about who had caused the incident.  That is because, having considered those views, they disagreed with them.

[28]     Mr H   chose to engage Mr McCormack rather than provide a statement to the police.  He elected to rely on this rather than give evidence in his defence at the hearing.  In light of his election not to give evidence, the absence of any in-roads into Mr Moffatt’s evidence on cross-examination and the inconclusive nature of the expert evidence, there was no certainty that the Court would find the charge not proven.  It is not the case that the beyond reasonable doubt standard cannot be met when there are two competing versions of what occurred.

Conclusion

[29]     In summary, Mr H   has not established a basis to interfere with the Judge’s discretion on the costs application.   The Judge made no error of law and considered and applied the relevant factors.  His conclusion was not plainly wrong. The appeal is dismissed.

Mallon J

Solicitors:

P Connor, Duncan Cotterill, Wellington, email: [email protected]

E Killeen, Ben Vanderkolk & Associates, Palmerston North, email: [email protected]