Douds v Police

[2016] NZHC 3022

IN THE HIGH COURT OF NEW ZEALAND

NEW PLYMOUTH REGISTRY

CRI-2016-443-33

[2016] NZHC 3022

BETWEEN

EUGENE DOUDS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	12 December 2016
Appearances:	J C Hannam for Appellant J E Bourke for Respondent
Judgment:	13 December 2016

JUDGMENT OF CLARK J

[1]        Mr Douds was convicted1 on one charge of driving a vehicle in a dangerous manner and sentenced2 to pay a fine of $500, court costs of $130 and reparation of

$185 to one of the victims of the offending.

[2]        Mr Douds appeals his conviction. The appeal against sentence foreshadowed in the notice of appeal was not pursued.

Facts

[3]        On the evening of 22 February 2016 Martin Barker and Reece Beer were riding (one on a bicycle and one on a scooter) on Auroa Road in Taranaki. Martin heard a vehicle behind them. They both pulled off the road until the vehicle had passed. They continued down Auroa towards Eltham Road where they were to meet Reece’s mother. Near the intersection the boys pulled aside once more and stopped near a house. The

1      Police v Douds [2016] NZDC 21998.

2      Police v Douds [2016] NZDC 21973.

DOUDS v NEW ZEALAND POLICE [2016] NZHC 3022 [13 December 2016]

vehicle, driven by Mr Douds, returned, moved across the centre of the road and off the road towards them. The vehicle hit one of the youths and drove over his bike.

District Court decision

[4]        At trial Mr Douds’ account diverged from that of the two youths. He said he stopped short of them and had been careful not to cause any damage. He admitted speaking to them. Mr Douds maintained that he had crossed the road to speak to them but had not in any way struck them or gone over a bicycle. He said he picked up the bike from under the front of his car.

[5]        Martin Barker, by contrast, said the car had gone over his bicycle which     Mr Douds ripped from beneath the car when he got out. Reece Beer said much the same.

[6]        The evidence of his mother, Lily Beer, was that the boys were very scared and frightened when she came across them on the side of the road and they said they had been hit by a car. The Judge put aside this evidence as hearsay.

[7]        The Judge recorded that Mr Douds’ testimony was consistent with his statement to the police: he admitted to being present at the time and that the registration number of the car was the one both boys had recorded.

[8]The Judge assessed the evidence in this way:

[21]      In your evidence effectively you said what you told Constable Crago, in your statement and you deny in any way being a dangerous driver. You said in your evidence that you picked up the bike from under the front of the Mitzi, but I am satisfied because I need to assess the evidence of the two boys and they have no reason to lie. Why, I have to ask myself, why would two young teenage men come to Court, give evidence, speak to the police about something that did not happen at all. There is no rhyme or reason for them to do so and I accept their evidence, even though it may have inconsistencies in it, they are not such that go to the heart of the matter.

[22]      The damage to the bike, although it was not looked at until sometime after, indicates that it was damaged in some way and that could well have been by your car and in fact I find that it was caused by your car. Both boys told exactly the same story, certainly to the required standard of proof and accordingly, on my analysis, the evidence is preferable to your evidence and you are found guilty of the charge.

Appeal and submissions

[9]Mr Douds’ notice of appeal specifies two grounds of appeal:

(a)The Judge gave insufficient weight to the inconsistencies between prosecution witnesses’ accounts.

(b)The decision of the Judge could not be in accordance with the facts presented such that having regard to the evidence overall, the Judge fell into error.

[10]      Mr Hannam for Mr Douds submitted that the inconsistencies between the two adolescent prosecution witnesses were such as to amount to a real and substantial challenge to their credibility and their accounts could not be reconciled. It was not open to the Judge to accept both prosecution witnesses’ accounts and accordingly find the charge proved. The factual inconsistencies concerned:

(a)the description of Mr Douds’ car;

(b)injuries not consistent with being hit by a car;

(c)damage to a bicycle not consistent with being hit by a car;

(d)differing descriptions of Mr Douds;

(e)differences in the direction Mr Douds’ car was said to be travelling.

[11]      Mr Hannam further submitted that the evidence of damage to the bicycle should have been treated with caution because it was not recorded until some weeks after the event.

[12]      Mr Hannam submitted that the Judge’s assessment of credibility was flawed. There was no overt finding of credibility in relation to Mr Douds’ evidence; the Judge rejected his account but did not provide reasons for doing so.

[13]      The Judge misdirected himself and effectively imposed a burden on the defence, Mr Hannam submitted, by asking himself why the boys would lie. This implied the defence had to explain away the coincidence of the boys’ stories. It is not for the defence to “provide an explanation for false or mistaken testimony offered by two witnesses”.

Principles governing appeals against conviction

[14]      This being an appeal under s 232 of the Criminal Procedure Act 2011 I must allow the appeal if satisfied that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason. A miscarriage of justice will have occurred if the alleged irregularities and errors created a real risk that the outcome of the trial was affected or resulted in an unfair trial or a trial that was a nullity. I must dismiss the appeal in any other case.

[15]      A “real risk” that the outcome of a trial 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”.3

Analysis

[16]      It is necessary that adverse credibility findings be reasoned.4 In Pharmacy Care Systems Ltd v Attorney-General the appellant challenged the terseness of a credibility finding which the High Court Judge made in the following terms: “I found Mr Gedye a credible witness and prefer his evidence to that of Mr Aitken.”5 The Court of Appeal examined the point in some depth. The principle that emerges, and that is relevant to this appeal, is that the degree of elaboration required will differ according to the nature of the case and the complexity of the issues:6

3      Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] adopted more recently in the context of the Criminal Procedure Act 2011 by the Court of Appeal in Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [29].

4      King v PFL Finance Ltd [2015] NZCA 517 at [34] citing Weymont v Place [2015] EWCA Civ 289 at [29].

5      Pharmacy Care Systems Ltd v Attorney-General (2004) 2 NZCCLR 187 (CA) at [51].

6      At [55] citing Flannery v Halifax Estate Agencies [2000] 1 All ER 373 at 378.

[If] there is a straightforward factual dispute whose resolution depends simply on which witness is telling the truth about events which he claims to recall, it is likely to be enough for the judge (having, no doubt, summarised the evidence) to indicate that he simply believes X rather than Y; indeed there may be nothing else to say. But where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other. …

[17]      Judge Sygrove had before him a straightforward factual dispute the resolution of which depended upon which of the diametrically opposed accounts he accepted. If one were accepted, the other had to be rejected.

[18]      In accepting the account of the prosecution witnesses the Judge confronted the inconsistencies in the testimony including their significance in the context of agreement on essential facts. The inconsistencies did not go to the heart of the matter.7 The fact of the incident was not in dispute nor its date, time and place. Mr Douds accepted he was the driver and he did not contest that he crossed the road in his vehicle. His own evidence was that he did so to speak to the youths. As well, he acknowledged picking up the bike from in front of his vehicle.

[19]      As Mr Bourke submitted the inconsistencies relating to description of the car and the direction in which it was travelling and the description of the appellant are peripheral matters in a case where material facts and evidence were not in dispute. There was an incident. The key issue concerned the nature of the incident, whether Mr Douds had in fact driven as alleged. The Judge was entitled to conclude as he did that any inconsistencies in evidence that did not bear on the key issue of whether the driving was dangerous were unimportant.

[20]      These findings together with the Judge’s conclusion that both boys told exactly the same (material) story to the required standard of proof and that on his analysis their evidence was preferable to Mr Douds’ evidence, amounted to a specific rejection of Mr Doud’s account in favour of the youths’ account. While undoubtedly brief, the form of the Judge’s finding is consistent with the requirement that where a witness’ credibility is in issue and critical evidence is rejected the Judge should say so

7 At [21].

explicitly8. As the Court of Appeal further observed in Scutts v R upon which Mr Hannam relies:9

Short form decisions, stating the essential elements of the Judge’s reasoning, were acceptable.

[21]      I am satisfied that the Judge Sygrove’s reasoning was sufficient in the context of this case.

[22]      Finally, I accept Mr Bourke’s submission that the Judge’s rhetorical question about why two youths would come to court, give evidence and speak to the police about something that did not in fact happen did not have the effect of placing an evidential onus on the defence. Rather it was an aspect of the Judge’s assessment of credibility based on their responses to being cross-examined.

Result

[23]The appeal against conviction is dismissed.

Karen Clark J

Solicitors:

Hannam & Co Lawyers Ltd for Appellant

Crown Solicitor, New Plymouth for Respondent

8      Scutts v R [2015] NZCA 599 at [25].

9      At [25], citing R v Connell [1985] 2 NZLR 233 (CA) at 237.