Lythgoe v Police

[2013] NZHC 1005

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2013-441-000001 [2013] NZHC 1005

BETWEEN  SIMON JAMES LYTHGOE Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 May 2013

Counsel:         C Hirschfeld for the Appellant

J D Lucas for the Respondent

Judgment:      7 May 2013

[ORAL] JUDGMENT OF WYLIE J

Counsel:

C Hirschfeld: [email protected]

J D Lucas: [email protected]

LYTHGOE V POLICE HC NAP CRI 2013-441-000001 [7 May 2013]

[1]      The appellant,  Mr  Lythgoe,  appeals  a  conviction  entered  against  him  by

Justices of the Peace on 10 December 2012.

[2]      The background to this matter is relatively simple.  Mr Lythgoe was involved in an accident on McVicar Road near Te Haroto on 27 December 2011.  The police issued him with an infringement notice for being in control of a turning vehicle on a road, and for failing to give way to a vehicle not making a turn.   The notice was issued pursuant to s 40 of the Land Transport Act 1998 and r 4.2(2) of the Land Transport (Road User) Rules 2004.  The fine imposed in the infringement notice was

$150.

[3]      Mr Lythgoe challenged the infringement notice and a hearing was held in the Napier  District Court  on  10  December  2012  before  two  Justices  of  the  Peace, Messrs Rawstrone and McNeil.

[4]      The police called  two  witnesses,  namely,  the  driver of the other  vehicle involved  in  the  accident,  and  a  police officer  who  had  attended  the  scene  and prepared a scene analysis.   Mr Lythgoe gave evidence himself in defence of the charge.  He also called a former police officer who gave evidence in relation to the matters in issue.   Unfortunately, that officer did not qualify himself as an expert, although the matter was partially covered in cross-examination and re-examination.

[5]      The Justices’ decision is commendably brief. They stated as follows:

Mr Lythgoe, we have heard and seen extensive evidence regarding the accident on McVicar Road on 27 December 2011.  The time, date and place are not in issue and are accepted.  The infringement in this case is being that the driver of a vehicle, on a road, who was turning or about to turn you failed to give way to a vehicle not making a turn.

There are several views and opinions as to where on the side road you were positioned to be able to ascertain when it would be safe to proceed.  All the photographic evidence varied as to the time of year showing conditions of the road and surrounding areas but none on the actual day of the accident.

It is agreed Mr Reid Jones was driving down McVicar Road on his correct left side when the collision occurred. Taking into account the above facts we therefore find Mr Lythgoe failed to give way causing the accident.  We find that the infringement notice should stand and Court costs of $30.67.

[6]      Regrettably however,  the  decision  is,  in  a  number  of  respects,  deficient. First,  it  is  unclear  what  standard  of  proof  was  applied.    Secondly,  given  the

conflicting  evidence  presented  by  both  parties,  the  Justices  could  only  have convicted Mr Lythgoe if they found against him as to credibility, and preferred the evidence of the other driver.   Unfortunately, the Justices did not say that they did that.  Indeed, the decision is silent as to which version of events was preferred.

[7]      I appreciate that Justices of the Peace should not be called on to give lengthy decisions.   The Court they preside over is a Traffic Court hearing a multitude of cases.  The extent to which reasons should be given, and how fully expressed they should be, will of course depend upon the nature of each individual case.

[8]      It is, however, essential for Justices of the Peace to make it clear that they have properly applied their minds to the legal issues before them, so that it is readily apparent that they have proceeded to their conclusion on a correct legal basis.  If they are required to make findings of fact, they need to state expressly which version of events they prefer and why.

[9]      In the present case, the absence of reasons for accepting the police evidence, and rejecting the defence evidence, leaves uncertain whether the Justices applied their minds properly to the issues which were before them.

[10]     Mr Hirschfeld appearing for Mr Lythgoe, and Mr Lucas appearing for the Crown, both accepted that in the circumstances, it is appropriate to set the conviction aside and to remit the matter to the Justices of the Peace so that the issue can be reconsidered.

[11]     By consent, I direct accordingly.

[12]     The Registrar is to set a hearing date for the matter before the Justices of the

Peace, in consultation with counsel.

Wylie J