W v Police HC Gisborne CRI 2007-416-11
[2007] NZHC 742
•2 August 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND GISBORNE REGISTRY
CRI 2007-416-000011
W
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 2 August 2007
Appearances: A M Sceats for Appellant
R Collins for Crown
Judgment: 2 August 2007
ORAL JUDGMENT OF VENNING J
Solicitors: Crown Solicitor, Napier
A M Sceats, Gisborne
W V NEW ZEALAND POLICE HC GIS CRI 2007-416-000011 2 August 2007
[1] On 18 April 2007 in the District Court at Wairoa following a defended hearing before Justices of the Peace the appellant was convicted on one count of careless use and one count of providing false information to an enforcement officer. On each count he was fined $200 and ordered to pay costs of $130. He appeals against conviction. Mr Sceats has confirmed that the appeal against sentence is not pursued.
[2] There are two issues in relation to the count of careless use. First, whether the appellant Mr W was the driver of the vehicle involved in the accident, and second if he was, whether he drove carelessly and caused the accident by crossing the centre line. The issue in relation to the second count is whether he provided false information in response to a requirement to provide that information by the enforcement officer.
[3] At the hearing the driver and passenger in the other vehicle gave evidence as did the constable who attended the scene after the accident and Mr W . The Justices of the Peace concluded:
We accept the evidence given to us by the prosecution and – we have taken – we accept the proof of the prosecution and my colleague and I accept that you were the driver of that car.
[4] In support of the appeal Mr Sceats has raised a number of issues:
• first he says the Justices of the Peace failed to give proper and sufficient reasons;
• next, that they failed to make sufficient findings of fact that the appellant was the driver;
• next they failed to give proper and sufficient reasons as to why they believed the appellant’s vehicle had crossed over on the wrong side of the road; and
• finally, that they convicted on the second count without any evidentiary basis to support it.
[5] The conclusions of the Justices of the Peace were with respect very limited. The issue of the need for detailed reasons has been referred to by the Court of Appeal on at least two occasions. The leading case is R v Awatere [1982] 1 NZLR
644. More recently the Court of Appeal in R v Jefferies [1999] 3 NZLR 211 also addressed the point. It has to be observed that where the only expression of reasons provided is an acceptance of the prosecution evidence that is not particularly helpful. In the R v Jefferies decision the Court of Appeal noted the Justices of the Peace manual provided that Justices should always give reasons for their decisions even if the reasons are brief because, amongst other things, the defendant wants to know, particularly if found guilty, why that decision was reached and giving the reasons explains this and better enables justice to be seen to be done.
[6] In the present case given the issues it would have been helpful if the Justices of the Peace had identified those issues and even briefly said that on the basis of the evidence of Mr Jarvis, the passenger, they accepted that the appellant was the driver and having considered the evidence of Mr Jarvis in particular and the constable who attended the scene subsequently they accepted that the appellant’s car had crossed the centre line and caused the accident. The appellant would then have been aware of the reasons for his conviction.
[7] However, as Mr Sceats accepted, even if the reasons were inadequate, then this Court may hear and determine the appeal on the material before it. I have a full record before me and I am prepared to do so. There can be no suggestion in this case given the nature of the charge that it is in the interests of justice for the matter to be referred back for a further hearing in the District Court.
[8] On the two issues raised in relation to the careless use charge, the evidence satisfies the Court beyond reasonable doubt that the appellant was the driver of one of the vehicles that was involved in the accident. Although Mr Nash, the driver of the other vehicle, sustained an injury to his head and was not able to help in identifying the appellant as the driver, Mr Jarvis the passenger was. Mr Jarvis gave evidence that when the accident happened:
I looked over at the driver Peter and he had blood all over his face so I
quickly jumped out, went to run around the back of the car but we were
against the road barrier so I had to run around both cars to get to him in the driver’s seat.
When you went around, what did you do?….. I ran around and yelled out to the driver that was in the other car if he was okay. He yelled out yep and um yelled out to Peter because he was the one who had all the blood over his face so yeah he was a priority at the time.
Okay, the driver that said he was okay, would you describe that person please?….. It’s the man that owns the red hair.
The chap with the red hair?….. Yes.
He was the driver of the vehicle?….. Yes.
It was accepted that that was an identification of the appellant.
[9] When cross-examined Mr Jarvis said:
On seeing him in there you assumed that he was the driver, is that right?….. Well it was only two seconds since the accident, I presumed he was the driver because –
Presumed?….. Well he was sitting in the driver’s seat.
[10] The appellant’s explanation for being in the driver’s seat was that the car was being driven by his grandson Ricky, that after the accident his grandson could not open the driver’s door as it was jammed, so Ricky climbed into the back and then got out of the door in the rear of the car and that he, the appellant, climbed into the front of the car to the driver’s seat to try and get his daughter out of the passenger’s seat because her seatbelt was jammed and would not release.
[11] On the appellant’s explanation, given the grandson’s attempts to open the driver’s door, which were unsuccessful, and then having to climb into the rear to make room in the front for the appellant to climb through, it would have taken some time for the appellant to have got himself into the driver’s seat of the car.
[12] Against that Mr Jarvis’ evidence was clear both in evidence-in-chief and cross-examination that he got out of the car immediately after the accident and while going around the car to the driver’s door of his car he immediately saw the appellant in the driver’s seat. He referred to it being within two seconds but even if it was several seconds there would simply have been insufficient time for the appellant to
have got into the driver’s seat in the way he described before Mr Jarvis came around the cars. The Justices of the Peace were quite entitled to find beyond reasonable doubt that the appellant was the driver. This Court also so finds.
[13] The next issue is whether the appellant caused the accident by crossing the centre line. Again the driver of the other vehicle Mr Nash cannot assist. Mr Jarvis gave evidence that he did not see the other car before the accident but said that he knew they were driving on the left-hand side of the road. When cross-examined he accepted that:
So therefore you cannot tell the Court with any certainty where your car was, can you – can you?….. No.
But, also said:
- you generally know where you are on the road when you are on the road.
And in re-examination said:
Whereabouts on the road was the vehicle in which you were travelling?….. In the correct place.
[14] There is, however, further independent evidence for the prosecution that the appellant’s car crossed the centre line and caused the accident. It is the evidence of Mr Jarvis that after the accident the cars were jammed together and that the car that he was in had been pushed back into a barrier on their side of the road. The clear inference is that the car driven by the appellant pushed the car that Mr Jarvis was a passenger back into the barrier. Given that the barrier was on the side of the road, which would have been the correct side of the road for the car in which Mr Jarvis was a passenger, the inference is that the car driven by the appellant crossed the centre line.
[15] There was no evidence given by the appellant to the contrary. In the circumstances again the Justices of the Peace were quite entitled to and this Court would find that on the basis of the evidence the appellant’s car had crossed the centre line and caused the accident. The appeal against conviction in relation to the careless use charge must be dismissed.
[16] That leaves the second count. That count is a charge that the appellant having been required by an enforcement officer to give information that may lead to the identification of the driver gave information that was known to be false or misleading. The evidence supporting the charge is the evidence of the constable. He said:
I spoke to Teawaroa W .
And later:
The defendant told me that he was a passenger in the [car].
And:
[He] told me that Ricky Hartley was driving the [car].
[17] That information was incorrect but the relevant sections in the Transport Act are ss 118 and 14. Section 118(1) provides that:
If an enforcement officer has reasonable cause to believe that the driver of a vehicle has committed an offence while in charge of the vehicle, the officer may request the owner or hirer of the vehicle to give all information in his or her possession or obtainable by him or her which may lead to the identification and apprehension of the driver of the vehicle.
(emphasis added)
[18] That section seems to contemplate a request by the officer.
[19] Significantly in my view s 14 which is headed false or misleading information not to be given again provides a person who is “required by or under this Act” to give any specified information may not give information known to be false. On my reading of those sections the offence which is relied on to support the second count is an offence of providing false information in response to a request by an enforcement officer for information as to the driver. In this case there is no evidence from the prosecution of any request being made by the officer. In the circumstances and bearing in mind the nature of the charge there is insufficient evidence before the Court to support that conviction on that count.
[20] The appeal in relation to the second count is allowed. The sentence in
relation to the second count of the fine of $200 and Court costs of $130 is quashed.
Venning J
0
0
0