L v Police HC Invercargill CRI 2006-425-1

[2006] NZHC 222

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2006-425-000001

L

v

POLICE

Hearing:         14 March 2006

Appearances: A J Woods for Appellant

M Sinclair for Respondent

Judgment:      14 March 2006

JUDGMENT OF FOGARTY J

[1]      The appellant was charged with careless use of a motor vehicle and the matter was heard in the Gore District Court by Justices of the Peace on 8 December. The charge arose out of a collision which had occurred between a motor bike ridden by the appellant and a car driven by a lady, at the intersection of Broughton, William and Elizabeth Streets.

[2]      The police case was that the car had been at a give-way sign on William Street indicating left, drove out on to Broughton Street, and then aligned right to get into Elizabeth Street, which is not immediately opposite William Street.   Following behind the car was the appellant on his motorbike.   He came round the car and

collided with it as it straightened up to go into Elizabeth Street.

L V POLICE  HC INV CRI 2006-425-000001  14 March 2006

[3]      The defence case at trial was completely different.  The defence was that the appellant was riding down Broughton Street when the car came out in front of him from a give-way sign and he collided with it.

[4]      The oral decision of the Justices of the Peace is brief:

We have considered the evidence.   There is one or two matters it seems difficult to understand why you would leave Devon Street and travel 50 kilometres an hour down Broughton Street at that time of day.  I know from my own experience I pass the school and there are children everywhere and to be travelling at that speed to me is irresponsible. You had no lights on.

[5]      The appellant’s case was that the correct interpretation of that decision is that the Justices of the Peace had accepted the defendant’s evidence that he was on Broughton Street but that on those facts he could not have been doing anything wrong travelling at a speed of 50 kilometres per hour and furthermore, Mr Woods has said from the Court that the school is in fact not in the immediate vicinity of this area.

[6]      The  case  for  the  police  in  reply is  that  the  correct  interpretation  of  the decision is that it is a rejection of the defence case dismissing the proposition that the appellant was riding down Broughton Street and in fact preferring that of the prosecution.

[7]      It is just possible to read  the  second  sentence  beginning  “there  is”  as  a sardonic rejection of the defendant’s case.  But it is not possible, in my view, to read the decision as preferring the police case, for there is nothing in that decision which addresses the police contention of carelessness which is to ride around a turning vehicle.

[8]      In the result, this Court can have no confidence in the decision of the Justices of the Peace.  It follows from that there is a serious risk of a miscarriage of justice if the decision is left in place.

[9]      I have considered  whether or not  the  matter  should  be  sent  back  to  the

District Court for a retrial.

[10]     The lady driving the car was not injured in the collision.   The appellant suffered minor injuries.  The appellant has instructed counsel for the original file and on appeal.   It would be a considerable burden on the appellant to now have to go through a third hearing on this matter.

[11]     For these reasons the conviction is set aside.

Fogarty J

Solicitors:

Smith Wood & Woods, Gore, for Appellant

Preston Russell Law, Invercargill, for Respondent