Tsyan v Police

[2017] NZHC 2795

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE

CRI-2017-425-000048 [2017] NZHC 2795

BETWEEN

SHEN TSYAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	On the papers
Counsel:	D-M Cross for the Appellant
Judgment:	15 November 2017

JUDGMENT OF NATION J

[1]      On 7 October 2016, the Police issued Shen Tsyan a ticket for failing to stop at an amber traffic signal.  Mr Tsyan disputed the offence in the District Court before two Justices of the Peace.  They found the charge proved and fined Mr Tsyan $150 plus Court cost of $30.

[2]      Mr Tsyan then appealed his conviction to a District Court Judge.   On 22

August 2017, the appeal was dismissed by Judge Dawson.  Mr Tsyan now applies for leave to bring a second appeal to the High Court.

Alleged Offending

[3]      It was alleged that Mr Tsyan was driving down Stanley Street in Queenstown to make a left turn into Ballarat Street at the traffic lights.  He was observed by a Police officer turning left on an amber traffic signal.  Mr Tsyan said he did not have

time to stop safely.

TSYAN v POLICE [2017] NZHC 2795 [15 November 2017]

[4]      The Justices of the Peace decided that Mr Tsyan had failed to stop for an amber signal, as required by Land Transport (Road User) Rule 2004(4)(a).   They found Mr Tsyan guilty, fined him $150 and ordered him to pay Court costs of $30.

[5]      Ms  Tsyan  appealed  that  decision  to  the  District  Court.    Judge  Dawson dismissed the appeal.   The Judge’s decision was given orally.   It has  not been possible to obtain a transcript of the decision.  In seeking leave for the appeal, Mr Tsyan’s  lawyer  said  the  District  Court  Judge  characterised  the  decisions  of  the Justices of the Peace as being decisions of credibility.  I deal with the application for leave on that basis.

[6]      In the application for leave to appeal, Mr Tsyan’s lawyer has argued that a

miscarriage of justice has occurred or will occur unless the appeal is heard because:

(a)      the Justices of the Peace erred in declining to discharge Mr Tsyan under s 147 Criminal Procedure Act 2011 and then finding the alleged infringement proved; and

(b)the District Court Judge failed to address the appeal points in treating the decision of the Justices of the Peace as being decisions of credibility and in failing to have due regard to the prosecution’s own evidence as to the distances  involved,  which Mr Tsyan  wishes to contend, it meant that it was impossible for the van in which Mr Tsyan was travelling to stop safety in response to the amber light.

[7]      As is usually appropriate, I can deal with the application on the papers.

[8]      Section 237(2) Criminal Procedure Act 2011 states:

The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that—

(a)   the appeal involves a matter of general or public importance; or

(b)   a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[9]      On this application, the Court must evaluate all relevant matters and reach a judgment as to whether or not it is satisfied a miscarriage of justice may have occurred.  Not all errors by a court below will give rise to a miscarriage of the sort that would justify leave being granted.1

[10]     The Justices of the Peace declined the s 147 application on the basis they considered there was sufficient evidence on which, at the point the application was made, Mr Tsyan could be convicted.

[11]     In their brief decision, the Justices of the Peace referred to evidence of a Police officer that he had observed Mr Tsyan turning left on an amber traffic signal. They said Mr Tsyan, in his evidence, had raised an issue as to the colour of the light when he made a left turn and that he had referred to it being “maybe green turning amber”, and of saying he was unable to stop safely.  They mentioned issues being raised as to a vehicle being in front of Mr Tsyan’s vehicle, distance to the white line, speed and whether he was able to stop safely with passengers in the van.   They referred to the constable’s evidence and opinion that there would have been time for Mr Tsyan to stop and Mr Tsyan’s evidence that he felt discriminated against because he is Chinese.   The Justices of the Peace said Constable Horn did not know the driver’s nationality until he approached the driver’s door of the van.  The Justices of the  Peace  referred  to  Mr Tsyan’s  statement  that  he  was  travelling  at  25  to  30 kilometres an hour and that, if he had braked for the lights, he would have caused injury to his passengers.

[12]     The Justices of the Peace referred to the obligation which is on a driver to stop in response to an amber light unless the vehicle is so close to the controlled area that it cannot safely stop before entering the area.  They referred to the fact that Mr Tsyan admitted that, if he did not have passengers, he would have stopped.  They also referred to his admission that he thought it was permissible to drive through an

amber light slowly.

1      McAllister v R [2014] NZCA 175.

[13]     The Justices of the Peace considered the points that had been raised by Mr Tsyan in his defence.  It was for them to decide what weight they should attach to the constable’s opinion as to whether Mr Tsyan had sufficient time to stop safely.  I infer from their reference to the constable’s evidence about approaching the vehicle that the constable had reached his opinion, regarding whether Mr Tsyan had time to stop safely, at the same time he observed what was happening.  Whether or not Mr Tsyan had time to stop could not be determined simply on the basis of estimates from either the constable or Mr Tsyan as to the distance he was from the intersection when the light turned amber or estimates as to the speed he was travelling.  Inevitably, those estimates would have been imprecise.  Obviously of significance to the Justices of the Peace was Mr Tsyan’s evidence that he would have stopped if he did not have passengers in the vehicle and that he had an attitude towards going through an intersection on an amber traffic signal which could well have caused him to make the wrong judgment in the situation he was in.

[14]    Ultimately, whether or not the charge was proved did turn on issues of credibility and as to whether the Justices of the Peace felt able to accept the opinion of the constable that, when the light turned amber, the driver of Mr Tsyan’s vehicle had sufficient time to stop safely and thus should have.

[15]     The record indicates there was a reasonable basis on which the Justices of the Peace could reach the decision they did.  Having heard the evidence, they were in the best position to make findings as to credibility.

[16]     On the application for leave, Mr Tsyan argues the Justices of the Peace were in error because their decision did not turn on any credibility determination and required them to reject the prosecution’s evidence as to the distances involved.  I do not accept that the decision of the Justices of the Peace can be characterised in this way.  I agree with the District Court Judge that, ultimately, their determination did involve them reaching a judgment as to the credibility of the constable and the opinion he had arrived at.

[17]     Against that background and having regard to all that was involved with this charge, I am not satisfied this is a case where there has been a miscarriage of justice, or a risk of a miscarriage, so as to justify a second appeal to this Court.

[18]     Leave to appeal is declined.

Solicitors:

Maree Cross, Barrister, Auckland.