Z v Police HC Rotorua CRI-2006-463-100

[2007] NZHC 1712

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2006-463-100

BETWEEN  Z

Appellant

AND  NEW ZEALAND POLICE Respondent

Hearing:         12 June 2007 (at Wellington) Appearances: Appellant in person

N L Stone for Respondent

Judgment:      12 June 2007

ORAL JUDGMENT OF RANDERSON J

Introduction

[1]      The appellant was convicted of operating a motor vehicle in a manner which, having regard to all the circumstances of the case, might have been dangerous to the public.  The charge arose from a driving incident on State Highway 1 in the vicinity of Tokoroa on 28 July 2005.  There was a defended hearing before Judge Cooper in the District Court which resulted in the conviction.  The appellant was ordered to pay a fine of $750, costs of $130, and was disqualified for six months.   The fine and costs were to be paid at the rate of $10.00 per week.

[2]      The disqualification period was the minimum which must be imposed under s35(2)(b) of the Land Transport Act 1998, unless for special reasons relating to the offence the Court thinks fit to order otherwise (s81(1)).

Z V NEW ZEALAND POLICE HC ROT CRI-2006-463-100  12 June 2007

[3]      The appellant filed an appeal, which was heard by MacKenzie J in this Court on 17 April 2007.  The appeal was dismissed by a judgment delivered in writing on

24 April 2007.   The appellant now seeks leave to appeal to the Court of Appeal under s144 of the Summary Proceedings Act 1957.

Background Facts

[4]      It unnecessary to refer in detail to the facts of the case since they have been fully elaborated by Judge Cooper and MacKenzie J.  However, in brief the evidence was that  the appellant’s vehicle was seen travelling  in  a  southerly direction  on State Highway 1 by an off-duty police officer who was following in another vehicle. She  was  concerned  about  the  manner  of  driving  and  continued  to  keep  the appellant’s vehicle under observation.   When she noticed what she regarded as a dangerous overtaking manoeuvre, she contacted the authorities and the appellant’s vehicle was stopped further along the roadway.

[5]      It is common ground that the determination of the case required a decision by the  trial  Judge  on  credibility.    The  Crown  case  was  entirely  dependent  on  the evidence of the off-duty police officer.  This evidence was to be contrasted with the appellant’s denial that any incident of the kind she described had occurred.

[6]      Judge Cooper expressed himself to be completely satisfied that the evidence of the off-duty police officer was a correct account of the incident in relation to the attempted overtaking manoeuvre.  He was also satisfied that an attempt to overtake a truck and trailer unit approaching the brow of a hill on a blind curve in the face of possible oncoming traffic was driving in a manner which having regard to all the circumstances  of the  case,  might  have  been  dangerous  to  the  public.    He  was satisfied that the charge was proved beyond reasonable doubt.

The Hearing before MacKenzie J

[7]      On appeal before MacKenzie J the appellant raised a number of issues.  This involved submissions about the credibility findings of Judge Cooper.  The appellant pointed out that the police had not investigated the incident to any degree beyond

taking the statement of the off-duty police officer.   He referred to discrepancies in the evidence of that officer and the officer in charge.  He raised questions about the location of the incident the officer described and he raised issues about what he regarded as a biased approach by the District Court Judge.

[8]      In his thorough decision, MacKenzie J dealt with these points, observing that an appellate Court must acknowledge the advantage the trial Judge has in seeing and hearing the witnesses.  He found that the extent of investigation was a matter for the police and that there was no legal obligation on the police to undertake any further investigation than was in fact carried out.  The Judge did not consider that any of the discrepancies in the evidence identified by the appellant assisted him on appeal.  He observed that  the  Court  would  not  interfere  unless  a  finding  of credibility was demonstrably unsupportable.  He did not consider that any of the matters raised by the appellant, either individually, or collectively, came close to establishing that state of affairs and the Judge found, having viewed the transcript, that any suggestion that the trial Judge’s conduct at the hearing was other than entirely even-handed, was unfounded.

[9]      The appeal against conviction was dismissed on that basis.

[10]     Dealing with the appeal against sentence the Judge considered the sentence was well within the permissible range for the serious offence of dangerous driving. Indeed, the statute requires the minimum six month disqualification to be imposed unless there are special circumstances relating to the offence.   I cannot detect that any such special circumstances and that point does not seem to have been raised by anyone at any stage.  The Judge noted that the appellant held various categories of endorsements to his driver’s licence for particular types of work.   He recorded the appellant’s submission that the conviction would have a particularly severe effect for him because it might be held that he was not a fit and proper person to hold licences of the kinds described.

[11]     MacKenzie J recorded there was no evidence to support the proposition that any transport service licence would be in jeopardy as a result of the conviction. There was, therefore, no material to justify a conclusion that the consequences of a

conviction would be out of all proportion to the gravity of the offence.  On that basis he dismissed the appeal against sentence as well.

[12]     The disqualification had been suspended on 7 December 2006 pending the outcome of the appeal.  MacKenzie J directed that the disqualification would become effective again from 30 April 2007.  I am advised that this state of affairs continues at present.

Grounds for Leave

[13]     Section 144 of the Summary Proceedings Act 1957 relevantly provides:

“144.   Appeal to Court of Appeal – (1)  Either party may, with the leave of the High Court, appeal to the Court of Appeal against any determination of the High Court on any case stated for the opinion of the High Court under section 107 o f this Act or against any determination of the High Court on a question of law arising in any general appeal:

Provided that, if the High Court refuses to grant leave to appeal to the Court of Appeal, the Court of Appeal may grant special leave to appeal.

(2)   A party desiring to appeal to the Court of Appeal under this section shall,  within 21  days  after  the determination of the High  Court,  or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the High Court may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other  reason,  ought  to  be  submitted  to  the  Court  of  Appeal  for decision.”

[14]     This Court may grant leave to appeal to the Court of Appeal if in the Court’s opinion there is a question of law involved which by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[15]     Mr Z   submitted that there was now available material which he has just obtained from Land Transport New Zealand which shows that his driving licence and endorsements, particularly for passenger service and vehicle recovery purposes, may be in jeopardy in light of his conviction.  He produced a letter dated 8 June 2007

to  that  effect  to  which  was  attached  certain  statutory  provisions,   including Regulation 82 of the Land Transport (Driver Licences) Rule 1999 under which the Director  may  seek  to  revoke  a  driver’s  licence  or  endorsements  thereof  if  the Director is satisfied the person has ceased to be a fit and proper person.   Mr Z   informed the Court that at the time of the incident in question his principal earnings came from a towing firm which he operated and that he also had work as a part-time taxi driver.   Plainly, during any period of disqualification he will not be able to undertake any driving work but his real concern is about the risk that his licence or endorsements may be revoked on the basis outlined.

[16]     The material before the Court goes no further than showing that his licence and endorsements may be in jeopardy.   No  decision  has yet  been taken in that respect.  It cannot be regarded as anything more than a possible outcome which may or may not occur, and Mr Z   will have the opportunity of opposing the application to revoke his licence or endorsements should steps be taken in that respect.

[17]     Mr Z   also indicated that he wished to canvass on appeal a number of other issues which essentially were those which were canvassed before MacKenzie J, including the credibility findings made by Judge Cooper, discrepancies identified in the evidence, the lack of physical investigation by the police, inconsistencies in the evidence of the officer in charge and the off-duty police officer and a broad submission that, in the circumstances, the case against him had not been proved beyond reasonable doubt.   He also drew attention to his 16 years’ service as an ambulance officer as a matter relating to the public importance of his conviction.

[18]     Mr  Stone,  for  the  respondent,  submitted  that  there  was  no  point  of  law identified and certainly not one which by reason of its general or public importance, or for any other reason, ought to be submitted to the Court of Appeal.  He submitted that the issues raised were essentially ones of fact that had been canvassed fully both by Judge Cooper and by MacKenzie J.

Conclusions

[19]     Having considered this matter I am not persuaded that this is a case where leave to appeal to the Court of Appeal should be granted.   Essentially, the matters raised by the appellant are questions of fact, which are dependent on the credibility findings of the trial Judge.  As MacKenzie J observed, in circumstances such as this an appellate Court necessarily places weight on the findings of the Judge who has seen and heard the witnesses and will not interfere unless there is some demonstrable error of fact or law.

[20]     Even if there could be a question of law identified I am not satisfied that the matters canvassed by Mr Z   today should be regarded as of general or public importance or that there is any other reason why the issue should be submitted to the Court of Appeal for determination.  Second appeals are not lightly granted and this is a case which does not raise any matter of public or general importance.  I accept that the conviction and the potential consequences of it are important for the intending appellant.  But they are not such as in my view to suggest that the matter ought to be submitted to the Court of Appeal on that ground.

[21]     As I have indicated, at this stage there is nothing more than a potential for the licence or endorsements to be revoked and that is a matter which must be left for determination by the Director of Transport should the Director decide to take the steps that may be available to him under the relevant legislation.  The appellant will have the opportunity to resist any such application should it be made and there is by no means any indication that an application of that kind might be successful.

[22]     For those reasons the application for leave to appeal will be dismissed.

…………………………….. Randerson J

Chief High Court Judge

Solicitors:

Crown Solicitor, Wellington for Respondent