Walker v Police [2012] NZHC 1938 (3 August 2012)

Last Updated: 15 August 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-94 [2012] NZHC 1938

MAXWELL IAN WALKER

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 29 May 2012

Appearances: The appellant in person

F Nizam for the respondent

Judgment: 3 August 2012

_{JUDGMENT OF CLIFFORD J}

Introduction

[1] The appellant, Mr Walker, was issued an infringement notice for failing to give way at an intersection on Waiheke Island on 27 May 2011. That is an offence under s 40 of the Land Transport Act 1998 and Regulations under that Act. On

14 March 2012 in the District Court at Auckland two Justices of the Peace, S Walker and K Wood, found that the offence was proved and ordered Mr Walker to pay a fine of $150, witness expenses of $25 and Court costs of $132.89. Mr Walker now

_{appeals against that decision and those orders of the Justices.}

WALKER v POLICE HC AK CRI-2012-404-94 [3 August 2012]

The Justices’ decision

[2] In finding the offence proven and in sentencing Mr Walker, the Justices succinctly summarised the evidence they had heard. Mr Clark, the driver of the vehicle involved in the collision occasioned by Mr Walker’s failure to give way, gave evidence. His evidence was that approaching the intersection in question he had observed Mr Walker’s vehicle from forty metres away coming through the give way sign on his left. He had then braked and veered to the left. He had been unable to avoid hitting the vehicle driven by Mr Walker. The collision had happened on the left hand side of the road. Mr Clark also gave evidence that Mr Walker had admitted fault and apologised to him for causing the accident. Mr Clark’s evidence was that Mr Walker had admitted that he had been watching a couple of people over the road because they might require a lift.

[3] A Constable Tippett, who responded to the complaint from Mr Clark, also gave evidence. After receiving notice of Mr Clark’s complaint, Constable Tippett went to the scene of the accident that day and took photographs of the road. He rang Mr Walker to discuss the incident and, following a request from Mr Walker, arranged to meet him at the scene later that day. However, although waiting at the scene for some time and taking more photographs, Mr Walker did not arrive until after Constable Tippett had left. The constable also spoke by telephone to Mr Clark and the two people who had been at the side of the road.

[4] Mr Walker’s evidence to the Justices focussed on two aspects of the incident. First, his theory was that the damage to the vehicle he had been driving, a van, was inconsistent with Mr Clark’s narrative. Rather, Mr Clark had veered to the right, indicating that Mr Walker had in fact driven across some of the left hand lane before the collision occurred. Secondly, he said that vision at the intersection was poor. He had stopped at the give way sign, but could only see 20 metres up the road. He had not seen anybody coming towards him. It was only after he had gone through the give way sign that he saw Mr Clark approaching. He had tried to avoid the collision by getting across the road but to his amazement Mr Clark had veered to the right and hit him on his side of the road.

[5] In support of his submissions, Mr Walker produced in evidence photographs that had been taken by a Mr Leonard, and a letter Mr Leonard had written supporting Mr Walker’s contentions as to the restricted nature of the view a driver would get if stopping at the give way sign. The Justices declined to consider the letter, as it was hearsay. They took account of the photographs, but indicated they would place less weight on them because they too were hearsay in the absence of Mr Leonard. Mr Walker asked for an adjournment for Mr Leonard to be able to be present. That application was declined.

[6] In conclusion, the Justices reasoned:[1]

You, Mr Walker, were on the Give Way. The onus is on you not to proceed until the way is completely clear. The way was not clear and you did proceed and as a result there was an accident. Regardless of whether Mr Clark veered left or right he should not have had to brake and he should not have had to take avoiding action because you should have given way to him.

Grounds of appeal

[7] In his notice of appeal Mr Walker advanced three grounds:

(a) The photographs taken by the police had not been disclosed to his lawyer, contrary to the police evidence at his hearing.

(b) The photographs the police provided had not been taken on the date of the accident.

(c) One of the Justices who heard the case had property on Waiheke

Island and was known to Mr Walker. He should have recused himself.

Nature of this appeal

[8] Mr Walker’s right to appeal arises under s 115 of the Summary Proceedings

Act 1957 (“the Act”):

115 Defendant’s general right of appeal to High Court

(1) Except as expressly provided by this Act or by any other enactment, where a District Court determines any information or complaint, and–

(a) Convicts any defendant; or

(b) Makes any order, including–

(i) An order for the payment for costs; or

(ii) An order declining an application for the payment for such costs; or

(iii) An order for the estreat of a bond,–

the person convicted or against whom the order is made may appeal to the High Court.

(2) In the case of a convict, the appeal may be against the conviction and the sentence passed on the conviction, or against the conviction only, or against the sentence only; and, in the case of an order for the payment of money, the appeal may be against the order and the amount of the sum ordered to be paid, or only against the amount of the sum ordered to be paid.

[9] Section 119 of the Act provides that an appeal in the present case is by way of a re-hearing. In Dudfield v Police, Dobson J discussed the appropriate approach on appeal in these circumstances:[2]

Section 119 of the Summary Proceedings Act 1957 provides that such appeals are to be by way of rehearing. This requires the Court to come to an independent conclusion on the outcome, and there is no presumptive level of deference to the District Court. This principle was affirmed by the Supreme Court in Austin, Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103; (2007) 18 PRNZ 768. Although Austin, Nichols was a civil case, the approach described is nevertheless relevant: see Hughes v New Zealand Police HC WN CRI-2007-485-000155 18 March 2008 Gendall J at [33] and [34], not disturbed on appeal: R v Hughes [2008] NZCA 546 at [66]; Greenland v New Zealand Police HC HAM CIV-2008-419-000092 5

February 2009 Heath J at [28].

The general principle will be subject to exceptions and, in most cases, superior Courts will recognise the advantage inferior Courts have in assessing the credibility of witnesses first-hand. Thus, in Kelly v New Zealand Police HC WHA AP41/01 23 August 2002, Heath J stated at [21]:

Anyone who has had any involvement with the trial process recognises that findings of credibility turn as much on the demeanour of witnesses and the impressions made by them as the actual words they utter. Impressions of the evidence are

gathered by a Judge during the course of a trial by a process akin to osmosis. The written words contained in the formal Notes of Evidence represent a body into which the atmosphere and human dynamics of the trial process breathe life. This is why findings of credibility, even where extensive Notes of Evidence are available, will rarely be overturned on appeal. ...

Judges who sit on appeal simply do not enjoy the advantages possessed by a trial judge who sees and hears the witnesses. In those circumstances, it is entirely appropriate that appellate judges should defer to a trial judge's findings of credibility.

In Austin, Nichols, the Supreme Court recognised the importance of the opportunity to assess credibility, when credibility is a material factor – see paragraph [5]. See also Hughes v New Zealand Police at [35]. ...

[10] I proceed accordingly. In doing so, I note that the Justices clearly regarded Mr Clark as a credible and reliable witness. I, as I consider appropriate, defer to that finding.

Obtaining a record of the hearing

[11] The notes of evidence that were before me when I heard Mr Walker’s appeal did not contain various exchanges that had taken place between Mr Walker, the prosecuting sergeant and the Justices. As Mr Walker had referred to various of those exchanges when arguing his appeal, I subsequently ordered that a full transcript be prepared. I received that full transcript on or around 26 June 2012. I then issued a minute on 11 July 2012, drawing attention to a particular exchange which took place between the Court, Mr Walker and the prosecuting sergeant. That exchange related to the admissibility of the letter from, and photographs taken by, Mr Leonard. In my mind, and as had been reflected in Mr Walker’s submissions, that raised the issue of whether or not the Justices had properly dealt with the evidence from Mr Leonard, admittedly hearsay as he was not available, that Mr Walker had tried to put before them. I indicated a preliminary view that I was concerned the Justices might not have dealt properly with that matter and that I was at that point “minded to allow Mr Walker’s appeal by reference to that matter”. However, as that matter had not been expressly discussed at the hearing, I gave the respondent an opportunity to make further submissions. For the police, Ms Nizam did so in a memorandum dated

20 July of which I acknowledge receipt.

The appeal as argued

[12] In his written submissions, Mr Walker focussed on three matters. He said that the police had failed to disclose to him photographs presented as an exhibit at the hearing. This had adversely impacted on his ability to defend himself. In particular, and as I understood his submission, because he had not been aware the police had taken those photographs he had not thought it necessary to call Mr Leonard as a witness. The prejudice to him of non-disclosure was therefore reflected in the decision of the Justices not to admit Mr Leonard’s letter and to place only limited reliance on the evidence provided by Mr Leonard’s photographs.

[13] Mr Walker secondly argued that the prosecuting constable did not establish when the police photographs, produced as exhibits, had been taken. In particular, Mr Walker referred to the police witness not having produced his log book or other evidence to confirm that he visited the accident scene on the day in question or any other.

[14] Thirdly, Mr Walker argued that one of the Justices had a conflict of interest because he “knew” Mr Walker, visited Waiheke Island (where Mr Walker lived and the accident occurred) on regular trips, had a property there and would have been exposed “to local chit chat and gossip about my [Mr Walker’s] activities”.

Analysis

[15] In my view, only the first of these submissions requires analysis. I say that because, by my assessment, the other two grounds of appeal do not raise any real issues.

[16] The police officer in question gave clear evidence that the photographs produced as exhibits by the police were taken on the day of the incident. In my view, the Justices were entitled to accept that evidence, as they did. Mr Walker was not, as he contended, prevented from cross-examining the police officer as to the contents of his log book relating to the day in question. Rather, the Justices at one point – when the prosecuting sergeant was introducing the constable’s evidence, and

Mr Walker tried to raise that matter – said that Mr Walker could raise it in his cross- examination later. It would appear from the record that Mr Walker did not in fact raise that issue in cross-examination. That is a different matter altogether.

[17] That Mr Walker may have known the identity of one of the Justices is neither here nor there: no evidence was raised that would give rise to any possible question of bias. There is simply nothing in that ground of appeal either.

[18] I therefore turn to the related questions of disclosure and of hearsay evidence.

[19] A lawyer initially retained by Mr Walker to represent him with respect to the infringement notice in question, Mr Walden, provided an affidavit which was placed before me, without any objection from the Crown, on this appeal. Mr Walden’s affidavit stated, as regards disclosure by the police:

Whilst examining the matter to determine if I was able to act I believe I

discussed the matter with a Constable Sean Tippett of the Waiheke Police.

I am told it is important for Mr Walker that I tell the court of any disclosure I have in my possession, or have received from the New Zealand police in this matter, in particular any photographs of the scene.

I maintain an electronic data base, and I scan and file under a job number all inwards correspondence. This job number is J 429 I have examined my file for J 429 and I do not have any disclosure in this matter from the New Zealand Police in that data base.

Nor do I recall receiving any disclosure from the New Zealand Police. However, if I did;

On my declining the brief, I handed back to Mr Walker all of the papers in my possession.

[20] For the police an affidavit was also provided by Constable Tippett. Constable Tippett annexed copies of disclosure correspondence and police record to his affidavit. The first attachment, a letter of 13 July 2011, was addressed to Mr Walker and appends an initial disclosure receipt. There is no evidence of any photographs having been disclosed with that letter. The second letter dated 17 October 2011 is addressed to Mr Walden. The affidavit also attaches a disclosure index, which records six photographs having been disclosed. That disclosure index contains the reference “date action: 17/09/2011”.

[21] In his affidavit, Constable Tippet says that on 14 March 2012 he had spoken to Mr Walker and asked him if he required any further disclosure. Mr Walker said that he did not. Constable Tippett also says that he asked Mr Walker whether he had received disclosure from his lawyer, which he confirmed that he had.

[22] On the basis of Mr Walden’s affidavit, I am prepared to accept there is a reasonable uncertainty as to whether or not Mr Walden did in fact receive the photographs from the police and, if so, that there is similarly a reasonable doubt as to whether or not Mr Walker did. The question becomes what is the significance of that?

[23] Mr Walker, as he acknowledged, faced the fundamental difficulty that in such a relatively minor manner it was not surprising that Mr Leonard was not available to be present in person to give evidence. It is purely speculative therefore whether Mr Leonard would or would not have been present to give evidence if, as Mr Walker says was not the case, Mr Walker had been aware of the police photographs. The question of prejudice can I think therefore best be considered in terms of the way in which the question of the evidence, sourced from Mr Leonard, that Mr Walker wished to rely on at the hearing was dealt with.

[24] Mr Walker’s evidence was that Mr Leonard, a Council employee on Waiheke Island, had at Mr Walker’s request taken two photographs of the intersection in question on the Monday after the Friday of the accident. Mr Walker had a letter from Mr Leonard which read as follows:

7 September 2011,

_{To whom it may concern}

Re Motor vehicle accident corner of Bay Road and Crescent Road West, Waiheke Island.

This letter serves to advise that I was contacted by Max Walker regarding a motor vehicle accident he was involved in at the above intersection.

He stated that the site distance was obscured by foliage and drove me to the site.

As a result of this visit I took 2 photo’s which indeed indicated that the visibility exiting Crescent Road West onto Bay Road was obscured and when sitting at the Give Way line it was impossible to see any traffic travelling down Bay Road from a Northerly direction.

Photo one was taken parked at the Give Way line and the second taken half way across the intersection and it was only then that existing vehicles were able to see on coming traffic.

As a result of this I contacted Gary Wilton, parks officer to have the foliage cut back to improve visibility.

Yours faithfully, Ron Leonard,

Maintenance Contracts Engineer

[25] The Justices of the Peace declined to admit the evidence of the statement in the letter, but did, as I have already noted, admit into evidence the photographs taken by Mr Leonard. They said the letter was not admissible because it was hearsay and therefore unreliable without Mr Leonard present at the hearing to be cross-examined. They said, however, that there was a provision which allows them to “admit evidence that they see fit in any infringement matter”. I take this to be a reference to s 144(1) of the Land Transport Act 1998. Section 144(1) provides that in proceedings for an offence against that Act relating to the driving of motor vehicles, whether by way of hearing in the first instance or by way of appeal or otherwise, “the Court may receive as evidence ... evidence adduced or on behalf of the defendant that the Court thinks fit, whether or not it would, apart from this paragraph, be legally admissible evidence”. In this regard the Justices said that although the photographs were also hearsay they would admit them, but they would be given less weight.

[26] Mr Walker asked for an adjournment of his hearing so that Mr Leonard might be able to be brought as his witness. That was declined.

[27] As my minute of 11 July 2012 reflects, I was concerned that the Justices may not have dealt with what was in effect Mr Walker’s application to admit hearsay evidence in terms of the relevant provisions of the Evidence Act 2006. I said that because, under the Evidence Act, the fact that evidence is hearsay does not make it in and of itself inadmissible.

[28] In the Crown’s submissions of 20 July, Ms Nizam submitted that the Justices

had, when the notes of evidence were read, in fact taken account of Mr Leonard’s

evidence. Whilst I accept they admitted the photographs, it is clear they did not consider the letter written by Mr Leonard to be admissible evidence.

[29] The Crown further submitted that that letter, as hearsay, would not meet the test for admissibility provided by s 16(2). Without going into too great a technical analysis, for the purposes of this appeal I am prepared have regard to Mr Leonard’s letter and do not see any reason to doubt Mr Leonard’s credibility or reliability. In this appeal by way of rehearing, I consider that an appropriate approach in terms of s 114(1)(b) of the Land Transport Act.

[30] For the sake of completeness, I note that Mr Walker wrote to the High Court on 31 July wishing to apply for a letter written from a Ms January Smith to be admitted as evidence in this appeal. This letter attests that Mr Leonard is a resident of Waiheke Island and is in summary someone that others go to for problems regarding local roads, amongst other issues. As I have stated, Mr Leonard’s credibility is not questioned by me and, as such, whether or not I have regard to Ms January Smith’s letter does not alter the outcome of this appeal.

[31] But, having regard to Mr Leonard’s evidence does not, in my view, give rise

to a reason to uphold Mr Walker’s appeal. I say that for the following reasons.

[32] I accept that Mr Leonard may well give evidence that there was growth at the intersection which obstructed vision. Even accepting that, however, Mr Clark’s clear evidence is that he saw Mr Walker’s vehicle from some 40 metres away. As a matter of logic, if he was able to see Mr Walker, then Mr Walker was able to see him. Therefore I conclude that even if Mr Walker’s vision was restricted to some extent by the growth, he could have driven forward and, before turning out onto the road, have seen Mr Clark so as to give way and avoid this accident. In making this finding I note that, even absent the give way sign, Mr Walker would have been required to give way to all traffic that was continuing along the road – as Mr Clark was at the time of the incident. As the Justices pointed out, regardless of the actions Mr Clark took and any obstruction to Mr Walker’s view, the onus remained on Mr Walker not to proceed until the way was completely clear. This did not occur. As the Justices concluded, therefore, Mr Walker did not give way as he was required to do.

_{[33] Accordingly this appeal is dismissed.}

_{“Clifford J”}

Solicitors:

The Crown Solicitor, Auckland for the respondent

Copy to:

Mr I M Walker, 113 The Strand, Onetangi, Waiheke Island.

---

[1] Police v Walker DC Auckland CRI-2011-004-012193, 14 March 2012 at [12].

[2] Dudfield v Police HC Wellington CIV-2008-454-015, 3 April 2009 at [15] – [17].