M v Police HC Blenheim CRI 2009-406-5

[2010] NZHC 550

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI 2009-406-000005

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         27 April 2010

Counsel:         No appearance by Appellant

H J Boyd-Wilson for Respondent

Judgment:      27 April 2010

JUDGMENT OF WILD J

[1]      Although, by letter dated 21 December, Mr M   was advised of this morning’s hearing, he did not appear to argue his appeal.  The normal consequence is that the appeal is dismissed.  For the Police, Mr Boyd-Wilson indicated that he did not oppose my dealing with the appeal on its merits.   He accepted that there was probably not much Mr M   could have done to advance his case.   For the reasons I will explain, I intend dealing with the appeal on its merits.

[2]      The appeal is against a decision of Justices of the Peace sitting at Blenheim on 11 November 2009.   Following a defended hearing, the Justices found proved against the appellant a charge that he had occupied a seat in a vehicle fitted with a seatbelt but did not wear it.  That is an offence under s 40 Land Transport Act 1998

and rr 4 and 7.10 Road User Rules.

M V NEW ZEALAND POLICE HC BLE CRI 2009-406-000005  27 April 2010

[3]      The nub of Mr M  ’s appeal is that it was not open to the Justices, on the evidence they heard, to conclude that the Police had proved beyond reasonable doubt that he was not wearing his seatbelt.

[4]      On 26 April 2009 Mr M   was a front seat passenger in a car driven by his girlfriend Ms Emma Gane.   At the intersection of Stephenson and Redwood Streets in Blenheim, Senior Constable Barrow said he saw Mr M   in Ms Gane’s car and observed that he was not wearing a seatbelt, although Ms Gane was. I will revert to a divergence in the evidence about the direction of travel both of Constable Barrow’s patrol car and of Ms Gane’s car.

[5]      In his evidence-in-chief the Constable said he put on his flashing lights, followed and stopped Ms Gane’s vehicle.  By the time he spoke to Mr M   he had his seatbelt on and claimed he had had it on at the intersection.  The Constable said he had a 100% clear view through the front window of Ms Gane’s car as he passed it at the intersection and was 100% confident that Mr M   was not wearing a seatbelt.

[6]      Questioned by Mr M  , the Constable said he had Ms Gane’s car under observation for approximately four seconds.   When pressed by Mr M  , he accepted that it would only have been for a second and a half.  Notwithstanding that, the Constable reiterated that he definitely saw that Mr M   did not have his seatbelt on while Ms Gane did have her’s on.

[7]      Both Mr M   and Ms Gane gave evidence.   Mr M   was not directly challenged about his evidence that he was wearing a seatbelt.   The cross- examination was about other aspects, for example Constable Barrow’s ability to observe Mr M   sitting in Ms Gane’s car as he passed it.

[8]      Ms Gane also gave evidence.  She said she remembered Mr M   putting on his seatbelt, in particular because she had just had one of the seatbelts in the rear seat fixed after her car had failed its warrant of fitness check.  She also recalled other aspects of the incident.  For example she stated:

I was not sure what was going on so I got out of the car and followed Robbie (M  ) to find out what was happening where I was rudely told by the police officer to get back into my car, it was none of my business, which I did, I returned to the car.

[9]      Ms  Gane  was  cross-examined  about  her  evidence  that  she  remembered

Mr M   putting on his seatbelt.  For example, this exchange took place:

Q.This conversation about the broken seatbelt in the rear seat, when did that first take place?

A.        Just as we got in the car.

Q.        Just as you got in the car or was it back in the house when you decided to go out?

A.        No, it was as we got into the car because I remembered as I was putting my own seatbelt on to mention about the one in the back seat.

Q.        Yep.  So when did he put his seatbelt on?

A.        As I turned to him I looked in the back seat to have a look at the belt and as I turned around I saw him put on his own seatbelt.

Q.        So you remember as you’re putting your seatbelt on?

A.No, as I put my seatbelt on I turned around to show him the new seatbelt in the car and then as I turned back around facing him I saw him put on his seatbelt.

Q.So you’re looking in the backseat while he’s supposedly putting on his seatbelt?

A.No, he’s putting the seatbelt on as I was turning back around facing the car and I saw him put it on.

(Notes 17/1-15)

[10]     And the prosecuting sergeant’s cross-examination of Ms Gane ended with this:

Q.       Mm, so did he have it on when the Police Officer pulled up or not? A.       He sure did.

Q.        Mm, so when did he take it off?

A.        He had to take it off to get out of the car when the Police Officer came around to the other side of the door.

Q.        Is that another assumption?

A.       No, I absolutely saw it. Q. Mm?

A.        100% sure.

Q.I put it to you that you don’t know whether he was wearing the seatbelt that day, you’ve assumed he was?

A.        No, I knew he was, 100%.

Q.And he’s your boyfriend and you want to stand up for him in Court today, help him out?

A.No, I remember him clearly putting the seatbelt on, I would not be here wasting everybody’s time, my own dog wears a seatbelt in the car and I would definitely make sure my boyfriend did, that’s for sure.

Q.        Mm, but you can’t say for certain can you?

A.       I can, I remember 100%, he was absolutely wearing it. (Notes 20/27-21/10)

[11]     These are the relevant parts of the Justices’ decision:

[7]       This is a classic case of both parties being sure in their testimony. The question is whether the prosecution has met its obligation to prove beyond a reasonable doubt the essential element of the case.  The evidence of Mr M   and Ms Gane has thrown some doubt into the matter.  The question is, is it enough to negate reasonable doubt.

[8]       Senior Constable Barrow is an experienced officer who is skilled and trained in traffic observation.  It is highly unlikely that he would stop a vehicle without due cause.   In this case he believed from his observations

100 percent that no seatbelt was worn when Mr M   was observed at the intersection ...

[9]       While contradictory evidence is always difficult to balance, in this case we must give credence to the experience of Senior Constable Barrow and find the charge proved beyond reasonable doubt ...

[12]     I doubt that a grasp of the criminal standard of proof “beyond reasonable doubt” is much assisted by amplification.  However, in R v Wanhalla [2007] 2

NZLR 573 at [49] the Court of Appeal suggested a model jury direction.  This is part of it:

What then is a reasonable doubt?   A reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.

[13]     My concern about the Justices’ decision is that they do not explain their reasons for accepting the evidence of Senior Constable Barrow.   This necessarily involved their rejecting the evidence of both Mr M   and Ms Gane.  Certainly, the Justices say they “must give credence to the experience of Senior Constable Barrow and find the charge proved beyond reasonable doubt”.   But they do not explain their rejection of the evidence of Mr M   and Ms Gane.

[14]     As I have pointed out, Mr M   was not directly challenged on his evidence that he was wearing a seatbelt.  Ms Gane was certainly challenged, and I have set out the relevant cross-examination.   The end result was that Ms Gane’s evidence  was  unshaken,  and  she  was  able  to  explain  both  why  she  recalled Mr M   putting on his seatbelt, and also why and when she recalled him taking it off.  Thus, there is nothing in the evidence of either of these two witnesses to give any indication of why the Justices rejected their evidence.   If there was no sound reason(s) for its rejection, then I cannot accept that the Police proved their case beyond reasonable doubt.

[15]     On  the  other  hand,  Senior  Constable  Barrow’s  evidence  was  exposed  as being unreliable in at least one relevant aspect.   In his evidence-in-chief, the Constable was asked what he did after noticing Mr M   in Ms Gane’s car, not wearing a seatbelt.  This is the exchange that followed:

A.        Um, I waited until the vehicle had continued to cross the intersection and then I pulled in behind it and put on my red and blue lights and stopped the vehicle.

Q.       What street were you on when you stopped it? A.  Stephenson Street.

(Notes 3/25-28)

[16]     Questioned by Mr M  , the Constable said Ms Gane’s car “was going straight through Stephenson Street”.  This exchange occurred toward the end of the cross-examination:

Q.       What street was I on when you pulled us up? A.    Stephenson Street.

Q.       Are you sure? A. Yes.

Q.       100%? A. Yes. (Notes 7/5-10)

[17]     Defence Exhibit A was a hand drawn diagram showing Constable Barrow’s patrol car turning right off Redwood Street into Stephenson Street, and Ms Gane’s car stopped at the intersection, about to turn left into Redwood Street.   In her evidence, Ms Gane said that she had stopped at the giveway sign on Stephenson Street, waiting to turn left into Redwood Street.   Defence Exhibit A was a hand drawn  diagram  showing  this,  and  also  showing  Constable  Barrow’s  patrol  car turning right off Redwood Street into Stephenson Street.

[18]     Ms Gane said that Constable Barrow had stopped her car after she had turned into  Redwood  Street.    Not  only  was  she  not  challenged  about  that,  but  the prosecuting sergeant framed several questions in a way only consistent with his accepting her evidence.  The relevance of this is twofold.  First, it demonstrates that Constable Barrow’s evidence as to the direction of travel of Ms Gane’s vehicle was wrong.   His recollection was simply unreliable.   Secondly – and perhaps more cogently – it placed Mr M   on the far side of Ms Gane’s vehicle, in terms of Constable Barrow’s field of vision as he passed in his patrol car.

[19]     To summarise, I have two concerns about the Justices’ decision.  The first is that they did not give any reasons for rejecting the evidence of both Mr M   and Ms Gane, and the transcript does not suggest any reason why their evidence should have been rejected.  If anything, the contrary is the case.  Secondly, although the Justices gave “credence” to the evidence of Constable Barrow i.e. accepted it, the transcript demonstrates that the Constable’s evidence was unreliable in at least one important aspect.

[20]     The culmination of those two concerns is that I am not satisfied that the

Police proved this charge beyond reasonable doubt, indeed I consider they did not.

Accordingly, I quash the Justices’ finding that the charge was proved.  The result of course is that the fine and Court costs imposed by the Justices are set aside.

[21]     This judgment is not intended to be critical of the two Justices whose finding I have overturned.  In the expectation that they will read this judgment, may I stress the importance of Justices giving reasons for rejecting the evidence of a witness or witnesses.  I appreciate that it is sometimes uncomfortable to have to give reasons in the presence of that witness or witnesses, but it is a necessary task.  This point was made recently by Mallon J in Ching v Police HC New Plymouth CRI 2008-443-22

18 November 2009, so I am not alone in stressing this point.

Solicitors:

Crown Law Office, Wellington for Respondent