Newman v Police

[2013] NZHC 2392

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000040 [2013] NZHC 2392

BETWEEN

STEPHEN NEWMAN

Plaintiff

AND

NEW ZEALAND POLICE

Respondent

Hearing:

12 September 2013

Appearances:

G Gotlieb for Appellant

M A Elliott for Respondent

Judgment:

12 September 2013

ORAL JUDGMENT OF D GENDALL J

[1]   This is an appeal against a conviction on 4 April 2013 whereby the appellant, Mr Newman, was found guilty of one infringement offence of failing to drive as near as practicable to the left side of a road pursuant to s 40 of the Land Transport Act 1998, r 4 of the Offences and Penalties Regulations 1999, and r 2.11 of the Land Transport Road User Rule 2004 by Justices of the Peace in the District Court.

[2] Mr Newman was fined $150.00 and ordered to pay court costs and witness expenses. He now appeals that decision.

[3]   An appeal is available against this infringement offence in terms of s 115 of the Summary Proceedings Act 1957, given that the Justices of the Peace in the District Court determined “an information or complaint”.

[4] In his appeal Mr Newman submits that the decision in the District Court should be quashed with no order made for rehearing.

NEWMAN v NEW ZEALAND POLICE [2013] NZHC 2392 [12 September 2013]

[5]  There are three principal grounds for appeal which I will come to shortly. But first I set out some brief facts of the incident in question. In doing so I use principally the police summary of facts for the original charges.

Background facts

[6] At around 2:30 p.m. on Thursday 20 December 2012 Mr Newman was the driver of a Peugeot motor vehicle, registration  No.  CPB879,  heading  north  on State Highway 1 between Amberley and Cheviot with three passengers.

[7]   The complainant, Ms Buchanan, says she was following Mr Newman in her car on his way to Cheviot. She states that she noticed that Mr Newman drove his car across the marked centreline frequently while negotiating right-hand bends throughout the journey as well as on straight pieces of road. She states that she watched this occur throughout the journey on at least 12 different occasions.

[8] When the complainant, Ms Buchanan, reached the town  of  Cheviot  she observed a police officer parked on the side of the road. She contends that she was so concerned that a  head on vehicle collision would eventually occur  that she immediately advised the officer of what she had seen. Mr Newman, who had also by chance stopped his vehicle in Cheviot was then spoken to by the police officer.

[9]   In response to a question at the time, the police summary indicated that Mr Newman stated “I may have (crossed the centreline briefly) but if I did there would have been nothing coming. I did not do it on straight bits of road. Does she have any witnesses because I have three with me?  I am quite angry about this.”

[10]  Mr Newman was then handed an infringement notice for failing to keep left by the police officer concerned, Sergeant Hamilton.

Appeal grounds

[11] The grounds advanced by Mr Newman in this appeal against his conviction are first, that he was unfairly disadvantaged in the District Court hearing due to the manner in which that hearing was conducted, secondly, inadequate reasons were

given by the Justices of the Peace for the decision against him in the District Court and, thirdly, the conviction was entirely against the weight of evidence.

[12]    I turn now to consider each of these grounds.

Mr Newman was unfairly disadvantaged due to the manner in which the hearing was conducted

[13]    In the District Court Mr Newman represented himself.

[14] Effectively in this ground Mr Newman is contending that the trial in the District Court did not observe fair trial principles, principles which have recently been set out in some detail in a recent decision of Heath J in Pointon v Police1 at paragraphs [5] – [11].

[15] From the transcript of the hearing in the District Court in this case, at the outset I need to say that some concerns do arise as to whether this hearing was conducted in such a way to avoid a miscarriage of justice occurring.

[16] For reasons which will become apparent later in this decision, I need say nothing more with respect to this ground. At this point, however, suffice to say that matters which are before the Court and appear from the record of this hearing do raise some initial concerns.

[17]    I turn now to the second ground for the appeal advanced by Mr Newman.

Inadequate reasons were given for the District Court decision

[18] The decision of the Justices of the Peace in the District Court was made orally and ran to nine paragraphs. Paragraphs [1] – [3] of this decision generally contain introductory material. Paragraphs [4] – [8] comprise a brief recitation of the evidence which was given by the witnesses.  There is little by way of analysis of this evidence outlined there however.

1       Pointon v Police HC Tauranga 10 September 2013, CRI-2013-470-17.

[19] The decision given by the Justices of the Peace effectively is contained in paragraph [9] of the decision which states simply:

[9] We have considered all the evidence put before us and we find the charged (sic) proved.

[20] It is Mr Newman’s case here that there were clear and significant conflicts of evidence which arose between the evidence of the complainant, Ms Buchanan, on the one hand and the evidence of Mr Newman and his partner, Ms Manning, on the other. At the heart of these conflicts was the issue whether the prosecution were able to prove beyond reasonable doubt questions of identity in the sense as to whether Ms Buchanan had indeed identified the correct motor vehicle with her complaint. I will deal with this particular aspect later in this decision.

[21] Suffice to say at this point that, although the decision in R v Jefferies2 notes that a failure to provide sufficient reasons for a decision in summary proceedings, does not automatically vitiate the decision, in this case the judgment of the Justices of the Peace and the reasons they have purported to give for their decision clearly leave much to be desired.

[22]    I turn now to the third ground for this appeal.

The conviction of Mr Newman is against the weight of evidence

[23] In this respect, Mr Newman contends that the decision of the Justices of the Peace was unreasonable in that the evidence was such as to require the charge to be dismissed on the basis that identity here was not proven beyond reasonable doubt. It is clear from Owen v R3 at paragraph [14] quoting an earlier decision in R v Munro4 that:

A verdict will be deemed unreasonable where it is a verdict that, having regard to all the evidence, no jury could reasonably have reached to the standard of beyond reasonable doubt.”

2       R v Jefferies [1999] 3 NZLR 211.

3       Owen v R [2008] 2 NZLR 37.

4       R v Munro [2007] NZCA 510.

[24] In this case it is contended by Mr Newman that in the District Court the prosecution clearly failed to establish sufficient identifying details of the offending vehicle. For the charge in question to be properly proven it was, of course, fundamental that the police proved beyond reasonable doubt that the vehicle observed by Ms Buchanan during the course of her journey was the same vehicle which she pointed out to the police sergeant, Sergeant Hamilton, in Cheviot.

[25]   From the notes of evidence in the District Court it is clear that determination of this point depended entirely on the credibility and reliability of Ms Buchanan’s evidence before the Court.

[26] Significantly, in my view, this evidence indicates that, at no point in her evidence in chief was Ms Buchanan asked to describe the car which she observed crossing the centreline. Whilst the prosecutor mentioned on a number of occasions that the car was a “Peugeot” in his questioning of Ms Buchanan, at no stage did she confirm or deny this. Under cross-examination in the notes of evidence on page 12 at line 17 she conceded that she could not recall the colour of the vehicle.

[27] Those matters might, it seems, be only of limited concern had Ms Buchanan throughout maintained a constant line of sight of the vehicle in question. As I understand her evidence, she conceded that she did lose line of sight for at least a minute in the vicinity of the Mainline Station Cafe on the approach to Cheviot.

[28] This is all somewhat significant, in my view, when the evidence of both Mr Newman and his partner is considered. Ms Buchanan’s evidence here is that she first began following the offending vehicle in the vicinity of the Omihi Saddle south of Greta Valley. However, the evidence before the District Court advanced for Mr Newman was that he had driven off the main road a short distance further north, this occurring at Greta Valley school and this was for a sufficient duration that any following vehicles would have passed him. It is said that the road leading into Greta Valley school is such that this deviation would be likely to take three to four minutes to drive down and then return. Even if this deviation had only taken one minute, with a normal vehicle travelling at approximately 90 kilometres per hour on this State Highway 1 open road, a following vehicle by my calculations would travel

approximately 1.5 kilometres in this one minute space of time. Ms Buchanan’s evidence before the District Court is that she did not stop at any stage while she was following the offending vehicle. Certainly, if the evidence advanced on behalf of Mr Newman is accepted, then the position is that she simply could not have identified Mr Newman’s Peugeot vehicle as the offending vehicle when it travelled north of the Greta Valley school road area.

[29]    Further, the evidence of Mr Newman was that he had stopped his vehicle near a bridge over the Hurunui River firstly, to allow cars to pass and secondly, to view the area with his passengers. Again, if this were true, and Ms Buchanan had been following Mr Newman, then it seems inconceivable that she would not have passed him at this point. Mr Newman’s evidence is that by the time of the second stop on the Hurunui River bridge itself there was no traffic to be seen. These matters seem to be significantly corroborated by Ms Manning in her evidence in the notes of evidence at around page 56.

[30] Further, so far as the arrival in Cheviot is concerned, it does seem likely that Mr Newman and Ms Buchanan did arrive there at approximately the same time although it is not clear who may have followed whom. Had Ms Buchanan arrived ahead of Mr Newman then this must throw considerable doubt on the allegation she makes in her evidence.

[31] Mr Newman’s evidence concerning these aspects is that when he drove in to stop at Cheviot he observed a woman (Ms Buchanan) talking to a police officer and this was  corroborated  by  Ms  Manning.  The  defence  position  was  thus  that Mr Newman arrived after Ms Buchanan.

[32] This and none of the matters I have raised in the preceding paragraphs [25] to [30] were dealt with in any respect by the Justices of the Peace in their decision.

[33] Their answer to all of this was simply, at paragraph [9] of their decision, to state “We have considered all the evidence put before us and we find the charge proved”.

[34] In my view in the present case, all the material which is now before this Court must lead to the inevitable conclusion that there were numerous direct conflicts of evidence here as between the prosecution and the defence and the decision of the Justices of the Peace must have turned entirely on the comparative recollection of Ms Buchanan alone. It seems that Sergeant Hamilton’s evidence for the prosecution would have added little to the case.

[35] It seems clear also that no witness here had any motive to lie. It is not in any way suggested that Ms Buchanan did not give her evidence before the Court in an honest and open manner.

[36] The inevitable conclusion here from matters which are before the Court, including the corroborated evidence of Mr Newman and Ms Manning, must be that the prosecution case here was not proved beyond reasonable doubt. Further, I conclude that the decision of the Justices of the Peace to convict Mr Newman in this case was entirely against the weight of the evidence which was before them.

[37] As an aside at this point, it also does seem curious to ask why the police officer concerned may not  have  chosen  to  talk  to  the  three  occupants  of Mr Newman’s car at the time when the vehicles were stopped in Cheviot, which was the case.

Conclusion

[38] For all these reasons, I conclude therefore that the police failed to prove the charge against Mr Newman here to the adequate standard in the District Court, the conviction was clearly against the weight of evidence, and that conviction should be quashed.

[39] From the Court of Appeal decision  in R v Jefferies5 it  is clear that the statutory options open to me here include the option to simply quash the conviction of Mr Newman.

5            R v Jefferies Court of Appeal, 22 July 1999, CA190/99 at page 7.

[40]     An order is now made quashing that conviction.

...................................................

D Gendall J

Solicitors:

Gary Gotlieb, Ponsonby

Raymond Donnelly & Co, Christchurch