Matthews v Police

[2012] NZHC 2329

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-226 [2012] NZHC 2329

BETWEEN  ROWAN ASVIN MATTHEWS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         3 September 2012

Counsel:         A Haskett for Appellant

K Wendt for Respondent

Judgment:      14 September 2012

JUDGMENT OF KATZ J

In accordance with r 11.5 High Court Rules

I direct the Registrar to endorse this judgment with a delivery time of 3 p.m. on 14 September 2012.

Solicitors:           Crown Solicitor, Auckland –  [email protected]

Legal Defence Service Limited, Auckland –  [email protected]

MATTHEWS V NEW ZEALAND POLICE HC AK CRI-2012-404-226 [14 September 2012]

Introduction

[1]      The appellant, Mr Matthews, appeals against his conviction in the Manukau

District Court on a charge of reckless driving (s 35(1)(a) of the Land Transport Act

1998).

Background

[2]      On the evening of 13 August 2011, Mr Matthews was travelling in his car with his girlfriend, Ms Chely Gacitua.  Mr Matthews’ car was a light grey Hyundai. Travelling with them in another vehicle were Ms Gacitua’s brother, Mr Felipe Gacitua, and his girlfriend, Ms Fay Roberts.  They were travelling in Mr Gacitua’s red Toyota.

[3]      All four had left the home of Ms Gacitua’s sister in Botany Downs and were travelling to Mr Gacitua and Ms Roberts’ house in Polo Prince Drive, Manurewa. They travelled by what was referred to as the back way, going through East Tamaki/Flat Bush.

[4]      The  evidence  at  trial  focussed  on  events  which  occurred  between  the intersection of Mill Road and Redoubt Road and the intersection of Mill Road and Ranfurly Road.  Between those two points it was alleged that the cars in which the two parties were travelling overtook other cars in a manner that was unsafe.  The occupants  of the cars  which  were overtaken  were Ms  Sheetal  Maharaj  and  her husband and also Mr Lee Wong and his sister Ms Melissa Wong.

[5]      After the overtaking events which are at issue in this appeal, there was a head on collision between Mr Gacitua’s vehicle and another at the corner of Mill Road and Ranfurly Road.  Ms Roberts was killed in that crash.

[6]      Mr Matthews was not charged in relation to the fatal crash.  However during the course of the investigation into that crash he voluntarily went to the Manukau police station and provided a witness statement to Constable Petrie.  The police later

sought to use that witness statement against Mr Matthews in relation to the charge of reckless driving against him.   The District Court Judge ruled the statement to be admissible.

[7]      Ms Maharaj, the Wong siblings, Ms Gacitua and Constable Petrie all gave evidence at Mr Matthews trial, as well as Mr Matthews himself.  Mr Matthews was convicted of reckless driving, fined $750, ordered to pay Court costs and disqualified from driving for six months.   Mr Matthews appeals to this Court against his conviction.

Issues

[8]      The key issues that arise on appeal are:

(a)      Should the Judge have excluded the witness statement provided by Mr Matthews on the basis that it was improperly obtained under s30 of the Evidence Act?  In particular:

(i)Was his statement improperly obtained in terms of s 30(2) of the Evidence Act either because it was obtained in breach of the  Privacy Act  1993  or  because  it  was  obtained  unfairly (because Mr Matthews understood he was giving a statement solely as a witness and did not realise the potential jeopardy he faced)?

(ii)If his statement was improperly obtained, should it have been excluded (i.e. would its exclusion be proportionate to any impropriety involved in the taking of the statement)?

(b)If Mr Matthews’ witness statement were excluded, would there have been sufficient evidence before the District Court to convict Mr Matthews of reckless driving, beyond reasonable doubt?

[9]      The  approach  to  be  adopted  in  general  appeals,  following  the  Supreme Court’s decision in Austin Nicholls v Stichting Lodestar1  allows this Court to depart from the findings of fact below.  However, it will usually be upon the appellant to show some good reason why the Court should take such a course.2    Findings of fact and assessments of credibility in the trial court command some respect but this Court should make its own independent assessment as well.3

Should Mr Matthews’ witness statement have been excluded?

The circumstances in which the statement was made

[10]     Mr Matthews and Constable Petrie both gave evidence about the events of the interview at an admissibility hearing before Judge Winter on 2 May 2012.

[11]     Constable Petrie told the Court that on 18 August 2011 Mr Matthews had, with no prearrangement, turned up at the police station to provide a statement.  At that time there was no specific investigation in relation to his driving.  Instead, the investigation was into the fatal crash and interviewing witnesses in relation to that.

[12]     The constable took Mr Matthews to an interview room and asked him various questions.   He recorded his statement on a witness interview document.   The constable’s evidence was that he became concerned after the interview had commenced that Mr Matthews was providing an account that differed from those other witnesses, and that Mr Matthews might say something to incriminate himself. He therefore cautioned him in the following terms:

I am going to ask you a couple of questions in relation to this crash. This is because some of the things you have told me are not the same as the other witnesses’ accounts of the crash and the events leading up to it.  Before I do this I am going to give you a caution.

1      Austin Nicholls v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.

2 At [13].

3      O’Neill v Police HC Auckland CRI-2007-404-405, 9 October 2008 at [3]-[5]; and Barry v Police

HC Whangarei CRI-2007-488-29, 3 April 2008 at [25]-[26].

You have the right to remain silent.

You do not have to make any statements.

Anything  you  say  will  be  written  down,  and  may  be  given  as evidence.

You have the right to consult with and instruct a lawyer, without delay, and in private.

Police have a list of lawyers you may speak to for free.   Do you understand these rights?

[13]     Mr Matthews responded “Yes I do”.

[14]     After cautioning Mr Matthews, Constable Petrie asked him about accounts given by other witnesses, which suggested that Mr Matthews’ car had been engaged in “racing” and was driving at high speed.

Section 30 of the Evidence Act

[15]     Section 30(2) of the Evidence Act sets out a two stage test in relation to an application that evidence allegedly improperly obtained ought to be excluded.   It provides:

30       Improperly obtained evidence—

…

(2)      The Judge must—

(a)       find,  on  the  balance  of  probabilities,  whether  or  not  the evidence was improperly obtained; and

(b)       if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.

[16]     For the purposes of the s 30(2) balancing exercise, the Court may have regard to the factors in s 30(3).   If a Judge concludes that the evidence was improperly obtained, under s 30(4) it must be excluded if its exclusion is proportionate to the impropriety.

(a)      in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies (in this case, the police) (s 30(5)(a)); or

(b)      unfairly (s 30(5)(c)).

[18]     Mr Matthews’ counsel relied on both these limbs in his written submissions, but his primary argument was that the evidence was obtained unfairly.  I therefore address that issue first.

The Practice Note on Police Questioning

[19]     In deciding whether a statement has been obtained unfairly by police the Court must take into account the guidelines set out in relevant Practice Notes issued by the Chief Justice (Evidence Act: s (30)(6)) as well as any other matters which may be relevant in a particular case.

[20]     The Chief Justice’s Practice Note on Police Questioning,4 provides that:

(1)       A member of the police investigating an offence may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory for the person questioned to answer.

(2)     Whenever a member of the police has sufficient evidence to charge a person with an offence, or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:

(a)       that the person has the right to refrain from making any statement and to remain silent;

(b)       that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme;

4 [2007] 3 NZLR 297.

(c)      that anything said by the person will be recorded and may be given in evidence.

[21]     The caution given to Mr Matthews (as set out in [11] above) complied with the express requirements of the Practice Note.  However the appellant argues that the caution was nevertheless deficient because it did not make it clear that Mr Matthews was in jeopardy himself and that anything he said could be given in evidence against him.  The Practice Note, the appellant argued (and I accept), provides guidance as to what is unfair, but is not necessarily exhaustive.

Was a caution required?

[22]     A preliminary issue is whether a caution was required to be given at all.  If the police had sufficient evidence to charge Mr Matthews with an offence, a caution was required in terms of the Practice Note.

[23]     The respondent argued that, at the time the caution was given, the police did not have sufficient evidence to charge Mr Matthews.  It was not until the conclusion of the interview (and after certain admissions by Mr Matthews) that police had the necessary evidence.  This was supported by Constable Petrie’s evidence during the voir dire.   It is said that Constable Petrie acted prudently and erred on the side of caution in giving the warning, but he was not legally required to do so at that time.

[24]     In his admissibility ruling the Judge accepted the respondent’s argument on this issue.   His Honour held that there was not sufficient evidence to charge Mr Matthews with an offence “to the point of caution” until the end of the interview, based on Constable Petrie’s evidence.

[25]   Prior to the interview Constable Petrie had, however, already received statements  from  Mr  Wong,  Mrs  Wong  and  Mr  Gacitua.     He  therefore  had considerable information about two cars allegedly being driven at speed, racing and undertaking a passing manoeuvre which had angered and alarmed the Wongs.   Mr Gacitua apparently identified Mr Matthews as the driver of the second car.  Under cross-examination Constable Petrie effectively conceded that he probably had sufficient information to charge Mr Matthews with at least a minor traffic offence at

the time he gave the caution, but denied that he had a sufficient basis to charge him with a more serious offence.

[26]     The police were caught “off guard” to some extent when Mr Matthews came into the station because they were not intending to interview him that day. Constable Petrie was expecting another witness and had not prepared for the interview with Mr Matthews.   However, as soon as Constable Petrie realised the possibility that Mr Matthews might incriminate himself, he took the prudent approach and cautioned him.

[27]     In my view the issue of whether he was required to do so (because the police, objectively,  had  sufficient  evidence to  charge  Mr Matthews)  is  finely balanced. Given that the issue is finely balanced however, I will err in favour of the appellant. Accordingly I find that Constable Petrie was required to give a caution when he did and it was not therefore a strictly “voluntary” caution.

Was the caution given to Mr Matthews appropriate in the circumstances?

[28]     Mr Matthews was being interviewed as a witness, not as a suspect.  In that context, he argues, the standard caution was insufficient.  Rather, it should have been made clear when the caution was given that Mr Matthews was himself in jeopardy and that any statement he gave could be used in evidence against Mr Matthews himself, not just Mr Gacitua.

[29]     The appellant submitted that fairness required the appellant to be specifically advised of the jeopardy he faced and that where the jeopardy is not understood any waiver of the rights to silence and a lawyer will not be effective.

[30]     In support of this proposition the appellant relied on cases such as  R v Paku,5

R v Warhaft6  and R v Barreiro-Teixeira7  and also by analogy to cases such as R v

Mallinson,8 where the Court of Appeal held:

5      R v Paku HC Hamilton CRI-2005-019-6408, 30 May 2006 at [28]-[33].

6      R v Warhaft HC Auckland CRI-2006-057-1581, 7 June 2007 at [36]-[39].

7      R v Barreiro-Teixeira HC Auckland CRI-2005-092-4272, 4 April 2006 at [36]-[41].

The  purpose  is  to  provide  a  fair  opportunity  for  the  person  arrested  to consider and decide whether or not to exercise that right.

[31]     Counsel also referred to R v Simanu9   a case where the District Court had excluded  a  statement  provided  by  Mr  Simanu  on  the  basis  he  did  not  have  a sufficient grasp of the jeopardy he was in when interviewed by the police.   That decision was upheld on appeal to the Court of Appeal.   In part due to language difficulties  (as  well  as  possibly  general  naivety)  Mr  Simanu  was  found  to  be labouring under a misapprehension that he was at the police station to discuss the events of the night in question “and to receive advice as to what he could and could not do in sexual matters” (at [37]).  The reality, however, was that Mr Simanu was in very serious jeopardy – he was accused of unlawful sexual connection, punishable by 20 years imprisonment.

[32]     In considering the appropriate test the Court referred to two previous Court of

Appeal decisions:

[32]      The test of whether Mr Simanu had a sufficient grasp of the jeopardy he was in when interviewed by the constable is set out in two decisions of this Court. The first is R v Robinson.10

… an accused must be possessed of sufficient information to enable him or her to make an informed decision as to whether to speak to a lawyer.  It follows that a suspect must know the real substance of the likely allegations against him or her at the point of interview.  Ms Phipps conceded that the appellant did not have to know the precise charge in this case, although that is not to say that there may not be cases in which the precise character of a charge would have to be made known to the interviewee. …

[33]      The second is R v Z:11

… the absence of perfection in the police approach is not the test. The question is whether, in all the circumstances, the Crown has established that even although Z was not told of the precise potential charge, he knew enough to make an informed decision.   The assessment is not of what the police said, but of what the suspect knew.

8      R v Mallinson [1993] 1 NZLR 528, 530 (CA). See also R v Leone HC Auckland CRI-2007-004-

018646 at [96].

9      R v Simanu [2011] NZCA 326.

10     R v Robinson CA16/97, 12 May 1997 at 5.

11     R v Z [2007] NZCA 401 at [35].

[33]     In light of these authorities the Court was not persuaded that the District Court Judge was wrong to find that Mr Simanu had no real appreciation of the jeopardy he was in.

[34]     In many cases it will be readily apparent from the context of the interview and the surrounding circumstances that an interviewee was aware of the potential jeopardy.  Indeed the giving of the caution itself will usually alert an interviewee to the fact that they are in potential jeopardy.  However in some situations the standard caution may require further elaboration or explanation to ensure that the significance of it is understood.   Obvious examples are where young, vulnerable or mentally challenged interviewees are involved, or where language or cultural barriers may prevent a person from fully appreciating the jeopardy they face.

[35]     Ultimately the issue will turn on the facts of each particular case.  In this case it is alleged that Mr Matthews did not understand the jeopardy he faced because he believed he was a witness (only), not a suspect.  His waiver is therefore said to be ineffective and his witness statement unfairly obtained.  This requires consideration of both the circumstances of the interview and, to some extent, Mr Matthews’ own attributes.

[36]     In his admissibility ruling, Judge Winter observed that:

[16]     I found Mr Matthews to be clearly literate and articulate.   He demonstrated this during the course of the voir dire hearing by reading and then answering questions from the statement that were quite complicated. He answered questions that were complicated from his own counsel.  He was able to pause and seek explanation for questions he was not sure about, and clarification  when  necessary.     He  was  clearly  able  to  give  articulate responses under cross-examination.

[17]      I am satisfied that he was aware that his interview was about the crash and the background to it.  I am satisfied and find it is clear that during the course of the interview he was well able to stand up for himself.  I further find as a fact at the conclusion of the interview this was read to him:

Everything in this statement is true to the best of my knowledge and belief.  I make this statement knowing that it might be admitted as evidence for the purpose of a standard committal or at a committal hearing, and that I could be prosecuted for perjury if this statement is known by me to be false or intended by me to mislead.

[18]     That declaration was made by him, I find, after he read through the document and was given an opportunity to correct any errors.  Having had that declaration brought to his attention or reading it he was then quite happy to sign the document at the foot of each page.

[37]     Immediately after  giving the  caution,  Constable Petrie  started  asking  Mr Matthews very direct questions about his own driving, as well as that of Mr Gacitua. He put to him statements made by witnesses to the events leading up to the crash. Mr  Matthews  acknowledged  that  he  understood,  following  the  caution,  that Constable Petrie was putting it to him that witnesses were saying he had been travelling at high speed and racing Mr Gacitua prior to the fatal crash.

[38]     Mr Matthews was aware that at any stage he could choose to stop answering questions, but he chose not to do so.  Mr Matthews voluntarily attended the police station  and  appears  to  have  had  a  genuine  wish  to  assist  the  police  with  their inquiries into a fatal crash in which a friend of his (his girlfriend’s brother) had been the driver.  His reasons for volunteering a statement are not entirely clear, although from the general tenor and content of his statement it appears that he may have hoped to persuade the police that neither he nor Mr Gacitua had done anything wrong in the lead up to the crash and, further, that his own behaviour had not contributed in any way to the crash.

[39]     Mr Matthews should have appreciated however, that he personally may be in jeopardy as a result of his behaviour on the night of the crash and in my view it is a reasonable inference that he did. As the Court of Appeal observed in Fan v R:12

[37]     It is often the case that a statement made by a detainee in a Police Station is shown to be in hindsight a mistake.  A confession may be made in the wrong belief that it will be exculpatory, when it in fact inculpates.   A confession  may be  made  because the detainee is under the self-induced misconception that if everything is confessed the Police will not lay charges, or will take a benevolent approach.  It may be made because the detainee is anxious to get home, or is bored.  It may be made because a close relative, say a parent, has urged the detainee to make the statement and the detainee does not wish to go against that advice.

[38]      In all such cases from the objective perception of the accused’s best interests in avoiding ultimate conviction, the making of the statement may be seen as a real mistake.  But the fact that there has been some factor which

12     Fan v R [2012] 3 NZLR 29.

has induced a tactically erroneous decision should not be seen alone as warranting a decision that the confession is inadmissible.   Indeed, it is difficult to discern any policy reason for such an approach.

[39]      It is necessary to bear in mind that the purpose of the right to silence is  to  limit  the  coercive  power  of  the  state  to  force  an  individual  to incriminate himself or herself.   It is not to prevent individuals from incriminating themselves per se.  To the contrary, it is in the interests of the effective administration of justice that a guilty person confesses.  The most important function of the Police advice upon detention is to ensure that the detainee understands his or her rights, the most important of which is the right to silence.  It is not to protect a detainee from making an incriminatory statement.

[40]     In all the circumstances of this case it is a reasonable inference that Mr Matthews understood the general nature of the jeopardy he faced, but chose to co- operate with the police in any event.   He may well have believed his statements would be exculpatory and presumably did not intend to make any admission.  Indeed he  expressly denied  “racing”  with  Mr  Gacitua  throughout  the  interview,  before ultimately conceding (albeit in somewhat guarded terms) that he may have.

[41]     Mr Matthews must have been aware (particularly once the caution was given) that in speaking to the police about the events leading up to the crash that his own driving behaviour that night would be an area of focus.  This could obviously place him in potential jeopardy.

[42]     This  is  not  a  case  of  a  vulnerable,  confused  or  mentally  challenged interviewee who simply did not understand the situation they were in.  Judge Winter assessed Mr Matthews as literate, articulate, able to answer complicated questions and to stand up for himself.  The caution he was given clearly advised him of his rights to remain silent and to consult with a lawyer (without delay, in private and for free).  He was informed that anything he said would be written down and could be given as evidence.  He did not seek any clarification of the caution.

[43]     Viewed in its totality, and in the context in which it was given, I find that the wording of the caution was fair and that Mr Matthews’ waiver was effective.   Mr Matthews was given the opportunity to see a solicitor but declined to exercise that opportunity.   He was aware that he did not have to answer police questions, but chose to do so.  He exercised his opportunity to elaborate and clarify the comments

made in his statement at some length.  From the overall context of the interview (and taking into account Mr Matthews’ personal attributes) I am of the view that it is a reasonable inference that he appreciated the potential jeopardy he was in.

[44]     In conclusion I find that Mr Matthews’ witness statement was not obtained

“unfairly” in terms of s 30(5)(c) of the Act.

Was Mr Matthews witness statement obtained “in consequence of a breach of any enactment or rule of law?”

[45]   An alternative argument mentioned briefly in the appellant’s written submissions, was that the witness statement was obtained in breach of the Privacy Act 1993, Information Privacy Principle 3 (IPP3).   IPP3 provides that where an agency collects personal information directly from an individual, it must take reasonable steps to ensure that the person is aware of the purpose for which the information is being collected.

[46]     The argument was mentioned only briefly in written submissions and was not developed orally.  I understand the essence of it to be that if information was being collected for the purposes of prosecuting Mr Matthews, then the police should have taken “reasonable steps” to inform Mr Matthews of this.  Not doing so was a breach of an enactment or rule of law in terms of s 30(5)(a).

[47]     Section 11(2) of the Privacy Act 1993 provides, however, that the information privacy principles do not confer on any person any legal right that is enforceable in a court of law.

[48]      In  any event,  this  alternative limb  of the appellant’s  argument  does  not appear to advance matters further than the appellant’s primary submission, which is also underpinned by an assertion that Mr Matthews’ statement was obtained “unfairly” because Mr Matthews was not expressly informed that his witness statement could be used for the purposes of evidence against him.

[49]     Given my view that, construed as a whole, the evidence supports the view that Mr Matthews was (or should have been) aware that his witness statement could be used in evidence against him, this ground of appeal must also fail.

If the evidence was improperly obtained, is its exclusion proportionate to the impropriety?

[50]     Given that I have found Mr Matthews’ witness statement was not obtained either unfairly or in breach of an enactment or rule of law, it would be somewhat artificial   to   consider   whether   its   exclusion   would   be   proportionate   to   any impropriety.  I note that in Hamed v R13 the Supreme Court expressed some doubts as to the appropriateness of addressing the proportionality issue in such circumstances. Accordingly, given that I have found there was no impropriety, I do not consider whether the exclusion of the witness statement would be proportionate to any impropriety.

Alternative argument – unfair to use the witness statement

[51]     The appellant (briefly) raised an alternative argument, which was that the witness  statement  should be  excluded pursuant  to  the  common  law  (relying on Fan v R) on the basis that its use would be unfair.   It was said that the witness statement did not accurately and fully record the content of his interview, partly because it was prepared in the format of a witness statement and was not a verbatim transcript.

[52]     Constable Petrie was cross-examined on this issue and readily acknowledged that the statement was not a verbatim transcript.  However, it did not appear to be seriously contended in argument that the statement was inaccurate or unreliable on the critical issues, such as Mr Matthews’ acknowledgment that he may have been

involved in “racing” prior to the crash.

13     Hamed v R [2011] NZSC 27, [2011] 3 NZLR 725 at [15].

[53]     I also note that Mr Matthews was given the opportunity to read through the document, correct any errors and make any amendments or additions he wished. The  declaration  was  drawn  to  his  attention  (including  that  everything  in  the statement was true) following which he signed the document at the foot of each page.

[54]     In such circumstances the fact that the statement is not a verbatim transcript

does not render its subsequent use “unfair”.

Was the evidence sufficient to convict Mr Matthews?

[55]     The appellant submitted on appeal that the evidence before the Court was insufficient to convict Mr Matthews.  Counsel advised that the appellant’s position was  that  the  evidence  was  insufficient  regardless  of  whether  Mr  Matthews’s statement was admitted.   However argument focussed primarily (indeed almost exclusively)  on  whether  the  evidence  would  still  be  sufficient  if  his  witness statement was excluded.   I therefore focus on this issue below.   It goes without saying, however, that if the evidence is sufficient to prove the charge even without Mr Matthews’ statement, the position will be strengthened further by the admission of his statement (which contains several admissions).

[56]     At  [LT7.03]  the  learned  authors  of  Brookers  Law  of  Transportation

summarise the essential elements of reckless driving as follows:

Thus there are three elements involved in proving reckless driving:

(a)       The driver fell below the standard of care expected of a reasonable and competent driver.

(b)      The resulting situation was objectively dangerous.

(c)       The drive was aware of the potential danger and continued to act despite knowledge of the possible consequences.

[57]     Counsel for Mr Matthews focussed on elements (b) and (c), and submitted that the police did not prove either of those two elements beyond reasonable doubt.

Element (b), objectively dangerous driving, is more fully described in Broderick v

Police in the following terms:14

In essence those authorities establish that there must be more than a possible risk to persons who might reasonably be expected to be on the highway, there must be a reasonable likelihood of danger to such persons and it must be  reasonably  foreseeable  that  danger  may  result  from  the  defendant’s driving.

[58]     The Judge found the charge of reckless driving to be proved.   His reasons included the following:

(a)      The background to the events on Mill Road suggested that the group was running late to watch a boxing match and that the appellant and Mr Gacitua were in the habit of engaging in behaviour akin to racing and that Mr Matthews had been trying to keep up with Mr Gacitua who was in the lead;15

(b)The evidence of Ms Gacitua suggested that Mr Matthews was driving at speed and overtaking dangerously and that she asked him to drive more carefully;16

(c)      Despite the appellant’s denial of overtaking the Maharaj vehicle and despite some imperfections in Ms Maharaj’s evidence the Judge was satisfied that the appellant had overtaken her and that he had done so in a dangerous way;17

(d)      Even  if  Ms  Maharaj’s  evidence  were  to  be  rejected  the  evidence

relating to overtaking the Wong vehicle was sufficient proof of the charge;18 and

14     Broderick v Police HC Whangarei CRI-2008-488-20, 10 July 2008.

15     Police v Matthews DC Auckland CRI-2011-092-015568, 18 June 2012 at [2], [10]-

[13] & [19].

16     At [12]-[13].

17     At [13]-[15].

18 At [16].

(e)      The  combined  effect  of  Mr  Matthews’  own  admissions  and  the evidence given by the Wong siblings showed the overtaking was dangerous.19

[59]     Judge Winter found that Mr Matthews had overtaken Ms Maharaj, and that this pointed strongly to a “manoeuvre endangering road users”; “two vehicles would not fit side by side in the lane without the outer vehicle encroaching across the no overtaking line”.  The overtaking of Mr Wong occurred in similar circumstances and was “in and of itself dangerous to other legitimate users of the road”.

[60]     Counsel for Mr Matthews submitted that:

(a)      None of the witnesses (Ms Maharaj, Mr Wong or Mrs Wong) were able  to  adequately identify Mr  Matthews’ vehicle  as  the  one  that overtook them.  (The Wongs referred to a “green” Hyundai rather than a light grey Hyundai, Ms Maharaj referred to a “dark” car).

(b)      Ms Chely Gacitua did not, in her evidence, say anything that would

suggest the appellant’s car overtook either of the vehicles.

(c)      Mr Matthews’ own statement did not identify him as overtaking the Maharaj vehicle and the only evidence specifically identifying him as overtaking the Wong vehicle was in his witness statement that should have been excluded.

[61]     I have reviewed his Honour’s notes of evidence as well as his judgment. As a whole, the evidence discloses a pattern of driving behaviour by Mr Matthews on the night  in  question  that suggests  unsafe driving.   The evidence of Mr Matthews’ girlfriend, Ms Gacitua, can be linked in time and place to the observations of the other witnesses, even if some of those witnesses (Ms Maharaj in particular) show

some doubts as to the identification of  Mr Matthews vehicle.

19     At [17]-[18].

[62]   Although there were some inconsistencies in the evidence of witnesses (including in particular that of Ms Maharaj) the notes of evidence indicate there was a clear basis from which he could conclude that the charge of reckless driving was proved.

[63]     Mr Wong’s evidence appears to be particularly strong.  He described being overtaken by two vehicles after the intersection, one a red Toyota and the other a green Hyundai (Mr Matthews’ car was a light grey Hyundai) on the median strip at the top of Mill Road.  The cars were no more than five metres apart, “nose to tail” and “right up the butt”; it was “pretty darn close”.  They passed “pretty close” to the side of his car which he described as “pretty shocking”.   He estimated that the vehicles were travelling at between 100-110 kph, in an 80 kph zone.   They were following each other closely, “pretty much nose to tail”.  His reaction to the driving of the two cars is consistent with a view that what occurred was not just a normal (and safe) passing manoeuvre.  He refers to being “quite angry” and that he and his passengers were all “quite shocked” and “pretty angry” about what had occurred.

[64]     Mr Wong’s sister, Ms Wong, who was in the back seat of the car driven by Mr Wong, told the Court a red car had overtaken them, followed by a green car. They were “more or less egging each other on or just trying to keep up with – the green car trying to keep up with the red car, that’s what was, what stood out for me”. She subsequently saw both cars at the crash scene.

[65]     The witnesses were plainly surprised at the nature of the driving, given the conditions.   Ms Maharaj described the road  as  “windy”,  “not a lot of room to overtake”, “treacherous”.  Mr Wong said that he had never seen anyone overtake on that particular strip, and that it was not a safe corner to overtake.

[66]     The  appellant  placed  considerable  emphasis  on  the  fact  that  the  Wongs identified a green Hyundai rather than a light grey Hyundai.   It is clear from the evidence as a whole however that the Hyundai referred to as following Mr Gacitula’s Toyota was indeed Mr Matthews’ Hyundai (which was also later seen at the accident site).

[67]     Ms Maharaj gave evidence that the Redoubt Road/Mill Road intersection was tight and that at least two cars including a pinky coloured one and a dark coloured hatchback had overtaken her in an area where there were no passing lines on the road.   They came “out of nowhere” and were driving “extremely fast” and quite “recklessly”.  They then overtook a further two cars in front of Ms Maharaj.  She told the Court that they were both overtaking and racing each other, and were close together.  Although the speed limit was 80 she said it was “quite a treacherous road” and “you can’t really drive at the limit”.  Ms Maharaj’s evidence must however be given less weight than that of the Wong siblings, given that she is clearly confused at times (at one stage confirming an earlier statement that she was overtaken by up to four cars).

[68]     Mr  Matthews’ girlfriend,  Ms  Gacitua,  referred  to  Mr  Matthews  and  Mr Gacitua “teasing each other” and “revving at the lights”.  She also explained that her brother had first passed a truck/4 wheel drive and Mr Matthews had then passed it (this was prior to the intersection).  They had “sped to overtake the truck”.  After they had passed the truck, she told Mr Matthews that it was unnecessary “because, I don’t know, I just felt it was, and ‘cos Felipe had passed it and then we passed it, I mean, so we could stay close to Felipe obviously”.  Ms Gacitua asked Mr Matthews to slow down, because there was a corner coming.   Her evidence was that Mr Matthews did slow down and they then kept a distance from her brother’s car, which subsequently crashed.

[69]     Inevitably  there  are  some  inconsistencies  in  the  evidence  (including  in relation to the colour of Mr Matthews’ vehicle).  This is not surprising given that the passing manoeuvres occurred late at night, at speed and would have been completed within a matter of seconds.  Nevertheless there was clearly sufficient evidence, even without  Mr  Matthews’  statement  (which  I  have  not  referred  to  in  the  above summary) to found a conviction.

[70]     Accordingly I find that the Judge did not err when he found the charge of reckless  driving  to  be  proved  beyond  reasonable  doubt.    There  was  sufficient evidence before him to support such a finding.

Conclusion

[71]     For the reasons outlined above the appeal against conviction is dismissed.

Katz J