S v Police HC Wellington CRI-2006-485-134
[2007] NZHC 1753
•23 May 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2006-485-134
BETWEEN S
Appellant
AND NEW ZEALAND POLICE Respondent
Hearing: 22 May 2007
Appearances: Appellant in person
C J Boshier for Respondent
Judgment: 23 May 2007
In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 11.00am on the 23rd day of May 2007.
RESERVED JUDGMENT OF GENDALL J
[1] This is an appeal against conviction entered in the District Court at
Wellington on 10 October 2006 of an offence against s40 of the Land Transport Act
1998. The information alleged a breach of Rule 2.3(2)(b) of the Land Transport
(Road User) Rule 2004, which provides:
“A driver, when driving on a road marked in lanes, -
….
(b) must not move from a lane until he or she has first ascertained that the manoeuvre may be made safely.”
[2] The appellant denied liability when issued with an infringement notice. After a defended hearing of the alleged infringement offence, he was convicted by Justices
S V NEW ZEALAND POLICE HC WN CRI-2006-485-134 23 May 2007
of the Peace and ordered to pay penalty of $150 and Court costs of $30. He appeals against both conviction and penalty imposed.
Background facts
[3] The charge arose out of a minor collision which occurred on 28 November
2005 at 12.45pm in Victoria Street, Wellington. The prosecution case was that the appellant was driving a taxi in an easterly direction, approaching the intersection of Ghuznee and Victoria Streets, and turned right into Victoria Street to proceed south in the right hand lane of three lanes. An unmarked police vehicle travelling south on Victoria Street proceeded through the intersection with lights and siren activated. The appellant’s taxi was seen to move into the southbound left lane, nearest the kerb on Victoria Street, when it came into a minor collision with the unmarked police car travelling in that lane. The prosecution evidence included those of constables in two motor vehicles and a civilian witness.
[4] The appellant, who appeared in person, gave evidence to the effect that he was not making a right-hand turn from Ghuznee Street. He said he was proceeding south on Victoria Street at all times; he did what was expected of him by law, moving away from a police vehicle that he thought was following behind him in his lane; and that the vehicle in the left hand lane inside him had accelerated, so as to cause the collision.
[5] The Justices said that they had considered the evidence of the five police officers and one civilian witness (Ms Kyle) and found the prosecution evidence credible. They rejected the appellant’s explanation, saying that the most compelling witness was Ms Kyle, the independent witness, whose version was described as:
“This tells us that the defendant moved from Ghuznee Street, then across from the right into the centre lane and then tried to move to the left where the collision occurred. This is the version of events that we find most credible…”
The Justices said they found the charge to have been established beyond reasonable doubt.
[6] In his notice of appeal the appellant provides two grounds. First, failure by the Justices to give reasons for their decision; and secondly, that the appellant was prevented from asking the civilian witness a question concerning an earlier statement that she made to the police. When presenting his argument in person the appellant expanded upon these grounds, and essentially challenged matters of fact and inconsistencies in the prosecution evidence. He said the Justices had accepted two different accounts of the events, when only one version could be correct, and his contentions were based upon his evidence that he was travelling in the inside lane of two lanes proceeding south on Victoria Street and proceeded across the intersection with Ghuznee Street before moving to the left-hand lane (where Victoria Street becomes three lanes), but the unmarked police car had come through on the inside of him. He referred the Court to some plans and items that were not before the Justices which he said illustrated the conflict and unreliability of the police evidence.
As to the failure to give reasons
[7] The law is well established as outlined in the Court of Appeal in R v Awatere
[1982] 1 NZLR 644 (CA) and R v Jefferies [1999] 3 NZLR 211; (1999) 17 CRNZ
128 (CA). In Awatere the Court made it clear that it must:
“be good judicial practice to provide a reasoned decision. Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion. Failure to follow that normal judicial practice might jeopardise the decision on appeal. But, in the absence of a statutory requirement, there is no general and inflexible obligation that reasons must be given for judicial decisions.”
[8] Brief reasons may suffice, but some ought to be given so that defendants, if found guilty, know why the decision was reached. They know on what basis they might advance an appeal. So too, if an appeal follows, the appellate authority is able to give better considerations to the merit of the appeal, and the parties more able to effectively present their respective arguments.
[9] In this case the Justices outlined the evidence given and made it clear that that which they found most credible and reliable was the evidence of the independent motorist, Ms Kyle, which was in direct conflict with the appellant’s evidence as to the route he took, but described the appellant’s movement into the left lane. It is difficult to see what more could have been expected of them in that situation. Once they accepted that evidence, bearing in mind the gravamen of the offences was moving from one lane to another before ascertaining that it was safe to do so – which places some obligation on the driver changing lanes to ensure the way is clear – the ingredients of the offence was made out. Here the appellant’s evidence essentially was that, apart from describing a different route, he considered it to be safe and necessary to change lanes as he did. Yet it is implicit in the Justices’ decision they found that he had not first ascertained that such manoeuvre could be undertaken safely. The reasons given may be economical, but are not such as to vitiate the decision, and could not be described as inadequate. This Court cannot interfere with that decision on the question of credibility and the findings of fact under that heading.
[10] The second ground of appeal relates to an exchange with the civilian witness, Ms Kyle, in cross-examination. She said that she made some notes and a rough sketch plan of what she saw, which she forwarded to the police after the event. She was cross-examined by the appellant about the content of those notes. He put to her a quotation from her statement as follows:
“Q. …[you said] ‘The taxi then seemed to go across the middle lane, and then continued. The taxi driver continued to indicate, then moved’. So, I – you wouldn’t say that I just suddenly veered? I think in one report you talked about me ghosting across?
A. I don’t recall I’ve written ‘ghosting’ anywhere. Q. Sorry, I cannot hear you.
A. Sorry, I don’t recall I wrote ‘ghosting’ anywhere. I observed you move from the right-hand lane to the left-hand lane.
Q. Would Your Honour like me to read the statement you made to the police about ghosting?
THE COURT: No, I’m not interested in the statements the witness made, I’m only interested in what she said – in saying to you today.”
[11] The appellant contented that he was wrongly prevented from asking the witness a question to establish a prior inconsistent statement.
[12] The manner in which prior inconsistent statements are, or should be, treated in a trial is something about which defence counsel are often confused. It is not altogether surprising therefore that a litigant in person might not understand how such matters are to be dealt with.
[13] The proper approach where it is sought to challenge a witness’ credibility through having made a prior inconsistent statement is:
• The witness is asked whether they have made a prior statement
• If the answer is no, then the statement may be later proved
• If the answer is yes, then only that portion of the statement that is said to be inconsistent should be put to the witness
• If the witness accepts that such was made, and is correct, then the portion which is accepted, rather than what has been said in Court, becomes evidence
• If that which is in the statement is denied, as being true, then it is not evidence, and the evidence is that given in Court
• If it is acknowledged by the witness that her prior statement is inconsistent, it may be something that the defence can point towards as relevant to the credibility or reliability of the witness
• But if the statement is consistent with the evidence given in Court then it is not admissible
[14] Too frequently defence counsel simply endeavour to read out, in cross- examination, the full text of a statement made by a witness to the police. Some Judges, wrongly, allow it. Much of the text may be prior consistent statements and it is not the proper way to approach inconsistent statements. A prior inconsistent statement may be proved to have been made either by a witness agreeing if that was the case or by independent evidence. Where a witness is cross-examined about inconsistencies between his or her testimony in a previous statement and they do not adopt the truth or accuracy of the previous statement then it is never evidence. If it is established, whether by proof or by a witness’ agreement that they made a previous inconsistent statement then its only effect is to weaken the credibility of the witness. It is to be remembered that it is only proof of the fact that the statement was made, which can be adduced only if the witness does not admit that it was made, and is not evidence of the truth of its content.
[15] The appellant had the right to cross-examine Ms Kyle if there had been a prior inconsistent statement but it had to be done in the correct way. Inviting the Justices to have read to them a statement the witness was said to have made to the police was not the correct way, but only relevant portions of the statement, if inconsistent, had to be referred to her. Ms Kyle had agreed that she had made statements and provided a plan so it was not a question of proving any prior statement, and she said in evidence that she observed the car “slowly drifted across”. The description “ghosting” might have been simply another way of describing that manoeuvre. She said she did not recollect using the phrase “ghosting” and the appellant himself denied that that was the case.
[16] Cross-examination as to the exact wording used would not have any sufficient impact on her credibility so as to affect the Justices’ conclusion on the facts. The issue was not whether the appellant moved slowly or “ghosted” into the left-hand lane. It was whether, without ascertaining that it was safe to perform that manoeuvre, the appellant changed lanes, and whether his evidence or version of events might possibly have been correct so as to raise reasonable doubt.
[17] The Justices were required to decide whether the prosecution had proved its case and the Justices were entitled, if satisfied that the required standard of proof had
been met, to resolve any conflict evidence in favour of the prosecution. They did so and gave sufficient reasons for that.
[18] What was crucial in this case was proof there was a movement from one lane to another. That clearly happened even on the evidence of the appellant as illustrated in the diagram he supplied on appeal. If that is done without a driver first ascertaining the manoeuvre can be made safely there is a prima facie breach of the Road User rule. That the appellant was intending to do so is illustrated by the evidence of Ms Kyle, that the appellant’s taxi was undergoing a movement to the left lane. Signalling such an intention does not mean that the offence is not committed because the change of lanes is not permitted unless it can be safely made. A vehicle inside the vehicle changing lanes might be in a position where it is unable to see the signal. The evidence is that the appellant checked in his rear vision mirror but the presence of a vehicle inside, slightly to his rear and left, cannot be seen without the driver actually looking left and backwards. That is what is required in order to ascertain that a movement from one lane to another on its left can be made safely where a following car may be in its blind-spot.
[19] There was sufficient evidence in this case to enable the Justices to find the offence proved. As the finders of fact they were entitled to accept the evidence of Ms Kyle that the taxi being driven by the appellant moved across two lanes of Victoria Street, and endeavouring to enter the left lane so as to collide with the unmarked police vehicle in that lane. It was a compelling inference that before performing such a manoeuvre, the appellant had not ascertained that it could be safely made.
[20] It must follow that the appellant’s contentions fail.
[21] As to the appeal against the penalty; the appellant submitted that given that the cost of repairs to both vehicles was about $2,000; he was not issued with an infringement notice until three months later, and he did not feel responsible for the damage, the penalty is excessive. The reason for delay was because the police had to undertake the usual investigative and administrative procedures required when a police car is involved in a collision. Certain reports and statements to more senior
officers were necessary. In any event, the penalty imposed was at a lower end of the scale. It could not possibly be said to be manifestly excessive. This Court is not able to interfere with it.
[22] The appeals against conviction and penalty are dismissed.
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J W Gendall J
Solicitors: Appellant in person
Crown Solicitor, Wellington for Respondent
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