Gavin v Police [2013] NZHC 1343 (5 June 2013)

Last Updated: 24 June 2013

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2013-419-000007 [2013] NZHC 1343

BETWEEN TAWHIRI KAWA GAVIN Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 5 June 2013

Counsel G W O'Brien for Appellant

J M O'Sullivan for Respondent

Judgment: 5 June 2013

_{JUDGMENT OF KEANE J}

Solicitors:

Garth O'Brien & Associates, Te Awamutu

Crown Solicitor, Hamilton

TAWHIRI KAWA GAVIN v NEW ZEALAND POLICE [2013] NZHC 1343 [5 June 2013]

[1] On 16 January 2013 Tawhiri Gavin, after a summary hearing in the District

Court, Te Awamutu, was convicted of driving while disqualified in Te Awamutu on 6

May 2012. He was fined $400 and disqualified for six months.

[2] At the hearing there was no issue that on 6 May 2012 Mr Gavin was a disqualified driver. The issue was whether in the early hours of that morning he was in fact a driver. Judge Spiller accepted the evidence of the sole witness, Constable Jack Driver, that he was.

[3] On this appeal Mr Gavin contends that the constable's evidence on which the Judge founded that conclusion was radically insufficient; that his decision on the point is insupportable and unreasonable and cannot stand. If Mr Gavin does not succeed in his appeal against conviction, he abandons his appeal against sentence.

Jurisdiction

[4] Mr Gavin brings his appeal under s 115 of the Summary Proceedings Act. It is a general appeal by way of rehearing on the evidence taken and, on such an appeal, this Court has the ability to affirm or set aside the conviction.[1]

[5] To succeed Mr Gavin must establish, or I must be satisfied, that the Judge made a material error. In my own assessment I make take into account the Judge's advantage in seeing and hearing the sole witness, Constable Driver.[2]

Issue

[6] The issue whether Mr Gavin did drive on 6 May 2012, in the face of his denial, is a matter of primary fact and inference to be decided against the onus and standard of proof to which the prosecution was subject.

[7] The most direct evidence would have been if Constable Driver had identified him in the very act of driving. He did not do so but it was open to the Judge to

conclude on the Constable's evidence as a matter of inference that Mr Gavin was the driver if everything pointed to that being so.

[8] The ultimate issue is whether those features of the evidence on which the Judge relied sufficed, when combined, to establish the fact of Mr Gavin driving beyond reasonable doubt.

Evidence

[9] Constable Driver's evidence was that at 1.50 am on 6 May 2012 he and another officer were on car patrol in Te Awamutu. He was the passenger. They saw in the distance a car they decided to check.

[10] The officers lost contact with that car and, while trying to find it, and while passing through Douglas Avenue, the constable saw a movement to his left in Bowden Place. He saw a car pass a driveway and pull up behind another car. The officers drew up behind the car the constable considered he had seen and he went to the driver's side where he spoke to Mr Gavin.

[11] The constable asked Mr Gavin for his driving licence. Mr Gavin could not produce it. He breathalysed Mr Gavin and Mr Gavin passed the test. When Mr Gavin could not find his driver's licence, Constable Driver asked him to join him in the police car so that he could make a data base check. Mr Gavin handed him his car keys.

[12] In the police car the constable checked on Mr Gavin's name and date of birth and discovered he was disqualified. The constable arrested him for driving while disqualified and gave him his NZBORA rights. Then, according to his notebook entry, Mr Gavin said this:

Going to see my mate, fucken idiot, I was bored and went to see a mate. To be honest I know I'm disqualified, but at the time I didn't. I had a few too many and saw the keys. I shouldn't have.

[13] Constable Driver was closely cross examined about his ability to conclude that Mr Gavin had driven the car that he thought he had seen moving. Though the

constable insisted that this is what he had seen, he accepted that what had attracted his attention was a light, a reflection off a car, and that the lighting was not good.

[14] The constable accepted also that when he and the other officer stopped behind Mr Gavin's car it did not have the headlights on and that, as he approached it, the engine was neither running nor clicking. He did not touch the bonnet to see whether it was warm. Nor did he see keys in the ignition. Nor, it was put to him, did Mr Gavin unequivocally admit that he had been the driver.

[15] When re-examined the constable confirmed he had definitely seen the car move three car lengths and, in a succinct judgment, Judge Spiller, having summarised the constable's evidence, accepted what he said. The Judge was satisfied the constable did see Mr Gavin's car moving and that Mr Gavin was the driver.

Conclusions

[16] On this appeal I have, as invited, reviewed the Judge's decision against the critique of the constable's evidence made when he was cross examined. I have been invited to conclude that his evidence does not establish a relevant movement in Bowden Place, and does not exclude either an involuntary movement or even that the constable was mistaken as to the car he saw.

[17] On the evidence as it was, however, confined to that of the constable alone, and to the matters put to him and not put to him when he was cross-examined, the Judge was entitled to accept his evidence that he saw Mr Gavin's car moving and that Mr Gavin made a plain admission that he was the driver. On my own assessment no other inferences were open.

[18] It follows that the Judge was entitled to find that both elements of the offence were proved beyond reasonable doubt, the contested element that Mr Gavin was the driver and the uncontested element that he was disqualified at the time. This appeal

_{against conviction is dismissed and with it the appeal against sentence.}

P.J. Keane J

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[1] _{Summary Proceedings Act, ss 119, 121.}

[2] Austin Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141.