Saturday, October 29, 2005

Motorcade Redux

On Thursday the civilian driver convicted of dangerous driving in Prime Minister Helen Clark's now infamous motorcade between Waimate and Christchurch was back in court. He along with two police officers was convicted in August for his role in the incident. However he's the only member of the trio seeking to get the conviction overturned. His lawyer Johnathan Eaton made submissions on his behalf in a four and a half hour hearing before Justice Cooper at the High Court in Timaru.

As with all such appeals the appellant has to prove the sentencing judge (in this case District Court Judge John Strettell) made an error of law when he imposed the conviction and sentence. Johnathon Eaton challenged the Judge's ruling on several points, which I'll try to outline.

One of his key attacks was against the way Judge Strettell treated the defendants in the District Court when handing down the sentences. Under NZ law when there are a group of defendants the Judge, or jury, are obliged to treat them individually when considering their cases. The sentence has to be based on evidence that pertains to each individual and evidence used against one can not be applied against another unless it has relevance. Johnathan Eaton's argument is that the Judge failed to do this for the civilian driver and instead treated all the three defendants in the same manner. In his view the Judge erred in assessing the culpability of his client and had he done it correctly the civilian driver would have been discharged without conviction.

The key here is culpability. In Johnathan Eaton's view his client's culpability was less, compared to that of the police. It was pointed out the civilian driver was following the lead car which was responsible for undertaking the passing maneuvers which were deemed by the Court to have posed an undue and unnecessary risk. Jonathan Eaton said the lead car cleared the road so that the second vehicle, driven by his client, actually posed no danger to other traffic as the road was already clear. Thus the civilian driver's actions had a significantly lower impact. Furthermore he argued the police were in charge of the motorcade and the civilian driver was acting according to their directions. He even had the police officer, who was in charge of the motorcade, sitting next to him giving tacit approval to his actions (as a quick aside Johnathan Eaton did not extend the tacit approval to the Prime Minister as has been reported in the newspapers). As far as the driver was aware he was acting appropriately and it would complete unrealistic to expect that he would have expressed concern at the situation and pulled the car (containing the PM) over and refused to have driven. Eaton also focused on Judge Strettell's sentencing remarks which estimated the average speed of the motorcade was at least 150 km/hr. He maintained Judge Strettell's figure did not fit the evidence provided by witnesses at the trial which put the average speed, in his view, at 140-145 km/hr. This, he said, meant the Judge had not sentenced his client on the evidence at hand.

The police, through prosecutor Tim Gresson, countered by saying the elements of dangerous driving had been amply proved at the trial and once proved there can be no defence to dangerous driving. Tim Gresson referred to the civilian driver's expertise, and 30 years of experience maintaining a person with such a background had the necessary knowledge not to have taken the actions that he did. In response to the criticism of the trial Judge not applying individual assessments for each defendant Tim Gresson said it had been established at the trial that all three defendants had acted in a similar fashion, through their driving and so were equally culpable. He pointed out this element hadn't been challenged by the defence during the original trial.

Tim Gresson also iterated the failure of any of the parties, both the police and the civilian driver, to question the need for the motorcade to travel at such speed. Had they done so, he said, they would not have found themselves in the predicament they ended up in. Tim Gresson also quoted from a Court of Appeal decision which set the legal precedent that following orders is not a legal defence if the result of following such orders results in an unlawful act.

Those matters aside there were some other interesting points that came up during the proceedings. One of significance is that the written defence submissions presented to Justice Cooper included a letter from prime Minister Helen Clark. Its details were not read in open court so I can't say what was in the letter. However traditionally such material is in support of the appellant. It'd be safe to assume that in this case the Prime Minister has made a representation on behalf of her driver.

Another issue that was canvassed by Johnathan Eaton was the impact the conviction and its resulting publicity has had on the driver. Now this man has been granted permanent name suppression so Justice Cooper did query that given this was the case how could the publicity affect the appellant? Eaton's submission was that his client's identity was well known in both media and diplomatic circles leading to him being identified at official events as "that speeding motorcade driver". It was something he argued had a significant impact on the man's ability to do his job and as a result he'd seriously considered quitting. It pays to bear in mind the ministerial drivers transport both Government and leading opposition MP's. When you factor in the political capital the opposition made about the affair it's fair to say the driver ends up in a somewhat invidious position in situations where he has to drive someone like Don Brash or Rodney Hide. It can't be a pleasant situation to sit in a car with politicians who have used you as a political football to further their own ends.

The appeal is now waiting on a decision from Justice Cooper. There's no word as to when it will be released though it's been promised, by the Judge, that it'll be given high priority.

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