DIANNE COLLEEN KEMP v NEW ZEALAND POLICE [2017] NZHC 110

DIANNE COLLEEN KEMP v NEW ZEALAND POLICE [2017] NZHC 110 [8 March 2017]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYCRI-2016-488-41[2017] NZHC 110BETWEEN DIANNE COLLEEN KEMPAppellantAND NEW ZEALAND POLICERespondentHearing: 8 February 2017Counsel Appellant in PersonJ Wall for RespondentJudgment: 8 March 2017JUDGMENT OF WHATA JThis judgment was delivered by me on 8 March 2017 at 4.30 pmpursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate: .Solicitors: Crown Solicitors, Whangarei[1] Ms Kemp's car and a bus collided. A central issue in her careless use of a motor vehicle trial was whether she caused the collision. An eye witness said shesaw Ms Kemp's car U-turn into the rear of the bus. Ms Kemp said the front right of the bus struck her as it pulled out of a bus stop, causing her to lose control of her car and then crash into the bus.[2] At a defended hearing before Justices of the Peace, Ms Kemp was found guilty of driving carelessly. Ms Kemp was fined $400, together with $100 in Court costs. Ms Kemp then appealed to the District Court and the appeal was dismissed.[3] Problematically, the Justices of the Peace refused, without apparent good reason, to allow Ms Kemp to produce a damages report showing that the front right bumper of the bus was damaged. The District Court Judge did not identify this refusal and found, in any event, that the report would not have made a material difference. I am satisfied however that leave to appeal must be granted and the appeal allowed for miscarriage of justice. The right to produce probative evidence on a key factual issue at trial is fundamental and the consequences of a refusal to allow the evidence cannot be satisfactorily corrected on appeal. Leave is granted, the appeal allowed and a retrial ordered.[4] My reasons follow.Jurisdiction[5] This is an application for leave to undertake a second appeal to the High Court. A further appeal can only be allowed where this Court is satisfied that the appeal involves a matter of general or public importance or a miscarriage of justice may occur unless the appeal is heard.1[6] Several grounds of appeal are noted but the central ground is that photographic evidence and evidence of repairs to the bus were not admitted into1 Criminal Procedure Act 2011, Section 237(2); McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.evidence by the Justices of the Peace or by District Court Judge, but are clearly cogent and relevant evidence supporting her version of events.2Background[7] The police case was simply that a bus was driving or Corks Road towards Tikipunga. Ms Kemp, it is alleged, was going the other way. She stopped on the side of the road and then did a U-turn, her vehicle crossing the centre line and colliding with the bus.[8] Ms Kemp contended, in short, that she had completed her u-turn prior to the collision with the bus and was making her way to Tikipunga when the bus moved into her lane, catching the front left end of her car, causing it to spin and collide with the side of the bus.[9] In the hearing before the Justices of the Peace, the police called the driver of the bus, a passenger onboard the bus and Constable Anderson, who was the officer in charge. The bus driver, Mr Ongley, gave evidence that as he was exiting Manapouri Street in Tikipunga, he let somebody off the bus about 20 metres into Corks Road. After he had stopped, exited the bus stop and travelled about 20 metres, he heard an impact into the side of the bus. He pulled over and put the hazard lights on. He said he did not know what had hit him until he got off the bus. He observed the car was straddling the centre line, with the nose of the car pointing towards the bus. He confirmed he did not see the car at all. He said, after 30 years of driving, he would have noticed if a car had hit his front bumper.[10] He agreed under questioning that photos of the car showed that it waspredominantly damaged on the front and that it was more pronounced on the rightthan the left. He said that the only damage to the bus was that described in thephotos.[11] Under cross-examination, he offered the view that the first point of impact was the front of the rear wheel of the bus. Ms Kemp endeavoured to put a series of2 I have not found it necessary to explore the photographic evidence claim to a conclusion, given where I have got to on the evidence about damage to the bus.questions to Mr Ongley about a damage report. The following records the relevantexchange, including with the Justices of the Peace:Q. Mr Ongley, have you seen the damage report that was done by the company in order to repair damage, I do recall you stated that –THE COURT: Again Ms Kemp, we don't have this stuff, all you can do isask questions –MS KEMP: I'm asking, yes I'm asking him –THE COURT: Yes, but you're asking him to relay something that we haven't seen, so it – unless he has written it himself, it's notevidence. If he wrote it –MS KEMP: He wrote it here. The police statement, she wrote thestatements, haven't you got –THE COURT: But I haven't seen that so I can't –MS KEMP: So you haven't got copies of the police notes?THE COURT: No, and this witness wouldn't have it either.MS KEMP: So can I give those to you so that you know.THE COURT: No. No.MS KEMP: No?THE COURT: No, we – all we're asking of this witness is what he, himselfknows.[12] Ms Kemp did not press Mr Ongley on this issue.[13] The balance of the cross-examination is relatively uneventful.[14] The police also called Susan McCullough, a passenger on the bus at the time of the incident. She observed that she was on the bus and sitting about three or four seats behind the driver. She said she saw a silver car on the other side of the road, facing Kamo and it did a U-turn and crashed into the bus. She thought it was stationary at the side of the road. She said she saw the whole manoeuvre and, in response to what must be the exemplar of a leading question ("So in relation to you, where did the silver car hit the bus, behind you?"), she confirmed that the carimpacted probably about half-way down the back of the bus. The leading nature ofthis question is only matched by the following question, with what must be said to bea predictable answer:Q. And so you saw the silver car collide with the bus?A. Yes.[15] Ms McCullough was asked whether the front of the bus was involved in thecrash and she answered "no". Under cross-examination, she confirmed that she actually saw the car drive into the bus. When it was put to her that the car allegedlyhit the back of the bus, while she was seated at the front, she said she saw it "out ofthe corner of my eye and looked round and heard the bang".[16] Constable Anderson was also called and she produced a photo booklet. She was asked to explain the damage to the silver car. She noted that the damage was quite extensive to the front of the vehicle, with the worst damage on one side of the car, namely, the right hand side. She said, in terms of the damage to the bus, that there was damage to the centre of the bus and the scrape down the back of the bus. She said there was no obvious damage to the front of the bus. The constable refers to a statement made by Ms Kemp, which is recorded as follows:I was parked on Corks Road facing north-west and indicated to turn right in order to perform a u-turn. I then checked both lanes and saw that the bus had parked on the opposite side of the road. I then proceeded to move out onto the road in order to then head towards the south. As I was performing the u-turn and in the middle of doing so the bus had hit me. I was in the other lane when the bus made contact with my vehicle and had basically completed the u-turn. I did not see the bus indicate his intention to move out into the lane. When the bus had stopped I got out and noticed that two occupants, which are still in the bus at the moment, were on the left side of the bus.[17] The constable then gave opinion evidence that the damage to the bus does not match up to the account given by Ms Kemp.[18] At one point of the cross-examination, Ms Kemp again seeks to cross- examine the constable on notes that had been produced by another constable, but theCourt observes that it cannot refer to those notes because they "haven't got them".[19] Ms Kemp then gave her evidence. She said that she was doing a U-turn. There was a bus parked at a bus stop, it pulled out of the bus stop and collided into her vehicle. Upon collision, she said her car went from the front of the bus right down the whole side of the bus to the end. She said that when she was preparing to do the U-turn, she looked ahead and she saw the bus pull up at Manapouri Street at the stop sign there. She looked further down the road and saw no moving traffic. She said she checked the road again in front of her and saw the bus indicating left toward the bus stop and so she did the U-turn, crossed the road, "and then the busjust pulled out onto the road straight into [her] vehicle".[20] Ms Kemp sought to produce a photo, she says, of a vehicle parked on the side of the road where she was parked at the time of the incident, but the Court refused to accept this photo as evidence, for reasons which are not explained. Instead, the Court directed Ms Kemp to refer to the police photo. The Court explained that:THE COURT: we are only able today to use the evidence that has beenlooked at by everybody so if you want to use pictures out of this book or this book other than the Google that's fine but I don't want to hear anything about any others becausenobody has seen them.[21] It appears, however, that Ms Kemp was able to illustrate the relative proximity of her car to the bus at the time of the incident, referring to the fact that the bus would have been about six metres in front of her.[22] She then gave evidence that she observed damage on the right front bumper panel and right-hand wheel of the bus, all the way down the right hand side of the bus, to the end of the bus. Under cross-examination, it was put to her that Ms McCullough had said that the bus had travelled 20 or 30 metres past the bus stop when there was a collision.[23] She conceded under cross-examination that the number plate, which was on the ground, was lying on the road behind her car, which was some 20 or so metres from the bus stop. She said that is where she had put it after the accident. She also said she put it in her car.[24] She maintained under cross-examination that the bus struck her initially at the left side of her vehicle. She said the damage on her car occurred because the left hand side of her vehicle has been caught and the momentum has thrown her car into the bus, catching on the front wheel and then dragging it all the way down the right hand side of the bus.District Court judgment[25] The District Court Judge identified six grounds of appeal, but the most salient for present purposes, are:[a] She did not receive a fair and honest hearing;[b] The decision did not include the right to present evidence to the District Court at Whangarei that was collected by Constable Anderson and Constable Sinclair on the morning of 27 August 2015; and[c] She claims a right to produce evidence collected from Lumley General (NZ) Limited, Ritchies Transport Holdings Limited, Whangarei, and All Truck Repairs Limited, Whangarei.[26] As to evidentiary matters, the Judge makes the following observation:Concern and regard to the appeal as I have already alluded to is thatMs Kemp believed further evidence could be submitted but none of the material was either not available at the hearing or, in my view, was there any restrictions on Ms Kemp from submitting it. On that basis I don't admit it as fresh evidence so I consider it only really as part of Ms Kemp'soverall submission to me.Emphasis added[27] The Judge then thoroughly reviewed the evidence given at the first trial. In terms of photographs sought to be adduced by Ms Kemp, the Judge observes: [It is] by no means clear whether they add anything to the understandingto the case and they were taken subsequently, various of those had been produced in support of the appeal in detailed distances and in effect recreate what Ms Kemp says was the situation before the accident. In that sensewhile they might give some representation to further particulars they do not represent new evidence in the sense of introducing new or probative matters that were not previously before the JPs.The relationship between the two vehicles, the timing of the turn, the question of whether or not the bus or Ms Kemp was at fault were plainly at issue.[28] The Judge then rejects Ms Kemp's account of events as confusing andcounterintuitive.[29] In particular, the Judge noted:The logic of the conclusion which the JPs seem to draw which was that the first point of impact was on the right front where the car collided with the bus and that then the momentum of the bus caused damage across the bumper and to the left front seems more, much more likely scenario, and so that the damage moved from the left side of the vehicle – rather from the right side of the vehicle to the left. The point of impact had been on the left front and the forward momentum of the bus would have occurred then. It seems to me that the ultimate damage would not have manifested itself in the way that it did.[30] Accordingly, the Judge was not prepared to disturb the finding of the JPs on this. The Judge returned to the issue of the photographs, repeating that the photographs do not add to the mix of evidence and cannot be guaranteed. He noted the photographs taken by the police officers are to be preferred. They were photographs taken on the day. Plainly, therefore, the Judge took into account the additional evidence, even though it was suggested previously he would not do so.[31] The Judge then referred to the evidence about repairs. The Judge addressed this:The one point Ms Kemp raises is the question of whether or not the subsequent invoice sent to her by the truck repair company for repairs to the bus which included damage to the bumper was something which indicated that there had been a point of impact to the bumper so she produced the invoice which was sent to her by the insurance company, which includes details of repairs to the right front bumper, panel and paint, the it goes onto talk about repairs to the right-hand side lockers and so on.The sergeant tells me in a way that wasn't before the JPs, as the invoice wasnot before the JPs that there is an explanation for that. The short point is I have not heard conclusively that the only explanation for that is that there was damage occasioned by this accident to that bumper, and if it waswhether that is in fact inconsistent with the evidence given by Mrs McCullough and Mr Ongley.The conclusion I draw that it is not evidence that would have materially altered the circumstances that the JPs were faced with and possibly had some other consistent explanation and that other repairs were done at the time the vehicle was in the shop. While that should not have resulted in any claim against Ms Kemp it does not mean that the accident necessarily unfolded in the way she did.[32] The Judge concluded by noting that he has heard extensively from Ms Kemp and that the process which was adopted allowed her to put her case properly and to give her explanation and she has been afforded a proper hearing in this Court. He has considered all of the material and concludes that, in respect of the evidence, the charge was appropriately found to be proven.Assessment[33] Two errors are in focus. First, the Justices of the Peace wrongly deprived Ms Kemp of the opportunity to adduce evidence that was directly relevant to her defence, namely, the production of a damages report which may have indicated that there was damage to the front of the bus, her key defence being that the bus collided with her at the front, not at the rear of the bus as claimed by the witnesses. I cannot identify a sound basis upon which the JPs excluded the evidence. It appears that the Justices of the Peace were not content to allow evidence that had not already been tabled before them. But that was not a proper basis for exclusion. A defendant facing criminal charges is entitled to place any evidence before the Court a defendant thinks fit, provided it is relevant to the proceedings and is otherwise admissible in accordance with the rules of evidence and disclosure. There is nothing to suggest that the damages report that Ms Kemp wanted to adduce was inadmissible or otherwise not relevant.3 Section 34 of the Criminal Disclosure Act 2008 provides the grounds on which a court may exclude evidence sought to be adduced by a defendant, being evidence that should have been disclosed to the other party under3 There was no suggestion by of the Justices of the Peace or the Judge that the damages report was inadmissible hearsay or otherwise unreliable in terms of what is recorded.the Act.4 A defendant's positive obligations of disclosure under the Act are limitedto of alibis and expert witness evidence.5[34] The second error is, with respect, the finding of the District Court that Ms Kemp was not deprived of the opportunity to produce evidence. On my view of the transcript, that is wrong: see [11] above. I acknowledge that the District Court Judge has carefully considered the evidence that was given before the Justices of the Peace and has taken into account damages reports relied upon by Ms Kemp for the purposes of reaching his judgment that there was no material error. But, with respectto the Judge's otherwise cogent reasoning, Ms Kemp was deprived of a fundamental trial right with the result that she was unable to place evidence of probative value before the Justices of the Peace that may have been independently corroborative of her version of events and could have been used in cross-examination of the purported eye witnesses, Mr Ongley and Ms McCulloch. In short the trial went wrong at the outset and cannot now be fairly corrected by appellate review.[35] While not a matter that would have warranted leave by itself, the evidence ofMs McCulloch was also blighted by leading questions, prohibited by s 89 of theEvidence Act 2006 unless specified circumstances are present, which were not. Ihave identified those questions above at [14]. In addition, the District Court Judgealluded to the possibility that the damage to the front bumper could have come froma prior accident. But this appears to be contrary to evidence given by the bus driver,Mr Ongley, before the JPs:Yes, my bus is a very clean bus, never had an accident in it, never scrapedanything at all[36] Of course none of this was explored at trial because the Justices of the Peace refused to allow Ms Kemp to produce the damages report.4 Criminal Disclosure Act 2008, s 34(1).5 Sections 22 and 23.[37] In these circumstances, I consider that there is no alternative but to allow leave to appeal and to allow the appeal. The conviction is set aside and a retrial ordered. 66 Criminal Procedure Act 2011, ss 241(2), 233(2) and 233(3)(b).