Young v Police
[2020] NZHC 2746
•19 October 2020
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI 2020-404-000039
[2020] NZHC 2746
BETWEEN DION WAYNE YOUNG
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 October 2020 Appearances:
Appellant self-represented
M B Smith for the Respondent
Judgment:
19 October 2020
JUDGMENT OF VAN BOHEMEN J
This judgment was delivered by me on 19 October 2020 at 3.30pm Pursuant to Rule 11.5 of the High Court Rules
…………………………
Registrar/Deputy Registrar
Solicitors/Counsel:
Marsden Woods Inskip Smith Crown Solicitor, Whangārei And to:
The Appellant
YOUNG v NEW ZEALAND POLICE [2020] NZHC 2746 [19 October 2020]
Introduction
[1] Dione Wayne Smith appeals his conviction on one charge of failing to stop when followed by red/blue flashing lights.1
[2] On 5 August 2020, Judge K B de Ridder convicted Mr Young and sentenced him to six months’ disqualification from driving and a fine of $350 and ordered Mr Young to pay Court costs of $150.00. He appeals against his conviction.
[3]Mr Young is self-represented.
[4] At the hearing, Mr Young handed up a certified and apostilled copy of a birth entry in the Maori Chief Registrar Office of the Maunga Hikurangi Koporeihena Maori which records the name of Âtarere Patuharakeke Manaia. He also filed and handed up submissions in the name of A P Manaia, which is the name and the identity by which he wishes to be known. For that reason, I addressed Mr Young as Mr Manaia at the hearing.
[5] However, Mr Young also handed up a copy of his New Zealand birth certificate, which appears still to be current. He also confirmed that he was the person against whom the charge of failing to stop was brought and who has brought the appeal. Accordingly, in this judgment I refer to Mr Young rather than Mr Manaia.
Background
[6] The Police say that on 13 September 2019, Mr Young was driving his motorcycle south on State Highway 1 towards Hikurangi. He was observed travelling at 129 km/h by Constable Billings, who was in a marked highway patrol car facing north at the time. Constable Billings engaged his red and blue flashing lights, did a u- urn, and pursued Mr Young along State Highway 1 and then into King Street, Hikurangi.
[7] Mr Young stopped at his home address at 85 King Street in Hikurangi. He was charged with aggravated failure to stop.
1 Police v Young [2020] NZDC 15604.
[8] In his decision, Judge de Ridder concluded from the evidence of Constable Billings that he had driven five to 10 metres behind Mr Young along King Street that Mr Young must have seen the officer behind him and must have seen the flashing blue and red lights and must have exercised a conscious decision to fail to stop. The Judge was satisfied that the essential elements of the charge had been proved.
Mr Young’s appeal
[9] In his notice of appeal, Mr Young states that he was not judged on the facts and “truth” that he had put before the District Court in a statutory declaration.
[10] In the submissions handed up before and at the hearing of his appeal, Mr Young said that it was not possible for Constable Billings to have caught up to and followed Mr Young’s motorcycle based on the times recorded in the Constable’s notebook entries. At the hearing, Mr Young handed up his calculations of the distances and times involved, as well as various other supporting material – all of which was also before Judge de Ridder.
Approach on appeal
[11] Section 229 of the Criminal Procedure Act 2011 (provides a right of appeal against conviction. In accordance with ss 232(2)(b) and (c) of the Act, the Court must allow the appeal in the case of a Judge-alone trial if it is satisfied that a miscarriage of justice occurred because the Judge erred in his or her assessment of the evidence or for any other reason.
[12] Section 232(4) of the Criminal Procedure Act defines a miscarriage of justice as:
… any error, irregularity or occurrence in or in relation to or affecting the trial that:
(a)has created a real risk that the outcome of the trial was affected; or
(b)that has resulted in an unfair trial or a trial that was a nullity.
Submissions for Mr Young
[13] The essence of Mr Young’s submissions is that Judge de Ridder failed to have regard to Mr Young’s calculations of timings and distances which, Mr Young says, prove that the account given in evidence by Constable Billings cannot be correct. Mr Young also says Constable Billings failed to produce readings from the Police laser speed detection equipment to support the Constable’s evidence that he had recorded Mr Young’s motorcycle travelling at 129 kilometres per hour on State Highway 1 or that he had observed Mr Young travelling at over 103 kilometres per hour on King Street in a 50 kilometre per hour area.
[14] Mr Young also places some emphasis on the following exchange between counsel for the Police and Constable Billings when the Constable was being re- examined:
Q. Did you catch up with this defendant?
A. I caught up with the defendant as he pulled into his driveway.
[15] Mr Young says that this proves that the Constable could not have been following him along King Street with his lights flashing as alleged by the Police.
Submissions for the Police
[16] Mr Smith, counsel for the Police, submits that Judge de Ridder considered the evidence and issues that Mr Young raises on appeal, that an analysis of the decision shows that the issues were correctly identified, and the Court was satisfied the charge was proved. He submits that there is no identifiable error or irregularity that could justify a claim that there was any risk that the outcome of the trial was affected in any unfair way.
Analysis
[17] The offence of which Mr Young has been convicted is failure to stop when followed by red/blue flashing lights. While Constable Billings activated the lights and followed Mr Young was that he considered Mr Young was travelling at excessive speed, the speed at which Mr Young was travelling is not an element of the offence.
[18] For that reason, the timings and calculations that Mr Young has made, based on the Police records and Constable Billings notebook entries, are irrelevant. In order for a conviction to be entered, the only elements that Judge Ridder had to be satisfied of was that Mr Young had been followed by red/blue flashing lights, that Mr Young must have been aware of those lights and had failed to stop.
[19]In his decision, Judge de Ridder states:
[13] It is quite clear that [Mr Young] accepts he was the rider of the motorcycle on that day and that he was spoken to by Constable Billings at his property and he accepts that Constable Billings told him that he had failed to stop. He claimed that he only saw Constable Billings when Constable Billings entered his property. He never saw any flashing lights and never saw Constable Billings at all at any point until he was spoke to in the grounds of his property.
…
[16] In this case, Constable Billings’ clear evidence was that he had activated his flashing blue and red lights and continued to have them activated from the time he first observed the defendant travelling at 129 kilometres per hour on State Highway 1 and continued to operate them until he stopped outside the defendant’s address.
[17] In the face of that evidence, the defendant’s evidence is that he simply never saw him. That does not, in any way, amount to establishing that the red and blue lights were not flashing. Of course, it is not for him to prove that but in the face of clear evidence of the officer, they were activated, then something needs to be given in evidence which would call into question Constable Billings’ evidence in that regard. Clearly, it is not.
[18] The next issue for the prosecution to prove is that the defendant failed to stop while being followed with the police vehicle displaying flashing blue and red lights whilst he was driving the motorcycle. In that regard, there are two possibilities, firstly, from the time that the officer performed a u-turn on State Highway 1 [until] the time that the defendant turned off into King Street. There was some distance involved on Constable Billings’ own evidence in that regard and it is possible, although I find it somewhat unlikely, but it is possible, that for the portion of the pursuit between when Constable Billings performed his u-turn and when the officer turned into King Street, that the defendant had simply not observed the officer.
[19] However, once the officer was on King Street, the situation is entirely different. The unchallenged evidence of Constable Billings was that he was somewhere between five to 10 metres behind the defendant’s midcycle. That was unchallenged. Rather, the defence seemed to me that Mr Young says he simply did not see him. I find that to be highly unlikely. The evidence is that this was a clear sunny day, which the defendant accepted, photographs taken were not taken on the day, but the officer gave evidence that the conditions as shown in the photographs were similar to the conditions that prevailed on 13 September.
[20] Constable Billings’ evidence also was that between the intersection of State Highway 1 and King Street, to the point […] outside the defendant’s residence, there were no other vehicles in between his patrol vehicle and the defendant’s motorcycle. So, [there] can be no argument or possibility that somehow the lights were obscured.
[21] Finally, this was accepted by Constable Billings to be a quiet residential street and there were no other commercial activities going on in the street such that might impede the defendant’s view.
[22] The only logical inference is that with a patrol vehicle following a motorcycle fit[ted] with at least one rear vision mirror, if not two, the only logical inference is that, clearly, on a bright, sunny day, a street with no other traffic, the defendant must have seen the officer behind him and must have seen the flashing blue and red lights. That is the only logical inference that can be drawn from all of the evidence that I have heard.
[20] Accordingly, the Judge was satisfied the elements of the charge had been proven and Mr Young was found guilty.
[21] It is clear from this passage that the Judge was aware of the elements of the offence, the burden of proving it, and adequately outlined his reasoning in relation to the contentious element of the offence, namely whether Mr Young was aware of the flashing lights. The substance of Mr Young’s defence was considered and rejected.
[22] There is no basis, therefore, for me to conclude that the Judge erred in his assessment of the evidence or that there was any other error, irregularity or occurrence in relation to the trial. Accordingly, no miscarriage of justice has occurred.
Result
[23]The appeal is dismissed.
G J van Bohemen J
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