S v Police HC Whangarei CRI-2010-488-28

[2010] NZHC 1620

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-488-28

BETWEEN  S

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         8 September 2010

Counsel:         N Leader for the Appellant

E Henderson for the Respondent

Judgment:      8 September 2010

(ORAL) JUDGMENT OF POTTER J

on appeal against conviction

Solicitors:           Crown Solicitor, P O Box 146, Whangarei, 0140

Copy to:            N Leader, P O Box 1258, Whangarei, 0140

S V NEW ZEALAND POLICE HC WHA CRI-2010-488-28  8 September 2010

[1]      On 19 May 2010 following a hearing before Justices of the Peace in the District Court at Whangarei the appellant was convicted for failing to give way to traffic when making a turn when he was the driver of a vehicle, turning or about to turn.   That is an offence under s 40 of the Land Transport Act 1998 and Regulations under that Act.   The appellant, Mr S  , appeals against the conviction on three grounds identified in counsel’s points on appeal that the Justices of the Peace:

a)       Failed  to  provide  sufficient  reasons  for  their  decisions  why  they preferred the informant’s witnesses’ evidence over the defence witnesses.

b)Made an adverse finding of credibility without taking into account the unchallenged evidence of the defence witness Stephen Russell.

c)        Found that the case of Lucas v Police[1] was not relevant.

Background facts

[1] Lucas v Police HC Auckland AP52/93, 22 April 1993.

[2]      The background facts are set out in the judgment of the Justices of Peace dated 19 May 2010.  On 28 October 2009 a collision took place on Walton/Clyde Street intersection late in the afternoon.  Walton Street is a four lane sealed road and where the incident took place Clyde Street forms an intersection.  The visibility was good and the road dry, traffic was heavy.  Ms Briggs was travelling on Walton Street towards the roundabout in the left-hand lane.  She stated there was no-one in front of her but three to four cars stopped on Walton Street waiting to turn right into Clyde Street.   Ms Briggs on oath stated that the lane ahead of her was clear and she continued her journey until the collision occurred.  Ms Wedge was standing in Clyde Street looking towards Walton Street.  She noticed a Hilux waiting to turn into Clyde

Street.  This vehicle moved forward and was hit by a white car travelling south in the left-hand lane.

The decision appealed

[3]      In delivering their judgment, after describing that factual background, the Justices of the Peace then referred to the appellant’s evidence.  They said in relation to the evidence of Mr S  :[2]

On oath you told us that a campervan stopped to allow you to move forward into the right-hand southbound lane and signalled that you could continue. You checked and moved forward.  Suddenly your vehicle was struck by the white car of Ms Briggs, which you maintained was travelling too fast and the driver was not paying attention, that the car came out of nowhere and a collision occurred.

[2]  At [3]

[4]      The Justices of the Peace then stated:[3]

[3] At [4]

... a driver changing lanes or about to change lanes or turning or about to turn must give way to any vehicle not changing lanes or not making a turn. Upon consideration the Court prefers the evidence of Ms Briggs and Ms Wedge.  We are satisfied beyond reasonable doubt that Ms Briggs’ car was there to be seen and that you failed to ascertain that the road was clear and that it was safe to proceed. We therefore find the information proven.

Discussion

[5]      I want first to deal with the third point on appeal which refers to the case of Lucas v Police.   While the factual scenario in that case has similarities with the factual scenario in this case, Lucas is authority only for the general principle that where there is a reasonable doubt the appellant must be given the benefit of the doubt.  Although the point on appeal refers to the Justices of the Peace finding that case  not  relevant,  I could  find  no  reference  in  their  judgment  to  this  decision. However, Mr Leader informs me that prior to delivering their judgment the Justices of the Peace had indicated that the case was not relevant.  I agree.  It is not relevant beyond the well known general principle that was applied in that case.

[6]      It is relevant to note that in that case the Court was faced with two conflicting versions of how the collision occurred – one version provided by two witnesses, being the driver and the passenger of one of the vehicles; the other version provided by the driver of the other vehicle.   There was no independent witness who gave evidence about the collision.

[7]      Mr Leader said that points 1 and 2 really morphed together into an issue of fairness.   He accepted there is no absolute requirement on the fact finder to give reasons but he submitted that where evidence is unchallenged or there are credibility findings by the finder of fact, then reasons will usually be required.  He submitted that Mr S   was not directly challenged about his version of how Ms Briggs’ vehicle came into collision with his, and Mr Russell’s evidence was unchallenged.

[8]      In Gutierrez v R[4] reference was made to the responsibility on prosecuting counsel to cross-examine a defence witness whose credibility is to be challenged. The Court said:[5]

... Such cross-examination, however, may not be necessary if from what has gone before or from the circumstances of the case it is fairly made plain that the truthfulness of particular facts given in evidence is not accepted, and an adequate opportunity to meet the challenge has otherwise been afforded.

[4] Gutierrez v R [1997] 1 NZLR 192.

[5] At 199.

[9]      Ms Henderson for the Crown submitted that in this case there was more than adequate opportunity afforded.  The prosecution witnesses and the witnesses for the defence clearly gave contradictory evidence.   The prosecution witnesses were vigorously cross-examined by counsel for the appellant.   The appellant had full opportunity to respond in answer to questions in cross-examination.   I agree, and would add to that, Mr S   took full advantage of the opportunity to respond to questions in cross-examination.   He was expansive in conveying his version of events and his theories to support his contention that Ms Briggs was not paying attention at the time the collision occurred.

[10]     Ms Henderson further submitted there was no unfairness in the lack of any cross-examination of Mr Russell, a passenger in Mr S  ’s car.  I agree with that

submission also.  The evidence Mr Russell gave was essentially along the lines of that  given  by  Mr  S  .     The  cross-examination  of  Mr  S    offered  full opportunity to the defence to understand the challenges made by the prosecution to the defence evidence.

[11]     In essence this was a very straightforward case.   For the prosecution there was evidence from the driver of the white car, Ms Briggs, and the evidence of Ms Wedge who was standing near the corner of Walton and Clyde Streets, she being employed at the dry cleaners on the corner of that street.  Her description of what happened was supportive of the evidence of Ms Briggs, and did not support the evidence of the appellant and Mr Russell.  So the Justices of the Peace were faced with, for the prosecution the evidence of the driver and an independent witness, and for the defence, the evidence of the driver and his passenger who could not be regarded as an independent witness.

[12]    The Justices simply said they preferred the evidence of the prosecution witnesses.   While it would have been preferable for them to articulate reasons for that credibility finding, by outlining the evidence given by both sides as they did[6] the issues were clearly highlighted.   By deciding they preferred the evidence of Ms Briggs and Ms Wedge, they inferentially rejected the account given by the appellant and Mr Russell.   In doing so, they obviously rejected that the evidence for the

defence raised a reasonable doubt.   They expressed themselves satisfied beyond reasonable doubt that the offence charged was proven.

Result

[6] At [2] and [3].

[13]     The appeal is dismissed.