Cade v Police
[2023] NZHC 3657
•14 December 2023
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2023-454-16
[2023] NZHC 3657
BETWEEN ALAN CADE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 15 November 2023 Appearances:
H M S Cheeseman for Appellant E Pairman for Respondent
Judgment:
14 December 2023
JUDGMENT OF LA HOOD J
(appeal against conviction and sentence)
[1] Mr Cade appeals against conviction and sentence following a judge-alone trial before Judge I C Carter in the Palmerston North District Court on 18–19 July 2022 on charges of sustained loss of traction,1 failure to stop for police while operating the vehicle in a dangerous manner,2 and possession of methamphetamine.3
[2] On 30 May 2023, he was sentenced on the sustained loss of traction to six months’ disqualification (from 26 October 2020), on the failure to stop to a $3,500 fine and six months’ disqualification (from 26 April 2021), and on the possession of
1 Land Transport Act 1998, s 36A(1)(c) (maximum penalty of three months’ imprisonment or a fine not exceeding $4,500; mandatory disqualification for six months or more).
2 Land Transport Act, ss 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2) (maximum penalty of a fine not exceeding $10,000; mandatory disqualification for six months).
3 Misuse of Drugs Act 1975, ss 7(1)(a) and (2) (maximum penalty of six months’ imprisonment or a fine not exceeding $1,000 or both).
CADE v NEW ZEALAND POLICE [2023] NZHC 3657 [14 December 2023]
methamphetamine he was convicted and discharged. Mr Cade was also convicted and discharged on a charge of resisting a constable acting in the execution of their duty.4
The prosecution case at trial
[3] The prosecution alleged that, on 26 October 2020 at about 10:30 am, Mr Cade was driving a black sedan along State Highway 56 heading towards Palmerston North when police saw the car doing two “donuts” (360 degree turns with a sustained loss of traction) in the middle of the road.
[4] The police then activated their lights and the car accelerated away at speed. The car turned onto Longburn-Rongotea Road and continued to accelerate away from police at high speed, passing a number of other cars. Eventually the police lost sight of the car.
[5] Mr Cade was then stopped on Green Road by another police car. The police car that had been chasing him arrived shortly after, and the officers identified Mr Cade’s car as the vehicle they had been chasing. Mr Cade was said to be sweaty and short of breath. He was arrested and searched on arrival at Palmerston North police station. The police found a small bag in his possession containing a snap lock bag of methamphetamine, along with approximately $8,800 in cash. Mr Cade then grabbed the bag of methamphetamine and put it in his mouth. Police attempted to get the bag off Mr Cade which turned into a struggle. Mr Cade was handcuffed, and the bag retrieved from his underwear following a pat down search.
[6] Mr Cade denies that he was the driver of the black sedan and that he had possession of the methamphetamine.
Judge Carter’s reasons for verdict
[7] Judge Carter started by noting the onus and standard of proof, 5 then set out the issues to be determined,6 his approach to assessing the witnesses’ evidence,7 and the
4 New Zealand Police v Cade [2023] NZDC 10880 [Sentencing decision].
5 New Zealand Police v Cade [2022] NZDC 7571 at [3]–[5] [Reasons for verdict].
6 At [6]–[8].
7 At [10]–[13].
uncontested facts.8 This included outlining the evidence of Mr Wilson, who gave expert road analysis evidence for the defence.9
[8] Judge Carter then considered the disputed evidence. Mr Cade gave evidence that his car was in poor condition at the time of the alleged offending and its electronic traction control meant it could not do more than 70 km/h. Mr Cade explained that he had arranged to take his car to his friend Lance’s place in Sanson to be checked out on the day he was pulled over. He said he had also been purchasing paints for his car (around the time police allegedly spotted the black vehicle doing burnouts) and then was planning on seeing his friend, Mike. When it transpired that Mike was not in Palmerston North, Mr Cade went to see Lance to diagnose his car problems. He said that, at some point on the highway, he was overtaken by a black Holden Commodore R8 Club Sport.10
[9] Mr Cade claimed the methamphetamine was not his. He said that he tried to swallow it because he was worried he would be charged with possession for supply and lose care of his children. He claimed to have swallowed a large amount of the substance but agreed he had put the snap lock bag down his boxers.11
[10]Judge Carter gave the following reasons for finding the charges proven:
[97] I must go on to consider whether the prosecution evidence establishes the prosecution case beyond reasonable doubt.
[98] The key police witnesses were Constables Barham and Winiata. The evidence of both was matter of fact and for the most part was undisputed. Their evidence was not overstated. Their indications of various times of travel and speeds were carefully expressed as estimates, as were the number donut/burnout rotations which they described seeing. They acknowledged that there were some points in the pursuit when they lost sight of the black sedan. The time when they lost sight of the black sedan from the Oroua river bridge was, based on Mr Wilson's calculations, plainly greater than their estimate of between 30 seconds to a minute. But Constable Winiata had seen the black sedan going down Green Road as the officers drove past. They did not otherwise see any other black sedan during the entire pursuit lasting six to seven minutes.
8 At [14]–[63].
9 At [63]. Mr Wilson’s evidence included that there was no attempt made to match the marks on the road against Mr Cade’s car, nor was there an attempt to inspect his tyres.
10 At [81]–[89].
11 At [90]–[91]. Medical evidence later came back suggesting that no methamphetamine had been ingested/absorbed by Mr Cade.
[99] There was a conflict of evidence as between Constables Winiata and Barham in that Constable Winiata said that she had retrieved Mr Cade's black man bag at his request from his car before leaving in the police patrol car for Palmerston North Police station. Constable Barham's evidence was that Mr Cade himself had retrieved the black man bag. It was Constable Barham who spoke directly with Mr Cade and arrested him. Her specific recollection that Mr Cade retrieved the bag arose from her understandable anxiety at what Mr Cade was trying to retrieve from his car. I think Constable Winiata was likely to be mistaken on this specific point and I accept Constable Barham's evidence.
[100] I accept Mr Wilson's evidence that best practice would have provided additional evidence. However, what the available evidence establishes is that a black sedan was seen by Constables Barham and Winiata doing donuts/burnouts of approximately one to two rotations, very near to Mr Cade's home. Mr Cade was the owner and driver on the day of a modified and high performance dark grey/black sedan and was in possession of a Police scanner device used to monitor police communications.
[101] The black sedan seen doing donuts/burnouts was pursued by Constables Barham and Winiata for six to seven minutes with sight of it being lost for only for short periods when overtaking and for a period of more than a minute immediately prior to coming upon Mr Cade's stopped car in Green Road. During the pursuit lasting an estimated overall six to seven minutes, no other black sedan was encountered by any of the Police Officers and none was apparent on the Challenge service station CCTV footage. The inference is irresistible that the pursued black sedan was Mr Cade's Falcon and Mr Cade was the driver.
[102] The police have proved beyond reasonable doubt that Mr Cade was the driver of the black sedan which Constables Barham and Winiata saw doing donuts/burnouts and which accelerated away when they attempted to pursue it with red and blue flashing lights. Mr Cade without reasonable excuse operated his vehicle in a manner to undergo a loss of traction. Given the excessive speeds at which he was travelling, Mr Cade was driving his vehicle in a dangerous manner and failed to stop for red and blue flashing lights for the duration of the pursuit.
[103] The police have proved beyond reasonable doubt that Mr Cade had possession of methamphetamine. He was aware of where the methamphetamine was as shown by his insistence on retrieving the black man bag containing methamphetamine from under the seat of his car. He had control of it because it was in his bag and in his car and he had personal custody of it. He intended to have control of it and attempted to exercise that control by grabbing it from police and refusing to surrender it during a prolonged struggle. He was aware that the substance was methamphetamine given the likelihood that he would not have othe1wise made such extreme measures to take it from police and his own evidence that he grabbed it because he was worried that he would be charged with possession of methamphetamine for supply.
[11] Finally, Judge Carter briefly mentioned disclosure issues that occurred during Mr Cade’s prosecution, stating:
[104] After the hearing, the defendant applied for an order for further and particular disclosure by police under s 30 Criminal Disclosure Act 2008. I granted the application and made an order accordingly on 7 October 2022. The Police position is that this was complied with. A memorandum of 28 October 2022 on behalf of the defendant submits that the post-hearing disclosure provided includes additional material not previously provided that may have assisted the defendant's counsel to prepare more fully for cross-examination of police witnesses at the hearing. Counsel for the defendant also suggests there may be other relevant material (apparent from what now has been disclosed) that has not been disclosed. Counsel for the defendant asks the Court to consider these factors when preparing this judgment. I have done so and acknowledge that it is unfortunate that full disclosure was not completed prior to the hearing. However I do not think the identified shortcomings of disclosure have prejudiced a fair trial of the defendant.
Sentencing decision
[12] Mr Cade was sentenced by Judge Carter on 30 May 2023. The sentence appeal only challenges the fine imposed on the failing to stop charge. The relevant extract from Judge Carter’s sentencing notes can be set out in full:12
[16] I do, however, consider that a fine is appropriate on the failing to stop for flashing blue and red lights charge that arose from an attempt to evade police in pursuit and would have necessarily involved a significant degree of danger to yourself, to police in pursuit, and the driving public and I consider, given that the maximum fine is up to $10,000, that a reasonably substantial fine is justified for that particular charge. I do not intend to adopt the course that Ms Cheeseman asked me to follow and impose a suspended sentence only.
[17] So overall the sentence that I am going to impose is firstly on the sustained loss of traction charge there will not be any fine, but you will be ordered disqualified from driving for six months backdated to 26 October 2020. On the failing to stop for red and blue flashing lights, you will be fined
$3,500 and you will be ordered disqualified from driving for six months from 26 April 2021 and on the possession of methamphetamine charge, you are convicted and discharged. On the resisting a constable acting in the execution of his duty charge, you are convicted and discharged. So that concludes sentencing, Mr Cade.
12 Sentencing decision, above n 4.
Approach on appeal
Conviction appeal
[13] An appeal against conviction is brought pursuant to s 232 of the Criminal Procedure Act 2011. Under s 232(2), a first appeal court must allow an appeal where it is satisfied that:
…
(b)in the case of a Judge-alone trial, the Judge erred in their 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.
[14]A miscarriage of justice is defined in s 232(4):
In subsection (2), miscarriage of justice means 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.
[15] Appeals under s 232(2)(b) are conducted by way of rehearing.13 If the Court comes to a different view on the evidence, the trial judge will necessarily have erred, and the appeal must be allowed. However, the appellate court is not to consider the issues de novo. It is for the appellant to show that an error has been made, taking into account the advantages a trial judge may have had in assessing the evidence. Where the challenge on appeal is to credibility findings based on contested oral evidence, an appellate court will exercise ‘customary’ caution in overturning the Judge’s findings.14
[16] As made clear by s 232(4), not every error, irregularity or occurrence in the course of a trial will amount to a miscarriage of justice. Two things are ordinarily required to establish a miscarriage of justice. It must first be shown that something has gone wrong with the trial in a relevant way. Second, it must be shown that what has gone wrong has led to a real risk that the outcome of the trial was affected. Such
13 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [32].
14 At [38].
a real risk arises if there is a reasonable possibility that a more favourable verdict might have been delivered if nothing had gone wrong.15
Sentence appeal
[17] I am required to allow the appeal if satisfied that there is an error in the sentence and a different sentence should be imposed. Otherwise, I must dismiss the appeal.16 In most sentence appeals brought by a defendant, the appeal court will not intervene unless the sentence is manifestly excessive. Whether the sentence is manifestly excessive is to be assessed in terms of the final sentence imposed, rather than the process by which it was reached.17
Grounds of appeal
[18]Mr Cade submits that a miscarriage of justice has occurred because:
(a)the Judge placed too much weight on the evidence of the police officers;
(b)the Judge gave insufficient reasons for discounting the evidence of the appellant;
(c)the Judge placed an improper onus on Mr Cade to prove portions of the defence, rather than properly directing himself as to the onus remaining on the police;
(d)the Judge gave insufficient reasons for accepting Constable Stewart’s evidence of the lawfulness of a search pursuant to s 11(3) of the Search and Surveillance Act 2012;
(e)the Judge made findings in relation to the defendant’s knowledge which were not supported by the evidence;
15 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189; Matenga v R [2009] NZSC 18, [2009] 3
NZLR 145; Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.
16 Criminal Procedure Act, s 250.
17 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].
(f)the Judge gave insufficient consideration to the medical evidence indicating the appellant had not consumed methamphetamine;
(g)the Judge did not properly appreciate or consider the impact of the disclosure failures of police; and
(h)the Judge did not properly appreciate and consider the challenge to the searches of Mr Cade’s bag and his person.
[19] In respect of the sentence appeal, Mr Cade submits that the Judge made a material error in setting the fine by reference to the maximum penalty for the offence, rather than on the gravity of the offending and the principles of the Sentencing Act 2002.
Assessment of conviction appeal
Ground one — weighting of police evidence
[20] Mrs Cheeseman submitted that the defence expert’s evidence that the police officers must have lost sight of the car for more than a minute, the fact they did not compare the road markings with Mr Cade’s car, the description by Constable Winiata of the car being a Holden, and the invoice produced by Mr Cade from the Panel and Paint shop should have left the Judge in a state of reasonable doubt. At the very least, he should have given more reasons for accepting the police evidence and rejecting Mr Cade’s evidence.
[21] In respect of the absence of road marking analysis, I do not consider it helpful on appeal to refer to evidence that could have been obtained but was not. It is a fact of finite police resourcing that there will often be investigatory steps that could have been taken but were not. The case must be determined on the evidence that was adduced not on evidence that might have been obtained.
[22] The dispute about how long the officers lost sight of the car is of little import. Whatever the exact timing, shortly after losing sight of the car and deciding to follow the other route it might have taken, they came across Mr Cade’s car stopped by another
officer. The police evidence was that it was the same car the officers had been following.18 This evidence combined with the evidence that they did not see any other black sedan during the entire pursuit, that none was seen on the Challenge service station CCTV footage, and the car was seen doing “donuts” very close to Mr Cade’s home, provided a compelling inference that it was Mr Cade’s car.
[23] In respect of the invoices for the paint shop, Mrs Cheeseman submitted the Judge should not have dismissed their relevance. She noted that although the first invoice produced had no time on it, the second document, a computer screenshot, had a time of 10.22 am. She also relied on a passage of evidence where the defendant asserted that the invoice showed “Cade cash sale” and the prosecutor appeared to accept this.19 However, a close analysis of that document indicates the relevant entries are “trade cash sale”. Some of the entries contain the full word “trade” and some cut off the “tr” in the word “trade” so they appear as “ade cash sale”. I accept the respondent’s submission that there is no evidence the documents contain Mr Cade’s name.
[24] The matters relied upon in the invoice documents are hearsay statements contained in business records, the admissibility of which is governed by s 19 of the Evidence Act 2006. The documents were not produced by the person who supplied the information used to create them, and no explanation for them failing to be so produced was given. The point of these rules is to ensure the person who created the record can be called as a witness to confirm its legitimacy and give evidence about it if required. The documents were produced without objection (although in circumstances where it seems no notice was given under s 22 of the Evidence Act), but that did not mean the Judge was required to place weight on them. I consider the Judge, having regard to the failure to call the person who created the documents, and the advantage he had in seeing and hearing Mr Cade give evidence, was entitled to give them little weight. I do not consider the Judge reversed the onus of proof by
18 For example, Sergeant Barnham said it “looked the same as the vehicle we were chasing”: NOE 52/10-20. When challenged in cross-examination about police communications (comms) being told it was a Holden, she said “we had discussions in the vehicle, it was either a Ford or a Falcon, black sedan vehicle” but did not tell comms this: NOE 56/10-20. When it was put to her that the reason she knew it was the same car was because it was a black sedan, Ford of Falcon, she answered “Along with other stuff, yes.”
19 NOE, p 99.
pointing out that these documents were of little evidential value without hearing from the person who created them.
[25] Finally, I do not accept Mrs Cheeseman’s submission that the Judge did not engage with Mr Cade’s evidence regarding the traction control of his car. The Judge found that there was nothing beyond Mr Cade’s own assurances that his traction control was permanently on, entitling him to prefer other evidence before him.20
Grounds two and three — insufficient reasons for discounting Mr Cade’s evidence and reversing the onus of proof
[26] Mrs Cheeseman takes issue with the Judge’s conclusion that Mr Cade’s evidence was “unconvincing”.21 She submits that Judge Carter did not give sufficient reasons for this finding and incorrectly required Mr Cade to corroborate his own account of the events in a way that amounted to a reversal of the onus of proof. She relies on the Judge’s findings that independent evidence the car was incapable of doing more than 70 km/h would have been easily obtainable,22 and that the invoices relating to the purchase of paint were not linked to Mr Cade.23 She also relies on the Judge “viewing with scepticism” Mr Cade’s evidence that he was overtaken by a black Holden.24
[27] I have already found that there was no reversal of the onus of proof in respect of the paint shop invoices. I also do not consider the Judge’s finding about the traction control, or his rejection of Mr Cade’s evidence about seeing a black Holden had the effect of reversing the onus of proof. The Judge directed himself about the onus and standard of proof at the outset of his decision.25 He was entitled to note the absence of readily obtainable evidence about the mechanical capability of Mr Cade’s car that it was entirely within Mr Cade’s control to obtain. This was just one aspect of his decision to reject Mr Cade’s evidence. Finally, rejecting Mr Cade’s evidence about seeing a black Holden was not accompanied by a suggestion Mr Cade could have
20 At [93]
21 At [92].
22 At [93].
23 At [94].
24 At [95].
25 At [3]-[5].
called evidence to corroborate it. The Judge simply rejected this assertion as implausible and gave his reasons for doing so.
Ground four — the Judge gave insufficient reasoning for accepting the lawfulness of searching Mr Cade’s bag and his person
[28] The evidence was that the search at the police station was a routine search under s 11 of the Search and Surveillance Act that is conducted on everyone taken into police custody who is to be “locked up”.26
[29] Mrs Cheeseman accepts that the purpose of such searches is twofold: protecting a detained person’s property, and to remove items that may be used to harm themselves or others.27 Mrs Cheeseman also accepts there is no requirement for there to be reasonable grounds to believe particular items will be detected before such a search is conducted. It was common ground that s 125 of the Search and Surveillance Act applies, and s 125(1)(i) expressly allows a search of a person to include searching items (such as bags) that they are carrying or are in their physical possession or immediate control.
[30] Mrs Cheeseman questioned whether this could include a bag that was in police possession and control rather than Mr Cade’s following his arrest. Section 11 enacts a longstanding common law search power to enable protection of a person’s property by recording and itemising their property when they are to be locked up in police custody.28 It would defeat this purpose for bags to be excluded because they have been secured by the police at the time of arrest rather than when the search commences inside the police station. In these circumstances the words “in the person’s physical possession or immediate control” must be interpreted as meaning in the person’s possession or control at the time custody commences, which is on arrest.
[31] Mrs Cheeseman drew analogies with cases relating to inventory searches, particularly the leading case of the Supreme Court in R v Ngan.29 She also referred to
26 NOE p 17/14-25.
27 See Rebecca Atkins (ed) Adams on Criminal Law – Rights and Powers (looseleaf ed, Thomson Reuters) at [SS11.01].
28 See R v Taylor [2009] NZCA 462 at [23] and the now repealed s 37 of the Policing Act 2008.
29 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48.
a recent decision of Isac J in Gardner v Police.30 However, inventory searches are police searches of property that is being taken into custody when there is no express power of search. That is not the case here. There was an express statutory power for Mr Cade’s bag to be searched because he was being locked up. Mrs Cheeseman relied on a passage from R v Ngan where the Court said that its decision that inventory searches were lawful in certain circumstances:31
… is not to say that in another situation of this kind, where there is no real basis for suspecting the presence of property of significant value, the police can justify the opening of a container of harmless appearance on the entirely speculative basis that it may possibly contain cash or valuables.
[32] The starting point is that this statement does not apply to the express power to search a person under s 11. However, even if it were applicable, a personal bag that a defendant has made a point of retrieving before being taken in custody,32 is in a different category to the “container of harmless appearance” being considered R v Ngan (a sunglasses pouch). If reasonable grounds were required (which they are not under s 11), then it would clearly be reasonable to believe that a personal bag, described here as a “man bag”,33 may contain items of value such as cash, credit cards or electronic devices.
[33] Mrs Cheeseman went on to submit that even if the initial search was lawfully conducted under s 11, at the point where the police believed methamphetamine had been located, s 21 of the Search and Surveillance Act should have been invoked to allow a warrantless search for drugs. She submitted this was necessary because that section requires the police officer to identify themselves and state the search power being exercised. I do not accept this submission. Once the methamphetamine was found, searching for and removing it from Mr Cade as an item that could be used to harm himself was clearly well within the terms and purpose of s 11.
30 Gardner v Police [2022] NZHC 1258.
31 R v Ngan, above n 29, at [29].
32 Sergeant Barnham was clearly recalled that Mr Cade retrieved the bag from under the seat, rather than a police officer, because it made this made him anxious about what he might be reaching for: NOE p 53. It is hardly surprising that Mr Cade was keen to keep the bag in his possession given the amount of cash inside it along with the methamphetamine.
33 Reasons for verdict, above n 5, at [99], for example.
Ground five — unsupported findings in relation to Mr Cade’s knowledge
[34] Next, Ms Cheeseman takes issue with Judge Carter’s finding that Mr Cade must have been aware of the methamphetamine because of his insistence on retrieving the bag from the car following his arrest and his subsequent swallowing of it. This ground of appeal is unsustainable. Mr Cade stated a number of times in evidence that the bag was “my bag” but denied knowledge of the methamphetamine.34 It was clearly open to the Judge to conclude, despite Mr Cade’s assertions, that his acknowledged possession of the bag, and actions in relation to it, meant he knew what was inside it.
Grounds six and seven — insufficient consideration of medical evidence that Mr Cade had not consumed methamphetamine and the Judge did not properly consider the impacts of police disclosure failure
[35] It is convenient to deal with grounds six and seven together given developments during oral argument of the appeal.
[36] The respondent accepts that material was disclosed late. The question on appeal is whether there is a real risk that the outcome of the trial was affected.35
[37] At the hearing, Mrs Cheeseman helpfully explained the essence of these grounds of appeal. Mrs Cheeseman provided the documents she considered most crucial to advancing Mr Cade’s defence. These were a report and statement from Senior Sergeant Stickle, one of the officers present during the search in the cells. Mrs Cheeseman’s complaint focused on not having received full information about medical assessments of Mr Cade due to the concern he had consumed the methamphetamine.
[38] Mrs Cheeseman submitted that the late disclosure of this information provided support for a theory of the case that the police had sent the wrong bag to ESR for analysis. That is because if the bag they seized had contained methamphetamine, Mr Cade would have showed signs of methamphetamine consumption. This defence would have required Mrs Cheeseman to have put to the police officers involved that they deliberately, or incompetently, sent the wrong bag for analysis. Mrs Cheeseman
34 NOE at pp 90–91, pp 111–112.
35 Criminal Procedure Act, s 232.
frankly admitted that she did not feel she had sufficient basis to put those allegations, but feels she may have had such a basis if the late disclosure had been provided.
[39] There was clear evidence from Sergeant Barnham that the bag that was taken from Mr Cade was placed in an evidence locker and the same bag was sent to ESR for analysis.36 Mrs Cheeseman also accepts that the tracked courier evidence provides no basis for a suggestion that there was any problem with transit between the police station and ESR. In the absence of any challenge to the evidence of Sergeant Barnham in cross-examination, there was no basis at all for a claim that the wrong bag had been sent to ESR.
[40] I do not accept that some further information confirming that Mr Cade did not show typical signs of methamphetamine consumption has caused a real risk that the trial outcome was affected. There was no real dispute at trial that Mr Cade was not showing typical signs of methamphetamine consumption. As Mrs Cheeseman pointed out, by the time it came to cross-examining Mr Cade, the police position was that he had not consumed any of the methamphetamine.37 It is not clear how further evidence confirming what was not in dispute would have provided a better foundation to advance the theory that the wrong bag was sent to ESR.
[41] In any event, it is a drawing a very long bow to infer from the fact that Mr Cade was not showing signs of methamphetamine consumption that the police must have sent the wrong bag to ESR. The police were concerned that Mr Cade may have consumed some of the methamphetamine in his attempt to swallow the bag, sought appropriate medical attention for him in case he did, but were never sure of the position. It does not follow that the absence of signs of consumption means the bag he tried to swallow did not contain methamphetamine.
36 NOE p 55.
37 Whether or not Mr Cade had consumed the methamphetamine was irrelevant to proof of any of the charges. He was charged with possession not consumption.
Conclusion on conviction appeal
[42] The Judge directed himself on the onus and standard of proof at the outset of his decision.38 I accept the respondent’s submission that the Judge’s credibility findings were clearly open to him. This is a quintessential case of the Judge having the advantage of seeing and hearing the witnesses. There was no error in the Judge preferring the evidence of the police officers over Mr Cade’s and the reasons he gave did not reverse the onus of proof. I consider the Judge also complied with his obligation to give reasons that addressed the substance of the case advanced by Mr Cade.39
Sentence appeal
[43] The essence of the sentence appeal is that a fine of $3,500 against a maximum penalty of $10,000 is manifestly excessive.
[44] There is limited comparable authority. Yip v Police appears to be the most relevant case.40 Mr Yip admitted to deliberately trying to evade police by driving down a nearby farm road. Asher J upheld a $2,000 fine on appeal on the basis that Mr Yip’s actions constituted a “flagrant and prolonged attempt to avoid compliance with a lawful direction from the police”.41
[45] I do not accept the submission that it is inappropriate to set a starting point by assessing culpability as a proportion of the maximum penalty in the absence of relevant case law. It is an established approach in guideline sentencing cases to set bands based on an assessment of culpability having regard to the maximum penalty. For example, when setting culpability bands for financial penalties under the Health and Safety at Work Act 2015, the Full High Court assessed the proposed bands as a percentage of the maximum penalty.42
38 At [3]-[5].
39 Sena v R, above n 13, at [37].
40 Yip v Police HC Rotorua CRI-2011-463-58, 1 December 2011.
41 At [26].
42 Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881 at [41]–[54].
[46] I do not consider a starting point fine in this case of 35 per cent of the maximum penalty to be outside the available range. I also accept the respondent’s submission that the sentence necessarily incorporated culpability on the other charges. It included the sustained loss of traction charge (a maximum penalty of three months’ imprisonment or a fine of $4,500), the possession of methamphetamine charge (maximum penalty of six months’ imprisonment or a fine not exceeding $1,000 or both), and the resisting a constable charge (maximum penalty of three months’ imprisonment or a $2,000 fine). Having regard to the decision in Yip (including that the $2,000 fine in that case was imposed more than a decade ago), the aggravating factors of the other charges and the poor driving involved, I consider a fine of $3,500 was not manifestly excessive.
[47] Finally, Mrs Cheeseman submits the Judge failed to take into account the ability of Mr Cade to pay a fine. Judge Carter was told that Mr Cade was able to pay a fine (even though he is a beneficiary with children), but Mr Cade did not provide any financial information because it was assumed by Mrs Cheeseman the fine would be lower. Given the evidence the Judge had heard about the $8,800 of cash in Mr Cade’s possession on arrest, and that it was common for him to have large amounts of cash that he does not pay tax on,43 it is unsurprising the Judge did not reduce the fine for financial incapacity.
[48] In any event, as two of the charges were imprisonable, rather than imposing a fine, the Judge could have imposed a sentence of community work had issues with ability to pay been raised. I would not be prepared to quash the fine without substituting a sentence of community work given Mr Cade’s culpability. In my view, the preferable course is for the fine to remain and for Mr Cade to takes steps in the District Court to have it remitted, or converted to community work, if he can satisfy the District Court this is appropriate.44
43 NOE 92/5-10.
44 Summary Proceedings Act 1957, ss 88 and 88AE.
Conclusion
[49]The appeal against conviction and sentence is dismissed.
La Hood J
Solicitors/Counsel:
H M S Cheeseman, Barrister, Auckland Crown Solicitor, Palmerston North
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