Auckram v The Queen

[2014] NZHC 2599

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2014-441-0020 [2014] NZHC 2599

BETWEEN

CHRISTOPHER GAVIN AUCKRAM

Appellant

AND

THE QUEEN Respondent

Hearing:	22 October 2014
Appearances:	D H Quilliam for Appellant M J Mitchell for Respondent
Judgment:	22 October 2014

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 22 October 2014 at 3.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Elvidge & Partners, Napier

Counsel:            D H Quilliam, Napier

AUCKRAM v R [2014] NZHC 2599 [22 October 2014]

Introduction

[1]      The Appellant (“Mr Auckram”) appeals against conviction on one charge of dangerous driving causing injury.1   Mr Auckram was convicted following a defended hearing before Judge A J Adeane in the District Court at Waipukurau on 7 February

2014.2  The appeal is opposed.

[2]      The appeal is brought pursuant to s 229(1) Criminal Procedure Act 2011

(“CPA”) which provides:

229     Right of appeal against conviction

(1)      A person convicted of an offence may appeal under this subpart to the first appeal court against the conviction.

[3]      I may allow this appeal if the Appellant establishes either of the grounds referred to in s 232(2)(b) or (c) CPA. The relevant parts of s 232 provide:

232     First appeal court to determine appeal

…

(2)      The first appeal court must allow a first appeal under this subpart if satisfied that,—

…

(b)       in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c)       in any case, a miscarriage of justice has occurred for any reason.

(3)      The first appeal court must dismiss a first appeal under this subpart in any other case.

(4)      In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)       has created a real risk that the outcome of the trial was affected; or

(b)      has resulted in an unfair trial or a trial that was a nullity.

…

1      Land Transport Act 1998, s 36(1)(b).

2      Police v Auckram DC Waipukurau CRI-2013-081-0127, 7 February 2014.

Background

[4]      Mr Auckram’s  conviction  arose  out  of  an  incident  on  30  March  2013. Mr Auckram, his partner Ms Deadman and their two children  were at the same recreational reserve as the complainant, Mrs Wallace, her husband Mr Wallace and their three month old baby.

[5]      For  reasons  which  it  is  not  necessary  to  address  there  was  a  heated disagreement between Mr Auckram and Mr Wallace.  That came to nothing but Mr Wallace gave Mr Auckram and Ms Deadman the fingers when the Wallaces left the reserve a short time later, with Mrs Wallace driving.

[6]      Mr Auckram and Ms Deadman decided to obtain the number plate of the

Wallace vehicle, apparently so they could make a complaint to the Police.

[7]      Mr Auckram  drove  after  the Wallace  vehicle.    The  road  was  gravel  and narrow.  On the face of the District Court judgment, Mrs Wallace’s evidence was that Mr Auckram came up very close behind their vehicle and then “undertook” it, that is passed on the left, going onto the grass verge to do so.

[8]      As I read the judgment there is no dispute that Mr Auckram undertook on the inside, but Mr Auckram’s account of it was that Mrs Wallace moved to the right hand side of the road and he completed the manoeuvre without going onto the verge.

[9]       Mr Auckram braked and came to a halt.  His account was that the Wallaces came to a halt first, drove around him and carried on.

[10]     Mr Auckram again followed, Mrs Wallace sped up - on her account because Mr Auckram was right behind her – lost control, drove off the road and collided with a tree.   Both she and Mr Wallace suffered injury.

[11]     Mr Auckram’s evidence was that he had been following from a distance of

80 to 100 metres because of the dust that was thrown up and because he did not want the gravel thrown up to chip his paintwork. Accordingly, he disputed causing injury, and more generally that he driven dangerously.

[12]     The accident having occurred, Mr Auckram (to his credit) checked on the occupants of  the Wallace vehicle, returned to the reserve to retrieve his cellphone, telephoned emergency services and then returned to the scene of the accident.

[13]     Mrs Wallace, Mr Wallace, Mr Auckram and Ms Deadman gave evidence. The Judge preferred the evidence of Mr and Mrs Wallace.  The Judge also said that, for reasons given in his decision, he had formed the impression that Mr Auckram and Ms Deadman had orchestrated their evidence.

[14]     The Judge found that the charge was proved, in that Mr Auckram had : (a)    chased the Wallace vehicle and followed it closely;

(b)made  a  passing  manoeuvre  on  the  left  hand  side  of  the  Wallace vehicle;

(c)       braked so as to obstruct the Wallace vehicle; and

(d)again  followed  the  Wallaces,  closely,  when  they  resumed  their journey,  this  in  turn  leading  to  Mrs  Wallace  losing  control  and suffering injury.

[15]     Counsel for Mr Auckram submits that the Judge’s finding, and his preference for the evidence of Mr and Mrs Wallace, was against the weight of the evidence and that a miscarriage has resulted accordingly.

[16]     Counsel referred me in particular to tyre tracks on photographs produced at the hearing which Counsel submitted were evidence that Mr Auckram had not gone onto the verge and indeed that his account of whether he brought the Wallaces to an abrupt halt or whether they stopped independently was to be preferred.

[17]     It is not necessary for me to reach a view on whether that submission is correct because there is no dispute that Mr Auckram did follow Mr and Mrs Wallace

– not once but twice, that he did undertake (on the verge or not) and he must have

been travelling in close proximity if his purpose was to obtain their registration number.

[18]     Counsel also submitted that Mrs Wallace gave different accounts of whether or not she was an experienced driver on gravel roads, and that this went to her credibility.  I do not consider any differences there may have been in Mrs Wallace’s assessment of her experience or otherwise to affect the Judge’s finding given that he observed all concerned give evidence.

[19]     Despite the comprehensive submissions made by counsel for Mr Auckram, I am not satisfied that the Judge erred in his assessment of the evidence, let alone to such an extent that a miscarriage of justice has occurred.   There was evidence before the Judge on which he could find that the charge was proved, and having heard the witnesses, it was open to the Judge to prefer Mr and Mrs Wallace’s account.

[20]     I dismiss this appeal accordingly.

..................................................................

M Peters J