P v Police HC Dunedin CRI 2008 412 22

[2008] NZHC 1036

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2008 412 22

P

Appellant

v

POLICE

Respondent

Hearing:         3 July 2008

Appearances: S Saunderson-Warner for Appellant

CER Power for Respondent

Judgment:      3 July 2008

ORAL JUDGMENT OF CHISHOLM J

[1]      Following a defended hearing on 6 May 2008 the appellant was convicted of driving a motor vehicle in a manner which having regard to all the circumstances of the case might have been dangerous to the public.  The Judge ordered the appellant to pay witnesses expenses of $50 and disqualified her for six months.   This is an appeal against that conviction.

[2]      It is alleged that the Judge wrongly took into account inadmissible evidence, erroneously proceeded on the basis that evidence had been unchallenged when in fact that was not the case, that there were insufficient reasons for his decision and his

reasoning process was flawed.

P V POLICE HC DUN CRI 2008 412 22  3 July 2008

[3]      At around 4.30pm on 31 October 2007 Kenrick Ritchie was driving his motor vehicle in a southerly direction along South Road with the intention of turning right into Leckhampton Court.  His 14 year old step-son, Jordan, was also in the vehicle. At the same time the appellant was driving her vehicle in a northerly direction along South Road with the intention of turning left into Leckhampton Court.  The appellant and Mr Ritchie are neighbours and there is bad blood between them.  It seems that the Ritchies had lodged several complaints with the police alleging harassment by the appellant.

[4]      As the two vehicles approached the intersection the appellant was required to yield the right of way.  It is not disputed that she stopped.

[5]      According  to  the  evidence  of  Mr  Ritchie  and  his  step-son  the  appellant suddenly lunged forward as the Ritchie vehicle was in the process of completing its right hand turn.  Their evidence was that the appellant’s vehicle stopped within about half a metre of their vehicle.  Jordan Ritchie said that the appellant had grinned at the time she lunged forward.  It was also alleged by both Mr Ritchie and his step-son that the appellant had “tailgated” their vehicle as it travelled up the hill (that allegation did not form part of the prosecution case).

[6]      The appellant’s evidence was that she had completed her left hand turn after the Ritchie vehicle had completed its right hand turn and that she then followed the Ritchie vehicle up the hill, about two metres behind and there was no tailgating.  She denied that she had lurched forward.  Ms P   said that she prized her vehicle and would not put it at risk and, given the animosity with the Ritchies, she would not have exposed herself to an allegation from them about her driving.

[7]      Two defence witnesses gave evidence about a video re-enactment.  It seems that the purpose of this was to demonstrate that the evidence of Mr Ritchie and his step-son about what they could see in the mirror was unreliable.  Except to the extent that that evidence may have had a bearing on credibility, it was not of great significance. Three character witnesses were also called by the appellant.

[8]      Having outlined the charge, the Judge summarised the evidence for the prosecution and defence.  When summarising the police case the Judge quoted from two statements that had been previously made to the police by Mr Ritchie.   It is alleged that he relied on evidence from one of those statements that was not before the Court and was thereby inadmissible.

[9]      Then the Judge discussed the elements of the charge.   In broad terms he applied the test formulated in Wagg v Shaw [1962] NZLR 498. There is no issue about his analysis in that regard.

[10]     The judgment then referred to the “unchallenged” evidence of Jordan Ritchie which  the  Judge  concluded  supported  the  inference  that  the  appellant  had deliberately driven her vehicle towards Mr Ritchie’s vehicle as he proceeded to make a turn in order to frighten Mr Ritchie.  The Judge noted that Jordan Ritchie had given evidence that the appellant had grinned as she made this movement and that this evidence was not challenged in cross-examination.  Nor, he said, did Ms P   give any  evidence  (other  than  during  cross-examination  by  the  Senior  Sergeant)  in relation to that matter.

[11]     Finally, the Judge recorded that the evidence which he accepted of Jordan Ritchie  in  particular  was  that  the  appellant  drove  her  vehicle  “in  a  sudden movement” towards Mr Ritchie’s vehicle.  In relation to the character evidence given on behalf of the appellant the Judge noted that:

“…generally she is a person of good character.  However, honest people sometimes behave  in  uncharacteristic  ways  especially  when  there’s  an  environment  of antipathy towards others”.

In the end the Judge was satisfied that the circumstances of the appellant’s driving were such that there was a reasonable likelihood of damage to Mr Ritchie’s vehicle or injury to Jordan Ritchie and that the charge had been proved.

[12]     It  is  convenient  to  start  with  the  allegation  that  the  Judge  relied  on inadmissible evidence.   Ms Saunderson-Warner explained that when Mr Andersen (counsel for the defendant in the District Court) sought to cross-examine Mr Ritchie about  his  alleged  previous  inconsistent  statements  to  the  police  Mr  Andersen provided the Judge with a copy of the two statements, for the sake of convenience. But they were not produced as exhibits, nor was there any re-examination about them.   Thus, submitted Ms Saunderson-Warner, the parts of the second statement quoted by the Judge that were not part of the evidence could not be relied on by the Judge.

[13]     Mr Powers’ response was that the Judge was referring to the statements for the purpose of accuracy and that there was nothing improper in the statements being relied on by him.  Moreover, he said, the Judge had only referred to them for the purpose  of  summarising  the  respective  cases  and  to  the  extent  that  any  of  the evidence was not before the Court, it did not alter the final outcome.

[14]     It  is  clear  from  the  transcript  that  the  following  passages  in  the  second statement quoted by the Judge had not been referred to during Mr Andersen’s cross- examination:

“I instantly felt she was gong to hit my car on the front left passenger door where Jordan was sitting.  She would have had to have braked heavily to stop and only stopped less than a metre from my car.   It was a big lunge and was definitely deliberate. Her car wasn’t moving at all prior to this.  Sheree was probably three to four metres away from my car when she lunged forward”.

Consequently they were not part of the evidence before the Court and it is necessary to assess the implications, if any, of the Judge’s reference to this evidence.

[15]   Mr Andersen’s cross-examination alleging earlier inconsistent statements involved a very narrow point about how far Mr Ritchie was around the corner when Ms P  ’s car lurched forward.  That cross-examination did not render the rest of the statements admissible.   Consequently the passages referred to in the previous paragraph were plainly inadmissible.

[16]     What are the implications?  When the Judge’s decision is read as a whole it is difficult to avoid the conclusion that he was actually referring to the quoted portions of  the  two  statements  as previous  consistent  statements  rather  than  as  previous inconsistent statements (inconsistencies were acknowledged by Mr Ritchie under cross-examination).  Significantly the quoted passages appear as part of the Judge’s summary of the prosecution case, not the defence case.  And shortly after quoting the statements the Judge said:  “That essentially was the case for the police”.  Thus the Judge seems to have been approaching the matter on the basis that there were previous consistent statements boosting the police case.   Previous consistent statements were inadmissible by virtue of s35 of the Evidence Act 2006.

[17]     Consequently I cannot merely shrugg off this ground of appeal on the basis that it is of no significance.  In my view it would be unsafe to proceed on the basis suggested by Mr Power, namely, that it was Jordan Ritchie’s evidence that was critical and the Judge does not appear to have relied on the evidence of Mr Ritchie senior.  That is largely speculative.  While the Judge said that he relied on Jordan Ritchie’s evidence in particular, he does not say that he did not rely on Mr Ritchie senior’s evidence.

[18]     Now I turn to the next ground - that the Judge incorrectly proceeded on the basis that Jordan Ritchie’s evidence was unchallenged.  This is what the Judge said:

“The unchallenged evidence of Mr Jordan Ritchie supports the inference that the defendant deliberately drove her vehicle towards Mr Ritchie’s car as he proceeded to make a turn in order to frighten Mr Ritchie.  Mr Jordan Ritchie gave evidence that the defendant grinned as she made this movement.   That evidence was not challenged in cross-examination.  Nor did Ms P   give any evidence other than during cross-examination by the Senior Sergeant in relation to that matter.”

Again, there are different interpretations of these comments by Ms Saunderson- Warner, on the one hand, and Mr Powers, on the other.

[19]     Although Ms Saunderson-Warner acknowledges that there was no specific challenge to the “grinning” part of Jordan Ritchie’s evidence, she claimed that there was nevertheless a clear challenge to Jordan Ritchie’s evidence as a whole.   She submitted that it was unnecessary for defence counsel to challenge every last detail in cross-examination and that it was clear from Mr Andersen’s cross-examination

that Jordan Ritchie’s evidence was not accepted by the defence.  Thus the Judge had wrongly elevated Jordan Ritchie’s evidence to the status of evidence that was unchallenged.

[20]     In  response  Mr  Power  submitted  that  there  was  nothing  wrong with  the approach adopted by the Judge.   He said that the Judge was entitled to reach the conclusion that Jordan Ritchie’s evidence about the appellant grinning had not been challenged and that this was significant to the question of whether or not Ms P   had acted deliberately.   Moreover, said Mr Power, when the Judge referred to the evidence as being “unchallenged” he was actually meaning that Jordan Ritchie had successfully withstood the challenge of cross-examination.

[21]     It is clear from the transcript that there was in fact a direct challenge by Mr Andersen to Jordan Ritchie’s evidence.  Towards the end of cross-examination Mr Andersen put to the witness:  “The reality is that it didn’t happen, did it?”  Earlier it had been put to the witness that the appellant had not at any time lunged at the vehicle.  So to the extent that the Judge proceeded on the basis that here had been no challenge to Jordan Ritchie’s evidence (whether it relates to the grinning aspect or to the evidence generally) I am not confident that he was on safe ground.

[22]     Mr Power suggested that the Judge was only conveying that Jordan Ritchie had stood firm in the face of Mr Andersen’s cross-examination.  However, given the context and the fact that the Judge referred to Jordan Ritchie’s evidence not having been challenged on no less than two occasions, I find it difficult to accept that proposition.   To the contrary, it appears to me that the Judge placed considerable weight on the fact that the defence had not challenged Jordan Ritchie’s evidence.

Conclusions

[23]     It is, of course, very easy for a Judge sitting on appeal with the benefit of a transcript and hindsight (neither of which the Judge had) to find flaws in the Judge’s reasoning.  I have no difficulty in understanding how the problems arose in this case. The issue is, however, whether the errors are of sufficient moment for the conviction to be overturned.  This is a relatively close call.

[24]     At  the  end  of  the  day  I  am  sufficiently  uneasy  about  the  safety  of  the conviction to decide that the only responsible course is to allow the appeal.   The conviction is quashed accordingly.  There will be no re-hearing.

[25]     One last word.   It is apparent from the transcript that there is bad blood between these neighbours.   On the available information it is difficult to know precisely where the fault lies, and it may well lie on both sides.  The police and the Courts have more than enough on their hands and it should not be necessary for them to become embroiled in disputes between neighbours.  The parties themselves should be able to resolve their differences in a mature and sensible fashion.

Solicitors:         Aspinall Joel , Dunedin for Appellant

Crown Solicitor, Christchurch