W v Police HC Auckland CRI 2008-404-207

[2008] NZHC 1639

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-207

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         20 October 2008

Counsel:         Appellant in person

G Kayes for Respondent

Judgment:      20 October 2008

ORAL JUDGMENT OF RODNEY HANSEN J

Solicitors:       Meredith Connell, P O Box 2213, Auckland for Crown

Copy to:         Mr NM W  , 3/19 Takanini Road, Takanini, Auckland

W V  POLICE HC AK CRI 2008-404-207  20 October 2008

[1]      Mr W   was convicted by Justices of the Peace, sitting in the Auckland District Court, of failing to wear a seatbelt while driving his car, contrary to s 40 of the Land Transport Act 1998 and r 4 Land Transport (Offences and Penalties) Regulations 1999.  He was fined $150 and ordered to pay Court costs of $30.  He appeals against conviction and sentence.

Evidence

[2]      The evidence for the prosecution was given by Sergeant Lance Gardner who said that, while sitting in an unmarked police car on Wheturangi Road, Greenlane, early in the afternoon of 7 January 2008, he observed Mr W  ’s car turn from Greenlane West into Wheturangi Road.   As Mr W   approached where he was parked, some 50 – 60 metres from the intersection, Sergeant Gardner said he noticed Mr W   was not wearing a seatbelt.  He pursued him and stopped him further along Wheturangi Road.  When he asked Mr W   why he was not wearing a seatbelt, he explained that he had been to a hospital nearby and was anxious about a letter he had recently received from Land Transport New Zealand Limited regarding the suspension or termination of his driver’s licence.

[3]      Before me Mr W   explained that he suffers from a medical condition which requires him to have annual medical checkups and he had been required to have the medical examination that day or risk the loss of his licence.

[4]      In cross-examination Sergeant Gardner denied a suggestion that he might have been mistaken.  He said that when spoken to Mr W   had admitted that he did not have his seatbelt on.

[5]      Mr W   gave evidence in his own defence.  He said that while sitting at the lights at the intersection, he had undone his seatbelt to take something out of his pocket that was causing him discomfort.  He said he had done it up again as he drove off.  He said the police officer must have seen him readjusting it.  He was adamant in his evidence that he had the seatbelt on at the time.

[6]      Mr W   produced a photo, which he took with his mobile phone from a position on or near the front passenger’s seat of his car soon after he was apprehended.  The photo shows Mr W   wearing a seatbelt with the police officer visible through the driver’s window writing in his notebook.

Justices’ decision

[7]      The Justices accepted the evidence of Sergeant Gardner that at the time he observed him, Mr W   was not wearing a seatbelt.  They said, in relation to the evidence of the photograph:

You have also submitted a photo but I have to point out to you that the photo is not accepted because of the fact that it was taken at some moments or minutes after in fact the Sergeant had observed you.

Appellant’s submissions

[8]      In support of the appeal, Mr W   relied on three grounds.

•First, he submitted that the Justices of the Peace had erred in failing to accept the photo in evidence.

•Secondly and alternatively, he argued that the Justices were wrong to accept the evidence of the police officer in the face of the photographic evidence.

•Thirdly,  he  pointed  to  a  claimed  inconsistency  in  the  police  officer’s evidence,  namely,  that  in  evidence-in-chief  he  claimed  to  have  seen  Mr W   in his vehicle while it was stopped at the intersection but in cross- examination conceded that he had been unable to see whether Mr W   was wearing a seatbelt while he was waiting at the lights.

Discussion

[9]      As to the first ground of appeal, it is clear from the passage quoted in [7]

above that the Justices received the photograph in evidence.  The words relied on by

Mr W   as indicating otherwise, their comment that the photo is not accepted, read in context must be taken to mean that they did not accept that the photograph established that Mr W   was not wearing a seatbelt at the relevant time.

[10]     Dealing with Mr W  ’s second point, there is no doubt that at the time the photograph was taken, while the police officer was still speaking to Mr W  , he was wearing his seatbelt.  But it does not follow that he was not wearing the seatbelt at the time that he was seen by the police officer.  As Mr Kayes submitted, there was plenty of opportunity for Mr W   to put the seatbelt on after he became aware he had been seen by the police officer.   The Justices plainly believed this to have occurred.

[11]     I do  not  find  any inconsistency in  the  evidence  of  Sergeant  Gardner  in relation to his observations of Mr W  .  At no stage in his evidence-in-chief did he claim to have seen Mr W   stationary at the lights and there is no indication that at that stage he was in a position to see whether Mr W   was wearing a seatbelt. There is no inconsistency in his  acknowledgement  in  cross-examination  that  he could not see the lights at the intersection or whether Mr W   was wearing a seatbelt before he made the left hand turn into Wheturangi Road and first came to Sergeant Gardner’s attention.

[12]     In a case such as this, the burden is on the appellant to show that the Justices of the Peace had made a factual error.  There is nothing to show that they did.  They were entitled to prefer the evidence of Sergeant Gardner.  While the accuracy of his observations were questioned, his evidence that Mr W   admitted that he was not wearing a seat belt was not.  The photographic evidence is in no way inconsistent with the prosecution case or the Justices’ decision.

Result

[13]     The appeal must be dismissed.