Scobie v Police

[2014] NZHC 321

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-000082 [2014] NZHC 321

RUSSELL SCOBIE

v

NEW ZEALAND POLICE

Hearing:                   27 February 2014

Appearances:           Appellant in person

K J Basire for Respondent

Judgment:                28 February 2014

JUDGMENT OF DUNNINGHAM J

[1]      This is an application for leave to appeal the decision of Fogarty J given on 9

October 2013, dismissing the appellant’s appeal against his conviction on a charge of

careless use of a motor vehicle.

[2]      This  application  falls  to  be  determined  under  s  144  of  the  Summary

Proceedings Act 1957. That relevant parts of that section provide:

144     Appeal to Court of Appeal

(1)       Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 of this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

SCOBIE v NEW ZEALAND POLICE [2014] NZHC 321 [28 February 2014]

(2)       A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the High Court, or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

...

[3]      For completeness, the respondent notes that the appeal was filed out of time and the parties were incorrectly stated, but the respondent takes no issue with either of these matters.

[4]      The critical issue, therefore, is whether the appellant can satisfy the grounds in s 144(2), so that it is appropriate for me to grant leave to appeal the conviction to the Court of Appeal.

Background

[5]      The conviction arose out of a collision, at a T-intersection on a rural road, between a Toyota Landcruiser towing a trailer and Mr Scobie’s Isuzu mobile home vehicle, which had been following the Landcruiser.

[6]      The decision of Fogarty J, summarises the evidence about the collision which was given by Mr Scobie, Mr Phillips, the driver of the Landcruiser, and Mr Jeffries, who was a witness driving towards the spot where the accident occurred from the other direction.   I will not repeat that evidence here.   It is sufficient to say that a collision occurred when the Landcruiser turned right at the intersection and intercepted  Mr Scobie’s  vehicle,  which,  at  that  point,  was  on  the  right  of  the Landcruiser and trailer.

[7]      The Justices of the Peace, having considered the evidence from the three witnesses, determined that Mr Scobie had driven carelessly because “it is the responsibility of the driver behind to expect the unexpected” and, given their finding that Mr Phillips “was in the centre of the road beside a white line ... his intentions

could well have been anticipated”.   They therefore found the charge of careless

driving against Mr Scobie proven.

[8]      Mr  Scobie  appeared  in  person  and  provided  written  submissions  which carefully detailed the events which gave rise to the conviction as he recalled them.

[9]      In this hearing Mr Scobie again reiterated the facts of how the accident occurred, as he recalled them, as he had clearly done when Fogarty J heard his appeal.  His primary submission was that the driver of the Landcruiser had broken three road rules and the policeman who attended the scene had failed to accurately record witness statements, and therefore had “told lies”.

[10]     He impressed upon me his clear recollection that:

(a)      the driver of the Landcruiser had initially pulled hard over to the left on the road (rather than against the centreline as the Justices of the Peace had appeared to accept was the case),

(b)      the driver only began to indicate just before he turned and not sooner;

and

(c)      by the time the accident occurred, Mr Scobie was slowing down and any intention to pass the Landcruiser had long since been abandoned by him.

[11]     I record these matters primarily because they formed the basis of Mr Scobie’s application.   His understanding of a question of law was that, if the decision had been made on the wrong factual basis, then that was a mistake of law.

[12]     Ms Basire for the respondent, submitted simply that none of the points raised by Mr Scobie amounted to a question of law of sufficient importance to justify the grant of leave.  Indeed, the points raised involved no question of law at all.

[13]     She acknowledged that there may be an error of law if a factual determination was made without an evidential basis.  However, in the present circumstances, there

was evidence on which the Justices of the Peace could have reasonably reached their decision.    For this  reason,  the threshold  in s 144  of the Summary Proceedings Act 1957 had not been reached and leave should not be granted.

Outcome

[14]     I am quite satisfied that Mr Scobie’s application seeks to appeal the factual findings in the decision made by the Justices of the Peace and engages no questions of law.

[15]     Furthermore, it is not even clear that the factual disputes raised by Mr Scobie were material to the District Court decision.  The basis of their finding was neatly summarised by Fogarty J, where he says “I think that Mr Scobie has been caught, as it were, by the law, which imposes a greater duty of care on persons following cars than on the drivers in front.   In other words, when you are behind a car and commencing a manoeuvre, you have, as the Justices of the Peace said, got to be prepared to expect the unexpected”.

[16]     I therefore find that there is no question of law involved in the appeal, let alone one that has general or public importance or should, for any other reason, be submitted to the Court of Appeal for a decision.

[17]     The application is therefore dismissed.

Solicitors:

Raymond Donnelly and Co., Christchurch

Copy to appellant.