Police v Pitic [2016] NZDC 15124 (23 June 2016)

Last Updated: 29 November 2016

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT NORTH SHORE

CRI-2015-044-001848 [2016] NZDC 15124

NEW ZEALAND POLICE

Prosecutor

v

ILIANA PITIC

_Defendant

Hearing:	23 June 2016
Appearances:	Sergeant P Wightman for the Prosecutor J Wickliffe for the Defendant
Judgment:	23 June 2016

_{ORAL JUDGMENT OF JUDGE S J MAUDE}

[1] Ms Iliana Pitic is charged that on 21 May 2015 she:

(a) operated a motor vehicle carelessly on Cheslea View Drive, thereby causing injury to James Grice; and

(b) having been the driver of a motor vehicle involved in an accident where a person was injured, without reasonable excuse failed to stop to ascertain if there had been injury.

[2] She denies that she was the driver of the car that Mr Grice says caused the accident he described as having occurred on the morning of 21 May of last year at

_{the intersection of Porritt Avenue and Chelsea View Drive.}

NEW ZEALAND POLICE v ILIANA PITIC [2016] NZDC 15124 [23 June 2016]

Mr Grice’s evidence

[3] Mr Grice gave evidence of driving west of Chelsea View Drive on a Yamaha motorbike or scooter. His evidence was that approaching what I would describe as a T-intersection at about 9.40 am where Porritt Avenue enters Chelsea View Drive, he saw a vehicle approaching in the opposite direction and a small silver vehicle haltered at the Porritt Avenue stop.

[4] As he approached and after the approaching vehicle has passed him, he said that the stationery small silver motor vehicle with the driver looking in the opposite direction to him pulled out in front of him causing him to break strongly, his bike sliding from under him. He described catapulting toward and against the left hand kerb. He described being taken to hospital with a broken shoulder and significant bruising and laceration to the leg amongst other less significant injuries.

[5] Mr Grice’s evidence was that:

(a) He had been driving slowly at about 45 kilometres an hour. (b) The road was damp; there having been a shower or drizzle. (c) The area was a 50 kilometre area.

(d) There had been no traffic other than the two vehicles that he mentioned.

(e) That when approaching the Porritt Avenue intersection he had seen the small silver car that I had mentioned driven, he said, by a person he described as a woman because the person had long hair.

(f) He said that when the driver pulled out she, as he described the person, looked to the right but did not look his way.

(g) After being catapulted from his bike, he described when he had come to a halt rolling on to his back and seeing the silver car braking, he

noticing that by virtue of the red braking lights coming on, he thinking that the driver would stop to help him but then seeing the car speed off.

[6] Ms Pitic does not contest the evidence as to the accident. She simply says that she was not the driver of the vehicle that caused the accident and by implication from the evidence that she gave, if she was then she did not know that the accident had occurred. I observe that Mr Grice was able to identify Ms Pitic only to the extent that he identified the offending car as a small silver car and the driver as a woman because of the person’s long hair.

[7] Ms Borlase gave evidence as to having followed Mr Grice on his bike for some 10 metres behind as he approached the Porritt Avenue intersection and having herself observed the accident. She said that she had seen a small silver motor vehicle roll through the Porritt Avenue/Chelsea View Drive intersection appear and, she said, to try and beat the scooter, she observing the car to cause the bike, of course ridden by Mr Grice, to take evasive action leading to the accident.

[8] Ms Borlase said that when she saw the car was not going to stop, she followed it for some approximate 200 metres to lights which she had hoped would be red so that she could stop and take the registration number of the vehicle but which were green. She said that she got to a close distance behind the motor vehicle and memorized the number plate number of it phonetically then that she returned to the scene and gave the detail of the registration number to a person to record. Questioned, she also described the car as a small and silver vehicle like a Daihatsu, though she proclaimed that she did not know makes of vehicle; the Daihatsu description simply given by way of, I believe, description of size.

[9] Constable Cok gave evidence of being en route to the accident scene receiving advice that the offending vehicle had a registration plate [registration number 1 deleted]. She said that on checking the detail of the car through the registration tracking device available, she was able to track the name of the owner but that she had been surprised that the colour described for the vehicle was blue,

rather than silver. She observed that there had been some confusion therefore resulting from that divergent description.

[10] She met with Ms Pitic the following day, Ms Pitic having been stopped shortly after going through the same intersection by Constable McWalter, he having alerted Constable Cok to the fact that she had been stopped by him. Constable Cok observed that she then saw that the vehicle, bearing the registration number that I have mentioned and driven by Ms Pitic, was light blue, a colour confusable with silver. She said that Ms Pitic said that she had not driven the car the previous day.

[11] The constable described giving her a notice requiring her to provide the detail of what the car had been doing the previous day, and that on 28 May Ms Pitic had presented for interview and said that, in fact, she had driven the vehicle on the day of the accident. Constable Cok recorded that Ms Pitic acknowledged driving through the intersection in question on her way to the gym that day, having stopped at the “Stop” sign, having turned right but not having seen anybody on a motorbike.

[12] Constable Cok was challenged in cross-examination as to:

(a) The presence in her notebook of an alternate registration number recorded in it of [registration number 2 deleted], and;

(b) Whether she had questioned Ms Pitic too forcefully or oppressively leading to Ms Pitic’s concession that she had driven on the day in question.

[13] I say at the outset that the uncontradicted evidence of Mr Grice and Ms Borlase satisfies me that the driver of the motor vehicle described as small and silver with the registration number that I have mentioned did drive carelessly by failing to stop and the driver failing to look to his or her left before proceeding through the intersection, thereby causing the accident that lead to Mr Grice’s injury. The issue is simply, was Ms Pitic the driver? If so, did she know of the accident?

[14] Ms Pitic argued that:

(a) She was not the driver.

(b) Her concession that she drove through the same intersection on the same day made to Constable Cok on 28 May was forced by the officer’s manner.

(c) That there was doubt as to whether the vehicle in question was hers because of:

(i) The blue description on the database.

(ii) Officer Cok’s recording of a second and alternative registration.

[15] The first issue I deal with is whether the statement recorded as having been made by Ms Pitic by Constable Cok on 28 May was induced as a result of forced or oppressive questioning. Ms Pitic’s only description of the interview by Constable Cok does not amount to or indicate, in my view, force.

[16] She described feeling intimidated and shocked at being stopped and questioned. She said that she had not been thinking clearly when she had said that she had not driven the day previously. She said that she had later recalled going to the gym and driving and had then gone to the police station to advise the police that that was what occurred. There was nothing from the description given by Constable Cok of the interview or indeed the description given by Ms Pitic that to me indicated force. I accept that Ms Pitic may have felt rattled but I do not accept that more than that was occasioned.

[17] Ms Pitic’s evidence when she gave evidence was as follows:

(a) She had her boyfriend to stay over on the night previous. (b) She had left for the gym at about 9.45am.

(c) Her boyfriend had left a couple of minutes after her. He having walked out of her house with her and gone to his car parked on the road, Ms Pitic having driven from her car port passed him as she left.

(d) She believed that her boyfriend had followed the same route that she took that morning which took her through the Porritt Avenue intersection in question. She said that she had her hair tied in a pony tail though she did not recall if it was tied up or not. She said that she saw no accident.

(e) She had denied initially driving on 21 May when rattled. She had gone to the police station the next day to see Constable Cok who was not there. She had linked with her on 28 May and made the statement to Constable Cok that I had mentioned.

[18] She, in short, accepted that she had driven through the intersection at a time which appears on the evidence of herself and her boyfriend (who I will refer to later) to have been about five minutes after Mr Grice has estimated the accident occurred.

[19] Mr Ahmed Zafiri, Ms Pitic’s then boyfriend, gave evidence of having followed Ms Pitic through the intersection in question but having not seen any accident or evidence of an accident. He said that they, that is he and Ms Pitic, had left at about 9.45 am as I have said some five minutes after Mr Grice said that he thought the accident happened though I do observe that that was an estimate. Mr Zafiri said that he had made his own Internet search of the alternate registration number that had been recorded in Constable Cok’s notebook which registration number was [registration number 2 deleted] revealing the vehicle to be a five door silver hatch. I have to say that I was somewhat surprised that no record was produced as to that search.

Consideration

[20] I have found that the vehicle driven drove carelessly proceeding in the face of

Mr Grice whose evidence was that he was travelling at about 45 kilometres per hour.

The vehicle exited a street controlled by a “Stop” sign and there was no evidence of speed by Mr Grice.

[21] Ms Pitic’s counsel challenged the identity of the vehicle. The number recorded to mind by Ms Borlase and repeated on returning to the accident scene was the number of Ms Pitic’s car because police inquiry of [registration number 1 deleted] registration number lead to Ms Pitic.

[22] The only evidence that the vehicle causing the Porritt Avenue accident was not [registration number 1 deleted], that is the vehicle of Ms Pitic, appeared to be:

(a) The record that the car was blue, not silver.

(b) The second entry in Constable Cok’s notebook as to an alternate registration number creating doubt as to recall by the fact there was reference on tracing to the vehicle being blue.

[23] The photos produced of Ms Pitic’s car made it clear that while blue, as Constable Cok said, the colour was confusable with silver. Constable McWalter said that his first impression of the colour of the car when he saw it was that it was silver. I have to say that I have some reservation about the credibility of Constable McWalter’s evidence. He having acknowledged discussing the evidence with Constable Cok over the luncheon break after she had given her evidence but when questioned indicating somewhat unbelievably that he could not recall what had been discussed.

[24] That is unfortunate but does not go to the reality that on this particular day, a witness saw the accident, followed the car, took a registration number which was traced to Ms Pitic who acknowledges now driving the vehicle on that day on the same intersection within minutes of when the accident occurred. The coincidences are too great to persuade me that it is not shown beyond reasonable doubt that Ms Pitic drove the motor vehicle described as causing the accident.

[25] I accept that the alternate registration number written in Constable Cok’s notebook in different colour than the rest of her notes and it would appear at a different time, was written because of the need to, as she perceived it, to play with the configuration of numbers resultant from the confusion that was caused by the registration number when checked revealing a blue car.

[26] I cannot accept the evidence of Ms Pitic and Mr Zafiri. Ms Pitic is found guilty of driving carelessly causing injury to Mr Grice.

[27] The next question is, did she know of the accident. She said that she did not. She was also adamant that she had stopped at the intersection and looked left and right before proceeding. If so, she must have seen Mr Grice or his bike and the accident. She said that she had looked left and right. If I was in any doubt, I find it hard to accept that Ms Borlase’s pursuing her with flashing lights and horn tooting some three to five metres behind her as she described for some 200 metres was not noticed by her.

[28] Further, Mr Grice a careful apparently honest witness who had never met, to my knowledge, Ms Pitic was clear albeit that in the state of some pain he had seen Ms Pitic momentarily break and then speed away. The evidence establishes my view, beyond reasonable doubt, that Ms Pitic knew of the accident and failed to stop and ascertain whether there had been injury.

[29] She is therefore found guilty in respect of both charges.

ADDENDUM:

[30] Ms Pitic, you are remanded at large now to appear again on 6 September at

10 o’clock for sentence and/or s 106 application. If such is to be filed, then applications are to be filed and served by 31 August, reply by 3 September.

S J Maude

District Court Judge