W v Police HC Hamilton CRI 2009-419-10 [2009] NZHC 851 (20 July 2009)

Last Updated: 21 December 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI 2009-419-000010}

W

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 20 July 2009

Appearances: J Parlane for the Appellant

A M Beveridge for the Respondent

Judgment: 20 July 2009

_{ORAL JUDGMENT OF WOODHOUSE J}

Solicitors:

Mr J Parlane, Solicitor, Te Awamutu

Ms A M Beveridge, Almao Douch, Office of the Crown Solicitor, Hamilton

W V NEW ZEALAND POLICE HC HAM CRI 2009-419-000010 20 July 2009

[1] Mr W appeals against his conviction on two charges under ss 22A(3) and

36A(1)(c) of the Land Transport Act 1998. These were charges of operating a car in a manner causing it to undergo sustained loss of traction. It was alleged that this occurred in Divers and Parks Road, Horotiu on 17 January 2008 and 9 February

2008.

[2] Mr W was convicted following a defended hearing. There were three witnesses called by the Police. Two of the witnesses were neighbours of Mr W , Mrs Ross and Mr Stuthidge. The third witness was a police constable.

[3] Three issues are raised on appeal:

a) The dates of the offences;

b) The identification of the driver; and

c) Proof beyond reasonable doubt of sustained loss of traction.

[4] Although all three issues were set out in the points on appeal and in written submissions, Mr Parlane, counsel for Mr W , made clear that the primary submission was on the third point – there was no proof beyond reasonable doubt of sustained loss of traction. I will deal with that after dealing briefly with the first two points.

[5] There was no reasonable doubt from Mrs Ross’s evidence as to the dates of the offences. It is entirely correct, as Mr Parlane pointed out, that this evidence was adduced by leading questions from the police prosecutor. However, as Mr Parlane also responsibly pointed out, he had not emphasised the need to avoid such leading questions, although he did make that plain before the evidence-in-chief of Mr Stuthidge was subsequently given. It should in fact not be necessary for defence counsel to make it plain that evidence on central matters of fact should not be led. But the reality is that it was led without objection followed by uncontradicted acknowledgement from Mrs Ross that the events she was describing occurred on the particular dates contained in the informations.

[6] As I have already said, Mr Parlane did make clear that proof of the dates of the offences was not at the forefront of the argument on appeal. This also was a responsible acknowledgement, because the dates of the offences are not in themselves essential elements of the charge. If necessary the charge could be amended to record that the alleged offence occurred on or about a particular date. This Court on appeal has power to amend in this fashion on an appeal: s 119(3) of the Summary Proceedings Act 1957. That sub-section expressly refers to the power to amend an information on an appeal. Had it been necessary I would have been prepared to consider such an amendment. It is not necessary because the evidence is clear.

[7] As to the identity of Mr W as the driver, the evidence of Mrs Ross is also clear. That evidence alone, in my judgment, was sufficient to justify Judge Connell’s conclusion that it had been proved beyond reasonable doubt that Mr W was the driver on the two occasions.

[8] The Judge properly and carefully directed himself on the need for caution on questions of identification. Having done so he turned to the evidence of Mrs Ross. She knew Mr W by sight as a neighbour. He had lived down the road from her for some time. Under sustained cross-examination from Mr Parlane she remained in no doubt that it was Mr W on the two occasions who was driving the car.

[9] The evidence of Mr Stuthidge was not so clear. Probably putting it at its strongest, he assumed the driver was Mr W because he understood that the car he saw belonged to Mr W . That would not be sufficient to prove identity beyond reasonable doubt. But the Judge did not rely on that evidence. The evidence of Mrs Ross is sufficient in the absence of any positive evidence to the contrary and there was none.

[10] I should also note that there was no issue that the car that was identified was a car owned by Mr W . That by itself would go nowhere near to proving that he was the driver, but it was another fact that could be taken into account by the Judge to be added to the direct and clear evidence of Mrs Ross.

[11] The remaining issue is whether there was proof beyond reasonable doubt that Mr W operated the car in a manner to cause the car to undergo sustained loss of traction. Operation of the car by Mr W has already been dealt with in relation to identification. The remaining question is whether there was proof beyond reasonable doubt of sustained loss of traction.

[12] As Mr Parlane submitted, there is no definition in the Act which assists in understanding what is meant by a sustained loss of traction. However, as Stevens J pointed out in Thornton v Police (HC GIS, CRI 2008-416-0013, 15 December 2008) a clear indication as to what this provision is directed to is found in s 3(a) of the Land Transport (Unauthorised Street and Drag Racing) Amendment Act 2003. This Act introduced s 22A. Section 3(a) provides:

3 Purpose

The purpose of this Act is to amend the principal Act-

(a) to include in that Act additional provisions aimed at combating the problem of unauthorised street racing, drag racing, wheel spinning, and other stunts involving motor vehicles on roads, and the spillage of lubricants on roads without reasonable excuse;

[13] Against this statutory background an understanding of what the provision is directed to is available. In colloquial terms, one of the matters the Amendment Act is concerned with is people “doing wheelies” or “burning rubber”; deliberately operating a car in such a manner that the wheels spin and traction is lost. Whether the way in which the car lost traction comes within this provision will depend on the particular circumstances. Proof of sustained loss of traction is the primary yardstick and whether it is sustained will also depend on the circumstances.

[14] Against that background there is again clear evidence from Mrs Ross that Mr W caused his car to undergo sustained loss of traction on the two occasions in a manner contrary to s 22A. Mrs Ross’s evidence about the alleged offending on 17

January included the following:

A. ... I got up out of the chair that I was sitting in, and walked to the window to see this white vehicle back out of – in front of, um, I think it’s number 61, which is right opposite my house, um, and start burning up rubber, rather badly along the road. (p 2, l 10-13)

...

Q. And what do you mean by, it was burning the rubber?

A. There was, um, a lot of blue smoke, um, the wheels were spinning on the vehicle and, um, the engine was revving very loudly. (p 2, l

20-22)

...

Q. And how long did this wheel spin go on for?

A. Um, approximately, ah, I didn’t look at my watch but I would say approximately, um, a good minute to a minute and a half.

Q. And how far was the vehicle moving while the wheels were spinning?

A. He would have gone, ah, he’d have gone, ah, at least 20 to 30 metres. He went from where he was parked at Divers Road, and wheel spun round into Park Road as he turned the corner, and part way along Park Road ending basically outside my gateway. (p 3, l 4-

11)

[15] Mrs Ross’s evidence about the alleged offending on the second occasion included the following (p 4, l 30 to p 5, l 6):

A. If I can remember clearly, that afternoon I was in my bedroom getting ready to leave for Auckland and, um, and a vehicle started doing a burnout right outside my bedroom window.

Q. You see this vehicle? A. Yes I saw the vehicle.

Q. Did you recognise the vehicle?

A. Yes I would recognise the vehicle.

Q. And did you see the driver of the vehicle this time? A. Yes I saw the driver of the vehicle.

Q. Who was the driver of the vehicle on this occasion?

A. The same person that drove the vehicle at the previous time.

And in cross-examination (at 19-20):

Q. We need you to be sure, and it’s your evidence as to what the smoke colour was, so please do not be -

A. - well it certainly wasn’t the smoke out of the exhaust. It was the smoke off the tyres.

Q. Yes, and what colour was it this time?

A. To me, once again, it was very pale blue to white. That’s the colour as I see it.

Q. You haven’t given any evidence as to what noise came off the tyres, or from the car?

A. The noise was the screaming of the tyres and the revving of the motor.

Q. Now for white smoke to come off the tyres, the tyres would have to be not maintaining traction with the road, wouldn’t they?

A. For smoke to be coming off them, um, it’s burning rubber in my opinion –

Q. Yes, now you gave –

A. It’s leaving rubber on the road –

...

A. That the smoke coming off the tyres is, um, from what I’ve seen quite often at my place is, when it’s burning rubber, and leaving rubber on the road.

[16] There was also the following evidence from Mr Stuthidge relating to the second occasion:

A. Well I was sitting by the lounge window and I looked out the window, because I can get direct to the corner, and the smoke was just billowing out from the back tyres of a white car. Then it took up, down the road. (p 28, l 26-28)

A. Well could have been 20, 20 seconds, but I reckon it went on for a couple of minutes, but I can only guess at that stage. (p 29, l 9-10)

Q. And how far did it move forward white it did this?

A. I would say about, ah, roughly 100 metres or so. (p 29, l13-14)

[17] Mr Parlane submitted that this critical element of the charge, relating to loss of traction, had not been established beyond reasonable doubt because of a failure to prove, amongst other things, that traction had been lost on the front wheels of the car. That was not the sole point, but I think it is reasonable to describe it as the prominent point on this question.

[18] The premise underlying this submission was a contention that Mr W ’ car has front wheel drive. It is open to question whether this was established in evidence, but I will proceed on the basis that the car had front wheel drive.

[19] Mrs Ross and Mr Stuthidge did not say they were certain that traction was lost on the front wheels, but that was not the issue. The Judge was entitled to conclude that sustained loss of traction had been proved beyond reasonable doubt from the other evidence. The manner in which that may be proved depends on the nature of the evidence that can be led. In this case the evidence of Mrs Ross, in particular, left no reasonable doubt that what Mr W was causing his car to do was what the section is concerned with. Some of Mrs Ross’s descriptions fit closely within the terms of the section. And plainly Mrs Ross understood what she was describing – deliberately operating a car in such a manner as to cause sustained loss of traction.

[20] For these reasons I am not persuaded that the Judge was wrong. He was plainly right. The appeal against conviction is therefore dismissed.

[21] In form there was also an appeal against sentence but that was not pursued. To avoid any uncertainty that also is dismissed.

Peter Woodhouse J