Osten v Police [2013] NZCA 66 (18 March 2013)

Last Updated: 27 March 2013

IN THE COURT OF APPEAL OF NEW ZEALAND

CA571/2012 [2013] NZCA 66

BETWEEN BOHDAN ANDREW OSTEN Applicant

AND NEW ZEALAND POLICE Respondent

Court: Harrison, Wild and White JJ

Counsel: Applicant in Person S B Edwards for Respondent

Judgment: 18 March 2013 at 10.15 am On the papers

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

REASONS OF THE COURT

(Given by Harrison J)

[1] The applicant, Bohdan Andrew Osten, applies to this Court for special leave[1] to appeal against a judgment of MacKenzie J,[2] dismissing his appeal against a conviction in the District Court on a charge of changing lanes before ascertaining that the manoeuvre could be made safely.[3] In a later judgment[4] MacKenzie J dismissed Mr Osten’s application for leave to appeal.
[2] Mr Osten had defended the charge which was heard before two Justices of the Peace. They found that in December 2011 Mr Osten was driving a vehicle in the feeder lane on State Highway 2 near Petone when without indication he moved his vehicle into the pathway of a truck driving in the same direction in the middle lane. The truck driver, who was the complainant, was forced to brake heavily, causing the rear wheels to lock and the truck to slide. Both the complainant and Mr Osten gave evidence. Determination of the charge came down to a credibility contest between the two conflicting accounts. The Justices accepted the complainant’s evidence. In dismissing Mr Osten’s appeal, MacKenzie J held that Mr Osten had failed to show any error by the Justices or any reason for challenging their credibility assessment.
[3] In support of his application to this Court Mr Osten alleges that special leave should be granted on the grounds that, first, there was no evidence to support the conviction and second, the police prosecuted him out of malice and the desire to collect revenue. Neither ground establishes a question of law, let alone one that ought to be submitted to this Court by reason of its general or public importance.
[4] The application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Summary Proceedings Act 1957, s 144.
[2] Osten v New Zealand Police [2012] NZHC 1602.

[3] Land Transport Act 1998, s 40; Land Transport (Offences and Penalties) Regulations 1999, reg 4; and Land Transport (Road User) Rule 2004, r 2.3(2)(b).
[4] Osten v New Zealand Police HC Wellington CRI-2012-485-46, 17 August 2012.