Shanthyratnam v Police

[2014] NZHC 2216

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2014-419-000030 [2014] NZHC 2216

IN THE MATTER OF	an appeal against conviction and sentence
BETWEEN	DUSHYANTHAM SHANTHYRATNAM Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	9 September 2014
Counsel:	A J Hamblett for the Appellant J E Tarrant for the Respondent
Judgment:	9 September 2014
Reasons:	12 September 2014

JUDGMENT OF DUFFY J

This judgment was delivered by Justice Duffy on 12 September 2014 at 3.00 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date:

Counsel:     A J Hamblett, Hamilton

Solicitors:    Almao Douch, Hamilton

SHANTHYRATNAM v POLICE [2014] NZHC 2216 [9 September 2014]

[1]      On 9 September 2014, I delivered a result decision in which I allowed this appeal, set aside the conviction and ordered that the matter be reheard in the District Court.  I now provide my reasons for doing so.

[2]      This is an appeal against conviction of a charge of driving dangerously.  The appellant appeared in the District Court at Thames and represented himself in a defended hearing.

[3]      The Police disclosure that was provided to the appellant before the hearing comprised copies of the:

(a)       Summary of facts;

(b)      Criminal and traffic history (no previous convictions);

(c)       Police “Comms” transcript (event chronology from 555 call); (d)      Officer in charge statement; and

(e)       Independent  witness  job  sheet  (recording  the  interview  of  the prosecution witness, Grant Reid).

Those documents all refer to a silver Nissan Primera, registration number CBZ736, driving at speed on State Highway 2 on 14 December 2013.  The appellant accepts that he was the driver of this vehicle on that day.  The Police disclosure describes how from time to time, this vehicle drove at excessive speed, crossed the centre line and overtook other vehicles.  On one occasion it is described as overtaking a truck and trailer unit, with an oncoming vehicle being forced to pull off the road to avoid a collision.

[4]      The  Police  were  alerted  to  the  alleged  dangerous  driving  by a  motorist, Grant Reid, who was driving on State Highway 2 at the relevant time.   Mr Reid telephoned 555 from his cellphone because he was so concerned about the manner in which the Nissan Primera was being driven.

[5]      When  the  matter  went  to  a  defended  hearing  before  Judge  Ongley,  the account  Mr  Reid  gave  was  more  expansive  about  the  manner  in  which  the Nissan Primera was being driven than was recorded in the Police disclosure material. The additional information included a description of the Nissan Primera on three occasions overtaking other vehicles on parts of the highway marked with double yellow centre lines (no passing lines).

[6]      The appellant denied passing vehicles along the particular stretch of road, and particularly overtaking vehicles on parts of the highway marked with double yellow centre lines.

[7]     At [13], the Judge stated that the question was whether the appellant inadvertently drove in a manner that was dangerous; further, that dangerous driving required deliberate driving, but it was nevertheless dangerous driving if a driver failed to take notice of an obvious road feature such as double yellow centre lines. The Judge went on to find that he was satisfied the Police had proved that on one occasion, the appellant had executed a passing manoeuvre across double yellow lines on a left hand bend, which the Judge found to be, by its nature, dangerous. Accordingly, the appellant was convicted of dangerous driving.

[8]      The appellant argues that there has been a miscarriage of justice in that the Police case as it was disclosed to him did not refer to him overtaking vehicles in places  where  the  highway  was  marked  with  double  yellow  centre  lines.    The appellant has referred to R v Sullivan (No 10) [2014] NZHC 1105 where at [8] to [11], Heath J considered the scheme of the disclosure regime. He described the purpose of the disclosure regime as being to promote fair, effective and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties for the purposes of criminal proceedings. He described disclosure as being required to promote an accused person’s rights to a fair trial and equality of arms, such objectives being affirmed by ss 25(a) and 24(d) of the New Zealand Bill of Rights Act 1990. The appellant argues that Mr Reid’s evidence at the defended hearing was materially different from what is outlined in the Police disclosure as being the Police case against him. Accordingly, he contends that the objectives of the disclosure regime have not been met.

[9]      I have carefully read the material that was disclosed to the appellant by the Police before the defended hearing.   I am satisfied that in it, nothing is said, or suggested about the appellant executing driving manoeuvres that  caused him to overtake other vehicles on parts of the highway marked with double yellow centre lines.    I  am  also  satisfied  that  the  variance  between  the  Police  disclosure  and Mr Reid’s evidence at the defended hearing required explanation. There is plainly an inconsistency between the Police disclosure and Mr Reid’s evidence.

[10]     I am also satisfied that when Mr Reid gave his evidence at the defended hearing and described in a fulsome way the number of occasions on which he saw the appellant overtake other vehicles and cross double yellow centre lines, that this evidence  would  have  come  as  a  surprise  to  the  appellant.    Whilst  experienced defence counsel might be expected to deal with such unexpected evidence, I consider that a self-represented defendant cannot be.

[11]     It is not clear to me if the Police are at fault here in that they have failed to record properly the evidence that Mr Reid gave to them, or whether the extensive account of events that he gave at the defended hearing came as a surprise to the Police as well.  The marked variance between Mr Reid’s statement to the Police and his evidence on oath could be attributable to a number of factors.  It may be that he gave a full account to the Police Officer who interviewed him, and the officer failed to note it all in the job sheet and the witness statement.  On the other hand, Mr Reid lives  within  the vicinity of the stretch  of highway where  the  alleged  offending occurred.  He drives over it regularly.  It may be that in the time between when he saw the alleged offending and when he came to give evidence in Court that he has given so much thought to the matter that either knowingly, or unbeknown to himself, he has embellished his account to the Police.  It is not for this Court on appeal to speculate as to the reasons for the inconsistency between what is shown in the Police disclosure and Mr Reid’s evidence at the defended hearing.

[12]     I am satisfied that what has occurred has meant that the appellant’s rights to a fair hearing were compromised.  There is no need for me to say more on this topic because this was a case where the Police, who had originally opposed the appeal, responsibly acknowledged at the appeal hearing that the error in the procedure in the

District Court was such that the appeal should be allowed, with the matter being referred back to the District Court for rehearing.

[13]     The appellant sought to persuade me that the more appropriate course of action would be to allow the appeal and dismiss the charge.  However, I considered it would be wrong to do so.  On the face of it, the allegations are serious.  In principle, dangerous driving is a risk to the community.  Persons who drive dangerously place the lives and wellbeing of other road users at risk.  I considered it was important that the matter was properly examined.  If dangerous driving has occurred, such conduct needs to be denounced and deterred.  Accordingly, I refused to dismiss the charges. Instead, I allowed the appeal and sent the matter back to the District Court for rehearing.

Duffy J