Paterson v Police HC Greymouth CRI-2011-418-005

[2011] NZHC 1269

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2011-418-005

BETWEEN  PHILIP ANTHONY PATERSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 August 2011 and

3 October 2011

Counsel:         Appellant (In person) D Lane as MacKenzie friend

M Zintl (on 22 August) for Respondent
P A Currie (on 3 October) for Respondent

Judgment:      4 October 2011

JUDGMENT OF MILLER J

[1]      Mr Paterson appeals his conviction for reckless driving.   It is said that he deliberately drove into the path of a heavy truck, causing the truck to skid as its driver came to an emergency stop.  He denies that he did anything of the sort.

[2]      The truck was the second in a convoy of two which left Hokitika, travelling south, early on the morning of 4 July 2010.  It was carrying 1080 poison to an aerial drop site.     Its departure that morning had been delayed by protest action at the depot.

[3]      On State Highway 6 there is a bend north of the Waitaha Bridge.  At the apex of the bend lies an intersection with Beach Road.  From the perspective of a driver travelling south the bend is left-hand and the intersection is on the right.   Eighty seven  metres  past  the  intersection  is  the  Waitaha  Bridge,  which  is  one-lane. Vehicles travelling south must give way to oncoming traffic.  The advisory speed on

the bend is 65kph.

PHILIP ANTHONY PATERSON V NEW ZEALAND POLICE HC GRY CRI-2011-418-005 4 October 2011

[4]      The evidence of the truck driver, Mr Turner, was that he reached the bridge at between  7  and  7.30am.    It  was  still  dark.   As  he approached  the Beach  Road intersection at about 60-70 kph he received a radio message that the first truck had been stopped on the bridge due to protest action.   It appears that the driver had encountered oncoming traffic but decided not to yield, with the result that both he and the northbound vehicles stopped on the bridge.   Mr Paterson, whose utility vehicle  was  not  displaying  lights,  then  pulled  out  of  the  intersection  and  into Mr Turner’s path.  He made an emergency stop to avoid hitting Mr Paterson’s utility. The truck pulled to the left with wheels locked, but came to a stop just a metre from the  utility.    Mr Paterson  got  out  and  abused  him,  at  which  point  Mr  Turner recognised him.

[5]      Mr Paterson is opposed to the use of 1080 poison.  He is part of a group that had been monitoring operations, and he had already been to another site that day.  He represented himself, cross-examining Mr Turner and both giving and calling evidence.  His account was that, far from pulling out in front of the second truck, he was already stopped behind the first truck at the bridge when Mr Turner, who was travelling too fast, came up behind him.  The first truck had tried to cross the bridge although there was oncoming traffic, and an argument had developed between that driver and those of the northbound vehicles.  Mr Paterson said he tried to back up to let the other vehicles through, and it was at that point that he and Mr Turner had a confrontation, in which Mr Turner was the aggressor.

[6]      Ms Earnshaw was the driver of a car which stopped on the bridge when the first truck failed to give way.  She was not a 1080 protestor herself, and she said that no protesters had been blocking the bridge.  She got out and remonstrated with the driver, who refused to back up.    Another car followed her onto the bridge.   The confrontation was eventually resolved by the northbound vehicles reversing off the bridge to let the southbound vehicles through.  As the first truck went through she recognised Mr Paterson’s utility behind it.  His lights were on.  Behind them was a second truck, presumably Mr Turner’s.  It too crossed the bridge.

[7]      The Judge accepted Ms Earnshaw’s evidence, but found that it took matters

nowhere,  essentially  as  I  understand  it  because  it  was  not  inconsistent  with

Mr Turner’s account except in one particular, whether the utility’s lights were on. The  essential  conflict  was  between  Messrs  Turner  and  Paterson.    He  accepted Mr Turner’s evidence in total.   Clearly he did not find Mr Paterson a reliable or credible witness.

[8]      When the matter first came before me on 22 August, Mr Paterson explained that  he ended  up  representing himself at  the defended  hearing at  the Whataroa District Court because he had been given to understand that the charge had been reduced to one of careless driving.  Had he known that the more serious charge was to be the subject of the defended hearing, he would have had counsel present.   It appeared  that  there  had  a  misunderstanding  between  him  and  his  counsel, Mr Knowles, about what was happening.   That led to the appeal being adjourned while affidavits were sworn by Mr Knowles and Mr Paterson.  They now agree that the police did offer to reduce the reckless driving charge to one of careless use of a motor  vehicle  if  Mr  Paterson  were  to  plead  guilty  to  the  lesser  charge,  but Mr Paterson refused that offer.  (He made it clear before me that he would not have pleaded guilty to either charge.)  Mr Knowles, who is from Christchurch, withdrew because Mr Paterson had unilaterally taken it upon himself to transfer the hearing from Greymouth to Whataroa, some considerable distance away.   Mr Paterson’s request for an adjournment, although undated, records that the date of the next hearing was 14 February 2011.   Mr Knowles understood that following his withdrawal the Legal Services Agency had assigned West Coast counsel to the case. I  observe  that  there  is  on  file  a  memorandum  of  19  April  from  that  counsel, Mr Linder, to the effect that he had been assigned on 12 February but Mr Paterson now wished to represent himself.

[9]      However, Mr Paterson still maintains that he was misled, albeit by Constable Martin, who is the resident constable at Ross.  He says that about a week before the hearing the constable told him that the charge had been reduced to one of careless driving.  However, when he appeared before me on 3 October Mr Paterson accepted that he had elected to represent himself knowing that he faced the more serious charge.      Mr   Paterson   further   concedes   that   he   was   disabused   of   any misunderstanding about the nature of the charge when the summary hearing began, but did not protest or seek an adjournment so counsel could appear.

[10]     Although I allowed Mr Paterson to explore the question whether he was effectively deprived of his right to counsel, I am not persuaded that he was, or that anything turns on it.  The case turned, and the appeal turns, on the question whether Mr Paterson pulled out of the intersection and into the path of Mr Turner’s truck, causing Mr Turner to make an emergency stop.  Mr Paterson knew that, but elected to represent himself.   Such behaviour having been established, nothing about the conviction turns on the distinction between recklessness and carelessness, for his behaviour could only be reckless, in the sense that he acted deliberately, knowing that he was putting other road users in a position of danger.  I accept Mr Paterson’s point that the penalty, six months disqualification, might well have been reduced had the charge been careless use, but that does not affect the reliability of the conviction.

[11]     It is for Mr Paterson to show that the District Court Judge was wrong.  I have reviewed the evidence carefully, but I am unable to see that the Judge erred in any of the  respects  alleged.     Specifically,  the  Judge  did  consider  the  evidence  of Ms Earnshaw, which was not inconsistent with the police case.   He found her a reliable  witness.    Mr  Turner,  who  was  cross-examined  at  some  length,  clearly enough  identified  Mr  Paterson  and  his  vehicle  as  being  responsible  for  the emergency stop.  Contrary to Mr Paterson’s submissions, it was open to the Judge to accept the evidence of identification, without requiring the utility’s make and model or registration.   Indeed, Mr Paterson did not deny being the utility driver at the defended hearing.  Nor is there anything in the point that Mr Turner gave a signed statement to the police some five days after the incident.  Finally, there is nothing in the complaint that the officer in charge of the case told Ms Earnshaw that he had no defence;  although  the officer  denies  discussing  her  evidence  with  her,  it  is  not suggested that Ms Earnshaw modified her evidence in any way and the officer’s own evidence went in by consent.

[12]     The appeal is dismissed.

Miller J

Solicitors:

Crown Solicitor’s Office, Christchurch for Respondent