'No recollection' of car conversion for defendant

Waimarino Bulletin, Volume 6, Issue 256, 27 September 1988, Page 6

'No recollection' of car conversion for defendant

The following defended case was heard by Judge E. W. Unwin in the Ohakune District Court o n Thursday, September 15. Police Sergeant Russell England of Ohakune appeared for the prosecution. Karl John Kuhar, 25, labourer of Ohakune appeared to defend a charge of converting a

1977 Ford Falcon Ute valued at $7000 o n May 14. Court heard from the prosecution how defendant was alleged to have driven the Falcon Ute away from Raetihi on the night in question while the owner, Allan James Tull, and two companions were placing orders for food at a late-night burger bar in Seddon Street.

The vehicle was found, badly damaged, in a ditch on the outskirts of Raetihi the next day. The first witness to be called by-the prosecution was the owner of the Falcon Ute, Allan James Tull. He testified that he had first met defendant at the Ohakune Hotel on the evening of May 4 when a f r i e n d , Michael Chaytor, had introduced defendant to him. Shortly thereafter defendant had been struck by another hotel patron and when a fight erupted, witness together with Michael , Chaytor and another friend decided to accompany defendant to the Hot Lava Nite Spot. There the four each consumed "a couple of drinks" before deciding to go to Raetihi to get something to eat. According to witness, who was driving, defendant was dozing off from time to time and, when they arrived at the late-night burger bar in Seddon Street, defendant remained alone in the car half asleep - on the seat while the others went to place their orders. The car had been parked directly in front of the burger bar and was only separated from it by the width of the footpath.

While witness was ordering some food, he heard the engine of his ute start up and saw the vehicle, with defendant at the wheel, drive off after both doors (which had been left open) had struck a power pole on one side and a dustbin on the other. He saw the ute travel along Seddon Street towards Ohakune. Witness said that he accompanied his friend Michael Chaytor to his home in Raetihi where they collbcted a car and went in search of defendant and the ute. They drove to Ohakune and retumed to the Hot Lava (where they assumed' defendant had gone) but failed to find either defendant or the vehicle. Witness told the Court .that the police found the car next day in a ditch beside the bridge leading out of Raetihi towards Ohakune. It was a "write-off". He said he had it valued at $7000 shortly before he came to live in Raetihi. Under cross examination he said he was certain defendant was driving the ute when it was taken from the burger bar. The second prosecution witness was Michael Chaytor. H e confirmed the evidence given by the first wit-

ness and said that he too was absolutely sure defendant was driving the ute when it mounted the footpath and the driver's door hit a powerpole while the passenger door struck a rubbish tin. He knew defendant well and could easily recognise him as the person at the wheel . . . "there was no one else in the ute", he said. The third and final prosecution witness was Police Constable Wayne Mills o f Ohakune. He gave evidence that he had received a missing vehicle report at 12.15am and had conducted a search that night for the missing ute without success. However next morning he found the ute in a ditch some "200 yards" on the Ohakune side of Raetihi. There was extensive damage to the vehicle and he found traces of blood. He went to Waimarino Hospital to interview the defendant but because he had not yet been seen by a doctor he was unable to obtain a statement. Six days later, on May 20, he did obtain a statement from defendant who said that on the day in question he had been at the Waiouru Hotel before going to the Ohakune Hotel

where he met the two previous witnesses and another friend. Defendant said, in his statement, that after he was assaulted in the Ohakune Hotel he had accompanied the other three friends to the Hot Lava Nite Spot where he had had a couple of drinks. After that he could remember no thing and when he woke up next morning beside the wrecked car his first impressions were that his friends had left him in the ute after crashing it into the ditch. Witness said that when he interviewed the previous witnesses both had been able to positively identify defendant as the driver of the ute when it was taken from Seddon Street the night before it was found. Defendant was then called to give evidence on his own behalf. He said that he agreed with the testimony of the earlier witnesses up to the point where they left the Hot Lava Nite Spot to travel towards Raetihi. "That's the last thing I can remember ... I can't remember a thing about the burger bar and I find it hard to believe I was behind the wheel that,. night," he said. In his summing up,

Judge Unwin said that while defendant denied converting the ute on the night in question, the circumstances were not in dispute in most respects. It was apparent defendant's recollection became a blank at a cer--tain stage and when he woke up lying on the ground beside the rolled ute his initial reaction was one of anger that he should have been left there by his companions of the previous evening. Defendant obviously had great difficulty in accepting that he took and drove the vehicle but any other alternative explanations must be considered "fanciful," said Judge Unwin. The only defence against the charge may have been that defendant was so intoxicated he was unable to form an intent but, by the very fact that he was able to drive the vehicle at all, this defence was not appropriate even though the defendant had no recollection of the incident. Defendant was convicted and remanded to appear in the Ohakune District Court on October 12 for a reparation report and sentence. Counsel: P. Brown.