HARTLEY v POLICE [2019] NZHC 385

HARTLEY v POLICE [2019] NZHC 385 [8 March 2019]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI 2018-454-11[2019] NZHC 385BETWEEN CORY HARTLEYAppellantAND NEW ZEALAND POLICERespondentHearing: 7 March 2019Counsel: Appellant in PersonM J Blaschke for RespondentJudgment: 8 March 2019JUDGMENT OF SIMON FRANCE J[1] Mr Hartley was convicted of careless driving causing injury.1 The van he wasdriving entered onto gravel that was on the left-hand side of the road on which he wasdriving. This caused Mr Hartley to lose control with the consequence the van turned90 degrees and went straight across the road. A car coming in the other direction hitMr Hartley's van in the side. The driver and her passenger were injured.[2] The prosecution called several witnesses who all attested to the scenario justdescribed. Mr Hartley did not dispute the essence of the case other than as regardswhy his van got into the gravel. He said when he came around a corner he encountereda stalled line of cars and steered to the left of the road to avoid hitting the back of therearmost one. None of the prosecution witnesses agreed that the road in front of1 Hartley v Police [2018] NZDC 17735. An appeal against sentence was not pursued and isdismissed.Mr Hartley was blocked in this way. All the witnesses could see Mr Hartley's van asit approached them from the opposite direction.[3] The Judge did not resolve this issue, observing that Mr Hartley's own versionof events would constitute careless driving. Convictions were entered.[4] The appeal is advanced primarily as a complaint about the fairness of the trial.It is submitted that the Judge should have recused himself, and that Mr Hartley, whoacted for himself, was not able to present the case he wished. The Judge kept limitinghis questioning and threatening him with "the cells".[5] Mr Hartley asked the Judge to recuse himself because the Judge had presidedover a Family Court matter involving his family. The Judge said he had no recollectionof it and it did not afford a basis for recusal. Mr Hartley renews the point on appeal.He advises that his was merely a support role for his mother. I agree that affords nobasis for the Judge to recuse himself.[6] Concerning interruptions to his case, the Notes of Evidence do not on their facedisclose undue interference. Mr Hartley presented his case in a way that is puzzling,at least to legally trained eyes. At the outset, sensibly, he accepted he had lost controlin the gravel, the car had crossed the road and the people were injured. This meant thesole issue was how it was that Mr Hartley came to be in the gravel, and whether thatrepresented careless driving on his part.[7] Although this was a narrow issue, Mr Hartley's questioning of witnessesthereafter mainly focused on irrelevant points. The police officer who attended thescene was questioned about the fact that on his statement his name is Trevor Hetutuwhereas in Court he gave his name as Trevor Tainui Hetutu. It was next said, and isrepeated as being relevant on the appeal, that the officer got the name of the towingfirm wrong. Another matter raised on appeal is the officer talked of Mr Hartleytravelling in a southerly direction whereas the road goes south-east. During the trialMr Hartley pursued a significant number of such points, none of which assist him withthe core issue. When asked on the appeal how these things matter, Mr Hartleysubmitted accuracy is important. I infer the proposition is that a lack of accuracyundermined the strength of the case.[8] I am satisfied the hearing was fair. Mr Hartley put questions to all thewitnesses and has not pointed to any matters of significance that he was preventedfrom advancing. He himself gave evidence and was able to state clearly his defence,which was his version of how he came to be in the gravel. Mr Hartley called hispassenger (his mother) who testified in a manner similar to Mr Hartley. I am not in aposition to comment on the nature or tone of the exchanges (captured in the record as"legal discussion") but remain of the view the essential components of the trial wereconducted fairly. Interruptions to control relevance were inevitable and do not pointto unfairness.[9] The list of appeal points Mr Hartley filed as his submissions included:(a) the photos of the damage to his vehicle were not accurate;(b) the officer got the name of the towing company wrong, and thedirection of the road wrong;(c) the officer had informed Mr Hartley prior to the hearing that he was "noroad policing officer";(d) there were changes in what witnesses said between their evidence andtheir statements as recorded in the police officer's notebook;(e) the police officer put all the witnesses in one room before they testified,giving an impression of collusion. Further, Mrs Hartley heard thewitnesses say they would get in touch about the case on Facebook.[10] The photos, the officer's alleged errors and whether he is a road policing officercan have no relevance to the only trial issue. I do not address them further. Changesin statements are not uncommon. The trial affords an opportunity to explore changesand query why. As regards some of these Mr Hartley did just that; unfortunately, thetopics were not ones that assisted. However, the key point on appeal is that a changein statement is not of itself a matter of significance.[11] The idea of witness collusion could be important but has not been placed beforethe Court in a way that allows any consideration of it. There is no evidence from thewitness about this. I agree it could raise a concern if all the witnesses were togetherin a room on the day of the trial prior to giving evidence but cannot take that further.[12] Returning to the core issue, I have not been satisfied the Judge was wrong toconclude it was careless driving based on Mr Hartley's own account. However, havingread the evidence I consider it was established beyond a reasonable doubt that theobstruction Mr Hartley believes he encountered did not exist. None of the witnessessaw it. It would surely have caused difficulty for the witness following Mr Hartleyand I cannot accept all the witnesses are mistaken. These witnesses are six in numberand were in five vehicles. One was following, four coming in the other direction. Onewas an experienced truck driver enjoying all the advantages that the height of the truckcab gives. All were clear, and not at all shaken on this point.[13] I am satisfied Mr Hartley was not confronted by an obstruction. The onlyexplanation for Mr Hartley's vehicle entering onto the gravel is that it was the productof carelessness of his part. The appeal is dismissed.__________________________Simon France J