W v Police HC Whangarei CRI 2008-488-55

[2008] NZHC 1793

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2008-488-55

BETWEEN  W

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         18 November 2008

Counsel:         R K Treloar for Appellant

K R Thomas for Respondent

Judgment:      18 November 2008

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Community Law Centre, PO Box 76-551, Manukau City, Auckland

Crown Solicitor, PO Box 146, Whangarei

W V NEW ZEALAND POLICE HC WHA CRI 2008-488-55 18 November 2008

Introduction

[1]      After a defended hearing in the District Court at Whangarei, on 27 August

2008, Mr W   was convicted of careless use of a motor vehicle.  He was fined

$600 and ordered to pay Court costs of $130.

[2]      The prosecution arose out of an incident that occurred on 26 April 2008.  An unusual feature of the case was that the prosecution alleged that the careless driving occurred at a location south of Whangarei, in the vicinity of Ruakaka, while Mr W   contended that the incident occurred north of Whangarei, in the vicinity of Kamo.  For reasons which will become apparent, that difference appears to have deflected the presiding Justices of the Peace from addressing the real issue before them, namely whether the driving described fell below the standard required by law.

[3]      Mr W   appeals against both conviction and sentence.

Background to the prosecution

[4]      The essence of the prosecution case was that Mr W   was driving north,  towards  Whangarei,  in  the  vicinity  of  Ruakaka.    The  complainant,  Mr Longdill,  and  the  police  officer  who  stopped  Mr  W  ,  Constable  van Pomeren, both gave evidence of an overtaking manoeuvre carried out by a vehicle of which Mr W   was alleged to be the driver.  The overtaking manoeuvre, as described suggested that it had been commenced without due regard for the distance that had to be travelled to overtake vehicles in front of the car undertaking the manoeuvre.

[5]      Mr W   accepted that he had been involved in an incident in which his vehicle had overtaken others.  He also accepted that Constable van Pomeren attended the scene.  His explanation was that on commencing the overtaking manoeuvre he intended to pull in ahead of the vehicle overtaken but that the distance to do so was

unavailable due to the way in which the other driver reacted  to  the  overtaking manoeuvre.  In those circumstances, he continued the overtaking manoeuvre.

The District Court decision

[6]      The Justices of the Peace who heard the defended charge focussed primarily on evidence of where  the  incident  occurred.    They found  that  it  occurred  near Ruakaka and took the view that there was “a genuine mistake” on Mr W  ’s behalf over where the incident occurred.

[7]      The main reason given by the Justices for accepting the location as Ruakaka involved Mr W  ’s evidence of a number of bales of hay in the vicinity of where the manoeuvre took place.  The Justices referred to photographs, produced by Constable van Pomeren, which were taken not long before the defended hearing. They noted that hay wheels could be seen in one of the photographs and, while acknowledging that those bales could have been placed there some time between the incident and the photographs being taken, said that “they do look as if they have been there for some time”.

[8]      The Justices did not go on to consider whether, if the incident did occur at Ruakaka, the explanation of Mr W   was sufficient to raise a reasonable possibility that he was not driving carelessly.

Analysis

[9]      For the purpose of this appeal, I proceed on the assumption that it does not matter where the alleged careless driving occurred.  The descriptions of the incidents are sufficiently similar to allow  an  assessment  of the quality of the driving by comparing the evidence given by prosecution and defence witnesses.

[10]     In making that  assumption,  I reject  the  reason  given  by the  Justices  for holding  that  the  incident  occurred  near  Ruakaka.    Reliance  on  the  photograph

evidence taken close to the time of the defended hearing was purely speculative and could not give rise to an inference of the type the Justices appear to have drawn.

[11]     Nevertheless, as Mr Thomas has said this morning, for the Police, there are other factors that could have led to a conclusion that the manoeuvre took place near Ruakaka.  I do not involve myself in that debate.  I do not comment adversely on either Constable van Pomeren or Mr W   in leaving that issue to one side.

[12]     The Justices did not address, at all, the explanation raised by Mr W  . The prosecution bore the burden of proving beyond reasonable doubt that Mr W  ’s driving on the occasion in issue was careless.  The evidence raised at least a reasonable possibility that the driving was not careless.

[13]     While driving of the type described might ordinarily be regarded as careless, if a prudent and reasonable driver were faced with the inability to pull in ahead of the vehicle being overtaken, due to no fault of his or her own, that driver is obliged to take the path of least danger to remove himself or herself from a position of danger close to or over the centreline.

[14]     It is not inevitable that the Justices would have concluded that the driving was careless had they addressed this issue.  I regard the conviction entered as unsafe. The Justices ought to have considered the explanation given and then to have determined whether, on the evidence heard, the charge had been proved beyond reasonable doubt.

Result

[15]     For those reasons, the appeal is allowed.   The conviction and the sentence imposed in consequence are set aside.  There will be no order for a re-hearing.

P R Heath J