M v Police HC Dunedin CRI 2007-412-51

[2007] NZHC 898

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2007-412-51

M

Appellant

v

NZ POLICE

Respondent

Hearing:         12 September 2007

Appearances: Mr Lovely for Appellant

Mr R Bates for Respondent

Judgment:      12 September 2007

DECISION OF THE HON JUSTICE J HANSEN

[1]      The  appellant  was  convicted  by  the  Justices  of  passing  another  vehicle moving in the same direction without a clear view of the road for at least 100 metres throughout the entire manoeuvre in contravention of s2(6)(1) of the Road User Rule

2004.  He was fined $150.00 plus Court costs of $130.00.

[2]      Three grounds of appeal have been advanced but it is quite clear that the third one of those is inapplicable as that deals with lanes in the same direction.

[3]      The first ground is the matter of identification.   Counsel appearing for the appellant has referred to the well-known rules relating to the caution that needs to be

M V NZ POLICE HC DUN CRI 2007-412-51  12 September 2007

taken in approaching identification evidence.   Those rules are now recreated, of course, in the Evidence Act.   I accept there is no specific mention in the Justices’ decision of the caution required in approaching identification evidence.   Errors are pointed to to say that the identification is not reliable and could not lead to the finding that it was the appellant who drove the vehicle in the manner alleged.  Firstly there is the evidence of Ms Griffiths who said there were stickers on the back of the defendant’s vehicle,  yet  photographs show there  were none.    Secondly,  there  is reference to a middle-aged man with grey hair, the defendant having brown hair. There are also problems around the timing and what actual vehicle was passed in front of the witnesses.

[4]      However, as the Crown points out, the problem is that in his own evidence the appellant acknowledges passing a 4-wheel-drive vehicle immediately prior to this corner.  While the times are not precise, one would not expect them to be.  There was certainly sufficient evidence that would allow the Justices to infer that the vehicle that carried out the passing manoeuvre was the appellant’s vehicle, and it  is not suggested someone else was driving it.

[5]      It may bear repeating that finders of fact in Court are not obliged to accept all or any of the evidence before them.  They have the right to selectively choose such parts of that evidence as they see fit on the information before them.  For the benefit of the  Justices  in  the  future,  however,  I  would  say  that  they  should  deal  with identification evidence somewhat more fully than they have done in this case.  There are certainly the flaws relating to identification that Mr Lovely has referred to, but on his own evidence he passed a 4-wheel-drive vehicle just prior to this corner.  In my view,  the  Justices  were  entitled  to  draw  the  inference  that  they  did  as  to identification.

[6]      The next point is that the appellant maintains that in fact it had not been proved there were less than 100 metres of visibility to the corner in question.  This is because none of the witnesses had specifically measured the distance.  Mr M   himself had driven over it and gave evidence that in his view it was 150 metres, with a further 50 metres of visibility at the back end of the corner.   Again it is for the Justices to assess the witnesses.  It would be unusual in a case like this that precise

measurements were carried out.  The officer is experienced.  She gave evidence of the distance from the sign stating “there was 400 metres to a passing area to the corner”.  The Justices were entitled to reject the appellant’s evidence.  If they did so, of course, they then have to go back to the evidence of the prosecution to satisfy themselves that the distance was 100 metres.  They state in their decision that they have accepted the evidence of the prosecution witnesses.  They have clearly rejected that of the respondent.  As finders of fact they were entitled to do that.

[7]      It follows that the appeal must be dismissed and it is.

J Hansen

High Court Judge