T v Police HC Palmerston North CRI-2008-454-16
[2008] NZHC 1102
•11 July 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
CRI-2008-454-16
T
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 24 June 2008
Appearances: The appellant in person
E J McCaughan for the respondent
Judgment: 11 July 2008
RESERVED JUDGMENT OF CLIFFORD J
Introduction
[1] On 7 March 2008, Mr Graeme T , the appellant, was convicted in the District Court at Palmerston North of careless driving causing injury under s 38 of the Land Transport Act 1998. The charge Mr T faced arose from an accident which occurred on Pioneer Highway, involving a collision between a vehicle driven by Mr T and a motorcycle ridden by a Mr Mark John Telford. The Judge found Mr T guilty of the charge. By way of sentence, the Judge imposed the mandatory minimum period of disqualification of six months, and ordered Mr T to pay reparation of $2,000 to Mr Telford.
[2] Mr T now appeals against conviction and sentence.
[3] As he did in the District Court, Mr T represented himself before me.
T V POLICE HC PMN CRI-2008-454-16 11 July 2008
[4] On 31 July 2007 Mr Telford was riding his Aprilia motorbike along Pioneer Highway towards Palmerston North. Pioneer Highway is a large road, with two lanes in each direction.
[5] At the point of Pioneer Highway at which the collision occurred, the road is divided by a centre traffic island.
[6] Mr T was driving along Pioneer Highway heading out of Palmerston North. Mr T was in the process of making a right hand turn across the oncoming lanes (that is the lanes heading towards Palmerston North on which Mr Telford was travelling) when Mr Telford’s bike and Mr T ’s car collided.
[7] The collision caused extensive damage to Mr T ’s car, to Mr Telford’s bike and to the car of a Ms Mitchell, into which Mr Telford and/or his bike were thrown by the impact of the collision.
[8] Mr Telford was injured. Mr Telford’s medical record, produced at the trial and to which I will refer later, showed that, amongst other things, Mr Telford suffered a broken back (C2 vertebrae), a severely strained pelvis, significant haematoma to his scrotum and torn ligaments in his right knee.
[9] Mr Telford was hospitalised, and had limited recall of the accident and the events that followed it. In fact, Mr Telford’s first recollection was waking up in hospital a week after the accident.
The District Court Judge’s decision
[10] Judge Radford considered the testimony of the three eye witnesses from whom he had heard. The Judge noted the submissions of the two parties: the prosecution submitted that Mr T had been careless in turning right and failing to give way to a motorcyclist travelling straight through with right of way. Mr T submitted that he had not been careless, and that the collision had been
caused by the high speed at which the motorcyclist was travelling. Mr T suggested that the motorcyclist was travelling at an enormous speed and that Mr T could not be said to have been careless in not seeing the motorcyclist. Mr T challenged the credibility of the prosecution witnesses.
[11] The Judge considered the elements of the charge under s 38. He was satisfied that those elements had been established beyond reasonable doubt. He noted that the evidence established appropriate injury to Mr T . As to causation and the question of whether Mr T had been careless, the Judge was satisfied on the evidence that the motorcyclist had been travelling at an appropriate speed of approximately 50 km per hour. The Judge accepted the evidence of the two witnesses who based their estimation of the motorcyclist’s speed by comparison with their own speed. The Judge also considered that the fact that the motorcyclist and his bike had been pushed directly sideways into the car stopped at the give-way sign (at right angles to the direction the motorcyclist had been travelling) was further evidence that, given there was no angle of deflection, the motorcyclist was not travelling at an excessive speed.
[12] The Judge concluded that Mr T had been careless in failing to give way to the motorcyclist and that Mr T ’s actions had caused the motorcyclist’s injuries. He found that beyond reasonable doubt each of the elements of the charge had been made out.
Appeal
[13] At this appeal, as he had done at his trial, Mr T generally argued that the accident had not been his fault. He was a careful driver. His argument was that the accident was caused by Mr Telford driving at an excessive speed, as a result of which Mr T did not, and could not be expected to have, observed him as he was making his right hand turn.
[14] More specifically, Mr T made the following arguments, for which I
adopt the headings he used in his written submissions.
[15] Under this heading, Mr T submitted that because he had not been cross- examined by the Police on his theory of the accident, the Police had not proved the elements of the offence beyond reasonable doubt. They had, in effect, accepted what he had said was true.
Mens rea
[16] Because the Court accepted Mr T ’s evidence that he drove with his lights on, it meant that he had demonstrated he was a conscientious driver, and therefore not one who would drive carelessly.
Unfairly obtained evidence
[17] Mr T suggested he was not cautioned before he made a statement at the scene of the accident to the Police. Although he accepted there was nothing incriminating in his statement, he argued that because he had not been given a proper warning he could not now be convicted.
New Zealand Bill of Rights Act 1990
[18] Mr T submitted that he had not been given the opportunity to make submissions. Therefore although he had been present at the trial and called evidence, he had not had a chance to present his case. He said that in a normal hearing the prosecution calls its witnesses and brings its evidence, the defence is entitled to offer a different scenario and produce evidence to prove that scenario. The prosecution is then obliged to disprove that scenario, if it can.
Summons
[19] Mr T complained that the officer who had sworn the Information was not present in Court. Furthermore, two summonses had been issued to him.
[20] The evidence of the prosecution witnesses was not substantiated by any independent person. There was, therefore, no case to answer.
Typed and photocopied documents accepted as evidence
[21] Mr Telford produced his medical notes. Mr T said that those notes were admitted improperly and that Mr Telford’s injuries had not been proved.
Expert witness
[22] Mr T wished to call a friend, a Mr Andrew Rowney, a retired secondary school teacher, to present expert evidence as to the cause of the accident. The Judge ruled that that Mr Rowney was not qualified as an expert. Mr T challenges that ruling.
Contradictory evidence
[23] Mr T identified certain inconsistencies between the evidence of the prosecution witnesses. With reference to those inconsistencies, and to what he said were differences between the statements made at the time and the evidence given in Court, Mr T challenged the basis upon which the Judge had found the charges established.
Incomplete disclosure
[24] Mr T submitted that, on the basis of the summary of facts presented by the prosecution referring to his having indicated at the time, and that fact not being mentioned by any of the prosecution witnesses, there had to be another witness that the prosecution was not calling.
Residential address of Mr Telford
[25] The Judge ruled that Mr T could not ask Mr Telford his residential address, by reference to s 87(1) of the Evidence Act. Mr T challenges that ruling.
[26] The Judge ruled that the traffic crash report prepared by a Police officer who attended the scene was not admissible, on the ground that it might contain hearsay. Mr T challenges that ruling.
Physics
[27] Mr T submitted that the circumstances of the accident were inconsistent with the Police’s allegations against him. He, in general terms, alleged that the circumstances of the accident, and the damage to the vehicles, could only be explained by Mr Telford having been travelling at a very high speed. That explanation was, therefore, inconsistent with the finding of guilt.
Court irregularities
[28] Mr T raised concerns about the inaccuracy of the written transcript of the hearing. I asked him to particularise these. He was particularly concerned at aspects of the transcript as regards the witness Mr Craven’s evidence. Mr T complained that he wanted to listen to the actual tape recording of the hearing, but Court staff had refused to provide that material to him.
The scenario he was prevented from asserting
[29] Mr T submitted that he was prevented from asserting his alternative scenario as to the cause of the accident based on his analysis of the damage to the vehicles and other considerations.
Sentence
[30] Any sentence was manifestly unjust, as he had not committed the offence. Further, he had not caused any harm for which reparation could be ordered.
[31] I will deal first with Mr T ’s general proposition that the Judge was wrong to conclude on the basis of the evidence he heard that the charge was proven and that, furthermore, Mr T ’s alternative explanation – namely that the accident was principally attributable to Mr Telford’s excessive speed – was not to be accepted.
[32] I will then discuss each of the more specific points, to the extent I think is necessary.
[33] As Judge Radford correctly noted, the elements of the charge under s 38 of the Land Transport Act that had to be established beyond reasonable doubt were as follows:
• That the appellant operated a vehicle carelessly;
• That the victim sustained injuries;
• That those injuries were caused by the appellant’s carelessness.
[34] The meaning of carelessness under s 38 of the Land Transport Act is well- established. It must be shown that the driver failed to exercise that degree of care and attention that a reasonable and prudent driver would exercise in the circumstances (Simpson v Peat [1952] 2 QB 24). At the time of the collision the motorcyclist was travelling straight ahead. Mr T was attempting to execute a right hand turn. The motorcyclist had right of way. Mr T submits that he was not careless, as the excessive speed at which he submits the motorcyclist was travelling meant that the ordinary and prudent driver could not have been expected to have seen, and accordingly give way to, the motorcyclist. Judge Radford accepted the evidence of the two eyewitnesses at the scene and concluded that the motorcyclist was travelling at approximately 50 km per hour. On the evidence, this was a fair conclusion to reach. I therefore agree that in failing to give way, Mr T drove carelessly.
[35] I do not think there is any doubt that the Police established at the trial that Mr Telford sustained injuries, and that those injuries were appropriate injuries for a charge under s 38 of the Land Transport Act. Mr T in fact accepted this point (see [49] below).
[36] I turn now to Mr T ’s more specific submissions, and again I adopt his headings.
Actus reus
[37] The prosecution did put its case to Mr T . Beyond that, the prosecution was not required to cross-examine him on his version of events, nor to positively disprove that version of events. The issue was whether the Judge, on the basis of the evidence before him, was satisfied beyond reasonable doubt that the evidence established the elements of the offence.
Mens rea
[38] Like Judge Radford, I note that it is not disputed that the appellant was driving with his headlights on. However, it cannot be argued that simply because Mr T drove with his lights on, he could not be guilty of careless driving.
Unfairly obtained evidence
[39] It was the evidence of the Police officer, who took a statement from Mr T at the scene, that before he took that statement he advised Mr T he was not obliged to say anything and that anything he did say would be given in evidence. In cross-examination by Mr T , the officer acknowledged that he had not read Mr T ’s full rights to him, but – as noted – that he had given him a “short caution”. The Judge explained that to Mr T , and in doing so referred to the Judges’ Rules.
[40] As Mr T himself accepted that there was nothing in his allegedly unfairly obtained statement that indicated he broke any law, and that therefore
leaving it in or omitting it made no difference, I do not see how this argument helps
Mr T .
[41] Beyond that, I acknowledge that Mr T may have had some difficulties in finding the Judges’ Rules, and references to the “short caution”, as referred to in the District Court. That difficulty cannot, however, now become a basis upon which to disturb the District Court’s decision.
[42] For the sake of completeness I note that Rule 2 of the Judges’ Rules at the time required a caution to be given by a Police officer to a person being questioned when the Police officer had made up his or her mind to charge that person. Moreover, the “short caution” itself originated in words set out in Rule 5 of the Judges’ Rules.
[43] In R v Hurst (1987) 2 CRNZ 698, Williamson J noted the legitimacy of a “short caution” in certain circumstances, including before an accused is formally charged, such as this situation. I would see no difficulty, therefore, in this case with the use of the short caution, even if the Police officer had decided to charge Mr T at that point, and it is not at all clear that he had, and even further if there was evidence which Mr T wished to have excluded, which there was not.
[44] I note further, on this point, that the Judges’ Rules have recently been revised. They can now be found in the Chief Justice’s practice note reported at [2007] 3 NZLR 297. That revision took effect when the Evidence Act came into force on 1 August 2007. That revision did not apply on 31 July when this accident occurred.
New Zealand Bill of Rights Act
[45] Under this heading, Mr T ’s essential point was that he had not been invited by the Judge to make submissions at the end of the hearing.
[46] I have, in connection with Mr T ’s specific challenge to the accuracy of the record as regards the evidence of Mr Craven (see below), listened to extracts of
the digital recording on the basis of which the transcript provided to Mr T was prepared. That recording included both the Police and Mr T being provided with the opportunity to, and actually making, submissions to the Court. In Mr T ’s case these essentially traversed his theory of the case, and his alternative explanation as to the events that occurred. Therefore, the Judge did provide Mr T with an opportunity to make submissions and Mr T availed himself of that opportunity.
Summons
[47] There is nothing in Mr T ’s point that the officer who completed the summons did not attend personally at the prosecution. Further, whilst there would appear to have been two summonses issued, on the basis of the materials provided to me at trial the explanation for that would appear to have been that the first was not actually signed, and accordingly a second one was issued signed as required. I do not think there is anything in this point.
Prosecution witnesses
[48] Each of the prosecution witnesses gave evidence as to their recollection of the events of the day. There is no requirement that that evidence be “substantiated by any independent person”. As for Mr T ’s challenge to the proof of Mr Telford’s injuries, Mr T himself at the hearing acknowledged (p 12 of transcript, lines 9-11) that Mr Telford had been injured. His dispute was whether Mr Telford had suffered from concussion.
Typed and photocopied documents accepted as evidence
[49] As to the medical notes, they were admitted in evidence when Mr Telford produced them as an exhibit. Mr T did not object at that stage but, given that he was representing himself, I would not make too much of that.
[50] The issue raised (although it was not framed in this way) is whether the Judge erred in admitting the medical notes, when those notes were hearsay. They represent
a statement tendered to prove the truth of its contents made by someone who was not cross-examinable (s 4 Evidence Act 2006).
[51] I tend to the view that medical records of this type would fall under the definition of “business records” found in s 16 of the Evidence Act, and would therefore be admissible pursuant to s 19 of that Act. However, s 19 is subject to s 22, which sets out the procedural requirement of notice to the other party in circumstances where hearsay statements are to be offered. Strictly speaking therefore, the prosecution failed to adhere to the procedural requirements in relying on the medical records as proof of Mr Telford’s injuries.
[52] In any event, any procedural error was inconsequential. There was sufficient evidence that Mr Telford suffered injury. The victim gave direct evidence as to his injuries, and the appellant himself acknowledged that Mr Telford was injured.
Expert witness
[53] The Judge did not allow Mr T ’s friend, Mr Rowney the retired teacher, to give evidence as an expert. I think that was a correct decision. Although Mr Rowney would appear to have taught physics, I do not think that qualifies him as an expert in motor accidents, or the behaviour of motor vehicles in a motor accident. I note further that the Judge did allow Mr Rowney an opportunity to explain the evidence he proposed to give, which was essentially that, as Mr T submitted, the accident had not happened as the Police claimed.
[54] I do not think the Judge can be criticised or was wrong in the approach he took to Mr Rowney’s evidence.
Contradictory evidence
[55] There was, as the Judge acknowledged, some inconsistencies between what the witnesses Feetham and Craven said at the time, and the evidence they gave in Court, and as between each of their individual evidence. In particular, Mr Feetham indicated that he was in the left lane, and the motorbike was in the right lane,
whereas Mr Craven indicated that he was in the right lane and the motorbike was in the left lane. Whilst those inconsistencies are to be acknowledged, the evidence of these witnesses was substantially consistent in that they both gave evidence of Mr Telford travelling along Pioneer Highway at a speed in the vicinity of 50 km per hour (judged by his movements relative to their own), of observing the car driven by Mr T making a right hand turn into the pathway of the motorcyclist and observing the collision between the motorcyclist and Mr T . On that basis, I agree with the District Court Judge that these inconsistencies did not detract from the probative value, taken overall, of their evidence. I note the following comments of the Judge on this point at [45]:
First of all there is the evidence of the two witnesses. Both impressed me as being careful sensible men who were cautious about the way they gave their evidence. They both described their own speed and the relative speed of the motorcycle. There were minor differences between what they said. However, such minor differences are not unexpected when the events are alleged to have occurred in July of last year but the differences did not go in my view to the heart of the matter. Neither witness was dogmatic about the speed he was travelling at and neither witness was dogmatic about the speed of the motorcycle. Both witnesses had reason to look at the motorcycle. In my view as I said they were careful and sensible witnesses. They put the speed at something in the order of 50 kilometres per hour.
Incomplete disclosure
[56] The fact that there may have been another person who witnessed the accident and who was not called by the Police, cannot, in and of itself, constitute a ground of appeal. In any event, the matter Mr T relied on, namely the fact that he was indicating and that only he had mentioned that, is not a reason to suppose that the Police did not rely on what he said in including that fact in the narrative of events.
Residential address of the witnesses
[57] Mr T endeavoured, at one point, to ask Mr Telford’s current address. The Judge disallowed that question, by reference to s 87 of the Evidence Act. As I understand Mr T ’s argument on appeal, and the transcript, that question was in some way related to his theory that Mr Telford was not concussed, and that his evidence was therefore unreliable. Whilst, for my part, I would have been of a mind
to allow Mr T to ask that question, I do not think the Judge’s ruling on that point was in any way material at the end of the day.
Traffic crash report
[58] The Judge may have been overly cautious in ruling the traffic crash report inadmissible, because of his concerns about hearsay, as it would appear Mr T consented to the report being admitted. I note, however, that the Judge would appear to have ruled the Traffic Crash Report inadmissible, by reference to its hearsay status, because it contained material unfavourable for Mr T .
[59] Beyond that, it was Mr T ’s proposition, as I understood it, that certain elements of the Traffic Crash Report (and in particular some diagrams prepared by the Police officer) were inconsistent with the front of Mr T ’s car having collided side on with Mr Telford’s bike, but rather were consistent with Mr Telford having hit the front corner of Mr T ’s car, and therefore with his theory as to the cause of the motor accident.
[60] I think Mr T ’s theory on that point was considered by the Court. I do note that at [47] of his decision, the Judge expressed his views as to the way in which the accident might have happened. In doing so the Judge acknowledged that he was “not an engineer but the evidence is plain and it seems to me that the motor cyclist was thrust immediately sideways as a result of the impact”. In the absence of expert engineering evidence, it may not have been possible to reconstruct what exactly did happen. Having said that, the key evidence the Judge relied on was that of the three lay witnesses, and in particular the two witnesses whose evidence I have referred to at [55]. On that basis, I do not find anything in these submissions to cause me to reach a different decision than the Judge.
Physics
[61] Under this heading, and under the heading “The scenario I was prevented from asserting”, Mr T essentially elaborated on the points he had made at trial, namely that on the basis of the photographs taken by the Police, and of further
photographs which he took and presented to the Court, the only explanation for the accident was that Mr Telford was driving at an excessive speed. Mr T submitted:
a) the extensive damage caused to the vehicles could not have been caused by a crash between a vehicle moving slowly and a motorbike moving at 50 km per hour; and
b)similarly, the way in which, and the distance for which, both the motorbike and Mr Telford travelled after the accident, and collided with Ms Mitchell’s car, were also inconsistent with the speeds the Police alleged.
[62] Here, again, I can only note that Judge Radford heard the evidence of the witnesses, which I have reviewed in terms of the transcript. Both Messrs Feetham and Craven gave evidence as to the speed the bike was travelling at and, in my view, their evidence is reliable, substantially consistent and provides a basis for the verdict given.
Court irregularities
[63] Mr T complained that the transcript did not accurately record what Mr Craven had said, and when questioned by me he identified a passage from the witness Mr Craven at page 41 of the transcript, lines 25 to 29. As indicated above, I have taken the opportunity to listen to that part of the digital recording. The transcript records word for word what Mr Craven said. I therefore do not accept Mr T ’s proposition that the transcript is inaccurate in any material way.
[64] Accordingly, I dismiss Mr T ’s appeal against conviction. [65] I turn now to the question of sentence.
[66] The Judge sentenced Mr T to the minimum mandatory period of disqualification. There can be no challenge to that.
[67] As regards the reparation order, the appellant’s only argument is that the order was manifestly unjust because, on the appellant’s submission, he did not cause harm in any way. Given that I am satisfied that the Judge was correct to find the charge against the appellant proved, the Judge’s finding that Mr Telford “suffered grievously” was one that was open to him on the evidence. The challenge to the reparation order is also dismissed.
“Clifford J”
Solicitors: G S T , Flat A, 34 Lombard Street, Palmerston North – Appellant
Crown Solicitor, Palmerston North for the respondent
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