Mercer v Police - [2019] NZHC 1957

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-404-130

[2019] NZHC 1957

BETWEEN
ALEX MERCER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 23 July 2019

Appearances:

Appellant in person

F Gourlay for Respondent

Judgment:

13 August 2019

JUDGMENT OF BREWER J

This judgment was delivered by me on 13 August 2019 at 11:00 am Registrar/Deputy Registrar

Solicitors:
Kayes Fletcher Walker (Manukau) for Respondent

MERCER v POLICE [2019] NZHC 1957 [13 August 2019]

Introduction

[1] Mr Mercer, who represents himself, appeals a decision of Judge CS Blackie finding proved that he drove a vehicle on a road at a speed exceeding 100 km/h, which was the applicable speed limit.1 This is an infringement offence.

[2] Mr Mercer did not dispute in the hearing before Judge Blackie that he exceeded the speed limit of 100 km/h. His case was that he had no choice. Mr Mercer said in evidence that a car he was passing increased its speed towards the end of the passing area and he decided the only safe course of action was to exceed the speed limit so as to complete his overtaking manoeuvre safely.

The appeal

[3]Mr Mercer appealed on three grounds:

(1)The Judge erred in his assessment of the evidence.

(2)The Judge erred in delivering an immediate oral judgment.

(3)The prosecutor “used a few leading questions” during examination-in- chief.

[4] There is nothing in the second and third grounds of appeal. This was a simple case. The prosecution called the evidence of the police officer, Constable Carroll, who issued the infringement notice. Mr Mercer gave evidence himself. District Court Judges routinely give immediate oral judgments in simple cases where they are confident of the result.

[5] As to the asking of leading questions, Mr Mercer is correct in his assertion that there were some leading questions asked by the prosecuting police officer of Constable Carroll, and Mr Mercer is correct that s 89 of the Evidence Act 2006 prohibits the asking of leading questions in examination-in-chief or re-examination, subject to

1 Police v Mercer [2019] NZDC 4592. Judge Blackie dismissed an alleged infringement of failing to keep wholly to the left of a no-passing lane when passing a motor vehicle.

exceptions. However, the asking of leading questions in a first appeal context is significant only if it resulted in a miscarriage of justice. That is to say, the asking of leading questions created a real risk that the outcome of the trial was affected; or resulted in an unfair trial.2 There is nothing in the examples given to me by Mr Mercer, or elsewhere in the notes of evidence, that give me any concern in this regard.

[6] I return to Mr Mercer’s first ground of appeal, namely that the Judge erred in his assessment of the evidence.

[7] Mr Mercer’s argument is to the effect that the Judge should have accepted his evidence about his reason for exceeding the speed limit and discharged him accordingly. Mr…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Mercer v Police

Details

AGLC: Mercer v Police [2019] NZHC 1957
Case: [2019] NZHC 1957
Decision Date: 13 August 2019

CaseChat Overview and Summary

In Mercer v Police, the appellant, Mr Mercer, appeals against a decision of Judge Blackie finding him guilty of driving a vehicle on a road at a speed exceeding 100 km/h, which was the applicable speed limit. Mr Mercer does not dispute that he exceeded the speed limit but argues that he had no choice as he was forced to do so in order to safely complete an overtaking manoeuvre. The appeal is based on three grounds, namely, that the Judge erred in his assessment of the evidence, that the Judge erred in delivering an immediate oral judgment, and that the prosecutor used a few leading questions during examination-in-chief. The court found that there was nothing in the second and third grounds of appeal as this was a simple case and leading questions asked during examination-in-chief did not result in a miscarriage of justice. The court returned to the first ground of appeal, that the Judge erred in his assessment of the evidence. The court found that the Judge did not address Mr Mercer's argument and gave no reasons for rejecting it. There is at law a legal exception to the prohibition on exceeding a speed limit which might have applied to Mr Mercer. The court concluded that the appeal should be allowed and the infringement notice dismissed. The reasoning of the court was based on the evidence provided by Mr Mercer and the relevant legal provisions, including the general exception to the prohibition on exceeding a speed limit. The court found that the Judge did not give reasons as to why Mr Mercer's explanation did not amount to a defence to the infringement notice, which led to a miscarriage of justice. The decision of the court is significant as it highlights the importance of providing reasons for decisions in criminal cases, particularly in cases where the accused puts forward a defence based on a legal exception to the prohibition on exceeding a speed limit. The court's analysis of the evidence and the relevant legal provisions provides guidance for future cases involving similar issues. The final orders of the court were that the appeal is allowed and the infringement notice is dismissed.

Orders