Tulisi v Police [2012] NZHC 324 (29 February 2012)

High Court of New Zealand

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Tulisi v Police [2012] NZHC 324 (29 February 2012)

Last Updated: 17 April 2012

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000119 [2012] NZHC 324

CHARLES TULISI

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 29 February 2012

Appearances: Appellant appears in person

N M Robson for Resondent

Judgment: 29 February 2012

_{JUDGMENT OF CHISHOLM J}

[1] Following a defended summary hearing in the District Court Mr Tulisi was found guilty of dangerous driving. He was fined $750 and ordered to pay court costs. He appeals against both conviction and sentence.

[2] The Court prosecution arose out of an incident on 2 November 2010 involving a bus driven by Mr Tulisi and a van that had been driven by the complainant, but which was parked at the time. The crux of the allegation against Mr Tulisi was that his bus brushed past the complainant who was standing outside his van (but inside the door of the van which was partly open) and struck the door of the van when going into a bus stop. It is alleged that Mr Tulisi’s driving fell below

_{the required standard and endangered the complainant.}

TULISI V NEW ZEALAND POLICE HC CHCH CRI-2011-409-000119 [29 February 2012]

[3] Mr Tulisi denied the allegation. Contrary to the complainant’s evidence Mr Tulisi said that the door of the van was wide open, the rear of his bus struck the door as he was going into the bus stop, and but for his skill there would have been a more serious outcome. In essence Mr Tulisi claimed that the complainant was responsible for what happened.

[4] Having heard the evidence the Judge accepted the complainant’s version of events. When Mr Tulisi realised that things were not going his way he asked the Judge to adjourn the hearing so that he could obtain legal representation. The Judge declined on the basis that Mr Tulisi had elected to represent himself at the hearing, had conducted himself well, and that the outcome would not have been any different if Mr Tulisi had been represented by counsel.

[5] Mr Tulisi has in support of his appeal raised a number of issues: absence of legal representation; the Judge’s acceptance of the complainant’s evidence notwithstanding inconsistencies in that evidence (particularly the fact that the complainant had swung the door back to a favourable position before taking a photograph which was later adduced in evidence); his unblemished record as both the operator and driver of taxis and buses; failure of the prosecution to produce CCTV coverage; and, as Mr Tulisi put it in his reply, the Judge effectively accepted “perjured evidence”.

[6] As I have explained to Mr Tulisi, the powers of this Court on appeal are limited. It is not for an appellate Judge who has not had the benefit of hearing and seeing the witnesses to simply substitute his or her own view of the matter. An error by the District Court Judge needs to be demonstrated.

[7] As far as the legal representation is concerned, Mr Tulisi was, of course, entitled to consult and instruct a lawyer under s 24(c) of the New Zealand Bill of Rights Act 1990. Equally, however, he was entitled to make an informed choice about whether he would have a lawyer at the hearing: R v Condon.1 In this case Mr Tulisi decided to represent himself and that was his prerogative. Nevertheless, it

is necessary to consider whether the absence of legal representation affected the fairness of the hearing: Condon2.

[8] Having considered that issue, Mr Tulisi, I am afraid that I cannot see how legal representation would have altered the outcome of your case. As so often happens in hearings in the District Court, this Judge was faced with two differing versions of events. Although there were eye witnesses to the earlier event, the Judge rightly said that event was irrelevant. When it came to the critical incident he had the complainant’s version and your version. In the end the Judge preferred the complainant’s version. It often happens that there are conflicts in the evidence of this type. Ultimately the District Court Judge has to make a decision. Sadly for you it was against you in this case.

[9] Quite often the High Court is faced with an allegation that the District Court Judge was wrong to prefer the prosecution version of events. But that does not entitle the High Court Judge to say, “Well I would have come to a different conclusion”. This is because, unlike the District Court Judge, the High Court Judge has not been able to hear and see the different witnesses and compare them.

[10] The real issue in this case is whether the fact that you did not have a lawyer might have resulted in an unfair trial. When he was considering whether there should be an adjournment the Judge considered that very issue. He concluded, in effect, “Mr Tulisi has represented himself very well before me and a lawyer would not have made any difference”.

[11] On this appeal you have also represented yourself very well and with considerable dignity. If the Judge in the District Court was going to arrive at the conclusion that he preferred the evidence of the complainant I do not think the outcome would have been any different if you had had a lawyer acting for you. Nor could I say that the Judge was wrong to prefer the evidence of the complainant.

[12] Having said that, I recognise that you do have an unblemished driving record and that you sincerely believe that the outcome in the District Court was wrong.

But, Mr Tulisi, I am afraid that does not entitle me to overturn the District Court conviction. It might sound pretty rough justice, but the reason for that is that there has to be finality. Unless there is some clear error the decision in the District Court stands. Your previous exemplary record was before the Judge, he knew about that and this is not a case where I can say he failed to take that factor into account. In terms of what happened, it was for the Judge to decide on two versions of events.

[13] When it came to penalty your excellent record was highly relevant. The maximum penalty for dangerous driving is imprisonment for three months or a fine of $4,500. Because of your excellent record the Judge imposed a fine that was towards the bottom of the scale. Unfortunately, as far as disqualification is concerned, the legislation said six months disqualification was a minimum and the Judge was bound to impose that minimum disqualification.

[14] While I have the greatest sympathy for you, Mr Tulisi, and I respect the way you have conducted yourself today - it does you great credit - I am afraid I have to obey the rules that apply to appeal Judges. I am dismissing the appeal.

[15] You asked me the question, where to from here? Well I suppose the answer is you have given an appeal your best shot, it has failed. That means that the Court processes you can pursue are at an end. You mentioned that in six weeks your disqualification will have been served and you can go back to your old job. I guess that is the only good news. I cannot offer you any consolation for the outcome today. I know that you will find it hard to take, but that is the way the law is.

Solicitors:

Copy to Appellant

Raymond Donnelly & Co, Christchurch, [e-mail]