Broadmore v Police
[2021] NZHC 2482
•21 September 2021
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2021-425-000012
[2021] NZHC 2482
BETWEEN DAVID JOHN BROADMORE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 20 September 2021 Appearances:
J K Fraser for Appellant
R W Donnelly for Respondent
Judgment:
21 September 2021
JUDGMENT OF DUNNINGHAM J
This judgment was delivered by me on 21 September 2021 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Introduction
[1] On 9 June 2021, Mr David Broadmore was convicted on one charge of intentional damage of a motor vehicle1 following a defended hearing before Judge Russell in the Queenstown District Court.2 On the same day, Judge Russell
1 Summary Offences Act 1981, s 11(1)(a).
2 Police v Broadmore [2021] NZDC 13218.
BROADMORE v NEW ZEALAND POLICE [2021] NZHC 2482 [21 September 2021]
sentenced Mr Broadmore by ordering him to pay reparation in the sum of $2,654.78 to make good the damage he had caused.3
[2] Mr Broadmore appeals his conviction, on the ground the Judge erred in concluding he intentionally or recklessly damaged the victim’s motor vehicle.
Facts
[3] The charge Mr Broadmore faced in the District Court related to damaging a Mazda motor vehicle. Mr Kenneth Super was the conditional purchaser of the Mazda vehicle and he had it in his possession. Mr Broadmore is an acquaintance of Mr Super, and there had been some discord between them as Mr Broadmore had previously requested to travel to Wanaka to stay with Mr Super in breach of the prevailing COVID-19 level 3 lockdown. However, Mr Super would not confirm to the relevant authorities that Mr Broadmore’s home was with Mr Super in Wanaka and he believed Mr Broadmore was unhappy about that.
[4] On 2 July 2020, Mr Super was at his Wanaka home. The vehicle was parked on a concrete pad outside his house. At approximately 5.30 pm, Mr Broadmore pulled up in his vehicle in front of Mr Super’s house next to Mr Super’s vehicle. At the time, Mr Super was in his house and on the telephone to Mr Hymers, the vendor of the vehicle.
[5] Mr Broadmore said he arrived at the property to enquire about a television set he said he had loaned to Mr Super. Mr Super told him the TV had subsequently broken and he had disposed of it. Mr Super feared repercussions from his earlier refusal to let Mr Broadmore stay at his property during the level 3 lockdown and would not let him in the house. The men had a discussion at the door regarding the TV while Mr Hymers remained on the phone, listening in. Mr Broadmore became angry with Mr Super’s responses and said “You know me, and I’ll be back at 2 am.” Mr Broadmore banged on Mr Super’s window before getting into his vehicle.
3 Police v Broadmore [2021] NZDC 13161.
[6] Both Mr Super and Mr Broadmore agree that Mr Broadmore backed his car away from Mr Super’s house, then forward towards a fence. Mr Broadmore said he did not go too close to the fence because of building debris lying on the ground. Mr Super said Mr Broadmore then reversed at some speed and struck the rear of Mr Super’s car with an audible crash, resulting in damage to the rear of the vehicle estimated to cost $2,597.28 to repair. Mr Broadmore did not stop to examine the damage but drove from the property.
[7] Mr Broadmore accepted he was angry on the night in question and accepted his driving was responsible for the damage. However, he attributed the cause of the incident to mud, which he said he had stuck on his shoes. When he applied the brakes he said he felt nothing happened, so he momentarily lifted his foot up off the brake and down again:
… and a big chunk of mud that was sitting on my accelerator from when I had first moved the car caused the accelerator to depress which is why I briefly … accelerated again.
[8] Mr Broadmore’s evidence was that he would not deliberately reverse into Mr Super’s vehicle and did not in fact intend to do so.
Principles on appeal
[9] This Court may only allow an appeal against conviction if satisfied, in the case of a Judge-alone trial, that the 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 of justice has occurred for any reason”.4 A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.5
[10] The appeal proceeds by way of rehearing and this Court is required to form a view of the facts.6 If this Court reaches a different view on the evidence, it follows
4 Criminal Procedure Act 2011, s 232(2)(b).
5 Section 232(4).
6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].
the trial judge necessarily will have erred and the appeal must be allowed.7 The onus is on the appellant to show that an error occurred.
District Court decision
[11] Judge Russell noted that Mr Broadmore did not dispute his driving was responsible for the damage caused. The issue for determination was whether Mr Broadmore intentionally damaged Mr Super’s vehicle or, alternatively, whether he was reckless as to whether the car was damaged or not.
[12] The Judge discussed Mr Broadmore’s explanation for the incident but recorded that it was not supported by the weather conditions. The Judge found Mr Broadmore was candid about his general frame of mind, having acknowledged he could come across aggressively owing to his anti-personality disorder, post-traumatic stress disorder (PTSD) and attention deficit hyperactivity disorder (ADHD). The Judge also remarked that Mr Broadmore admitted to being aggressive towards Constable Wallbank when police attempted to interview him. Judge Russell noted that “[c]learly an unpleasant incident” had occurred at Mr Broadmore’s motel accommodation when he was arrested, but this was only relevant in supporting Mr Broadmore’s general state of mind at the time.
[13] The Judge accepted Mr Broadmore’s evidence that he did not intentionally and deliberately set out to back into Mr Super’s vehicle, having regard to Mr Broadmore’s evidence he did not want to damage his own vehicle. The Judge also accepted Mr Broadmore’s and Mr Super’s evidence that Mr Broadmore was angry and frustrated following their discussion.
[14] The Judge found Mr Broadmore has a tendency to lose control, particularly during times of stress and anger and that the night in question was one such occasion. He was satisfied an argument had occurred that included profanities and Mr Broadmore had banged against Mr Super’s windows in anger. The Judge determined Mr Broadmore was angry, frustrated and had lost control over his emotions and it was in this frame of mind that he entered his vehicle.
7 At [38].
[15] Given the evidence that the weather was dry at the time and there had been no recent rain, the Judge dismissed Mr Broadmore’s “mud on the shoes” explanation. Instead, the Judge held that, in a state of anger, Mr Broadmore reversed his vehicle and backed at some speed into Mr Super’s motor vehicle. It was accepted that, at the very last moment, Mr Broadmore may have realised an impact was imminent and applied his brakes. Nonetheless, the Judge determined such driving conduct, carried out in a state of anger, was reckless. That conclusion was reinforced by the fact Mr Broadmore did not stop after the impact occurred. The Judge considered a prudent driver in full control of himself undoubtedly would have stopped and inspected the damage after the damage occurred, and then discussed what had occurred with the vehicle owner. In contrast, the Judge found Mr Broadmore left the section in an angry and frustrated state of mind.
[16] Judge Russell concluded that recklessness was enough to satisfy the mental element required for the charge. He held the charge had been proved beyond a reasonable doubt and convicted Mr Broadmore of the offence.
Submissions
Appellant’s submissions
[17] Mr Fraser, on behalf of Mr Broadmore, submitted the District Court Judge erred by not accepting Mr Broadmore’s evidence and finding he drove recklessly. Mr Fraser recounted Mr Broadmore’s evidence that there had been significant rainfall and the topsoil he had driven on was slippery and submitted the Judge did not have proper regard to this evidence. Mr Broadmore’s account is that his shoes became muddy from being outside, which impacted his ability to deploy the brakes when driving his car and the Judge erred in not accepting this. The Judge also overlooked photographic evidence of “skid marks in the mud” in the area of the incident.
[18] Mr Fraser also submitted the Judge placed too much weight on Mr Broadmore’s emotional state in assessing the evidence of his driving conduct. In his submission, the fact Mr Broadmore was angry (which he accepted), did not support a finding of recklessness, or at least not to the extent the Judge relied on this fact.
Respondent’s submissions
[19] Mr Donnelly, on behalf of the respondent, submitted the sole issue on appeal was Mr Broadmore’s mens rea, that is, whether he acted intentionally or recklessly in damaging Mr Super’s vehicle.
[20] Mr Donnelly submitted the Judge’s factual determination as to whether there had been significant rainfall was not in error. The Judge expressly had regard to Mr Broadmore’s evidence about the recent weather and to the fact Mr Broadmore conceded in evidence that his memory may have been tainted on this subject. While Mr Broadmore maintained it was “soggy”, this was contradicted by Constable Wallbank’s evidence that the ground was dry and it had not been raining. The fact Constable Wallbank was looking for tyre marks meant he was well placed to ascertain the condition of the lawn and so his evidence that the ground was dry could be readily accepted.
[21] Consequently, Mr Donnelly submitted Mr Broadmore’s claim that a “big chunk of mud” was sitting on the accelerator and this caused the pedal to depress, lacked plausibility. He submitted if the ground was not soggy, such a chunk of mud could not have attached to Mr Broadmore’s shoe. As a result, the Judge’s rejection of this portion of Mr Broadmore’s evidence showed no identifiable error and can be dismissed.
[22] Mr Donnelly also submitted there was no error in the Judge placing weight on Mr Broadmore’s state of mind in determining the charge. Mr Donnelly highlighted that Mr Broadmore himself accepted he was angry and this was corroborated by Mr Super’s evidence. Given Mr Broadmore’s willingness to physically lash out (by punching the window) and the fact he threatened Mr Super, his claim the damage he immediately went on to cause was wholly accidental, lacked merit. Mr Donnelly maintained it was Mr Broadmore’s anger that motivated and linked his behaviour and the Judge was correct in considering it relevant to the charge of wilful damage.
Analysis
[23] For Mr Broadmore’s appeal to be successful the District Court Judge must have erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.8 There is no challenge to the Judge’s articulation of the law, including on what is required to establish the requisite mens rea element of wilful damage offending. It is his assessment of the facts that is challenged.
[24] Mr Broadmore’s first point on appeal is the District Court Judge erred in rejecting Mr Broadmore’s evidence that the muddy ground from recent rain contributed to the incident. In addition, he claims the District Court Judge erred in overlooking the skid marks in the mud in the area of the incident.
[25]In his evidence before the District Court, Mr Broadmore stated:
And as for the weather, it was wet and it had been for quite some time before that, but I do concede by the looks of it, it wasn’t raining that night and it hadn't been raining there within a few hours at least so maybe I did get that memory wrong. I’d come a long way that day, maybe it was raining up (inaudible 15:52:45) and then it sort of dried out a bit around Wanaka and so my perception of it being a rainy night, I can only explain that as probably why but I do concede it doesn’t look like it was raining that night but it was definitely wet, definitely soggy. The dry mud tracks yes, on the surface the mud may look dry but underneath it will be slick as wet mud and when you try to brake on a dry surface which has a slick undercoating, that top surface of dry mud will just slide along much like an avalanche would down a mountain. So that is why I collided with Mr Super’s car.
[26] However, the evidence of Mr Super and Constable Wallbank was that it had not been raining. This was supported by photographic evidence of the site taken at the time of the offending which showed the concrete pad was dry and there was no evidence of mud.9 There was also no evidence of skid marks in the mud, whether in the photographs or otherwise. Indeed, Constable Wallbank inspected the ground for tyre tracks which related to the incident, but could find only “historic” tracks that were set in dry mud. The fact the ground was not marked by car movements on the day supports the conclusion that the ground was firm and dry. In my view, the
8 Criminal Procedure Act, s 232(2)(b).
9 Police v Broadmore, above n 2, at [8].
District Court Judge did not err in rejecting Mr Broadmore’s explanation of the cause of the collision.
[27] Mr Broadmore’s second ground of appeal is the Judge erred in placing too much weight on his emotional state. In evidence, Mr Broadmore spoke frankly about his personality disorder, ADHD and foetal alcohol syndrome. He admitted being angry and frustrated prior to the incident. This was supported by the evidence of Mr Super and of Mr Hymers. Mr Broadmore used profanities and banged on Mr Super’s window before getting in his car and reversing into Mr Super’s car. In my view, the Judge was entitled to take into account Mr Broadmore’s acknowledged state of mind when determining whether Mr Broadmore deliberately drove aggressively, in close proximity to Mr Super’s vehicle, and consciously taking the risk he would hit it.
[28] Having discounted Mr Broadmore’s explanation that it was an accident, and taking account of Mr Super’s evidence of Mr Broadmore’s aggressive driving at the time of impact, it was open to the Judge to conclude Mr Broadmore drove recklessly, resulting in the damage to Mr Super’s car.
[29] It follows that I do not consider the District Court Judge erred in his finding that Mr Broadmore drove recklessly, causing damage to the vehicle.
Conclusion
[30]The appeal is dismissed.
Solicitors:
John K Fraser Law Ltd, Invercargill Crown Solicitor, Invercargill
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