Brown v Police
[2015] NZHC 2411
•2 October 2015
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI-2015-419-000019 [2015] NZHC 2411
BETWEEN PAUL PHILLIP BROWN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 1 October 2015 Counsel:
M H McIvor for Appellant
T A Needham for RespondentJudgment:
2 October 2015
JUDGMENT OF DUFFY J
This judgment was delivered by me on 2 October 2015 at 4.30pm pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:……………………………….
Solicitors/Counsel: Almao Douch, Hamilton M H McIvor, Hamilton
BROWN v NEW ZEALAND POLICE [2015] NZHC 2411 [2 October 2015]
[1] The appellant, Paul Brown, was convicted and sentenced to one year’s intensive supervision, five months’ community detention and disqualified from driving indefinitely on one charge of drove with excess breath alcohol, third or subsequent offence. He appeals against his conviction.
[2] The sole question for determination on appeal is whether a miscarriage of justice has resulted from the Judge, who presided at the trial, participating in a “demonstration” for the purpose of seeing if Mr Brown’s account of the events that led to his arrest was believable.
Background
Summary of Facts
[3] The police summary of facts alleged that on 26 July 2014 at about 6:05 pm, Mr Brown was the driver of a motor vehicle. Police stopped Mr Brown due to the manner of the driving. When police spoke to Mr Brown he exhibited signs of alcohol consumption. A breath test was conducted and he was found to have a breath alcohol reading of 568 micrograms of alcohol per litre of breath. Mr Brown told police that he had only had a couple of beers several hours earlier.
Previous Convictions
[4] Mr Brown is 22 years old. He has a number of minor previous convictions: possessing a knife in a public place, two convictions for possessing cannabis plant, theft under $500, and burglary under $500. He also has three driving offences: two convictions for driving with excess breath alcohol (committed on 17 November 2013 and 04 March 2011 respectively) and one conviction for driving while disqualified. Accordingly, the current charge was the third time Mr Brown had committed an
offence under s 56(1) of the Land Transport Act 1998.1
1 Meaning that, under s 56(4) of the Land Transport Act 1998, the maximum penalty for the offending was two years imprisonment or a $6,000 fine. As the current offending was committed within five years of his two previous drink driving offences, Mr Brown also fell within the mandatory indefinite disqualification provision in s 65(4) of the Act.
District Court Trial
[5] Mr Brown pleaded not guilty to the offending and the matter was tried in a Judge-alone trial in the District Court on 29 January 2015. The Judge delivered an oral decision on 5 February 2015; however, that decision was not recorded. After Mr Brown requested a copy of the decision the Judge “reconstructed the decision” on the basis of his notes for the oral judgment. He was satisfied that “the judgment reflected the essence of the decision and the outcome but could differ in matters of minor detail from the decision as delivered”. It is not clear from the judgment when the reconstructed judgment was written.
[6] At the trial Mr Brown had argued that he was not driving the car and that he had switched places with his girlfriend, who he said was driving the car, when the car was stopped by police. Mr Brown did not challenge the breath testing procedure or that his breath alcohol reading was over the limit. At the trial evidence was given by Constable Christopher Polglase, who had pulled the car over and administered the breath test for the prosecution. Mr Brown, his girlfriend, Ms Ricky Pitcon, and Mr Thomas Doney, who was a passenger in the car, all gave evidence in support of Mr Brown’s version of events.
District Court Judge’s Decision
[7] Judge A S Menzies first noted that Mr Brown’s case was that he was not the
driver of the car. He stated:
[4] Having brought the charge, the police carry the responsibility of proving the necessary elements beyond reasonable doubt. A defendant has nothing to prove and if a defendant elects to call evidence, as occurred in this case, the defendant does not thereby assume any burden of proof. If I reject the defendant’s evidence that evidence must be put aside and I must proceed on the evidence I do accept to determine whether the charge is proved.
[8] The Judge noted that the credibility of the witnesses would be largely determinative. He then set out the evidence of Constable Polglase: that he was on a routine patrol, he noticed the vehicle, engaged his lights and stopped immediately behind the vehicle, pushed the registration number into his electronic device, before
approaching the driver’s door of the car where he found Mr Brown who gave his name and undertook a breath test.
[9] The Judge stated Mr Brown maintained that he was not the driver: that Constable Polglase observed his girlfriend driving and as soon as she stopped the car Mr Brown and Ms Pitcon swapped seats prior to the Constable arriving at the driver’s door. The Judge recorded that when Mr Brown’s version of events was put to the Constable he stated that he only remained in his car a few seconds and that his attention would only have been away from the vehicle in front of him for a matter of seconds while he recorded the registration number. The Constable was clear that he saw no movement in the car consistent with Mr Brown swapping seats. He believed that due to his proximity to the vehicle and the timing, he would have seen this if it had happened. Further, when he reached the car no one said or did anything to suggest that someone else in the car might have been the driver.
[10] The Judge also set out Mr Brown’s explanation of why he swapped seats with
Ms Pitcon:
… Ms Pitcon had previously been involved in a serious accident which had caused her a number of injuries. These injuries had included a head injury and four broken vertebrae. The accident had occurred some three months before this alleged offence and Ms Pitcon was still suffering the effects. The injuries to her back meant that prolonged standing and sitting raised her significant discomfort. They head injury meant that she had been advised by her medical advisors not to drive. Ms Pitcon inferred from this advice that she was not legally authorised to drive and assumed that the medical views would have been passed onto the police. At the time she therefore assumed that she was not legally authorised to drive and that this was the defendant’s understanding at the time as well.
Accordingly it was decided that Mr Brown should take responsibility, notwithstanding that he had been drinking. There was a quick and subtle seat swap, achieved in a way that would not have been obvious to the Constable. The Judge noted that all three witnesses were of the view that there was sufficient time for this to happen.
[11] The Judge stated that the case therefore involved a determination of what he accepted had occurred. He stated that if he accepted the Constable’s evidence then the charge would have been established to the necessary standard.
[12] At the end of the trial he indicated that it would be useful if there was a practical demonstration of what had occurred according to Mr Brown. This was done on a Monday morning at 9 am in the same vehicle with the Judge and counsel standing behind the vehicle, approximately where the Constable would have been standing. The Judge found that the demonstration showed him that switching seats would have taken approximately 10 seconds, and that the manoeuvre could not have been undertaken without being observed from anyone behind the vehicle who was looking.
[13] The Judge also found that over the weekend (which intervened between the end of the trial and the demonstration) Mr Brown and Ms Pitcon would have had the opportunity to practice the manoeuvre before the demonstration. He considered that if it had occurred just after the vehicle was stopped by the Constable it would have been spontaneous. In addition, the Judge stated that the incident had taken place three months after Ms Pitcon’s accident and her evidence had been that she was suffering some discomfort earlier in the day, which raised questions for the Judge as to her ability to undertake the manoeuvre, or at the very least to effect the manoeuvre quickly.
[14] The Judge also considered that the three defence witnesses were unsure about the details when pressed in cross-examination. Further, given that Mr Brown has two previous drink-driving convictions, the Judge considered that it must have been obvious “that Mr Brown was putting himself at extreme risk by placing himself in the driver’s seat”. The Judge considered that on the other hand the risk to Ms Pitcon was comparatively minor. Thus the Judge expressed reservations as to the weight to be given to the accounts given by the defence witnesses.
[15] In reaching his conclusion that the charge against Mr Brown had been established the Judge stated:
[29] It is not however for the defendant to prove his innocence. I have to determine beyond reasonable doubt whether the charge is proved. The key issue in that respect is whether or not there was time available in the circumstances for the defendant and Ms Pitcon to have swapped seats unobserved.
[16] The Judge considered that in the circumstances he was satisfied that there simply was not the opportunity for there to have been a 10 to 15 second period providing enough time for the manoeuvre to have taken place without it being obvious to the Constable. He accepted the Constable’s evidence that the period between him stopping, alighting and moving forward to Mr Brown’s vehicle was extremely brief. Further, the only time his line of vision would have been interrupted was when he briefly looked down at the screen to punch in the registration number. The Judge stated that “the constable was adamant that such a manoeuvre did not occur and I accept that evidence.” He concluded that it followed he was satisfied the charge was establish to the required standard and convicted Mr Brown of the charge.
Appellant’s submissions
[17] Mr Brown accepts that throughout the judgment the Judge carefully set out that the prosecution had the onus of proving the charges beyond reasonable doubt. However, Mr Brown relies on the part of the Judge’s decision where he described the demonstration. Mr Brown submits that at this point it was clear that the Judge had some doubts about the prosecution case at the stage where he asked for a demonstration, when the evidence had been concluded.
[18] Mr Brown states that while counsel accepted this offer, the step should not have been taken, as it effectively meant that he then had to prove that the seat swap could have been undertaken discretely.
[19] Mr Brown raises a number of concerns with the procedure adopted by the
District Court Judge:
(a) The demonstration took place at 9 am whereas the incident had occurred at about 6 pm in July, when it would have been dark.
(b)The Judge recorded that he stood approximately where the Constable would have been, thereby effectively becoming a witness in his own right instead of the arbitrator. The Judge effectively substituted his own evidence of the alleged manoeuvre for that of the Constable.
(c) From the demonstration, the Judge concluded that the seat swapping could not have been done without a person behind the car seeing it.
(d) The Judge’s approach was inconsistent with the evidence of Constable
Polglase. In particular, the Constable said:
(i)He could not see the driver when Mr Brown’s vehicle travelled across the police officer’s path;
(ii)“I could see though the vehicle to a certain degree and I didn’t notice the vehicle rocking as I would have expected if someone moved the seats”;
(iii) He accepted that Mr Brown was not exactly a big guy and his
partner “didn’t stand out as being bigger than average”.
(e) The Judge’s criticism of the witnesses’ memories was unwarranted
given that the events had taken place seven months earlier.
[20] Accordingly, Mr Brown submits that the Judge should not have invited a practical demonstration where he clearly had doubts about the prosecution case and was seeking to allay those doubts. This effectively reversed the onus of proof. It was not appropriate for the Judge to act as a witness by arranging the practical demonstration. He also did not take into account that the incident had occurred when it was dark.
[21] For these reasons Mr Brown submits that there has been a miscarriage of justice and the appeal should be allowed.
Respondent’s submissions
[22] The respondent disputes Mr Brown’s submission that the demonstration
resulted in a miscarriage of justice. The respondent relies on the following factors:
(a) The offer of a demonstration was an opportunity to demonstrate
whether the seat swapping was “feasible”;
(b)The prosecution had a strong case. The Constable’s evidence was that he would have seen the swap if it had occurred. He had only turned away from the vehicle in front of him for one to two seconds. He had not seen anything;
(c) While it was dark, he could still see through the vehicle due to the street lights being on;
(d)The Judge noted that there were unsatisfactory aspects to the evidence given in support of Mr Brown. In particular they were unsure as to the detail;
(e) The Judge had heard evidence that Ms Pitcon was recovering from a serious injury at the time but was not in fact prohibited from driving. The Judge also heard that she had gone to the police station six days after the incident to inform police that she had been driving;
(f) The Judge had the opportunity to observe all the evidence and was entitled to make a credibility assessment of them.
[23] On this basis the respondent submits that the case against Mr Brown was very strong, but that Judge Menzies was troubled by the feasibility of the manoeuvre. The purpose of the demonstration was thus to show whether the manoeuvre was in fact possible to a very sceptical Judge. It was never intended to be a reconstruction of the incident.
[24] The demonstration was in some ways beneficial to Mr Brown as it showed that the manoeuvre was possible. However, it also accorded with Constable Polglase’s evidence.
[25] The respondent’s position is that the key issue at the trial was the credibility
of the witnesses. Based on his assessment of each witness’ account and the personal
circumstances and motivation of Mr Brown compared to those of Ms Pitcon, the Judge preferred the evidence of the Constable which accorded with the demonstration.
[26] The respondent therefore submits that the Judge did not err in his assessment of the evidence and he did not reverse the onus of proof. It was open him to find the charges proved and no miscarriage of justice occurred.
Appeal
Law
[27] Section 229 of the Criminal Procedure Act 2011 (CPA) provides a right of appeal against conviction. Under s 232(2), the Court must allow the appeal 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.
[28] 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 trail or a trial that was a nullity.”
[29] A notice of appeal against conviction must be filed within 20 working days after the date of sentence for the conviction appealed against.2 Mr Brown was sentenced on 18 May and the appeal filed on 17 June. Accordingly the appeal was filed two days out of time. A preliminary issue therefore, is whether I should extend
the time for filing the notice of appeal.
2 Section 231(2).
Extension of time
[30] The touchstone for granting an application to extend time is the interest of justice. In Mikus v R, the Court said:3
[26] For an application for extension of time to appeal to be granted, it must be in the interests of justice to do so. As this Court recently said in R v Slavich, extension of time applications will invariably reduce to two questions. First, why the appeal was filed late. Second, what merit, if any, the prospective appeal point appears to have.
[31] The appellant must provide sufficient information to satisfy the court that an extension of time is in the interests of justice.4 The length of delay is also a relevant factor: the court will be much more likely to grant leave where the delay is short.5
[32] The notice of appeal states that it was filed late due to a clerical error in calculating days. I accept this explanation and consider that, given the appeal was only two days late, it is in the interests of justice to grant the extension of time.
Substantive Appeal
[33] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of
justice.6 The error or irregularity must lead to either of the consequences listed in s
232(4)(a) or (b).
[34] 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.”7 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.8
3 Mikus v R [2011] NZCA 298 (citations omitted).
4 R v Davis [2007] NZCA 777 at [13].
5 R v Lee [2006] 3 NZLR 42 (CA) at [114].
6 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v
R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
7 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
8 At [110].
[35] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. It is not every departure from good practice which renders a trial unfair,9 instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.10 Courts have held that an unfair trial can also exist when a defect in the trial causes an unacceptable appearance of unfairness without actual prejudice to the defendant.11
[36] Unfairness does not necessarily give rise to a nullity;12 there has to be some fundamental procedural error. Examples of such a fundamental error include: a conviction where a court lacks jurisdiction13 or the charge fails to disclose a criminal offence.14
[37] Where a Judge gives a decision following a Judge alone trial, careful consideration is needed, but not long exposition:15
In general no more can be required than a statement of the ingredients of each charge and any other particularly relevant rules of law or practice; a concise account of the facts; and a plain statement of the Judge's essential reasons for finding as he does. There should be enough to show that he has considered the main issues raised in the trial and to make clear in simple terms why he finds that the prosecution has proved or failed to prove the necessary ingredients beyond reasonable doubt. When the credibility of witnesses is involved and key evidence is definitely accepted or definitely rejected, it would almost always be advisable to say so explicitly.
[38] In Kumar v Police the Court found:16
It was open therefore for the Judge to prefer the prosecution evidence, albeit it only came from one witness, to the defence evidence principally from two witnesses of which he obviously formed an adverse view. It could not be said that the Judge’s conclusions were unsupported by an evidential foundation. Even judging the issue from the transcript notes of evidence by
9 Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
10 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R, above n 9, at [38].
11 See James v R [2011] NZCA 219 at [29], where the failure to address the juror’s capacity meant that there was a risk of a miscarriage of justice even though the verdict would have stood if the juror had been discharged.
12 Jago v The District Court of New South Wales (1989) 168 CLR 23 (HCA) at 57 per Deane J,
cited by the Supreme Court in Condon v R, above n 9, at [77].
13 R v O (No 2) [1999] 1 NZLR 326 (CA).
14 R v Fonotia [2007] NZCA 188, [2007] 3 NZLR 338.
15 R v Connell [1985] 2 NZLR 233 (CA) at 237–238.
16 Kumar v Police HC Auckland CRI-2010-404-40, 22 March 2010.
contrast with the advantage the first instance Judge has in seeing and hearing the witnesses, it could not be said that the Judge’s assessment of credibility and thus his conclusions were in error. There is no basis to intervene in the conclusions of the District Court.
[39] For the majority of his judgment, the Judge carefully set out the evidence of Mr Brown’s witnesses and the prosecution witness. His judgment shows why he found the prosecution’s evidence more convincing. In particular, the Judge relied on his assessment that the Constable was an accurate an credible witness and accepted his evidence that he was not stopped behind Mr Brown’s car for long, he was only looking away from the car for a very short period of time and that it would not have been possible for the switch in seats to occur without his noticing it. The Judge considered that Mr Brown’s evidence, in contrast, was vague in parts. Moreover, in the Judge’s view, it was very unlikely that Mr Brown would have swapped seats given the possible risk to him and the risk to Mr Pitcon.
[40] Had the Judge stopped before the demonstration I consider that he had set out good reason for him to prefer the evidence of the Constable to that of the three defence witnesses. However, he then went the step of participating in the demonstration. The Judge’s willingness to participate in a demonstration that required the defence witnesses and counsel to assemble at 9am on a Monday morning for the Judge to see for himself the chances of Mr Brown successfully executing an undetected seat swap with Ms Pitcon suggests to me that before the demonstration took place the Judge must have had a reasonable doubt as to whether the prosecution had proved that Mr Brown was the driver. It is hard to see why else he would have participated in the demonstration. If he had no more than a fanciful doubt about who was driving the vehicle on the night in question, I would have expected him to dismiss such a doubt from his mind.
[41] However if by the end of the evidential hearing of the trial he had a reasonable doubt as to who was driving the vehicle, he should have dismissed the charge against Mr Brown.
[42] It is possible the doubts the Judge had by the end of the evidential hearing were not enough to constitute a reasonable doubt but not so fanciful that he would dismiss them out of hand. In other words he was still undecided as to who was the
driver of the vehicle. If that was the case then by participating in a demonstration that did not replicate the circumstances of the alleged offending he was relying on the wrong information to inform his decision. Here the respondent responsibly accepted that the circumstances of the demonstration were different from the circumstances of the alleged offending. The demonstration was at 9 am whereas the alleged offending occurred at night. The question for the Judge to decide was what could the Constable see at the time he apprehended Mr Brown not what the Judge could see in daylight hours when he had it in his mind what was about to occur.
[43] Further the views the Judge expressed about the demonstration suggest to me that he had adopted the role of a witness in the proceeding, which he should not have done. His judgment records that, from watching the manoeuvre himself, he formed the view that it would not be possible for the manoeuvre to have taken place without someone standing behind the car seeing it occur. This finding also overlooks the fact the Judge was seeing the demonstrated manoeuvre in different circumstances from when the original version is alleged to have occurred.
[44] In addition, there is the danger, with something like the demonstration which occurred, that Mr Brown took on the onus of proving he was not the driver when it was for the prosecution to prove that he was.
[45] The above comments are based on my concerns about the way in which the demonstration was conducted. I also have concerns that legally the demonstration was not something that the Judge was entitled to do. The Judge appears to have asked counsel to do something analogous to a view, which is provided for in s 82 of The Evidence Act 2006. A view is an inspection by the Judge of a place or thing not
in the courtroom.17
[46] In R v McGregor the Court cautioned:18
It is always to be remembered that jurors are involved as triers of fact which is established by way of evidence given by witnesses. The decision to take
17 Evidence Act 2006, s 82(7). In a Judge alone trial, the Judge may do so when the Judge considers that a view is in the interests of justice, of the Judge’s own initiative, at any time before judgment is delivered.
18 R v McGregor (1999) 16 CRNZ 606 (CA).
the view does not entail the jurors changing roles and becoming witnesses or even worse, detectives. Witnesses need to demonstrate in the presence of the juror what they are asserting and by being present and observing the jurors can make an assessment of what is being contended for by the respective witnesses.
[47] Those comments are equally applicable to a Judge sitting in a Judge alone trial as then he or she is the trier of fact. It may be the Judge thought the demonstration would resolve his doubts about who was driving the vehicle at the time of the offending. However, what might have been a practical solution to solving those doubts offends against legal principle and accordingly was wrong.
[48] As stated earlier I consider that the Judge must have had a reasonable doubt about who was driving the vehicle before he participated in the demonstration.19
That doubt was then extinguished by his wrongful participation in the demonstration. In this way there has been a miscarriage of justice. The removal of a reasonable doubt must follow from a process of reasonable and legally permissible reasoning. I am satisfied, therefore, that the requirements of s 232(2) of the CPA are met and so I must allow the appeal and set aside the conviction.
[49] However, I am in no position to make any determination myself about who was driving the vehicle. The answer to that question hinges on whose evidence is to be preferred, which is very much affected by credibility findings that only a first instance Judge who has had the benefit of seeing and hearing the witnesses can make. I consider that the appropriate outcome in this appeal is for the matter to be
sent back to the District Court for re-hearing.20
Result
[50] The appeal is allowed and the conviction is set aside. The matter is remitted back to the District Court for re-hearing.
Duffy J
19 If the Judge was still undecided about the answer to this question it means there was still a reasonable doubt in his mind.
20 Under s 233(3)(b) of the Criminal Procedure Act 2011.
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