C v Police HC Auckland CRI 2005-404-366

[2006] NZHC 919

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2005-404-366

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         4 August 2006

Appearances: M W Ryan for Appellant

J L S Shaw for Respondent

Judgment:      4 August 2006

JUDGMENT OF KEANE J

Solicitors:

Haigh Lyon, Auckland for Appellant

Crown Solicitor, Auckland for Respondent

C V POLICE HC AK CRI 2005-404-366  4 August 2006

[1]      On 27 October 2005 Mark C   was convicted of dangerous driving on 16

September 2004 on Onetangi Road, Waiheke Island. He was fined $750 and disqualified for nine months. He appeals his conviction on two bases.

[2]      He was not, he says, accorded a fair trial. The Judge intervened throughout the trial. The Judge interrupted counsel and questioned witnesses to a degree that showed that he had pre-determined the outcome. There was at least the appearance of injustice. Secondly, the conviction the Judge entered is unsafe. It is founded, it is contended, on speculation and not fair inference; and inference from evidence that the Judge elicited from the pivotal prosecution witness.

[3]      Mr C  , on this appeal, does not seek to have his conviction and sentence quashed outright. He seeks instead to have them set aside and the matter remitted to the District Court for rehearing.

Context

[4]      The case against Mr C  , in essence, was that on 16 September towards midnight he, driving his parents’ Toyota Cerub station wagon with two passengers, got caught up in a race with Kenneth Mountain, who was driving a modified Subaru Saloon beginning in Ostend, Waiheke Island, and intended to end in Onetangi.

[5]      This race culminated, on the prosecution case, in the two becoming locked side by side at a speed in excess of 100 kph on Onetangi Road, an 80 kph area; the effect of which was that Mr Mountain took a blind bend on the wrong side of the road and collided with a mini-van coming from Onetangi.

[6]      The apparently well publicised result was, I am told, that those in the van suffered injury, as did Mr Mountain himself. Mr C   and his friends stopped to assist and were spoken to by the police on the morning of 17 September. All made statements and there the matter rested until 13 October when the police spoke to Mr Mountain after he was discharged from hospital. Having obtained Mr Mountain’s account, they spoke again to the passengers in Mr C  ’s car.

[7]      In their statements on the day of the accident the passengers had, as Mr C   himself had, said that Mr C   drove within the speed limit except when crowded from behind by Mr Mountain. On re-interview they confirmed that Mr C   and Mr Mountain had become locked in a race that had culminated as it had; and that Mr C  , like Mr Mountain, drove at a speed in excess of 100 kph on Onetangi Road  just before the collision.

[8]      Mr C  , who made no later statement, was charged with the offence for which he stands convicted. Mr Mountain, also charged with that offence, was able to be a witness at the summary hearing relating to Mr C   because he had pleaded to his offence, been sentenced to imprisonment and served his sentence. Mr C  , by contrast, denied that he had committed any offence and put the prosecution to proof.

[9]      At the hearing in the District Court, by consent, the witness statements of the prosecution witnesses was their evidence in chief. The statements of Mr C  ’s passengers derived from what they said when re-interviewed, not when they were first spoken to. And the first issue for the Judge was whether those latter statements had been elicited by coercion. Mr C  ’s father said that the officer who took them told him that the passengers had bowed to pressure.

Decision under appeal

[10]     The Judge discounted that possibility, which had not been put to the officer when he gave his evidence. Instead he went to the central issue as he then defined it to be: whether the manner in which Mr C   drove on 16 September 2004 in all the circumstances might have been dangerous to the public.

[11]     The Judge reviewed the evidence for the prosecution, beginning with that of Mr Mountain, who had confirmed that he himself had driven at excessive speeds, as he said in tandem, indeed in competition, with Mr C  . As to Mr Mountain, the Judge said this:

Unsurprisingly Mr Mountain came under significant attack from counsel for the defence. If there was his evidence only to rely on then in my view the

prosecution would not have come close to establishing this charge to the requisite standard. Having said that Mr Mountain was unmoved in his evidence.  He  has  apparently  and  obviously  been  dealt  with  already  in relation to his driving.

[12]    The Judge then reviewed the evidence of the passengers, whose second statements, as I have said, formed the basis of their evidence in chief, but from which they resiled when cross-examined, reverting to what they had first said. The Judge concluded that, while that was unsatisfactory, they had not resiled completely. Their evidence could still found the inference, he considered, that just before the collision Mr C   was driving at a dangerously excessive speed.

[13]     In that conclusion the Judge was bolstered, finally, by the evidence of Mr Thompson whom he considered to be the only truly independent witness. Mr Thompson  had  been  driving  from  Ostend  to  Onetangi  when  Mr  C    and Mr Mountain began what the Judge concluded to be a race. That conclusion was founded directly on Mr Thompson’s evidence.

[14]     In evidence in chief Mr Thompson said he had first seen Mr C   and Mr Mountain, whom he did not then identify, driving close to each other on Wharf Road. At Putiki Road they diverged. One took that road to Ostend Road heading towards the intersection of Ostend Road and Belgium Street. The other continued along Wharf Road and turned into Belgium Street. Mr Thompson concluded that they were racing and accelerated to see which had got to the intersection first. He saw enough, he said, to conclude that Mr Mountain must have lost the race. The last that he saw of them was their tail lights on Ostend Road. He next came across them on Onetangi Road at the point of the collision, not far out of Onetangi.

[15]     To the Judge this was all of a piece. He related what Mr Thompson had seen as to the part played by Mr Mountain, whose car he identified, to what Mr C   and his passengers had conceded. The lights of the second car that Mr Thompson could  not  identify,  the  Judge  concluded,  if  only  implicitly,  were  those  of  Mr C  ’s car. He, as well as Mr Mountain, must, when last seen by Mr Thompson, have been travelling towards Onetangi well in excess of the speed limit.

[16]     When Mr Thompson concluded that they must have been racing, the Judge said, he had it absolutely right. To that the Judge added:

As a result of this race this accident occurred. The speeds at which the defendant  was  travelling,  according  to  his  own  evidence,  which  was self-serving and hopelessly unreliable was at least 100 kph. I prefer the evidence of the other witnesses which established it at much higher, at least

120 kph maybe even greater. The end result was that these two vehicles were travelling  down  a  relatively  narrow  country  road  at  speeds  that  are  an

invitation to disaster. Indeed there was almost a disaster. This defendant was driving, in my view, in a manner in all the circumstances that was clearly

dangerous.

[17]     It was on that basis that the Judge found the charge proved. In sentencing Mr

C  , as he immediately did, the Judge commented:

You are a boy racer. That is clearly established by your own witnesses, they talked about what sort of a good driver you were. You are typical, unfortunately, an example of some people of your age. You think you are competent. You think you are smart and you figure you can get away with it. Your driving on that night in question directly contributed to an accident. It could have been a fatal accident in which case you could have been facing much more serious charges on this evidence.

First ground of appeal – hearing unfair

[18]     As  his  first  ground  of  appeal,  Mr  C    contends  that  the  Judge’s conclusion was preordained from the first. During the hearing the Judge spoke 59 times by Mr C  ’s counsel’s count, some gathered in sustained exchanges, others single instances. (37, counsel for the Crown confirms, were to witnesses, 22 to counsel.) The sheer degree to which the Judge intervened in the case, it is contended for Mr C  , speaks for itself: the Judge had predetermined the case.

[19]     If that were so, that by itself would be decisive. In E H Cochrane Ltd v Ministry of Transport [1987] 1 NZLR 146 CA, the Court held unanimously that where a judge asks excessive questions that creates a real danger of an unfair trial. The verdict, or in this case the decision of the Judge sitting alone, cannot stand. That said, a Judge sitting alone is not to be equated with a Judge sitting with a jury; and McMullin J, at 155, said this:

… a Judge in an adversarial situation is the Judge and not an advocate. But that description of his role does not preclude him from asking questions or intervening in the course of counsel’s address. Sometimes judicial intervention in the conduct of a hearing may be necessary to ease the passage of a difficult case, place a witness at ease, or see that the evidence is more thoroughly explored, R v Williams [1955] Crim LR 389. And when he is sitting alone, and therefore the tribunal of fact, it may be important for him to fill in some gaps in his understanding of the evidence or some point in counsel’s submissions.

[20]     So too in Akast v New Zealand Police (HC Auckland, CRI 2004-404-183, 26

August 2004) Gendall J said at para [12]:

It is not necessarily the number of questions asked that matters but more significantly the manner, content, tenor and nature of such questions. Of course if there is extensive questioning or a large number of interruptions a Court is put on notice of the possibility of a denial of justice but statistics alone are not of themselves decisive. … It is the overall effect of the interventions, quantity and quality as they react one upon the other, not considered in isolation, that is important. If there is a possibility of a denial of justice then the Court must intervene.

[21]     On my review of the Judge’s interventions, which were more frequent at the beginning,   during   Mr   Mountain’s   evidence,   and   towards   the   end,   when Mr Thompson gave evidence, most, whether questions to witnesses or comments to counsel, were within usual and acceptable bounds consistent with the Judge’s duty to supervise the case, and ensure he understood the nature and extent of the evidence.

[22]     One comment the Judge made to counsel for Mr C  , when Mr Mountain was being cross-examined, is said to have been inhibiting. Counsel had put, or begun to put, to Mr Mountain that Mr Mountain had obtained a lesser sentence for the evidence that he had given. The Judge cut that short and told counsel that the trial was not before a jury. But that can be seen in two ways.

[23]     One, advanced on this appeal for Mr C  , is that the Judge was impatient of the attack and unwilling to allow it. The other, advanced for the police, is that the Judge merely reminded counsel that he, sitting as a Judge alone, was aware of what a jury would not know, that assistance to the police can be a source of credit on sentence. What can be taken from that is another thing. Either of these perspectives is tenable.

[24]     The Judge did, however, while Mr Mountain was giving his evidence in chief, elicit from him, having confirmed that his Subaru car was capable of 200 kph, and could accelerate from 100 kph to 150 kph in two to three seconds, that it was a

‘boy racer’s car’. That could be construed, and it has been construed by Mr C  , as an immediate show of the Judge’s mind. Mr C   contends that, from the moment Mr Mountain began his evidence, the Judge labelled him a boy racer; so too Mr C  .

[25]     That comment, however, needs to be seen in context. Mr Mountain had just said that he had overtaken Mr C   at 130 kilometres per hour. He had described his car and the extent to which it had been modified. It was a two litre twin turbo Subaru Legacy RS 1994 slightly lowered. It had a blow-off valve and a three inch exhaust. It was a car capable of accelerating to pass whenever required. Against that evidence, the questions the Judge asked were innocuous and his conclusion merely factual.

[26]     There was another comment that the Judge made very shortly after when Mr Mountain said that, just before the collision, he was not intent on racing but only on passing, adding ‘If I wanted to race him I could have raced him from the corner of Wharf Road Putiki.’ The Judge rejoined, intervening, ‘Not on Waiheke Island’. To that Mr Mount replied ‘No not on the Island but if I had wanted to’.

[27]     In this, it is contended for Mr C  , the Judge showed that he knew the Island and had a pronounced view about boy racing there. I cannot myself take anything from either the question or the answer. If anything the Judge might have been  sceptical  that  boy racing  was  possible  on  the  Island  and  that  might  have favoured Mr C  . But that is as much as one can say.

[28]     The point at which the Judge intervened most actively and decisively was after Mr Thompson’s evidence complete. The exchange began in this way:

So  you  say  they  were  basically  racing  along  Putiki  Road  and  Belgium

Street? Yes

To see who’d get to the end first? Yes both roads converge onto Ostend

Road.

So they were racing to see who got to Ostend Road first?  Yes.

Do you say they were driving at excessive speed at that stage?  At that stage.

[29]     In this exchange the Judge is said to have elicited from Mr Thompson a conclusion not open from his evidence in chief, to have done so by leading questions and to have shown the cast in his mind most completely.  Once more, however, that must be set against the context.

[30]     Mr Thompson had already said himself, as I have noted already, that he had concluded  a  race  was  on  when  he  saw  the  two  cars,  since  identified  as  Mr Mountain’s and Mr C  ’s, close together on Wharf Road, diverge at Putiki Road and really take off. He had said:

I thought to myself that a race was on and that these cars were racing.  I sped up a bit to see who would get to the other end of Belgium Street first.

The Judge did not elicit then from Mr Thompson anything new. He clarified what

Mr Thompson was saying.  That to my mind was entirely open to him.

[31]     The  rest  of  the  exchange  related  to  what  Mr  Thompson  saw  when approaching  the  Belgium  Street  –  Ostend  Road  intersection  and  afterwards  on Ostend Road.

[32]     Mr Thompson confirmed, when the Judge asked, that he had seen tail lights off in the distance on Ostend Road. He added that, before then, he had seen what can now be accepted to have been Mr C  ’s car come out of Putiki Road into Ostend Road. That is when he realised Mr Mountain had lost the race. He confirmed, when the Judge asked, that he knew Mr Mountain though not that he was driving a Subaru. He confirmed finally that he was himself to travel along Onetangi Road, to pick up his daughter.

[33]     None of this was in any sense exceptional. But then the Judge said:

What impression did you get then about the tail lights receding into the distance along Onetangi straight, were they travelling slowly or what?

To that Mr Thompson replied:

I’d actually sped up to see who had exited onto – actually won the race so to speak, the race to the intersection.  At that stage there I’d slowed right down back to the speed limit, that was the end of my involvement, and the distance they were away from me, if they had been keeping to the speed limit they would’ve been right in front of me and they were off in the distance.

[34]    That prompted counsel for Mr C   to question Mr Thompson.   He confirmed  that  the  most  that  Mr  Thompson  had  seen  of  the  car,  said  to  be Mr C  ’s, was the tail lights. But the Judge is said here also to have intruded too far.

[35]     Here as well, as in every previous exchange, I consider, however, the Judge intervened only to respond to evidence already given. He did so to bring detail to what was otherwise abstract. He did so fairly and without displaying a closed mind. No impression can or could have been taken that he had by then decided the case. There is no basis for the first ground of appeal.

Second ground of appeal – speculative decision

[36]     The issue then becomes whether, as is contended as the second ground of appeal, the Judge founded his decision on fair inference or, as Mr C   contends, on inference that was unfair and speculative.

[37]     The general right of appeal is by way of rehearing, but the onus rests on Mr C   to show the decision under appeal is wrong: Herewini v Ministry of Transport [1992] 3 NZLR 482, 489, Fisher J. This Court will be astute to see that any inference taken fairly establishes the essential elements of the offence: R  v Ramage [1985] 1 NZLR 392 (CA); R v Hart [1986] 2 NZLR 408. It will be slow, however, to differ from the trial Judge’s findings of credibility: Tetau v McPherson [1956] NZLR 34 Turner J. Or to depart from the Judge’s inferences unless critical and completely insupportable: R v Puttick (1985) 1 CRNZ 644, CA.  That said this Court has a duty under ss 119 and 121 that cannot be shirked:  R v Jefferies [1999] 3

NZLR 211 (CA).

[38]     What was actually or permissibly in issue at the hearing is in itself an issue on this appeal.  It was not then an issue that Mr C   was driving that night. He

admitted his identity as the driver. Nor as to where he was driving. He drove, as he admitted, on Onetangi Road. The issue as posed by the offence charged was whether he did so ‘in a manner which having regard to all the circumstances of the case might have been dangerous to the public.’

[39]     During Mr Mountain’s evidence, in an exchange between counsel and the Judge, the Judge sought to narrow what was in issue factually.   He said that he imagined that what was alleged was that Mr C   had driven dangerously along Onetangi Road by pulling out, pulling back in and not allowing Mr Mountain to pass.  To that Mr C  ’s counsel added a further aspect: that the cars were racing each other and at an excessive speed within designated areas. Counsel for the prosecution said that the charge was not specific as to the exact place or as to the way in which Mr C  ’s driving was dangerous.

[40]     The Judge then concluded that the place had to be Onetangi Road and that it was the manoeuvre that had to be dangerous. But in his decision that is not how the Judge found Mr C   to have driven dangerously.  His focus was on the speed at which Mr C   was driving on Onetangi Road, which he described as narrow.  On this appeal it is contended that the Judge, having defined the issue he had, then decided that Mr C   had driven dangerously for an entirely different reason. That shift is said to have constituted an error, as I presume, of law.

[41]     I do  not  take  from  this  early  exchange  between  counsel  and  the  Judge, however, that the Judge then committed himself so narrowly. The issue was as he had posed it at the beginning of his decision, as indeed it is posed by s 35 which creates the offence and by the charge Mr C   faced. It was whether Mr C   had, objectively, driven dangerously in the circumstances. On the evidence as a whole, once it was in, the Judge could have fastened on the manoeuvre described by Mr Mountain. It was equally open to him to fasten as he did on Mr C  ’s speed. The issue remains whether his conclusion was and is supportable.

[42]     The Judge accepted and relied on the evidence of Mr Mountain even though, as he said, that evidence by itself could never have supported a conviction. He relied as well on the evidence of Mr Thompson as to the genesis in Ostend of the race

between Mr Mountain and Mr C  .   Mr C  ’s passengers, the Judge considered, gave evidence of less certain quality. But the evidence they did give, the Judge considered, and it was open to him to do so, supported the inference to be taken from the evidence of Mr Mountain and Mr Thompson which the Judge rightly found to be complementary.

[43]     Mr Thompson did not see what happened on Onetangi Road, when as the Judge found Mr C  ’s driving became dangerously fast. The Judge could, however, as he did, accept Mr Thompson’s evidence as going to whether Mr C   had been driving as he said lawfully until crowded by Mr Mountain.  He could infer that if both the cars that Mr Thompson saw sped away well in excess of the speed limit, then Mr C   must have been as complicit as Mr Mountain.  He could take that as buttressing the evidence of Mr Mountain as to what happened just before the collision.  He could find, as he did, that the passengers’ evidence at least established that Mr C   was then driving in excess of 100 kph. Mr C   himself made a consistent concession.

[44]     Drawing all those threads together the Judge was able fairly to conclude that there had been a race at speeds well in excess of the speed limit and dangerously in excess on a narrow road; that the collision on the far side of the ultimate bend, which Mr Mountain had such difficulty negotiating, was all too predictable; and that by racing Mr Mountain, Mr C   contributed indirectly, if not directly, to that accident.

[45]     I find there is no basis for the second ground of appeal either. The appeal will be dismissed.

P.J. Keane  J