YOUNG v NEW ZEALAND POLICE [2020] NZHC 2746

YOUNG v NEW ZEALAND POLICE [2020] NZHC 2746 [19 October 2020]IN THE HIGH COURT OF NEW ZEALANDWHANGAREI REGISTRYI TE KŌTI MATUA O AOTEAROAWHANGĀREI-TERENGA-PARĀOA ROHECRI 2020-404-000039[2020] NZHC 2746BETWEEN DION WAYNE YOUNGAppellantAND NEW ZEALAND POLICERespondentHearing: 15 October 2020Appearances: Appellant self-representedM B Smith for the RespondentJudgment: 19 October 2020JUDGMENT OF VAN BOHEMEN JThis judgment was delivered by me on 19 October 2020 at 3.30pmPursuant to Rule 11.5 of the High Court RulesRegistrar/Deputy RegistrarSolicitors/Counsel:Marsden Woods Inskip SmithCrown Solicitor, WhangāreiAnd to:The AppellantIntroduction[1] Dione Wayne Smith appeals his conviction on one charge of failing to stopwhen followed by red/blue flashing lights.1[2] On 5 August 2020, Judge K B de Ridder convicted Mr Young and sentencedhim to six months' disqualification from driving and a fine of $350 and orderedMr Young to pay Court costs of $150.00. He appeals against his conviction.[3] Mr Young is self-represented.[4] At the hearing, Mr Young handed up a certified and apostilled copy of a birthentry in the Maori Chief Registrar Office of the Maunga Hikurangi KoporeihenaMaori which records the name of Âtarere Patuharakeke Manaia. He also filed andhanded up submissions in the name of A P Manaia, which is the name and the identityby which he wishes to be known. For that reason, I addressed Mr Young as Mr Manaiaat the hearing.[5] However, Mr Young also handed up a copy of his New Zealand birthcertificate, which appears still to be current. He also confirmed that he was the personagainst whom the charge of failing to stop was brought and who has brought theappeal. Accordingly, in this judgment I refer to Mr Young rather than Mr Manaia.Background[6] The Police say that on 13 September 2019, Mr Young was driving hismotorcycle south on State Highway 1 towards Hikurangi. He was observed travellingat 129 km/h by Constable Billings, who was in a marked highway patrol car facingnorth at the time. Constable Billings engaged his red and blue flashing lights, did au- urn, and pursued Mr Young along State Highway 1 and then into King Street,Hikurangi.[7] Mr Young stopped at his home address at 85 King Street in Hikurangi. He wascharged with aggravated failure to stop.1 Police v Young [2020] NZDC 15604.[8] In his decision, Judge de Ridder concluded from the evidence of ConstableBillings that he had driven five to 10 metres behind Mr Young along King Street thatMr Young must have seen the officer behind him and must have seen the flashing blueand red lights and must have exercised a conscious decision to fail to stop. The Judgewas satisfied that the essential elements of the charge had been proved.Mr Young's appeal[9] In his notice of appeal, Mr Young states that he was not judged on the facts and"truth" that he had put before the District Court in a statutory declaration.[10] In the submissions handed up before and at the hearing of his appeal, Mr Youngsaid that it was not possible for Constable Billings to have caught up to and followedMr Young's motorcycle based on the times recorded in the Constable's notebookentries. At the hearing, Mr Young handed up his calculations of the distances andtimes involved, as well as various other supporting material – all of which was alsobefore Judge de Ridder.Approach on appeal[11] Section 229 of the Criminal Procedure Act 2011 (provides a right of appealagainst conviction. In accordance with ss 232(2)(b) and (c) of the Act, the Court mustallow the appeal in the case of a Judge-alone trial if it is satisfied that a miscarriage ofjustice occurred because the Judge erred in his or her assessment of the evidence orfor any other reason.[12] Section 232(4) of the Criminal Procedure Act defines a miscarriage of justiceas: any error, irregularity or occurrence in or in relation to or affecting the trialthat:(a) has created a real risk that the outcome of the trial was affected; or(b) that has resulted in an unfair trial or a trial that was a nullity.Submissions for Mr Young[13] The essence of Mr Young's submissions is that Judge de Ridder failed to haveregard to Mr Young's calculations of timings and distances which, Mr Young says,prove that the account given in evidence by Constable Billings cannot be correct.Mr Young also says Constable Billings failed to produce readings from the Police laserspeed detection equipment to support the Constable's evidence that he had recordedMr Young's motorcycle travelling at 129 kilometres per hour on State Highway 1 orthat he had observed Mr Young travelling at over 103 kilometres per hour on KingStreet in a 50 kilometre per hour area.[14] Mr Young also places some emphasis on the following exchange betweencounsel for the Police and Constable Billings when the Constable was beingre- examined:Q. Did you catch up with this defendant?A. I caught up with the defendant as he pulled into his driveway.[15] Mr Young says that this proves that the Constable could not have beenfollowing him along King Street with his lights flashing as alleged by the Police.Submissions for the Police[16] Mr Smith, counsel for the Police, submits that Judge de Ridder considered theevidence and issues that Mr Young raises on appeal, that an analysis of the decisionshows that the issues were correctly identified, and the Court was satisfied the chargewas proved. He submits that there is no identifiable error or irregularity that couldjustify a claim that there was any risk that the outcome of the trial was affected in anyunfair way.Analysis[17] The offence of which Mr Young has been convicted is failure to stop whenfollowed by red/blue flashing lights. While Constable Billings activated the lights andfollowed Mr Young was that he considered Mr Young was travelling at excessivespeed, the speed at which Mr Young was travelling is not an element of the offence.[18] For that reason, the timings and calculations that Mr Young has made, basedon the Police records and Constable Billings notebook entries, are irrelevant. In orderfor a conviction to be entered, the only elements that Judge Ridder had to be satisfiedof was that Mr Young had been followed by red/blue flashing lights, that Mr Youngmust have been aware of those lights and had failed to stop.[19] In his decision, Judge de Ridder states:[13] It is quite clear that [Mr Young] accepts he was the rider of themotorcycle on that day and that he was spoken to by Constable Billings at hisproperty and he accepts that Constable Billings told him that he had failed tostop. He claimed that he only saw Constable Billings when Constable Billingsentered his property. He never saw any flashing lights and never sawConstable Billings at all at any point until he was spoke to in the grounds ofhis property.[16] In this case, Constable Billings' clear evidence was that he hadactivated his flashing blue and red lights and continued to have them activatedfrom the time he first observed the defendant travelling at 129 kilometres perhour on State Highway 1 and continued to operate them until he stoppedoutside the defendant's address.[17] In the face of that evidence, the defendant's evidence is that he simplynever saw him. That does not, in any way, amount to establishing that the redand blue lights were not flashing. Of course, it is not for him to prove that butin the face of clear evidence of the officer, they were activated, then somethingneeds to be given in evidence which would call into question ConstableBillings' evidence in that regard. Clearly, it is not.[18] The next issue for the prosecution to prove is that the defendant failedto stop while being followed with the police vehicle displaying flashing blueand red lights whilst he was driving the motorcycle. In that regard, there aretwo possibilities, firstly, from the time that the officer performed a u-turn onState Highway 1 [until] the time that the defendant turned off into King Street.There was some distance involved on Constable Billings' own evidence in thatregard and it is possible, although I find it somewhat unlikely, but it is possible,that for the portion of the pursuit between when Constable Billings performedhis u-turn and when the officer turned into King Street, that the defendant hadsimply not observed the officer.[19] However, once the officer was on King Street, the situation is entirelydifferent. The unchallenged evidence of Constable Billings was that he wassomewhere between five to 10 metres behind the defendant's midcycle. Thatwas unchallenged. Rather, the defence seemed to me that Mr Young says hesimply did not see him. I find that to be highly unlikely. The evidence is thatthis was a clear sunny day, which the defendant accepted, photographs takenwere not taken on the day, but the officer gave evidence that the conditions asshown in the photographs were similar to the conditions that prevailed on 13September.[20] Constable Billings' evidence also was that between the intersection ofState Highway 1 and King Street, to the point [] outside the defendant'sresidence, there were no other vehicles in between his patrol vehicle and thedefendant's motorcycle. So, [there] can be no argument or possibility thatsomehow the lights were obscured.[21] Finally, this was accepted by Constable Billings to be a quietresidential street and there were no other commercial activities going on in thestreet such that might impede the defendant's view.[22] The only logical inference is that with a patrol vehicle following amotorcycle fit[ted] with at least one rear vision mirror, if not two, the onlylogical inference is that, clearly, on a bright, sunny day, a street with no othertraffic, the defendant must have seen the officer behind him and must haveseen the flashing blue and red lights. That is the only logical inference thatcan be drawn from all of the evidence that I have heard.[20] Accordingly, the Judge was satisfied the elements of the charge had beenproven and Mr Young was found guilty.[21] It is clear from this passage that the Judge was aware of the elements of theoffence, the burden of proving it, and adequately outlined his reasoning in relation tothe contentious element of the offence, namely whether Mr Young was aware of theflashing lights. The substance of Mr Young's defence was considered and rejected.[22] There is no basis, therefore, for me to conclude that the Judge erred in hisassessment of the evidence or that there was any other error, irregularity or occurrencein relation to the trial. Accordingly, no miscarriage of justice has occurred.Result[23] The appeal is dismissed.______________________G J van Bohemen J