N v Police HC Hamilton CRI 2009-419-38

[2009] NZHC 1311

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2009-419-38

N

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         22 September 2009

Appearances: L Wilkens for the Appellant

S Cameron for the Respondent

Judgment:      22 September 2009

ORAL JUDGMENT OF WOODHOUSE J

Solicitors:

Mr L Wilkins, Barrister, Hamilton

Ms S Cameron, Almao Douch, Office of the Crown Solicitor, Hamilton

N V NEW ZEALAND POLICE HC HAM CRI 2009-419-38 22 September 2009

[1]      Mr N   appeals against his conviction on a charge of careless use of a motor vehicle.

[2]      A brief summary of facts follows.  This summary acknowledges the dispute between Mr N   and the prosecution as to what occurred.

[3]      The charge arose following a crash between a truck driven by Mr N   and a car driven by Mr Tualima.  The truck and the car were both heading north on the same road with the car behind the truck.   The car driven by Mr Tualima collided with the back of the truck.

[4]      Mr  Tualima’s  evidence  was  that  he  was  driving  within  the  speed  limit coming towards the truck being driven by Mr N  .  The truck was on the far left hand side of the road and stationary, according to Mr Tualima.  Mr Tualima said that the truck then suddenly did a right hand turn in front of his car.  Mr Tualima could not avoid the truck and collided with the right hand rear side of the truck.

[5]      The essence of Mr N  ’s evidence was that he had been driving north intending to make a furniture delivery.   He passed the address which was on the other side of the road.  He said he pulled into the flush median strip in the centre of the road and was stationary with his right indicator on.  He had just commenced to turn across the south bound lane when he was hit from behind by the car driven by Mr Tualima.

[6]      Two principal grounds for appeal were advanced by Mr Wilkins on behalf of Mr N  .  The first was that the Justices of the Peace failed to provide any reasons. Their brief recorded decision was simply as follows:

[1]       Mr N  , we have considered all the evidence.  We have studied the facts, we have studied the facts in dispute, and we have come up with a finding.  Mr N  , we find you guilty as charged of careless use of a motor vehicle.

[2]       I think this is one of those situations where probably in total a $300 fine would have been in the area that we were thinking so $250 in reparation and $50 for witness fees.  You will need to pay $130 Court costs for being in Court today.

[7]     The principles relating to the desirability of providing reasons are well established.  Ms Cameron, for the respondent, referred me to R v Awatere [1982] 1

NZLR 644 and R v Jefferies (1999) 17 CRNZ 128 (CA).  There is no doubt that it is, I believe, desirable that Justices provide reasons, even if they are succinctly stated. And where there is a question of credibility, that may be important.  However, I am not persuaded that this ground is justification for allowing the appeal.

[8]      I do have available a complete transcript of the evidence that was given before the Justices, together with all of the exhibits.   The exhibits include a photograph booklet prepared by the Police, and the Police accident report recording the statements of the two drivers made at the scene of the accident.  I also have a copy of an insurance claim lodged by Mr Tualima and an insurance claim lodged by Mr  N  ’s  employer,  which  includes  statements  made  by Mr  N  .    I am therefore able to make my own assessment as to whether the charge was established beyond reasonable doubt.

[9]      I am satisfied that the evidence given before the Justices did establish this charge beyond reasonable doubt.

[10]     Mr  Wilkins  referred  to  some  apparent  discrepancies  between  what  Mr Tualima had said in his insurance claim and in traffic crash report and the evidence he gave at Court.  There were also questions raised as to the expertise of the police officer who gave evidence, although in that respect the cross-examination, in terms of expertise, simply resulted in an acknowledgement from Constable Jamieson that he was not an expert on the physics of traffic accidents.

[11]     Points made by Mr Wilkins, if taken in isolation, are reasonable points.  And if the case depended only on one particular point then it is likely that this charge could not be said to have been established beyond reasonable doubt.   But it is necessary to have regard to all of the evidence in order to determine whether the necessary standard of proof was reached by the prosecution.

[12]     Reading  the  transcript  as  a  whole,  and  the  documentary  exhibits,  I  am satisfied that the Justices were correct in their decision.  I do not intend to endeavour

to cover all relevant points in this oral decision, but  I will note some  which  I

consider to be of importance.

[13]     The damage to the two vehicles, related to the position on the road where the crash occurred (apparent from photographs), is consistent with Mr Tualima’s evidence.  The matters I have just referred to – the damage to the vehicles – strongly supports the conclusion that the truck was at a right angle to the car, or to all intents and purposes at a right angle.

[14]     Just pausing there, and to illustrate a point earlier made, if that was the only evidence available to the prosecution, it is likely that the charge would not have been established beyond reasonable doubt.  But that impact evidence is entirely consistent with the evidence of Mr Tualima.

[15]     What  is  more,  and  a  second  point,  the  damage  to  the  two  vehicles  is inconsistent with the evidence given by Mr N  .   Mr N   said, as I have already indicated, that his truck was stationary in the flush median in the middle of the road and he had only just begun to make his right hand turn when he was hit from behind.  The skid marks on the road show that Mr Tualima’s car, immediately before and at the point of impact, straddled the left hand side of the flush median; that is to say, Mr Tualima’s left hand wheels were in the main north bound lane and the right hand wheels on the flush median.  On that basis, if Mr N   was correct in his recollection of where his truck was, the damage would have occurred at the rear left hand side of his truck.  But the photographs show the damage was on the right hand side of his truck at the rear.  This includes damage to the mud guard over the right hand rear wheel of the truck, which is some distance forward of the back of the tray of the truck.

[16]     A point of particular difficulty for Mr N   is that the evidence he gave at Court is inconsistent with the statement he made for the insurance claim.  This was as follows:

Going north toward Hamilton on SH 3 preparing to turn right, in to drivay [sic], had slowed to 20-25 km, right hand indicator on, and approaching centre line when bang stopped as was hit from behind. Other car had hit my truck on right rear side.

[17]     He confirmed this in his statement as to who he considered was responsible for the accident, which was as follows:

Driving to Hamilton slowed down, indicated and preparing to turn right when hit from behind right corner.

[18]     That inconsistency plainly has a bearing on the assessment of the reliability of the evidence of Mr N  .  I do wish to emphasise here that I am not making a determination that Mr N   was deliberately seeking to mislead the Court.  What I am concluding is that the Justices of the Peace had a solid foundation for concluding that his recollection was inaccurate.

[19]     What  Mr  N  ’s  statement  in  the  insurance  claim  also  does  is,  to  a reasonable extent, confirm what Mr Tualima said.

[20]     The Justices were also entitled to take account of the evidence of Constable Jamieson, notwithstanding that he was not an expert in road traffic accidents.   He was someone who was entitled to use his own experience as a police officer.   His evidence of what he observed, based on the damage to the vehicles, was something the Justices were entitled to take into account and give weight to if they considered that was justified.   Constable Jamieson’s conclusions support the evidence of Mr Tualima.

[21]     This summary of relevant points – which I emphasise is not comprehensive – brings the assessment of the evidence back to the evidence of Mr Tualima.  That is direct evidence as to how the accident occurred.  If that is the correct evidence then there was careless use by Mr N  .  Mr Tualima’s evidence is consistent with a body of other relevant evidence.   I am satisfied that all of these matters, taken together, establish the charge beyond reasonable doubt.

[22]   I have not overlooked submissions by Mr Wilkins relating to apparent inconsistencies between the evidence of Mr Tualima and Constable Jamieson, and documents earlier produced by them.  In Mr Tualima’s case there was his insurance claim and in Constable Jamieson’s case a diagram he drew in the traffic accident report.   My assessment of the apparent differences is that they are more apparent

than real.  Unlike the statement in Mr N  ’s insurance claim, the discrepancies are readily explained and do not indicate any material inconsistency.

[23]     For  these  reasons,  in  my  judgment  the  appeal  fails  and  it  is  therefore dismissed.

Peter Woodhouse J