R v A CA45/04 [2004] NZCA 407 (31 May 2004)

Last Updated: 2 December 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA45/04

THE QUEEN

v

[I T A]

Hearing: 24 May 2004

Coram: Hammond J Laurenson J Doogue J

Appearances: F Hogan for appellant
B J Horsley for Crown Judgment: 31 May 2004

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

[1] [I T A] appeals against his conviction following a jury trial in the District Court in September 2003 for two offences of dangerous driving causing injury. He was found not guilty of failing to ascertain whether anybody had been injured and rendering assistance without reasonable excuse. He was sentenced to nine months imprisonment on 5 November 2003. Leave was given to apply for

R V [I T A] CA CA45/04 [31 May 2004]

home detention. We are informed from the bar that he applied for home detention and the application was successful. We are further informed that the appellant has been serving his sentence for most of this year.

[2] The appeal against conviction is brought on three grounds;

1. A miscarriage of justice was occasioned by the Crown’s failure to disclose relevant information to the defence, namely the convictions of the complainant Mr Steve [C];

2. A miscarriage of justice was occasioned by the summing up of the trial Judge which was unfair to the defence; and

100. The verdict of the jury was unreasonable or against the weight of the evidence.

[3] The appellant’s submissions have concentrated on the first two of these grounds. The third ground has not been pursued.

[4] The Crown case was as follows: On the afternoon of Christmas Day 2001, the appellant was riding his motorcycle towards Whitford. He had passed the Beachlands turnoff and was heading south. He was travelling too closely behind a Mazda car. He was an estimated 1 metre behind it and travelling at 70 km/h. As the vehicles approached a sweeping left bend, the appellant started to overtake the car without a clear view ahead. He crossed the centre line into the opposing lane to overtake the Mazda. In doing so, he travelled into the path of an on-coming motorcycle ridden by a Mr [C], whose headlight was illuminated and whose motorcycle was thus clearly visible. The appellant continued with the overtaking manoeuvre, but collided with Mr [C] who lost control and collided with a brick wall suffering serious injuries requiring amputation.

[5] The Crown case was that following this collision, the appellant’s motorcycle collided with the Mazda motor vehicle, which the appellant had been overtaking, containing three young women. The collision punctured one of the vehicle’s tyres,
requiring the 16 year old driver to swerve and break heavily to avoid further damage. She sustained minor injuries.

[6] The Crown says that subsequent to the accident the appellant went to an Accident & Emergency Department some four and a half hours later. At that time the duty doctor observed that he had a strong smell of liquor on his breath. He was found to be in the advanced stages of intoxication. The doctor concluded the appellant’s condition was such that he was in no fit state to drive a motor vehicle. The appellant stated that he had not consumed any alcohol between the time of the accident and when he visited the doctor.

[7] The defence case at trial was that Mr [C], the motorcyclist travelling in the opposite direction, was the person primarily responsible for the accident. It was said that Mr [C] had been travelling at excessive speed and was on the wrong side of the road. It was further said that when Mr [C] rounded the corner the appellant was travelling at a reasonable speed in an overtaking position on his correct side of the road. Although the appellant did not give evidence he called a qualified forensic scientist to give expert evidence on a number of matters, including the speed at which Mr [C] would have had to have been travelling to achieve the angle of lean he described. It was also said the driver of the Mazda car was a further cause of the ultimate collisions as she had increased the speed of her car during the appellant’s overtaking manoeuvre.

[8] To convict the appellant the jury had to find that his riding was a significant cause of the injuries suffered and that it was in all the circumstances dangerous. Effectively the jury had to reject his explanation that he was on the correct side of the road regardless of whether Mr [C] was himself responsible in some way for the accident.

[9] The first point of appeal relates to the acknowledged failure by the police to disclose relevant information to the appellant prior to trial, namely the convictions of the other motorcyclist Mr [C]. That information had been requested and not disclosed: see Wilson v Police [1991] NZCA 179; [1992] 2 NZLR 533. The convictions, including both crimes of dishonesty and extremely relevant driving offences, only came to the
notice of the appellant after he was convicted and before sentencing. This was notwithstanding that counsel for the appellant had sought disclosure on 4 March 2002, less than three months after the accident and 18 months prior to trial, of material including any convictions of the prosecution witnesses, relevant to the trial in relation to their credibility or character. It is now common ground that Mr [C] had a number of previous convictions, including convictions relating to his credibility and to his driving skills. These convictions included offences of dishonesty, careless driving and driving while disqualified.

[10] It is indisputable that if the appellant’s counsel had been aware of those convictions at the date of trial, they could have had a major bearing on the cross- examination strategy that would have been adopted in respect of Mr [C].

[11] The Crown’s approach is that notwithstanding the failure to make full disclosure no substantial miscarriage of justice has actually occurred, and it also relies on the proviso to s 385 of the Crimes Act 1961. In support of that proposition, the Crown submits that the case against the appellant could be established independently of Mr [C] and that his credibility was of no moment and accordingly irrelevant. The evidence of the young women in the Mazda car was that the collision between the two motorcycles occurred on Mr [C]’s side of the road. There was no reliable evidence to suggest that Mr [C] was speeding. In those circumstances it is submitted that an attack on Mr [C]’s credibility in relation to his prior convictions was unlikely to have made any difference to the trial outcome. This, it is said, is particularly so when the Crown could establish upon the evidence of the young women that the appellant was more than just a slight or insignificant cause of the injuries to Mr [C] and to the young woman driver of the Mazda vehicle.

[12] We have concluded that there is no substance in the Crown’s position and that this is not a case for the application of the proviso to s 385. At the end of the day we are “entitled to consider that no substantial miscarriage of justice has actually occurred if, but only if, the jury would without doubt have convicted had the error or deficiency not occurred”: R v McI [1998] 1 NZLR 696, 712. That is a high threshold.
[13] It is quite impossible to say that the jury would necessarily have taken the same view of the appellant’s driving if Mr [C] had been able to be cross- examined both in respect to his previous driving offences and of his offences of dishonesty. In evidence Mr [C] conveyed the impression he was a learner driver. In fact he had to re-qualify as a driver after being disqualified from driving for over two years for a succession of driving offences. It is possible that, despite the evidence of the young women in the Mazda car, the jury could have been left in a reasonable doubt as to whether the appellant was riding on the wrong side of the road, at an unreasonable speed or in circumstances that were unsafe. By failing to make disclosure of the material convictions of Mr [C], the police effectively denied the appellant the opportunity to better test Mr [C]’s evidence, and the appellant’s right to a fair trial.

[14] We are therefore satisfied the appeal must be upheld on this ground. In those circumstances it is unnecessary for us to consider the other two grounds in any detail. We have to say that having read all the material relevant to them, we would not have regarded the appeal as sustainable on either of the other grounds raised for the appellant.

[15] We think the issue of whether there should be a new trial is ultimately one for the Crown when it is clear that there is evidence to go to a jury upon which the appellant could be convicted. However, whether the Crown would wish to pursue a new trial is moot, given the circumstances already traversed, the period of time that has elapsed since the events in question and the consequences if there is a new trial for Mr [C], who was seriously injured in the accident.

[16] The appellant’s convictions will therefore be quashed and a new trial ordered.

Solicitors:

Crown Solicitor, Wellington