H v Police HC Timaru CRI 2009-476-14

[2009] NZHC 1391

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2009-476-000014

H

Appellant

v

POLICE

Respondent

Hearing:         8 October 2009

(Heard at Christchurch)

Appearances: Appellant in Person with McKenzie Friend, Mr G McNab

C A O'Connor for Respondent

Judgment:      8 October 2009

JUDGMENT OF FOGARTY J

[1]      This is an appeal against conviction.  After a hearing in the District Court at Oamaru Judge O’Driscoll convicted Mr H   of driving a motor vehicle, it was a motor bike, on Dunback Macraes Road, in a manner in which, having regard to all the circumstances of the case, might have been dangerous to the public and also that he failed to comply with a lawful direction from an enforcement officer to stop after display of blue and red lights.

[2]      The point taken on appeal by Mr H  , who appeared with a McKenzie friend, Mr  McNab,  is  that  there  was  a  breach  of  the  minimum  standards  of  criminal

procedure under s 25(d) of the New Zealand Bill of Rights Act 1990:

H V POLICE  HC TIM CRI 2009-476-000014  8 October 2009

25       Minimum standards of criminal procedure

Everyone   who   is   charged   with   an   offence   has,   in   relation   to   the determination of the charge, the following minimum rights:

…

(d)The right not to be compelled to be a witness or to confess guilt:

[3]      The submission is that the Judge ought to have clearly advised Mr H   who at that hearing was not legally represented and was appearing with a McKenzie friend, a different McKenzie friend from today, that the Judge should have clearly advised him at the end of the prosecution case that he had a choice as to whether or not he gave evidence and that if he did that the evidence which he gave might be used against him.  The detail of such a requirement for the purpose of hearings under the Crimes Act 1961 is set out in s 364 but there is no doubt that a similar caution should have been given.  The transcript of the case does not record any such caution. It records the conclusion of the prosecution evidence and then the next item has Mr H   sworn.

[4]      The transcript does indicate that not everything that was said in Court was taken down.  It indicates that from time to time.  For example, at page 12, there is a heading “DISCUSSION RE NUMBERING PHOTOS” and another heading “DISCUSSION RE McKENZIE FRIEND”.   But there is no note from page 25 which records the prosecution case concluding and from page 26 which records Mr H   being sworn (that must be as a witness) as to any discussion between the bench and Mr H   as to whether or not he was going to give evidence.  I draw an inference that that discussion did not take place so that caution was not given.

[5]      I note also in that regard that a number of times during the cross-examination of the police evidence by Mr H   the Judge spoke to Mr H   advising him that he was entitled to give evidence.  For example, at page 3 of the transcript the Judge said to Mr H  :

If you don’t accept that evidence, you are entitled to give evidence to the contrary, and I will decide.

The answer was:

Disclosure – I don’t have full disclosure, Your Honour.

[6]      There were similar exchanges where the Judge told Mr H   he had the ability to give evidence to the contrary.  There is another exchange at the top of page 18 where the Judge said to Mr H  :

Don’t argue with the witness.  You put the question to him.   If you don’t accept it, you can give evidence to the contrary.

[7]      But I have read through the transcript and at no stage during the questioning did Mr H   indicate that he was going to give evidence to the contrary.  At no stage did he, for example, say to a police witness:  “Well I am going to say” and give a proposition.

[8]      In argument before me, Mr H   in his written submissions and orally has said he had not intended to give evidence, that his defence was that the case had not been proved.  Certainly, the cross-examination focussed on whether or not the evidence was  reliable  inasmuch  as  photographs  4  and  5  tended  to  suggest  a  blind  bend whereas the appellant's photos suggested the bend was not blind at all and that there was adequate visibility.  The critical question was whether or not he had sufficient visibility when overtaking a small bus.

[9]      The secondary argument was that he had not received full and fair disclosure prior to the hearing.  There is no doubt that during the trial Mr H  , on a number of occasions, complained to the Court that he had not had full disclosure and he also queried that some of the evidence given by Constable Low of statements that he had made  were  actually  from  a  conversation  he  had  had  with  another  constable, Constable Witehira.  Mr H   said that once he had been told by Constable Low on the scene that he was going to be prosecuted he made no further statements.  He said Constable Witehira came along later and that he had chatted informally to him but not on the apprehension that he was making any statement to Constable Witehira.

[10]     Mr H   took this matter up with the Judge and it is recorded in the notes of evidence from page 3 and following.   But the point does not appear to have been resolved by the Judge.  The Court did ask some questions of Constable Low and the answers to the Court by Constable Low were not particularly decisive.  Essentially,

he could not remember whether anything had been disclosed to him by Constable Witehira.  Mr H   continued to protest that evidence from Constable Low was not from a conversation between himself and Constable Low.

[11]     There was also a general complaint of lack of appropriate disclosure prior to the hearing and some answers are from the police as to what has been disclosed. Today I am still left unsure as to the extent of disclosure.

[12]     The other basic problem I might note is that the information laid, which incidentally Mr H   said he has never seen, simply alleges that he drove a motor vehicle 54NRH on a road, Dunback Macraes Road, in a manner which having regard to all the circumstances of the case might have been dangerous to the public.

[13]     It is not clear to me whether or not Mr H   was on notice that the focus on the trial was going to be the overtaking of the small bus.  Mr H   says that he did not know that the focus was going to be on this particular bend and the overtaking bus; that he had in fact brought to the trial 150 photos of the whole road.

[14]     It is a basic principle of criminal procedure that there ought to be particulars in the information.  There is, unfortunately a trend to keep the informations as broad as possible but that runs a risk of then creating an unfair hearing.

[15]     For  all  these  reasons,  which  are  cumulative,  I have  some  disquiet  as  to whether or not the standards in ss 24 and 25 of the New Zealand Bill of Rights Act have been discharged.  There have been a number of decisions of the New Zealand Court of Appeal pointing out that where the Court is satisfied that the standards in the New Zealand Bill of Rights Act have not been met it is appropriate to provide some kind of remedy as a way of ensuring that breach of the standards is recognised.

[16]     The Judge imposed a penalty of six months disqualification.   The Judge himself said in the sentencing notes that was the minimum penalty he was able to give.  In fact, the Judge said:

The sentence that I impose is the absolute mandatory minimum, taking into account and giving full weight and credit to the medical matters.

[17]     I am satisfied that the Judge was of the view that although he had properly convicted Mr H   that there was a minimum level of culpability.  In respect of the failing to stop charge he convicted and discharged Mr H  .

[18]     Mr  H   has  now been  disqualified  from  driving  for  almost  exactly five months.  He has one month more disqualification to go.  The effect of setting aside the conviction on the grounds of flaws in process is that he will be relieved from one month’s  disqualification  from  driving.    That  in  my  view  will  be  sufficient  to recognise the failure of the Judge, which I find on the probabilities to have occurred, in not giving the appellant a clear option as to whether or not he wanted to give evidence.

[19]     I do not think I need to make a decision as to whether or not there was full disclosure but there is certainly considerable doubt in my mind as to whether there was.  I am also of the view that the quality of the process has been impaired by the lack of particularity in the information.

[20]     For these reasons the appeal is allowed and the conviction for driving in a dangerous manner is quashed.

Solicitors:

Gresson Dorman & Co, Timaru, for Respondent cc: T D H