Careless Driving Case

IN THE DISTRICT COURT AT NELSON

NEW ZEALAND POLICE Prosecutor v [ANDREA JOHNSON] Defendant Hearing: 11 February 2020 Appearances: Sergeant W Johnston for the Prosecutor T C Lyall for the Defendant Judgment: 12 February 2020 JUDGMENT OF JUDGE W K HASTINGS [1] [Andrea Johnson] is charged with careless operation of a vehicle causing injury. The maximum penalty for that offence is three months’ imprisonment or a fine of $4500. The police allege that the defendant crossed the centre line on a rural road corner by 50-60 centimetres. The complainant was driving a tractor with an attached post driver in the other direction on the other side of the road. He had to take evasive action. He lost control of the tractor and crashed into a ditch. The complainant suffered a contusion to his left hip, a haematoma on the inside of his right knee, head lacerations, a sprained thumb and a fractured rib. f [2] Ms Lyall has asked me to dismiss the charge because there has been undue delay in getting this matter to trial. Sergeant Johnston, speaking from written submission prepared by Ms Collett, opposed the application. [3] A chronology is important. The offending is alleged to have occurred on 3 March 2018. The charge was filed on 6 May 2018. A notice of alibi was also filed on served on that day. A plea of not guilty was entered at the first appearance on 7 May 2018, and Ms [Johnson] was remanded at large, as she has been throughout these proceedings. [4] On 5 July 2018, the matter was set down for a Judge alone trial on 19 September 2018. At that stage the trial was estimated to take four hours. Judge Tuohy noted that two issues needed to be resolved at trial: first, whether the defendant was the driver; and second, whether the driver was careless. On 19 September 2018, industrial action caused the trial to be adjourned. [5] On 29 October 2018 the matter was set down for trial on 8 February 2019, but on 13 November 2018 the matter was administratively adjourned to 26 February 2019 because the registry advised there was not enough time on 8 February 2019 to hold a trial that was now estimated to take six hours. [6] The second attempt at a trial on 26 February 2019 was adjourned on the day because the officer in charge was on bereavement leave. [7] Defence counsel then applied to have the charge dismissed on 14 March 2019 because the prosecution failed to file a s 78 application in relation to the identification evidence of a prosecution witness. Delay was also argued. The prosecution filed the s 78 application the next day, and on 5 April 2019 Judge Ruth ruled that the prosecution witness’ evidence was not identification evidence and declined the defence application to dismiss the charge. On 12 April 2019, the matter was set down for trial on 16 July 2019. [8] One week before the trial date, the matter was administratively adjourned again because the registry advised, again, that there was not enough time on 16 July 2019 to f hold the trial. The registry offered a September date but defence counsel advised she was on leave. The registry offered an October date, but the officer in charge was on leave. On 18 July 2019, the matter was set down for trial on 14 November 2019. On 12 November, the police advised that the officer in charge was medically unwell. [9] On 14 November 2019, the day of the trial, the trial was adjourned again, this time to 11 March 2020 (the charging document says “11/03/19” but this cannot be correct). [10] On 27 November 2019, the matter was administratively adjourned again because the registry advised that there was not enough time on 11 March 2020 (again, the record states “11/03/19”). On 10 January 2020, the matter was set down for trial on 8 April 2020. [11] Ms Lyall filed and served this application to dismiss the charge on the ground of undue delay on 22 January 2020. [12] By my count, this trial has been adjourned six times, twice (26 February 2019 and 14 November 2019) on the day of trial. If this trial were to go ahead on 8 April 2020, it will have been 25 months from the date of the alleged offending, and 23 months from the date of the defendant’s first appearance at which she pleaded not guilty. [13] Section 25(b) New Zealand Bill of Rights Act 1990 states that, “Everyone who is charged with an offence has … the right to be tried without undue delay.” In Williams v R, the Supreme Court held that the word “undue” in this context means “unjustifiable”, and whether a delay is undue must be considered in light of the time, cause and circumstances of the delay.1 The Supreme Court in Williams dismissed a conviction appeal on a charge of conspiracy to manufacture methamphetamine but found that a delay of five years between arrest and conviction was undue. The Supreme Court upheld the approach taken by the Court of Appeal in Martin v Tauranga District Court, a case in which three charges of sexual violation were stayed 1 Williams v R (2009) 24 CRNZ 468 at [12]. f following a delay of 17 months.2 Martin adopted the approach taken by the Supreme Court of Canada in R v Morin.3 Although the Supreme Court of Canada has since adopted a bright line approach in R v Jordan (confirming a presumptive ceiling of 18 months for cases going to trial in a provincial court4), it is Martin and Williams that are binding on me. The factors to be considered in determining how long is too long are set out in Morin as follows: 2 Martin v District Court at Tauranga (1995) 12 CRNZ 509 (CA). 3 R v Morin [1992] 1 SCR 771 at 787-8 per Sopinka J. Morin involved charges of impaired driving and operating a motor vehicle with excess blood alcohol. It involved a delay of 14 ½ months from arrest to trial. 4 R v Jordan [2016] 1 SCR 631 at [5]. 5 Williams v R at [12]. 1. The length of the delay; 2. Waiver of time periods; 3. The reasons for the delay, including (a) the inherent time requirements of the case; (b) actions of the accused; (c) actions of the Crown; (d) limits on institutional resources; and (e) other reasons for delay; and 4. Prejudice to the accused. [14] Turning first to the length of the delay, as I have indicated, it will have been 25 months from the date of the alleged offending and 23 months from the date of first appearance, alibi notice and plea of not guilty. [15] There has been no waiver of time periods. When trial dates were set down but subsequently adjourned administratively, it was the practice of the registrar to advise counsel that there was insufficient time to hear the matter on the date set down and that a new date had to be found. This was presented as a fait accompli and, in any event, the Supreme Court said in Williams that, “There is no obligation on any accused to progress matters towards trial, or to protest about delay.”5 The prosecution submitted that there have been opportunities for this case to be part-heard, but defence counsel, “Has refused to indulge those options.” I do not think an offer to start a case f knowing it is unlikely to be finished in the time allotted is a viable alternative. Defence counsel was right to refuse this option. Once a time estimate has been agreed by defence and prosecution, it is up to the Court to find the time to hear the whole matter. The defence should not be put in the position of having to agree to a part-heard trial, particularly when it is not known when the subsequent part will be heard. This inevitably has an adverse effect on the defendant’s fair trial rights. [16] I turn now to the reasons for the delay. The trial dates of 26 February 2019 and 14 November 2019 were adjourned because the officer in charge was on bereavement leave and sick leave respectively. The prosecution cannot be to blame for those adjournments. The trial date of 19 September 2018 was adjourned due to industrial action by Ministry of Justice staff. The remaining three trial dates, 8 February 2019, 16 July 2019 and 11 March 2020, were adjourned by the registrar because there was not enough time on each day to hold a six hour trial. This would have been obvious when those dates were set down. The charging document records that the start time of the trial set down for 8 February 2019 was 11.45; the start time of the trial set down for 16 July 2019 was 11.30; and the start time of the trial set down for 11 March 2020 was 11.00. A trial that is agreed to take six hours needs to start at 10.00 to be finished in one day. I can understand the registrar’s growing anxiety as the file aged and their increasing desperation that this ageing matter needed to be set down, but it should not have been set down expecting it to be part-heard. The inability to find the six hours needed for this trial, as well as the registrar’s increasing levels of anxiety and desperation, are the result of inadequate resourcing of the justice system. I was dismayed to read Cooke P’s comments to similar effect in Martin. Those comments were about inadequate resourcing causing systemic delays.6 Martin was decided in 1995. [17] There are other reasons for the delay. The prosecution did not file a s 78 application with respect to the admissibility of what the prosecution said was identification evidence until 15 March 2019 despite having been notified in September 2018 that the defence objected to its admissibility. The s 78 application was filed the day after the defence applied to have the charge dismissed because the 6 At p. 12 of the judgment. f prosecution had failed to make a s 78 application. Judge Ruth ruled the evidence was not identification evidence and declined to dismiss the charge on 5 April 2019. Both the prosecution and the defence declined dates in September 2019 and October 2019, the first because defence counsel was on leave, the second because the officer in charge was on leave. Nevertheless, it is the Court that must shoulder primary responsibility for this delay. [18] There is nothing unduly complicated about this case. It involves issues that arise in many cases. Issues of causation and carelessness need to be determined in every allegation of careless driving causing injury. In this case, the reliability of the prosecution witness’ evidence that he recognised from the rear driver’s side seat of his car a person in the front passenger seat of the car in front would be at issue. This witness was 11 years old at the time of the incident. He was interviewed for the first time three months after the incident, and then again six months after the incident. Reliability issues arise in most trials. In this case, the defence alibi evidence would also need to be tested, but again, this does not add much complexity. [19] The prosecution submitted that “this matter can be characterised as serious”. I have no doubt that the complainant would view this matter as serious. He suffered injuries that would take some time to heal. But this charge is much less serious than the charges in Williams, Martin and Morin, all of which were cases of undue delay, two of which resulted in stays. There is certainly less public interest at stake in prosecuting a careless driving causing injury charge than there is in prosecuting charges of conspiracy to manufacture methamphetamine (Williams), sexual violation (Martin), historic sexual violation (CT v R7) and driving with excess blood alcohol (Morin), in each of which undue delay was found to exist. [20] The defence does not hang its hat too much on prejudice caused to the defendant by the delay. The right to be tried without undue delay can be infringed without the defendant having to show any particular prejudice in defending the charge.8 In any event, in this case, the prosecution submitted that there is no prejudice caused by the young prosecution witness giving evidence 25 months after the incident 7 CT v R [2014] NZSC 155. 8 Williams, [9]. f because he can refresh his memory from the statements he made three months and six months after the incident. The defence submitted that the delay would add to the unreliability of what the defence submitted is already unreliable evidence. I accept that there is no presumption that after time memories become too unreliable for a criminal prosecution, but the passage of time will inevitably have an effect on recall. To my mind, there is a more significant source of prejudice. Although the defendant has not had to live with bail conditions, she has had to live with this charge winding its slow way through the court for two years. She has had to make arrangements to come to Court, often to be told at the eleventh hour that the matter was being put off. I understand that she has no convictions and has been determined to defend this charge from the beginning. [21] Taking all of these matters into account, I consider that there has been undue delay in bringing this matter to trial. [22] The Supreme Court said in Williams that the seriousness of the offending will usually not be relevant to the nature of the remedy for undue delay, but if the offending is towards the lower end of the scale, that may be sufficient to tip the balance in favour of a stay.9 In Williams, the undue delay was remedied with a reduction in sentence. In this case, if the defendant were to be found guilty, it is unlikely that there would be much sentence to reduce. In these circumstances, I am prepared to grant the defence application to dismiss the charge on the ground of undue delay. [23] The charge is dismissed. 9 Williams, [18]. _______________ Judge WK Hastings District Court Judge

Careless Driving