Osten v Police

[2012] NZHC 1602

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2012-485-46 [2012] NZHC 1602

BOHDAN ANDREW OSTEN

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 July 2012

Counsel:         Appellant in person

M J Ferrier for Respondent

Judgment:      6 July 2012

In accordance with r 11.5 I direct that the delivery time of this judgment is 11.50am on the 6th day of July 2012.

RESERVED JUDGMENT OF MACKENZIE J

[1]      The appellant was issued with an infringement notice alleging an offence against s 40 of the Land Transport Act 1998.   This offence involved a breach of r 2.3(2)(b) of the Land Transport (Road User) Rule 2004 of changing lanes before ascertaining that the manoeuvre could be made safely.   The appellant elected to defend the charge and the matter proceeded to a defended hearing in the District Court  at  Wellington  before  two  Justices  of  the  Peace  on  18 April  2012.    The appellant was found guilty and ordered to pay a fine of $150.00 and Court costs of

$132.89. The appellant appeals against that finding.

OSTEN V NEW ZEALAND POLICE HC WN CRI-2012-485-46 [6 July 2012]

[2]      The evidence of the offence came from Mr Christopher Davis, a truck driver. Mr Davis said that he was driving his truck around lunchtime on 21 December 2011 from the Petone Esplanade to State Highway 2.  There were three lanes.  He saw a silver motor vehicle in the feeder lane.  According to Mr Davis, that vehicle barely indicated and moved into his lane, causing him to brake heavily and lock up the wheels of his truck.  This caused his truck to slide within its lane.  Mr Davis then proceeded to call *555 and gave details to the operator.   He followed the silver vehicle to Johnsonville.

[3]      Constable Knight of the Johnsonville Community Police Centre responded to the call.  He arrived and spoke to Mr Davis, and took a statement.  He then spoke to the appellant, and issued him with an infringement notice relating to his abrupt change of lanes, which was posted to him.

[4]      Before the Justices of the Peace, the appellant denied that he changed lanes in an unsafe manner.   The Justices of the Peace acknowledged that it came down to deciding between the evidence of Mr Davis and the appellant, as to whether there was an unsafe change of lanes. They said:

[7]       You, Mr Osten, are clear  in your mind, that nothing out of the ordinary   happened   and   accused   the   police   of   being   biased. Mr Osten, you tried also to introduce previous experience where you felt you had been unusually treated by the police and alleged that they were just there for money grabbing.   Mr Davis, on the other hand, is clear in what he saw and presented himself as a professional truck driver.

[5]      The  Justices  of  the  Peace  preferred  the  evidence  of  Mr  Davis  over  the

appellant’s and found the appellant guilty.

[6]      Rule 2.3(2) of the Land Transport (Road User) Rule 2004 provides that:

A driver, when driving on a road marked in lanes,—

(a)must drive as far as practicable entirely within a lane except when complying with subclause 2.1(2) or when changing lanes; and

(b)must not move from a lane until he or she has first ascertained that the manoeuvre may be made safely.

[7]      In essence, the appellant denies committing the offence and says that there are no witnesses or material evidence to prove otherwise, for example, skid marks on the road where Mr Davis braked.  He submits that it is solely a case of his evidence versus that of Mr Davis.  He maintains that before he changed lanes, he made sure it was safe to do so and signalled in advance.

[8]      Counsel for the respondent acknowledges that no evidence was led by the prosecution about the presence of skid marks on the road, and that there was no accident.   Counsel submits that the former is simply absence of evidence which might have been corroborative and the latter was the result of good fortune.   He submits that there is no dispute that the appellant was the driver of the vehicle. Counsel submits that the complainant’s evidence was sufficient to establish the offence if accepted.   Counsel submits that the Justices were entitled to prefer the complainant’s evidence to that of the appellant.

[9]      The case turned very largely  on the assessment of the  credibility of the appellant and the complainant.  The Justices had the advantage of seeing and hearing the witnesses.  This Court on appeal, without that benefit, should not lightly overturn a finding of credibility.  In this case the Justices carefully discussed the evidence of both witnesses and expressed their preference for the evidence of the complainant. My examination of the notes of evidence indicates that that was a conclusion which was open to them.  There is no proper basis on which this Court could disturb that assessment.

[10]     The fine imposed was the same as the infringement fee which would have been payable if the case had not been defended.  There can be no challenge to the level of fine.

[11]     The appeal is dismissed.

Solicitors:           Luke Cunningham & Clere, Wellington, for Respondent

Copy to:            Mr Osten

“A D MacKenzie J”