Hartley v Police

[2019] NZHC 385

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE

CRI 2018-454-11

[2019] NZHC 385

BETWEEN

CORY HARTLEY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

7 March 2019

Counsel:

Appellant in Person

M J Blaschke for Respondent

Judgment:

8 March 2019

JUDGMENT OF SIMON FRANCE J

[1]                  Mr Hartley was convicted of careless driving causing injury.1 The van he was driving entered onto gravel that was on the left-hand side of the road on which he was driving. This caused Mr Hartley to lose control with the consequence the van turned 90 degrees and went straight across the road. A car coming in the other direction hit Mr Hartley’s van in the side. The driver and her passenger were injured.

[2]                  The prosecution called several witnesses who all attested to the scenario just described. Mr Hartley did not dispute the essence of the case other than as regards why his van got into the gravel. He said when he came around a corner he encountered a stalled line of cars and steered to the left of the road to avoid hitting the back of the rearmost one. None of the prosecution witnesses agreed that the road in front of

1      Hartley v Police [2018] NZDC 17735. An appeal against sentence was not pursued and is dismissed.

HARTLEY v POLICE [2019] NZHC 385 [8 March 2019]

Mr Hartley was blocked in this way. All the witnesses could see Mr Hartley’s van as it approached them from the opposite direction.

[3]                  The Judge did not resolve this issue, observing that Mr Hartley’s own version of events would constitute careless driving. Convictions were entered.

[4]                  The appeal is advanced primarily as a complaint about the fairness of the trial. It is submitted that the Judge should have recused himself, and that Mr Hartley, who acted for himself, was not able to present the case he wished. The Judge kept limiting his questioning and threatening him with “the cells”.

[5]                  Mr Hartley asked the Judge to recuse himself because the Judge had presided over a Family Court matter involving his family. The Judge said he had no recollection of it and it did not afford a basis for recusal. Mr Hartley renews the point on appeal. He advises that his was merely a support role for his mother. I agree that affords no basis for the Judge to recuse himself.

[6]                  Concerning interruptions to his case, the Notes of Evidence do not on their face disclose undue interference. Mr Hartley presented his case in a way that is puzzling, at least to legally trained eyes. At the outset, sensibly, he accepted he had lost control in the gravel, the car had crossed the road and the people were injured. This meant the sole issue was how it was that Mr Hartley came to be in the gravel, and whether that represented careless driving on his part.

[7]                  Although this was a narrow issue, Mr Hartley’s questioning of witnesses thereafter mainly focused on irrelevant points. The police officer who attended the scene was questioned about the fact that on his statement his name is Trevor Hetutu whereas in Court he gave his name as Trevor Tainui Hetutu. It was next said, and is repeated as being relevant on the appeal, that the officer got the name of the towing firm wrong. Another matter raised on appeal is the officer talked of Mr Hartley travelling in a southerly direction whereas the road goes south-east. During the trial Mr Hartley pursued a significant number of such points, none of which assist him with the core issue. When asked on the appeal how these things matter, Mr Hartley

submitted accuracy is important. I infer the proposition is that a lack of accuracy undermined the strength of the case.

[8]                  I am satisfied the hearing was fair. Mr Hartley put questions to all the witnesses and has not pointed to any matters of significance that he was prevented from advancing. He himself gave evidence and was able to state clearly his defence, which was his version of how he came to be in the gravel. Mr Hartley called his passenger (his mother) who testified in a manner similar to Mr Hartley. I am not in a position to comment on the nature or tone of the exchanges (captured in the record as “legal discussion”) but remain of the view the essential components of the trial were conducted fairly. Interruptions to control relevance were inevitable and do not point to unfairness.

[9]The list of appeal points Mr Hartley filed as his submissions included:

(a)the photos of the damage to his vehicle were not accurate;

(b)the officer got the name of the towing company wrong, and the direction of the road wrong;

(c)the officer had informed Mr Hartley prior to the hearing that he was “no road policing officer”;

(d)there were changes in what witnesses said between their evidence and their statements as recorded in the police officer’s notebook;

(e)the police officer put all the witnesses in one room before they testified, giving an impression of collusion. Further, Mrs Hartley heard the witnesses say they would get in touch about the case on Facebook.

[10]              The photos, the officer’s alleged errors and whether he is a road policing officer can have no relevance to the only trial issue. I do not address them further. Changes in statements are not uncommon. The trial affords an opportunity to explore changes and query why. As regards some of these Mr Hartley did just that; unfortunately, the

topics were not ones that assisted. However, the key point on appeal is that a change in statement is not of itself a matter of significance.

[11]              The idea of witness collusion could be important but has not been placed before the Court in a way that allows any consideration of it. There is no evidence from the witness about this. I agree it could raise a concern if all the witnesses were together in a room on the day of the trial prior to giving evidence but cannot take that further.

[12]              Returning to the core issue, I have not been satisfied the Judge was wrong to conclude it was careless driving based on Mr Hartley’s own account. However, having read the evidence I consider it was established beyond a reasonable doubt that the obstruction Mr Hartley believes he encountered did not exist. None of the witnesses saw it. It would surely have caused difficulty for the witness following Mr Hartley and I cannot accept all the witnesses are mistaken. These witnesses are six in number and were in five vehicles. One was following, four coming in the other direction. One was an experienced truck driver enjoying all the advantages that the height of the truck cab gives. All were clear, and not at all shaken on this point.

[13]              I am satisfied Mr Hartley was not confronted by an obstruction. The only explanation for Mr Hartley’s vehicle entering onto the gravel is that it was the product of carelessness of his part. The appeal is dismissed.

Simon France J