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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bremner v Police

Details

AGLC: Bremner v Police [2023] NZHC 322
Case: [2023] NZHC 322
Decision Date: 28 February 2023

CaseChat Overview and Summary

John Bruce Bremner was convicted of careless driving causing injury following a Judge alone trial. He was disqualified from driving for six months and ordered to pay reparation and a fine in the total amount of $1,900. He appeals against his conviction on the ground that there has been a miscarriage of justice. The District Court Judge convicted Mr Bremner on the basis that he preferred the evidence of the prosecution witnesses over that of Mr Bremner. The appeal was brought under section 229 of the Criminal Procedure Act 2011, and the Court must dismiss the appeal unless it is satisfied that a miscarriage of justice has occurred. The Court found that the District Court Judge erred in convicting Mr Bremner on the basis of a preference for the prosecution evidence rather than being satisfied that the prosecution had proved the charge beyond reasonable doubt. The Court found that this error created a real risk that the outcome of the trial was affected, and accordingly the appeal was allowed. The matter was remitted to the District Court.

Orders