W v Police HC Wellington CRI 2010-485-82

[2010] NZHC 1781

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-82

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 October 2010

Counsel:         T Blake for Appellant

A Ewing for Respondent

Judgment:      6 October 2010

JUDGMENT OF RONALD YOUNG J (Appeal against conviction)

Introduction

[1]      On 23 November 2009 Mr W   was driving south on Takapu Road. The road is narrow and winding.  About the same time Ms Gordon was riding her horse in the opposite direction.  She was slightly off the edge of the road on the grass verge.   Ms Gordon later complained to the police that Mr W   had failed to slow down when approaching her and drove past too fast and too close (estimated at

one arm’s length from the horse).

W V NEW ZEALAND POLICE HC WN CRI 2010-485-82  6 October

2010

[2]      Mr W   was charged with failing to exercise due care towards a person who was riding an animal on a road.  He pleaded not guilty but the Justices of the Peace convicted him.

[3]      The appellant appeals against conviction on the following grounds:

a)       the  appellant  did  not  know  that  the  horse  had  been  frightened immediately before he passed it and so the Justices should not have assessed his driving against the standard required when passing an already frightened horse;

b)the Justices of the Peace miscalculated how close the appellant was to the complainant;

c)       the Justices erred in assessing how fast the appellant was going at the time;

d)       the Justices did not accurately assess the road conditions at the time;

e)        the Justices wrongly admitted propensity evidence;

f)        the  Justices  wrongly  admitted  evidence  of  a  warning  given  to

Mr W  ;

g)       at the time the complainant was not on the road and so the appellant could not be guilty of the offence alleged;

[4]      As to sentence, after conviction the appellant was not given a chance to make submissions on sentence.

Background

[5]      On  23 November 2009   Ms Gordon   was   riding  her  horse  north   along

Takapu Road.  Ms Gordon’s horse was spooked by a loud bang from wood dropping

at a nearby sawmill.   The bang caused the horse she was riding to momentarily spook and also momentarily she lost control.  The horse crossed from the edge of the road out onto the road.  Ms Gordon was quickly able to bring the horse back under control  and  back  onto  the  grass  verge  beside  the  road.    At  about  that  time Mr W   approached from the opposite direction in his vehicle.

[6]      Mr W    and  the  complainant  disagree  as  to  what  precisely  then happened.   The complainant says that  she saw  Mr W   approaching from

150 metres away.  Mr W   did not slow down when approaching her and he drove past her at a speed which she considered excessive and too close to her at about, she estimated, one arm’s length from the horse.   The complainant was especially concerned because the horse had just been spooked.  The horse however did  not  react  to  Mr W  ’s  car  and  he  passed  without  incident.     She subsequently complained to the police.

[7]      Unfortunately the police did not interview Mr W   until two weeks after the incident.   Initially he said he could not recall the event but later after checking on the date he recalled that he had seen the complainant on her horse that day.    He  gave  evidence at  trial.    He said  that  he  could  only recall  seeing  the complainant for one to two seconds before he passed her and the horse.   He had initially been going 40 kilometres per hour but had slowed as he approached the horse.   When he passed the horse and rider he thought he was about three metres away.  He said that he knew the road well and that it was narrow and winding.  He said he was familiar with the hazards on the road.   When he gave evidence he produced a series of photographs which he claimed illustrated he could not have seen the horse and rider until about 50 metres from them.

The Decision appealed against

[8]      It  is  clear  from  the  evidence  given  at  trial  that  there  was  a  history  of animosity between the complainant and Mr W  .  This was illustrated in the propensity evidence and the warning evidence.   The prosecution sought to admit propensity  evidence.     The  Justices  ruled  the  evidence  was  admissible.     The propensity evidence was given by the complainant.   She said that on a previous

occasion the appellant had driven by her when she was riding her horse.   The appellant had been on a motor cycle and had tooted aggressively.   The appellant agreed he had passed the complainant riding her horse on his motorbike but said he had given her a friendly toot of his horn.

[9]      In their decision the Justices detailed the evidence of the prosecution and defence.  That detail illustrated there was dispute as to the facts.  In resolving this “dispute” they said:

Mr W   claims to have seen Ms Gordon from a distance of 40 metres and for 1 to 2 seconds whereas Ms Gordon states she saw the vehicle some

150 metres away.   Ms Gordon’s evidence was persuasive as she described

the events clearly and in specific detail.  She also made a detailed statement to  the  Police  with  a  couple  of  days  of  the  incident.    We  believe  that Ms Gordon was there to be seen – wearing a white top astride a large white horse – against a background of green foliage.   We believe Ms Gordon’s version of events.

Ms Gordon alleges that the vehicle passed “at arm’s length” from her and her horse.  By Mr W  ’s calculations, the width of the road where the incident took place is 5.3 metres.  Mr W   estimated that the width of his vehicle was just under 2 metres.  The width of a large 16 hand horse and rider – we estimate to be approximately 2 metres.   That would leave approximately   1.3 metres   to   get   past   Ms Gordon   and   the   horse. Mr W   was travelling, by his estimation, at 40 kph.

Discussion

[10]     The first issue I deal with is the correctness of admitting the propensity evidence.

[11]     Section 43 provides:

43       Propensity evidence offered by prosecution about defendants

(1)The prosecution may offer propensity evidence about a defendant in a criminal proceeding only if the evidence has a probative value in relation to an issue in dispute in the proceeding which outweighs the risk that the evidence may have an unfairly prejudicial effect on the defendant.

(2)       When  assessing  the  probative  value  of  propensity  evidence,  the

Judge must take into account the nature of the issue in dispute.

(3)      When  assessing  the  probative  value  of  propensity  evidence,  the

Judge may consider, among other matters, the following:

(a)the frequency with which the acts, omissions, events, or circumstances which are the subject of the evidence have occurred:

(b)the connection in time between the acts, omissions, events, or circumstances which are the subject of the evidence and the   acts,   omissions,   events,   or   circumstances   which constitute the offence for which the defendant is being tried:

(c)       the  extent  of  the  similarity  between  the  acts,  omissions, events,  or  circumstances  which  are  the  subject  of  the evidence and the acts, omissions, events, or circumstances which constitute the offence for which the defendant is being tried:

(d)the  number  of  persons  making  allegations  against  the defendant that are the same as, or are similar to, the subject of the offence for which the defendant is being tried:

(e)whether the allegations described in paragraph (d) may be the result of collusion or suggestibility:

(f)the   extent   to   which   the   acts,   omissions,   events,   or circumstances which are the subject of the evidence and the acts, omissions, events, or circumstances which constitute the  offence  for  which  the  defendant  is  being  tried  are unusual.

(4)When assessing the prejudicial effect of evidence on the defendant, the Judge must consider, among any other matters,—

(a)whether the evidence is likely to unfairly predispose the fact- finder against the defendant; and

(b)whether the fact-finder  will tend  to  give  disproportionate weight in reaching a verdict to evidence of other acts or omissions.

[12]     Section 40 defines propensity in this way:

40       Propensity rule

(1)      In this section and sections 41 to 43, propensity evidence—

(a)means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b)      does not include evidence of an act or omission that is—

(i)1 of the elements of the offence for which the person is being tried; or

(ii)      the cause of action in the proceeding in question.

(2)       A  party  may  offer  propensity  evidence  in  a  civil  or  criminal proceeding about any person.

(3)      However, propensity evidence about—

(a)a defendant in a criminal proceeding may be offered only in accordance with section 41 or 42 or 43, whichever section is applicable; and

(b)       a   complainant   in   a   sexual   case   in   relation   to   the complainant's sexual experience may be offered only in accordance with section 44.

(4)       Evidence that is solely or mainly relevant to veracity is governed by the veracity rules set out in section 37 and, accordingly, this section does not apply to evidence of that kind.

[13]     An analysis of the s 43(3) matters illustrates that the probative value of the evidence was not high.   The “event” alleged had only occurred once before; the connection in time between the two events was about one year; there is only the most general similarity between the events, in that they both involved a horse, a rider and a motor vehicle being driven by the appellant; the actual allegations, tooting aggressively and driving too fast and too close are unalike; only one person is making the allegations thus there is a danger of self corroboration; finally there is little that is unusual about these events.

[14]     The issue in dispute in this case was whether or not the appellant had passed with due care.  The fact that he may, on a previous occasion, have tooted when the complainant was riding a horse hardly seems to be related to the issue in dispute in this case (s 43(1)).  A connection could only arise if the Justices had concluded that the appellant had aggressively tooted his horn.   If so then the prosecution had a further occasion on which the appellant had acted irresponsibly toward the complainant.   However the Justices did not resolve this conflict between the complainant and the appellant.

[15]     I am satisfied the propensity evidence was inadmissible.  It did not relate to an issue in dispute and its probative value was almost non-existent.   Further, the

Justices failed to find the relevant facts.  This was essential given the factual dispute. I acknowledge the Crown submission that this evidence did not affect the outcome. However the Justices recounted the propensity evidence in their decision.  I am not prepared  to  say  this  evidence  had  no  effect  on  their  ultimate  conclusion.    By admitting inadmissible propensity evidence, the Justices made errors sufficient to allow the appeal and quash the conviction.

[16]     Further, the police prosecutor lead what was clearly inadmissible hearsay evidence about previous confrontations between the parties.  Constable Reeves said in evidence that he had delivered a warning letter to the appellant.  A copy of the letter was produced in evidence.

[17]     During the course of their judgment the Justices said:

When Constable Reeves called to see him to deliver the oral and written warning he did not dispute it.

(The “he” refers to the appellant)

[18]     It is hard to understand what the Justices meant by this.  It may be that they thought the warning related to these events, the subject of the charge.  If that was so then the implication is that the appellant’s failure to “dispute” the letter is somehow admissible evidence in favour of the prosecution.  It may be the Justices understood the warning related to earlier incidents.   However the implication in the Justices’ observation was that because the appellant did not dispute the “correctness” of the warning he should be taken to have admitted it.   This was wrong.   Silence by Mr W   could not be taken as an admission.

[19]     Further, the Constable in evidence said the warning related to the tooting incident and other incidents.  The warning letter said the Constable had previously spoken to the appellant “about the need to drive cautiously past horses”.  If the letter had solely referred to the tooting incident by itself it would have been of little moment.  However, prejudicially, it referred to other incidents not before the Court. The letter should not have been admitted in evidence.

[20]     There were other serious errors in the Justices’ approach.   The Justices’ conclusion that Mr W   was too close to the complainant when he passed her is based on the acceptance of the complainant’s evidence backed by their assessment of her evidence ([9]).  On their assessment given the width of the road, the width of the car and the width of the horse even if Mr W   was keeping as far to his side of the road as possible the side of car and the side of the horse would have been no more than 1.3 metres apart.  Mr W   therefore could hardly be blamed for being this close to the horse.   This was on the Justices’ assessment an inevitable result of the size of the vehicle, the horse and the width of the road.

[21]     However, two observations about the accuracy of the Justices’ conclusions here.  Firstly, they assessed the width of a horse at 2 metres.  That does seem rather wide.  However there was no evidence as to this.  Secondly, the evidence from the complainant was that her horse was not on the road when the vehicle passed her but on the grass verge.  Thus the width of the horse would not be relevant in assessing the distances that may have separated the vehicle and the horse.  The only relevant measurements were the width of the vehicle at 2 metres and the width of the road. As to the width of the road it was 5.3 metres where the appellant said they passed each other but closer to 4.3 metres where the complainant said she was when the appellant passed.  Either way the Justices’ calculations ([9]) did not support, as they thought, the evidence of the complainant.

[22]     As to speed the complainant’s evidence was that the appellant was driving “too fast”.  No actual speed was estimated nor was there any evidence as to what the complainant considered to be “too fast”.  Mr W  ’s evidence was that he was travelling at 40 kilometres per hour on the road but slowed momentarily the moment he saw the horse.  The police Constable who gave evidence rather remarkably did not know the speed limit but it was certainly no less than 70 kilometres per hour and possibly 100 kilometres per hour.  The Justices did not make any finding as to the appellant’s speed.

[23]     While Ms Gordon may have felt in the circumstances that Mr W   was driving too fast the test “in law” is not what she thought.  The Justices did not appear to distinguish between the subjective and the necessary objective assessment.  In any

event the Justices did not recognise that the complainant’s evidence was that the appellant was going too fast past an animal that was misbehaving.   There was no evidence the appellant knew the horse was misbehaving.

[24]   The photographic evidence shows the road is very windy.   In those circumstances it is difficult to understand how the complainant was able to see Mr W  ’s vehicle from 150 metres away.  However, there was no evidence to establish that Mr W   was in any sense negligent because he did not see the rider until he was about 40 or 50 metres away.  The Justices did not appear to take into account the obviously relevant fact that the complainant’s horse did not in fact react to the vehicle’s presence.

[25]     The Justices therefore made a number of errors during the conduct of this case as well as in their judgment which go to the essence of the case.  The appeal must therefore be allowed.  I have considered whether in the circumstances I should resolve this appeal by reaching my own conclusion on the facts.  I have decided it would not  be  proper  for me  to  do  so.    The  Justices  reached  a  view  as  to  the credibility of the two main witnesses as a result of seeing those witnesses.  Further, the evidence as to position of the appellant and the complainant and relevant measurements are confused on the current evidence.

[26]     I therefore allow the appeal, quash the conviction and send the matter back to the District Court for hearing.  I suggest in the circumstances the defended hearing

might be better heard by a District Court Judge.

Ronald Young J

Solicitors:

T Blake, Barrister & Solicitor, PO Box 44 245, Lower Hutt

A Ewing, Luke Cunningham & Clere, PO Box 10 357, Wellington, email: [email protected]