Anderson v The Queen
[2019] NZCA 145
•7 May 2019 at 11 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA585/2018 [2019] NZCA 145 |
| BETWEEN | MATTHEW IAN ANDERSON |
| AND | THE QUEEN |
| Hearing: | On the papers |
Court: | Gilbert, Wylie and Thomas JJ |
Counsel: | T J Jackson for Appellant |
Judgment: | 7 May 2019 at 11 am |
JUDGMENT OF THE COURT
The application for leave to bring a second appeal is declined.
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REASONS OF THE COURT
(Given by Thomas J)
In June 2018, Matthew Anderson was convicted at a Judge-alone trial of one charge of dangerous driving on the evening of 1 August 2017.[1] He appealed his conviction and sentence to the High Court. His appeal was dismissed in September 2018.[2] Mr Anderson now seeks leave to bring a second appeal against conviction on the basis that a miscarriage of justice has occurred, or may occur, if leave is not granted. The Crown opposes the application.
Background
[1]Police v Anderson [2018[ NZDC 12928.
[2]Anderson v Police [2018] NZHC 2408.
Frustrated by vehicles driving down the rural road in which he lived, sounding their air horns late at night or in the early hours of the morning, Mr Anderson decided to follow a Nissan ute he thought was involved in order to obtain its registration number. The ute was driven by a Mr Quantock. Ms Little was his passenger.
The two vehicles travelled a distance of approximately 43 kilometres from Te Moana Road, near Geraldine, towards Timaru. Mr Quantock did not give evidence at the District Court trial but Ms Little did. Her evidence was that Mr Anderson followed them closely with his headlights on full beam, at times right on their bumper, while they were travelling at approximately 120 kilometres per hour. She described Mr Anderson’s car coming out to pass the ute and then cutting in front of it, requiring Mr Quantock to take evasive action. As they left Geraldine, Ms Little called the police to report Mr Anderson’s driving. They were instructed to keep driving and meet the police in Timaru.
Ms Little’s evidence was that Mr Anderson continued at high speed, travelling closely behind the ute, at one stage coming up to pass but getting so close to its side that Ms Little said it would not have been possible to open the driver’s door. She said Mr Anderson tried to push them off the road. The ute then stayed in the centre of the passing lane to prevent Mr Anderson overtaking but he continued to swerve, trying to pass. Eventually he did, again trying to force the ute off the road. Ms Little said, when the police lights became visible, Mr Anderson’s car disappeared.
An independent witness, Mr Atkinson, was driving through Winchester when he saw two cars travelling very close together at high speed. He described Mr Anderson’s driving as aggressive because he was following closely at high speed and the ute had its hazard lights on. Mr Atkinson decided to follow the vehicles but was forced to travel at a high speed to keep up. He described Mr Anderson continuing to drive aggressively between Temuka and Timaru, coming out and passing the ute, cutting in closely and effectively forcing it off the road as if to try and stop it.
Mr Anderson elected to give evidence. He said he followed the ute and tried to get it to stop by using his headlights from behind and by pulling up in front of the ute and putting on his hazard lights. He said the driver of the ute responded by trying to run him off the road onto the grass verge. Mr Anderson said he continued to follow the ute because he wanted its registration number, but the licence plate was obscured by mud.
Judge D J L Saunders in the District Court set out the disputed facts and decided Mr Atkinson’s evidence lent weight to Ms Little’s version of events. He found him credible, being “truly independent of the circumstances of this case”.[3] The Judge held there was sufficient evidence to determine that Mr Anderson had been driving at speed and in a way which was clearly dangerous to those in the ute and innocent road users. He said, while it may have been that Mr Quantock and his friends caused disruption in Mr Anderson’s neighbourhood, Mr Anderson’s actions went beyond what was appropriate and “two wrongs don’t make a right”.[4]
[3]Police v Anderson, above n 1, at [4].
[4]At [10].
Judge Saunders found the charge of dangerous driving proved beyond reasonable doubt. He said, while he could understand Mr Anderson’s initial desire to obtain the number plate of the ute, the ongoing pursuit and overtaking of it was “clearly not justified given the speed” at which the ute was travelling, and that there were other options available to Mr Anderson short of trying to take the law into his own hands.[5]
[5]At [9].
Mr Anderson’s grounds of appeal to the High Court were that there was insufficient evidence to prove his driving was dangerous and the prosecution was unfair in not calling Mr Quantock as a witness. Mr Jackson appeared for Mr Anderson at the appeal. In his decision, Nation J recorded Mr Jackson’s submissions that the factual basis for the conviction was unclear; it was unsafe to rely on Mr Atkinson’s observations given the dark and wet conditions; and that the prosecution decision not to call Mr Quantock unfairly weighed against Mr Anderson. Mr Jackson submitted that the failure to call Mr Quantock prevented the defence from questioning him on his convictions for careless use, dangerous driving, sustained loss of traction and driving while his licence was suspended, as well as numerous dishonesty convictions.
Nation J discussed the evidence in some detail. He concluded there was a reasonable basis for the Judge to find Mr Anderson had been speeding, had travelled at speed dangerously close behind the ute and had cut in front of it in ways that would have been dangerous to people in the ute. He observed aspects of Mr Anderson’s own evidence were consistent with this. Nation J concluded that Judge Saunders was entitled to treat Mr Atkinson as an independent witness whose evidence corroborated that of Ms Little.
Nation J then addressed Mr Quantock’s driving. He observed that Mr Quantock’s continued driving at speed, at one point down the middle of the road, might have been explained by his perception of danger had they stopped and been confronted by Mr Anderson. Nation J accepted that, in all these circumstances, it was possible that aspects of Mr Quantock’s driving were also dangerous. He noted that Mr Quantock had not been charged with any driving offence and that Ms Little had telephoned the police as they left Geraldine and was told to proceed to Timaru. She had remained in contact with the police for much of the journey. Nation J pointed out that the question before the Judge was whether the evidence proved the charge which had been brought against Mr Anderson and not whether Mr Quantock’s driving had also been dangerous.
Nation J also addressed the submission that the failure to call Mr Quantock as a witness had caused a serious unfairness. The police had been unable to serve a witness summons on Mr Quantock. Nation J pointed out that, had it been considered essential to a fair trial that Mr Quantock be available as a witness, an adjournment of the hearing could have been sought but there was no such request. He also observed that defence counsel could have put Mr Quantock’s driving record to one of the police officers who gave evidence but did not do so. He reiterated that the issue in the case was what happened on that particular night. Nation J concluded:[6]
[57] Both the prosecution and the defence proceeded to trial on the basis the Police would have to rely on the particular witnesses the Police called to prove the charge. It cannot be said there was an error with the way the case proceeded on that basis. With all the evidence that emerged, it cannot be said there was a miscarriage of justice because Mr Quantock was not called as a witness.
The proposed appeal
[6]Anderson v Police, above n 2.
Mr Anderson seeks a second appeal against conviction on the grounds that the following issues created a real risk the outcome of the trial was affected:
(a)the prosecution failure to call evidence from Mr Quantock; and
(b)there was an insufficient evidential basis for the Court to conclude the charge proved beyond reasonable doubt.
Decision
The Court must not give leave for a second appeal unless satisfied the appeal involves a matter of general or public importance or a miscarriage of justice may have occurred.[7]
[7]Criminal Procedure Act 2011, s 237(2).
A miscarriage of justice is any error, irregularity, or occurrence in or in relation to or affecting the trial which has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial or a trial that was a nullity.[8] Not every error or irregularity causes a miscarriage of justice.[9] A real risk that the outcome was affected exists when there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.[10]
[8]Criminal Procedure Act 2011, s 232(4).
[9]Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
[10]R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
We are not persuaded the proposed appeal in this case raises a question of general or public importance capable of serious argument.
The test for whether a second appeal is warranted on the grounds a miscarriage of justice may have occurred is a high one.[11] Leave will generally be declined where the application raises issues in the nature of a factual assessment specific to the circumstances of the case.[12] The proposed appeal falls into this category. Both the District and High Courts comprehensively considered the evidence and there is no basis to interfere with their assessment of it.
[11]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37][42].
[12]At [36] citing Thompson v R [2005] NZSC 58, [2005] 3 NZLR 588 at [6].
The same grounds of appeal were before Nation J in the High Court at the first appeal. They were addressed and correctly dealt with. They have insufficient prospects of success and do not justify the granting of leave for a second appeal.
We are not satisfied a miscarriage of justice has occurred or may occur if leave for a second appeal is not granted.
Result
The application for leave to appeal is accordingly declined.
Solicitors:
Quentin Hix Legal, Timaru for Appellant
Crown Law, Wellington for Respondent
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