Schmuke v Police

[2013] NZHC 3385

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000098 [2013] NZHC 3385

ROBERT JOSEPH SCHMUKE

v

NEW ZEALAND POLICE

Hearing:                   13 December 2013

Counsel:                  Appellant in person

D J Orchard for the Crown

Judgment:                13 December 2013

JUDGMENT OF PANCKHURST J

[1]      This is an appeal against a finding that an infringement offence was proved following a hearing in the District Court on 23 August 2013.   That hearing was before Justices of the Peace.

[2]      The  infringement  offence  alleged  that  the  appellant  Mr  Schmuke  on

15 February 2013 at Hurunui had driven a vehicle at a distance leaving a gap less than the prescribed minimum for the speed at which the vehicles were being driven. I shall come to the details of that in a moment.   This occurred on state highway seven, between Culverden and Hanmer.

[3]      Constable Parker was driving an unmarked car.   He gave evidence to the effect that he was following a green vehicle which was travelling between 90 and

100 kilometres per hour.   He was caught by a following vehicle driven by the

appellant.  That vehicle passed the officer’s car, and went into the gap between the

SCHMUKE v NEW ZEALAND POLICE [2013] NZHC 3385 [13 December 2013]

officer and the green car.   Both prior to that manoeuvre, and after it, Constable Parker estimated that the gap between the appellant’s car and the officer’s car and then the green car was of the order of 10 metres.

[4]      After the vehicles travelled in convoy for some distance with the green car, the appellant’s car and the officer’s car in that sequence, the appellant moved out to pass the green car.  As soon as he did so, Constable Parker activated his radar and obtained a reading of 123 kilometres per hour.  Needless to say, he also stopped Mr Schmuke and issued infringement notices for both a speeding offence, driving at

123 kilometres per hour in a 100 kilometre per hour zone, and for driving at 90 kilometres per hour when following without a gap of 36 metres between his vehicle and the two other vehicles.

[5]      Mr Schmuke accepted responsibility in relation to the speeding infringement, but elected to defend the infringement for driving too close to other vehicles.  As I have noted the matter was heard on 23 August.

[6]      Constable Parker’s evidence was led by virtue of a prepared brief.   This occurred without consultation.  While Mr Schmuke had apparently been shown the brief of evidence in advance of the hearing, his agreement to it being used as the basis for the officer’s evidence was neither sought nor given.  It has just been pointed out to me that the brief provided in advance of the hearing was an abbreviated version and, in particular, did not include reference to the fact that Mr Schmuke had

95 demerit points at the relevant time.  It matters not, because the required course was that there be agreement given to whatever brief was to read into the record, as opposed to the officer giving oral evidence.

[7]      After the constable  gave his  evidence,  Mr Schmuke gave his  version  of events to which I will return shortly.  After the evidence was completed the Justices retired for an extended period of a little over an hour.  They then returned and gave an oral decision and eventually imposed a penalty, which was a fine of $400 together with Court costs of $132.89.

[8]      Two grounds of appeal have been advanced today.  The first I have already mentioned, namely that the informant’s evidence was adduced by the reading of a prepared brief without the agreement of the then defendant.  The second ground was that this error was compounded by the inclusion of reference to Mr Schmuke having

95 active demerit points at the relevant time.

[9]      The substance of the argument advanced in reliance upon these points was expressed by the appellant in this way:

Disclosure of previous conduct was deliberate of due to inadvertence or was deliberate, it was  very prejudicial.   A Justice of the Peace might easily conclude that a person who speeds is more likely to tailgate other cars that are impeding his or her progress on the road.  In my submission that is what happened in this case.   The Police introduced material that they knew or should have known would have an impact on the decision.  As soon as the Justice had confirmation of the demerit points, they made their decision. The hearing was unfair.  I was treated as a person who had previously broken the law.

[10]     I accept that there is substance in both of the grounds of appeal.  As I have already said, it is a permissible practice to read into the record a prepared brief of evidence.   Indeed it is common place for this to happen.  But it can only be done with the consent of the defendant and that was not obtained in this instance.

[11]     It  follows  that  there  is  also  merit  in  a  further  submission  made  by Mr Schmuke that he was denied the right to a fair hearing in breach of s 25(a) of the New Zealand Bill of Rights Act 1990.

[12]     Where  I have difficulty however,  is  in  accepting that  these irregularities influenced the ultimate outcome.  While it can be said that there is a high likelihood that the Justices noticed the reference to the demerit points and, in all probability, were influenced by it the fact is that the approach I must adopt on appeal is rather different.

[13]     Before I come to that approach, it is necessary that I refer to a portion of the cross-examination conducted by the prosecuting sergeant when Mr Schmuke gave evidence. These questions and answers occur in the record at page 13.

QSo without labouring the point you stated that you were following the vehicle, following vehicles at two to three car lengths.  Well 90 kilometres per hour?

AAs I said when those three cars were in a line in front of the police officer  they  were  all  between  two  and  three,  ah,  car  lengths difference between the separation.

Q        Okay was that the distance that you were in?

APossibly so yeah, I would say between two and three metres, two and three car lengths the whole time.

Q        All right.

AAnd the only thing that changed was that the police officer dropped back giving a big spread of distance between him and the next car.

QSo you accept then that you were travelling two or three car lengths behind the police officer initially?

A        Yep.

Q        Do you accept that you were travelling at speeds between 90 and

100 kilometres per hour?

AI do but I also would say that everybody in front of me was the same length until the traffic officer dropped back.

[14]     Some questions were then asked concerning for how long this sequence of vehicles had driven in this manner and although there was some dispute, it was common  ground  that  it  was  for  a  considerable  distance,  perhaps  as  much  as

12 kilometres.

[15]     As I have already mentioned, sitting on appeal I am required to hear this case by way of a rehearing.  What this means is that I must consider the evidence and come to my own view as to whether there was evidence sufficient to establish the infringement.

[16]     This, I think is an unusual case.   Credibility was not in issue.  The officer gave evidence, saying that the appellant travelled too close to both his vehicle and, after passing it, to the green vehicle which was slightly ahead.   When cross- examined, it seems to me that the appellant Mr Schmuke confirmed that evidence in the answers I have just read into the record.  Even accepting for present purposes that the Justices were influenced by the improper reference to the demerit points, it

can have made no difference.   The fact is there was no credibility conflict, the evidence on both sides was essentially the same and established a breach of the relevant rule.

[17]     That rule, incidentally, is contained in the Land Transport (Road User) Rules

2004 as r 5.9(4)(f).  It prescribes that the gap to be maintained when travelling at 90 kilometres per hour or more is 36 metres between adjacent vehicles.  This equates, as is described in the Road Code, to about nine car lengths, whereas on the evidence in this case, the gap was of the order of three car lengths at most.

[18]     For these reasons, sitting on appeal, and despite my acceptance that there were significant irregularities in the District Court hearing, I am well satisfied that a miscarriage did not occur for the reasons I have endeavoured to explain.  In short, the evidence was all one way and even if the JP’s were influenced by the demerit points, I am not, and on a view of the evidence alone the outcome was inevitable. That said, I have some sympathy for Mr Schmuke’s situation.

[19]     First of all, he consulted the Road Code having been provided with a chart by the constable which depicts the permissible following distances.  This shows that at

90 kilometres per hour, or above, the minimum following distance is 36 metres and this is then equated to nine car lengths.  He checked in the Road Code and found no confirmation of that, rather reference to what has been described as the two second rule.  Unfortunately that of itself, cannot provide a defence.  The law is as prescribed in the Act, in regulations and in this instance in rules made pursuant to the Act.  On examination it is perfectly clear that it is not a two second rule which applies, but rather a following distance prescribed as I have said in metres.

[20]     Secondly, it is most unfortunate that this case developed in the way that it did with a brief of evidence containing improper material in it, which was presented to the Justices without the consent of the then defendant.

[21]     The penalty imposed was almost three times the infringement fee that would otherwise have been payable, but for the defended hearing.

[22]     I propose to allow the appeal to the extent that the penalty imposed, a fine of

$400, is quashed and I substitute a penalty of $150 being the normal infringement amount.   I do so in recognition of the errors which occurred in the course of the District Court hearing.

Solicitors:

Raymond Donnelly and Co., Christchurch

Copy to appellant