Bremner v Police

[2023] NZHC 322

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2022-463-90

[2023] NZHC 322

BETWEEN

JOHN BRUCE BREMNER

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	27 February 2022
Appearances:	T J Conder and S B Hartley for the Appellant C E J Houia for the Respondent
Judgment:	28 February 2023

JUDGMENT OF COOKE J

[1]    John Bremner was convicted of careless driving causing injury following a Judge alone trial.1 He was disqualified from driving for six months and ordered to pay reparation and a fine in the total amount of $1,900.2 He now appeals against his conviction on the ground that there has been a miscarriage of justice.

[2]    The careless driving in question arose when Mr Bremner was driving his work van on 18 September 2021 on Manawahe Road on his way to Kawerau. Mr Whyte was riding his motorcycle with a pillion passenger going the opposite direction. A collision occurred between the motorcycle  and  the  van  resulting  in  injuries  to  Mr Whyte and his passenger, including Mr Whyte suffering a broken leg. The collision occurred on a corner. The evidence of Mr Whyte and his pillion passenger was that Mr Bremner’s van came around a corner on the wrong side of the road, with Mr Whyte taking evasive action by turning to go over the centre line into the opposite

1      New Zealand Police v Bremner [2022] NZDC 13551.

2      New Zealand Police v Bremner [2022] NZDC 15008.

BREMNER v NEW ZEALAND POLICE [2023] NZHC 322 [28 February 2023]

lane but with Mr Bremner also turning to his left to avoid collision, and that although Mr Whyte then turned left himself he collided with the van making contact at the front right of it. The van  and  the  motorcycle  ended  up  on  the  side  of  the  road  on Mr Bremner’s side. Mr Bremner denied driving on Mr Whyte’s side of the road, however. He gave evidence that Mr Whyte collided with him after he lost control and slid over the centre line into his vehicle when he was stationary or close to stationary.

[3]    The Judge gave an oral judgment convicting Mr Bremner indicating he preferred the evidence of the prosecution witnesses. For Mr Bremner Mr Conder argues that there has been a miscarriage of justice because the Judge did no more than assess which  account  of  the  accident  he  preferred,  and  effectively  convicted  Mr Bremner because of deficiencies with his account of the accident, and because he preferred the evidence of Mr Whyte and his passenger. What the Judge failed to do was assess whether the prosecution had proved the charge beyond reasonable doubt. Even if the Judge had not accepted the defendant’s evidence he still needed to be satisfied on the prosecution evidence that the charge was proved, and the Judge failed to do this. In the circumstances it is said there has been a miscarriage of justice.

Approach on appeal

[4]    Mr Bremner appeals under s 229 of the Criminal Procedure Act 2011. An appeal against conviction is a general appeal, meaning that it proceeds by way of rehearing.3 Under s 232(2)(b) and (c), this Court can only allow an appeal if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or that a “miscarriage has occurred for any reason”. The Court must dismiss the appeal in any other case.4

[5]    “Miscarriage of justice” is defined in s 232(4) as: “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.”

3      Sena v R [2019] NZSC 55, [2019] 1 NZLR 575.

4      Section 232(3).

[6]    In the present case the appellant relies on s 232(4)(a). As the subsection makes clear, not every “error or irregularity” causes a miscarriage of justice.5 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.”6 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.7

[7]    If, on appeal, the Court comes to a different view than the trial judge on the evidence, the appeal will be allowed.8 The Supreme Court in Sena v Police made clear that “in assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had”.9

The District Court decision

[8]    Although there are factors referred to by the Judge when summarising the evidence which involve findings favourable to the prosecution, the key conclusions of the Judge were set out in the following paragraphs:

[12]      There are aspects of the evidence which cause me to prefer the prosecution evidence to that of the defence. I caution myself against what might be a tendency to take the side of the small vehicle against the large. I do not. Both Mr Whyte and his pillion were clear that the van was on the wrong side of the road. The position of the van when stopped is not suggestive of an approach to that point from its correct lane and a move to the left to avoid an oncoming vehicle. It is too much on the diagonal and the wheels are straight ahead. Those matters in my view tend to support the evidence of the prosecution witnesses.

[13]      Further, the damage to the van appears to extend from perhaps 100 millimetres below the windscreen down to and including the light. Even allowing for some rearing up of the motorcycle and/or a passenger after collision that seems more consistent with the prosecution description of what occurred with the front of the motorcycle hitting the van than the defendant’s position of the motorcycle sliding into the van along the road. Furthermore, if the motorcycle had slid into the van along the road it seems highly likely that scrape marks would have been left by the foot pegs, handlebars and the like. No such scrape marks were observed by the constable.

5      Matenga v R [2009] NZSC 18 at [30], stating that “[a] miscarriage is more than an inconsequential or immaterial mistake or irregularity.”

6      R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.

7 At [110].

8 At [38].

9      Sena v Police, above n 3, at [38].

[14]      In the circumstances I prefer the prosecution evidence to that of the defence and I find the charge proved. The root cause was that the van had cut the corner causing the motorcycle to take unsuccessful evasive action. A conviction will be entered.

Assessment

[9]    I accept Mr Conder’s key submission that the Judge convicted Mr Bremner because he preferred the prosecution account over Mr Bremner’s account rather than because he was satisfied that the charge was proved beyond reasonable doubt. The fact that a defendant has given evidence does not change the burden on the prosecution to prove its case. When a defendant gives evidence it is possible that the fact finder might accept what they have said and acquit them, or there may be a reasonable doubt arising from that evidence again leading to an acquittal. But there is a third possibility, referred to in the standard directions to juries in the following terms:10

There is a third possibility about which you have to be careful. If you do not accept the evidence of the accused about the material parts of these events, that does not automatically mean he is guilty. Put the unacceptable evidence to one side. Remind yourself who has got to do the proving. Go back to the evidence of the complainant and ask yourself whether it satisfies you beyond reasonable doubt that her allegations are true.

[10]   The standard direction explains that this possibility is one about which they have to be “careful” precisely because it can be easy to conclude that guilt follows a conclusion that a defendant’s evidence is not accepted.

[11] In the present case the Judge’s reasons are focused almost entirely on a comparison between the account of the prosecution witnesses and that provided by Mr Bremner. Moreover almost all the reasons relied on are reasons why Mr Bremner’s evidence was rejected. There is only one factor going to why the evidence of the prosecution witnesses might prove the charge — that both Mr Whyte and his passenger were clear that the van was on the wrong side of the road. And the Judge’s reasoning expressly adopts a standard of which account he preferred, both in the first sentence that begins the analysis in paragraph [12], and then in the first sentence of the conclusion in paragraph [14]. Moreover the first sentence in paragraph [14]

10     See Turner v R [2008] NZSC 11 at [8].

suggests that the charges were proved because of that preference, and there is no explicit reference to the need for the charges to be proved beyond reasonable doubt.

[12]   An error in verbal formulation in the reasons would not necessarily amount to an error within the meaning of s 232(4). It is the substance of what the Judge has done, rather than the adoption of particular words. That is particularly so when considering oral judgments of a busy court. But here the reference to preference is referred to twice, and the analysis of the evidence in support of the charges is almost entirely based on why the defendant’s account was not accepted. There is accordingly an irregularity.

[13]   That irregularity would not mean that there has been a miscarriage of justice in itself. The irregularity must cause a real risk that the outcome of the trial was affected. In some cases, by their very nature, the case turns on whether the account of the prosecution witnesses or from the defendant is correct, so that preferring one over the other may be treated as sufficient.11 But I do not accept that this is such a case.

[14]   As Mr Conder submitted there are features of the present case that give rise to material uncertainties. As he argued, the Judge did not apply the same rigour in analysing the account of the prosecution witnesses to enable the Court to be sure that their version of events was correct as required by the beyond reasonable doubt standard.

[15]   The starting point is that the accident happened on Mr Bremner’s side of the road. That does not mean, of course, that the accident was not caused by him being on the wrong side of the road leading to Mr Whyte taking evasive action. But that is the scenario that needed to be analysed.

[16]   The accident took place on a tight corner with signage which advised motorists to take the turn at 25 kilometres per hour. Moreover it was a blind corner as it had a steep bank on the inside of the curve. Mr Bremner’s vehicle was travelling at 52 kilometres per hour as he entered the corner as recorded by the GPS associated with

11     See, for example, Falwasser v Police High Court Wellington CRI-2008-485-45, 19 August 2008 at [13].

his van. Mr Whyte and his passenger were travelling at approximately 30 kilometres per hour or more on their evidence. In those circumstances the accident would have happened very quickly. The length of time they would have had to see each other would have been very short, perhaps a second or two. And the photographs show that the accident occurred near the beginning of the corner from Mr Bremner’s perspective.

[17]   There are aspects of Mr Whyte’s account which raise questions in those circumstances. He said as he was going into the bend Mr Bremner’s van came around the corner on the wrong side. He said that he then turned right and moved over to  Mr Bremner’s side of the road to avoid a collision, but that Mr Bremner then himself turned left to avoid the collision moving back onto his side of the road, and although Mr Whyte then turned left the collision was not avoided. He drew a diagram that showed these events showing him well over the centre line before turning back and colliding with the van. I accept that there is a question whether that chronology of events could have occurred in what would have been a very short period of time involved in two vehicles colliding on the wrong side of the road from Mr Whyte’s perspective on a tight blind corner.

[18]   If the ultimate conclusion of the Judge was clearly correct without the real possibility of an alternative scenario then this appeal would not be allowed despite the error identified. The Court relied on only one factor as evidence of proof of the charge

— that both Mr Whyte and his passenger were confident that the van was on the wrong side of the road. The Judge also referred to the position of the van after the collision and the way its wheels were pointed as tending to support the evidence from the prosecution, but I respectfully doubt that any weight could be given to this — the prosecution witnesses had said that the van had turned left, so working out where it would have been if it had been travelling straight, and reaching conclusions on the fact that the wheels were straight after impact, is speculative at best. So the only factor of substance the Judge relied on was that Mr Whyte and his passenger were clear. But an alternative scenario was put to Mr Whyte in cross-examination relevant to his confidence:

Q.       It’s a very blind corner though isn't it.

A.I believe if the photo had been taken further back from the way that I was coming there’s quite a long entry towards that corner but yes I believe its quite tight from where the van is.

Q. And you’d agree that the further you are to the left of that road the less you’d be able to see around that corner.

A.       That’s correct. Just simple physics.

Q.Is it possible you were mistaken and there was nothing on your side  of the road, you saw something you didn’t quite see correctly?

A. I don’t believe so but at the same time the van was coming out of the shade.

Q.       Is it possible that you misunderstood what you saw then?

A.No I don’t believe – it’s  a white van, I saw a van on my side of the   road.

[19]   Mr Whyte had earlier said that he had thought the accident had occurred further around the corner than the photographs showed. He also said that as he was approaching the corner before he saw Mr Bremner’s van he had noticed the area of the road in the sunshine on the right as a kind of “escape route”. So turning into that area had already crossed his mind. The possibility arises on the evidence that as Mr Whyte was going around the corner the van came around on the other side of the road in the shade near to the centre line, that Mr Whyte misjudged where the van was and he turned into the safety of the sunny area he had earlier noted turning into the path of Mr Bremner’s van. That more simple version of events is more consistent with the time that would have been available for the accident to happen, and the position of the accident scene towards the beginning of the corner from Mr Bremner’s perspective, well on his side of the road.

[20]   Mr Conder emphasised that he was not suggesting that Mr Whyte and his passenger gave untrue evidence. But he argued that there is a real prospect that their evidence had been mistaken, and that Mr Whyte had simply made a mistake when he saw the van coming around the corner in the shade.

[21]   I do not conclude that that is what happened. It may not even be the most likely scenario. But before I can conclude that the error of the Judge did not result in a

miscarriage of justice I need to conclude that this scenario was not a real possibility. I cannot do that without the advantages of being the finder of fact at trial.12 Addressing this scenario would include matters such as an assessment of when Mr Whyte could first have seen Mr Bremner coming around the corner given the location of the accident site, and whether there was really enough time for both to engage in the collision avoidance manoeuvres that Mr Whyte described. I am unable to undertake those assessments based on the notes of evidence, even with the benefit of a comprehensive set of photographs. I accordingly conclude that the error of the trial Judge gives rise to a real risk that the outcome was affected.

Conclusion

[22]   For the above reasons the appeal is allowed. Pursuant to s 233(3) I direct the matter to be remitted to the District Court as I am not in a position, for essentially the same reasons, to direct that an acquittal be entered. Having said that the relatively low level of the alleged offending, the fact that it occurred some time ago, and the forensic uncertainties that may be involved may mean that the Police elect not to proceed with a retrial. But in the end that will be a matter for them.

Cooke J

Solicitors:

Holland Beckett, Tauranga for the Appellant Pollett Legal Ltd, Tauranga for the Respondent

12     See Sena v Police, above n 3, at [40].