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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2014] NZHC 2216
Decision Date: 9 September 2014

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal against conviction and sentence in the case of Dushyantham Shanthyratham (the appellant) versus New Zealand Police (the respondent). The appellant appealed against his conviction for driving dangerously, which was decided in the District Court at Thames. The appellant represented himself in the defended hearing in the District Court. The key issue before the court was whether the appellant's rights to a fair hearing were compromised due to a discrepancy between the police disclosure and the evidence given by the prosecution witness, Grant Reid, during the hearing.

The court found that the police disclosure did not mention that the appellant had overtaken vehicles on parts of the highway marked with double yellow centre lines. However, Grant Reid's testimony at the hearing provided a more detailed account of the appellant's dangerous driving, including overtaking vehicles on such parts of the highway. This discrepancy led the appellant to argue that there had been a miscarriage of justice, as the police case as disclosed to him did not align with the evidence presented at the hearing. The court accepted that the variance between the police disclosure and Grant Reid's evidence at the hearing required explanation and found that the appellant's rights to a fair hearing were compromised.

The court concluded that it would be inappropriate to dismiss the charges outright, as the allegations were serious, and dangerous driving posed a risk to the community. Instead, the court allowed the appeal and ordered the matter to be reheard in the District Court. The police, who initially opposed the appeal, acknowledged that the error in procedure in the District Court warranted the appeal to be allowed, with the matter being referred back to the District Court for rehearing.

Orders