T v Police HC Greymouth Cri-2010-418-5

[2010] NZHC 1615

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2010-418-000005

T

Appellant

v

POLICE

Respondent

Hearing:         26 August 2010

Appearances: Appellant in person

K Bell for Respondent

Judgment:      3 September 2010

RESERVED JUDGMENT OF HON. JUSTICE FRENCH

Introduction

[1]      Mr T   was charged with failing to stop at a stop sign.  After a defended hearing in the District Court, the Judge found the charge proven.  The Judge fined Mr T   $100.

[2]      Mr T   has appealed both the conviction and the sentence.

The hearing in the District Court

[3]      At the hearing, the prosecution called one witness, Constable Tilsley.

T V POLICE HC GRY CRI-2010-418-000005  3 September 2010

[4]      Constable Tilsley testified that on the day in question he observed a car driven by Mr T   go through a stop sign at a fast walking pace, without making any attempt to stop as he turned.

[5]      Mr T  , who represented himself, also gave evidence.

[6]      He testified that he did in fact stop.  He looked to see if the way was clear and then, having been satisfied it was clear, he proceeded.  Mr T   also claimed that the constable was parked in a place from which it would not have been possible for him to have a clear view of the intersection.  When this was put to the constable in cross-examination, however, the officer said he was parked elsewhere and did have a clear view.

[7]      In  his  decision,  the  Judge  rejected  Mr  T  ’s  evidence  and  accepted Constable Tilsley’s version of events.  He found all elements of the charge proven beyond reasonable doubt.

Grounds of appeal

[8]      On appeal, Mr T   advanced the following grounds of appeal:

i)In breach of the New Zealand Bill of Rights Act 1990, the Judge wrongly denied  him  an  opportunity to  make  closing submissions on the evidence.

ii)In accepting the constable’s evidence, the Judge failed to take into account significant inconsistencies in the officer’s testimony.

Discussion

[9]      Section 67(7) of the Summary Proceedings Act 1980 provides:

(7)Unless the Court otherwise directs, neither party may sum up his case or address the Court upon the evidence given by either party:…

[10]     It is clear from s 67(7) that Mr T   did not have an automatic right to make a closing submission, and that the Judge was entitled to decline his application.  It follows that the first ground of appeal is not sustainable.

[11]     As regards the Judge’s reliance on the officer’s testimony, Mr T   referred me  to  the  following  matters  which  in  his  submission  demonstrated  a  lack  of credibility and reliability:

i)        The fact the constable was unable to recall the type of vehicle

Mr T   was driving.

ii)       The constable’s differing estimates regarding distances.

iii)The fact that the first mention of him doing a U-turn was in cross-examination  as  a  result  of  his  location  becoming  an issue.

iv)The  officer’s  erroneous  description  of  the  area  where  he claimed he was parked as a “lay-by”.

[12]     I have carefully considered the submissions.

[13]     The  Judge  was  presented  with  two  very  conflicting  accounts  of  what happened.  Ultimately, the finding came down to a question of credibility.

[14]     It is well established that an appellate Court should be slow to interfere with a trial Judge’s findings of credibility, given that the latter has had the advantage of hearing and seeing the witnesses.

[15]     In my view, correctly analysed, the various matters raised by Mr T   are essentially peripheral and are not of such moment as to significantly detract from the constable’s evidence or make the Judge’s assessment untenable.

[16]     I am satisfied there was sufficient evidence on which the Judge could have come to the findings he did.

[17]     Appellate intervention is not warranted.    The appeal against conviction is accordingly dismissed.

[18]     As  regards  the  appeal  against  sentence,  Mr  T    did  not  make  any submissions at the hearing regarding sentence.

[19]     On anyone’s view of it, a fine of $100 could not, in any event, be regarded as manifestly excessive.

[20]     The appeal against sentence is therefore also dismissed.

Solicitors:
Crown Solicitor’s Office, Christchurch

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