Manhaas v Police [2012] NZHC 2068 (16 August 2012)

Last Updated: 24 August 2012

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-50 [2012] NZHC 2068

BETWEEN MANGAL SINGH MANHAAS Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 14 August 2012

Counsel: Appellant in Person

A A McCubbin-Howell for Respondent

Judgment: 16 August 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against conviction)

[1] Newtown is a bustling cosmopolitan suburb of Wellington. Its main street, Riddiford Street, is a noisy hubbub of activity as cars pass back and forth and pedestrians take their chances.

[2] Along that street on the afternoon of Wednesday 16 November 2011 rode Sergeant Bergh on his police motorcycle. He was heading south, looking for motorists not using seatbelts. Along the same roadway, but heading north, drove Mr Manhaas. He was looking for Wilson Street, a side road to his right and running eastward. In the centre of Riddiford Street is a median area in which vehicles turning into Wilson Street may pause. Further north, beyond the turning lane, the median area is vegetated. There is a helpful sign pointing out Wilson Street, a tree, a small hedge, a pedestrian refuge and an elegant lamp post. All in the middle of the street.

[3] Mr Manhaas pulled into the turning area, signalling a right turn into Wilson

_{Street. He saw Sergeant Bergh on his police motorcycle heading south towards him.}

MANHAAS v NEW ZEALAND POLICE HC WN CRI 2012-485-50 [16 August 2012]

At this point the accounts of Sergeant Bergh and Mr Manhaas diverge. In fact, they are irreconcilable. They were the only witnesses who gave evidence at the hearing that followed.

[4] Sergeant Bergh says he was travelling at about 40 kilometres an hour and heading direct for Constable Street. That is the next side street after Wilson Street. He was going there to look for unrestrained drivers. He saw Mr Manhaas’s car in the turning area, indicating a right turn. Sergeant Bergh says he continued straight along at 40 kilometres per hour. Mr Manhaas’s car turned across the road in front of him. He made an emergency stop.

[5] Mr Manhaas admits having seen Sergeant Bergh travelling towards him on the motorcycle. However he says that as the policeman neared his car, his motorcycle moved right, to the middle of the road. Mr Manhaas lost sight of it behind the tree in the median area. Mr Manhaas says he moved out, tentatively, into the road to see where the motorcycle had gone. He saw it stopped behind the tree in the middle of the road. The policeman’s foot was on the ground, balancing the motorcycle. He says that the motorcycle’s left indicator was on, showing that he also intended to turn into Wilson Street. The road rules at the time gave Mr Manhaas right of way, turning right into Wilson Street. And so that is what he then did.

[6] Sergeant Bergh denies this. He says he did not pull his motorcycle into the middle of the road at all. Nor did he park up or stop behind the tree. He also says that after making his emergency stop to avoid Mr Manhaas, he followed him into Wilson Street. There, he says, Mr Manhaas admitted that he simply had not seen him.

[7] Mr Manhaas was charged with failing to give way under s 40 of the Land Transport Act 1998, reg 4 of the Land Transport (Offences and Penalties) Regulations 1999 and r 4.2(2) of the Land Transport (Road User) Rule 2004. A defended hearing took place before two Justices of the Peace on 7 May 2012. Mr Manhaas was convicted and ordered to pay a fine of $150 and Court costs of

$132.89. He now appeals.

[8] The Justices’ decision is in these terms:

There are two clear scenarios that have been presented in this case today: one by the defendant Mr Manhaas, and the other by the prosecution witness, Police Sergeant Bergh. Both scenarios have the support of experience; the defendant had been driving in New Zealand since the early 1960s; and the prosecution witness having been a police officer for some 16 years, with 11 years of specialist road policing.

After setting out the competing evidence (which I have already summarised) the critical passage in the Justices’ decision was this:

We have no doubt of the defendant’s genuine belief in his interpretation of this matter. On balance, however, we have accepted the prosecution’s evidence in respect of the alleged infringement and have found that the offence is proven beyond reasonable doubt.

[9] Whether or not Mr Manhaas made an unlawful turn, it is clear that the

Justices have made a wrong turn.

[10] First, the decision is unclear as to what standard of proof is being applied. The last sentence quoted above suggests both a “balancing” exercise and a finding that the offence was proven “beyond reasonable doubt”. Difficulty is added by the statement that Mr Manhaas had a “genuine belief in his interpretation of this matter”. It is not clear what this means. As Ms McCubbin-Howell said in her admirable submissions for the respondent, the wording is unfortunate. She says that the final words (finding the offence proven beyond reasonable doubt) are the operative ones. It is however uncertain that that is so. That alone renders the conviction unsafe.

[11] Given the irreconcilable factual accounts (in particular as to the location and pace of the police motorcycle), the Justices could only have convicted Mr Manhaas if they disbelieved his evidence. But they did not say so. Indeed the passage about “genuine belief” perhaps suggests otherwise.

[12] That leaves the second difficulty with the decision. The adequacy of reasons. As Hardie-Boys J said in R v Atkinson:[1]

Whether or not reasons should be given and if so how fully expressed they should be will depend upon the nature of the individual case ...

In every case however it is essential for the Judge to make clear that he has properly applied his mind to the issues before him and has proceeded to his conclusion on the correct legal basis. Even if the issue be no more than a determination of where the truth lies, it must be made apparent that he has correctly directed himself on the all important point of the standard of proof.

And in R v Connell, Cooke J said:[2]

What the Judge sitting alone delivers is intended to be a verdict. It need not be supported by elaborate reasons. To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point or argument is of such importance that a Judge’s failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice ... Careful consideration is an elementary need, but not long exposition.

[13] In Lundquist v Police[3] a charge of failing to give way was also being considered. Five witnesses gave direct but conflicting evidence about the collision. The absence of reasons for accepting the prosecution evidence and rejecting the defence evidence left uncertain whether the Justices there had applied their minds properly to the issues before them. The conviction was set aside.

[14] I have reached the same conclusion in this case. First, the decision of the Justices is equivocal as to the standard of proof applied. Secondly, it fails to state as a clear conclusion that the Justices disbelieved Mr Manhaas’s evidence as to the location and pace of the police motorcycle. The decision of the Justices was equivocal on that also. That conclusion was necessary to find the charge proved beyond reasonable doubt. It is perhaps what the Justices intended, but it needed to

_{be said.}

Result

[15] The appeal is allowed. The conviction is set aside. The proceeding is remitted to the District Court for rehearing.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington for Respondent

And to:

Mr M S Manhaas (Appellant), [e-mail]

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[1] R v Atkinson [1984] 2 NZLR 381 at 383.

[2] _{R v Connell [1985] 2 NZLR 233 at 237.}

[3] Lundquist v Police HC Auckland AP67/99, 13 August 1999.