Gowing v The Queen
[2017] NZCA 133
•26 April 2017 at 3 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA79/2017 [2017] NZCA 133 |
| BETWEEN | NIGEL FRASER GOWING |
| AND | THE QUEEN |
| Hearing: | 9 March 2017 |
Court: | Winkelmann, Woodhouse and Collins JJ |
Counsel: | N M Dutch for Appellant |
Judgment: | 26 April 2017 at 3 pm |
JUDGMENT OF THE COURT
AThe application to adduce fresh evidence on appeal is declined.
BThe appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Winkelmann J)
Following a four-day judge-alone trial in the District Court at Tauranga before Judge J E MacDonald, Mr Gowing was convicted of one charge of injuring with reckless disregard for the safety of others.[1] He was found not guilty on an alternative charge of injuring with intent to cause grievous bodily harm. On 20 January 2017 he was sentenced to six months’ home detention and ordered to pay reparation of $4,000.[2] He appeals against both conviction and sentence.
Background
The offending
[1]R v Gowing [2016] NZDC 26887.
[2]R v Gowing [2017] NZDC 925 at [19]–[20].
Mr Gowing drove his quadbike into the complainant, at speed, resulting in the complainant having a broken leg and severe bruising. The only material issue at trial was whether the collision was accidental or not. Most of the narrative of events was not in dispute.
At the time of these events, Hollie was Mr Gowing’s partner and the mother of his children. The family lived on a rural property. The complainant is married to Hollie’s mother. The couple decided to visit Hollie and the children on the morning of 22 November 2015. Mr Gowing was angered by the proposed visit and, in an attempt to prevent them coming to the house, drove his vehicle to the bottom of the driveway to padlock the gate. The couple simply climbed the gate and started walking up the lengthy driveway to the house.
Hollie sent a number of texts to her mother. We do not set those out here but they conveyed, in very plain terms, that Mr Gowing was enraged by the proposed visit and did not want the couple on the property.
As the two made their way up the incline of the driveway, Mr Gowing began travelling down it on his quadbike. Coming around a corner in the driveway he saw the complainant and his wife. He veered onto the grass shoulder of the driveway, striking the complainant in the leg. An ambulance was called and the complainant was taken to a hospital where he was found to have bruising and a broken fibula.
Mr Gowing’s account of what occurred was that he had been riding his quadbike to his parents’ house. The corner in question is a blind corner about 600 metres from his house. He was in fifth gear and was going as fast as he could. As he rounded the corner he saw the complainant and his wife walking on the left‑hand side of the driveway, with the complainant’s wife to the right of the complainant on the roadway. He tried to swerve to the right to miss her but did not have enough time. He therefore decided to go to the left but as he did so the complainant moved in the same direction. The complainant hit the front of his bike and ended up halfway down the bank. Because his mother-in-law, as he referred to her, began shouting abuse at him he “freaked out”. He offered no assistance, recovering his bike from where it had travelled down the bank and riding off.
There were two principal factual issues at the hearing going towards whether the collision was accidental or not. The first was the speed at which Mr Gowing was going. In a statement to the police Mr Gowing said 45 kilometres per hour. He confirmed in evidence that he would have been travelling at about that speed. Immediately following the incident the complainant said the bike was speeding and going very fast. In evidence he described it as going fast but said Mr Gowing was in complete control of it. The complainant’s wife gave evidence that she thought Mr Gowing was travelling at about 40 kilometres per hour and that he was in control. She was cross-examined in relation to a statement she made to the police immediately after the incident that the bike was doing more than 60 to 70 kilometres per hour, and that it was going “flat knackers” and “off the planet speeding”.
The other, more critical factual issue was where the complainant’s wife was standing when Mr Gowing came around the corner on the quadbike. Mr Gowing said she was on the road. Her evidence was that when they heard the quadbike coming the complainant pulled her up on to the shoulder of the road and that both he and she were well off the road when Mr Gowing came around the corner.
In addition to evidence given by the complainant, his wife, Mr Gowing, Hollie and others peripherally involved at the scene, the Judge had the assistance of expert evidence. Mr Simpson, an expert in quadbikes and quadbike training was called by the Crown. He undertook various reconstructions, including filming the path and stopping distance of a quadbike travelling at various speeds around the corner on the driveway. The defence called Mr Bass, a licensed private investigator with experience in motor vehicle accident reconstruction. Mr Bass identified deficiencies in Mr Simpson’s evidence. He observed there was no clear evidence as to the path the bike had taken as the scene was contaminated by vehicle movement. He gave opinion evidence as to how quickly the bike could have stopped.
District Court judgment
The Judge accepted the evidence of the complainant and his wife as to where they were standing when Mr Gowing came around the corner.[3] He found their evidence credible and consistent with the overall evidence.
[3]R v Gowing, above n 1, at [26].
He referred to the expert witnesses. He said that although they could be commended for the thoroughness of their investigations and their attempts to say what might have happened, in the end he thought that the evidence had an air of speculation:[4]
I say that because nobody knows precisely what speed the defendant was going or when precisely he might have seen the two pedestrians – the complainant and his wife – or what precisely he did, if anything, by way of response.
[4]At [35].
With reference to Mr Gowing’s evidence, the Judge reminded himself that it was not for Mr Gowing to prove anything.[5] But the Judge said he had to consider Mr Gowing’s account of the incident, in particular in light of all the other evidence.
[5]At [30].
He referred to matters which did not assist Mr Gowing and, in particular, to Mr Gowing’s failure to assist the complainant after his quadbike struck him.[6] But the Judge observed that people do react differently and he thought it would be wrong for him to read too much into the situation:[7]
The defendant was plainly in a very angry frame of mind before the accident and I’ve already covered some of the reasons for that. His failure to offer the assistance, that any decent person would do, may be in part reflective of that. So the matter is, I think, best left there.
[6]At [36].
[7]At [37].
The Judge did note that Mr Gowing had accepted the evidence of the complainant and his wife as to the line of travel of the quadbike as he went around the corner and also that he had steered to the left immediately prior to impact, which was what the tyre marks on the grass evidenced.[8] This last‑second movement, he said, was consistent with what both the complainant and his wife described.
[8]At [38].
Nevertheless, in respect of the charge of injuring with intent to injure, the Judge concluded:
[42] Having seen and heard the defendant and despite making favourable comments in respect of the credibility and reliability of both the complainant and his wife, when I consider the evidence as a whole and have had a chance to reflect on it, I am in a position where I cannot be sure that the defendant’s intention was to hit the complainant or either of them. He certainly veered at the last second to avoid the complainant’s wife. As I have indicated that goes against the idea that what he did was with the intention to cause grievous bodily harm to either of them.
The Judge then considered the charge on which Mr Gowing was convicted. He noted that the Crown had to prove that Mr Gowing injured the complainant with reckless disregard for the safety of others — that he recognised the risk in carrying on what he was doing but carried on nevertheless.[9]
[9]At [44].
He noted the varying accounts of the speed the quadbike was going. He accepted Mr Gowing’s estimate of around about 45 kilometres per hour and said he was satisfied that when Mr Gowing drove around the corner at that speed he was in control.[10] He was also satisfied that Mr Gowing did not decelerate or take immediate steps to slow down or avoid the couple because of his “foul mood”.[11] He said:
[51] Now I appreciate that this all happens very quickly but it is early in the day and riding conditions and weather conditions are good. As I have already mentioned, the defendant is in an angry frame of mind, quite apart from being in a hurry. The text messages from his partner Hollie … provide cogent evidence of this and just as a digression there was the evidence of Mr Bass I remember about the manner in which the defendant drove around this road. He did so at speed that left no margin for error.
[10]At [50].
[11]At [53]–[54].
The Judge said he was also satisfied beyond reasonable doubt that Mr Gowing knew full well that what he was doing, driving directly at the complainant and his wife to scare or frighten them, was likely to jeopardise their safety.[12] The Judge was satisfied that he did not care and carried on regardless. He continued:[13]
Now precisely what went wrong at the last moment I do not know but something did and it caused him to pull to the left so as not to collide with the complainant’s wife but in the process he collided with the complainant. However, this whole episode started in my view when he decided not to take immediate evasive steps or steps to slow down and instead has decided out of this anger, whatever it was, to drive directly at them to scare them.
[12]At [56].
[13]At [56].
The Judge summarised his findings as follows. He was satisfied beyond reasonable doubt that Mr Gowing deliberately chose to drive in a line directly at the complainant and his wife.[14] He could have simply followed the driveway down the road and missed them altogether but, as he wanted to scare them, he did not. He knew full well that this jeopardised their safety. For those reasons he was satisfied that the second element of the charge, reckless disregard, was also made out. He convicted Mr Gowing accordingly.[15]
Grounds of conviction appeal
[14]At [57].
[15]At [58].
For Mr Gowing, Mr Dutch argues that the Judge erred in his assessment of the evidence in the following respects:
(a)in finding that the complainant’s wife was standing on the grass verge, when the expert evidence about the width of the bank and the width of the bike rendered her account impossible;
(b)in accepting the complainant’s wife’s evidence on any point when, Mr Dutch argues, she had changed her evidence on critical issues so that her evidence as a whole was not worthy of belief; and
(c)in taking the view that he did of the speed at which the bike was travelling and in disregarding the expert witness testimony.
Relevant principles
This is an appeal against a conviction entered following a judge-alone trial. The appellant must show that the Judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.[16] Section 232(4) of the Criminal Procedure Act 2011 defines miscarriage of justice as meaning an error, irregularity or occurrence affecting the trial that has either created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.
First ground: did the Judge err in finding that the complainant’s wife was standing on the bank and off the drive?
[16]Criminal Procedure Act 2011, s 232(2)(b).
Mr Dutch submits that the complainant’s wife’s account was factually impossible. On Mr Dutch’s submission, if the bike mounted the bank and travelled along it hitting the complainant, it must also have hit his wife. It follows, Mr Dutch submits, the Judge erred in his assessment of the evidence as his finding that the wife was standing on the bank was inconsistent with objective and verifiable facts.
Analysis
The difficulty with Mr Dutch’s argument is that his own expert witness, Mr Bass, did not support the conclusion he would have us reach. When asked by Mr Dutch on re-examination if the complainant’s wife would have been struck if she was holding the complainant’s hand, Mr Bass put it no higher than that a person in that position would “expect a very close shave”. Moreover, the bank is not a confined space in the sense of being between, for instance, two walls. There is room for somebody to move and avoid collision with a solid object.
Mr Dutch also sought to bolster his argument by reference to evidence from Hollie, which he said confirmed that the complainant’s wife had changed her explanation about where she was standing. He relies on the following passage:
[I]n the first instance she told me they were standing together but I couldn’t figure how she didn’t get hit and then she later said that Nigel was going towards her and then decided to hit George, I don’t – yeah, she did change what she – she had changed what she said in regard to where they were standing on the driveway, well, whether they were together or not together.
This does not, on our reading, show that the complainant’s wife changed her account of where she was standing. In fact the passage set out is consistent with the evidence of the complainant’s wife at trial that Mr Gowing was driving at her and then turned his bike toward the complainant.
Second ground: did the Judge err in accepting the complainant’s wife’s evidence given credibility issues raised by the defence?
Mr Dutch submits that the Judge could not reasonably place any reliance upon the complainant’s wife’s evidence because her evidence on the issue of speed differed from her initial statement to the police. In building his case that as a witness she was not worthy of belief, Mr Dutch also relies upon another aspect of her evidence. It was the defence case that the complainant and his wife changed their evidence in relation to the speed at which Mr Gowing was travelling after the complainant saw Mr Simpson’s video reconstructions during a visit to the police station. Those reconstructions show dust flying as the quadbike travelled along the driveway. In their evidence both made reference to the absence of any dust flying on the day of the incident as relevant to their assessment of how fast Mr Gowing was going.
In cross-examination Mr Dutch asked the complainant’s wife several times if the complainant had gone to a police station in the last couple of weeks. She said that she was not aware that he had. However, on re‑examination by Crown counsel she agreed there was a day when she went from the Crown Solicitor’s office to the police station with the complainant to view the videos and undertake various other tasks. On Mr Dutch’s submission, this concession shows that she lied in her initial evidence.
Analysis
We start with the issue of the visit to the police station, initially denied by the complainant’s wife. We think nothing can be taken from this evidence and certainly not that the complainant’s wife lied. The way in which Mr Dutch pursued this issue in cross-examination of the complainant’s wife was confusing. He was indirect and vague in his questioning and it is clear, on our reading, that the complainant’s wife was confused by him. In any case, we do not see this as evidence that she initially lied.
The Judge directly addressed the change in the complainant’s wife’s evidence on the issue of speed.[17] He accepted that there had been a substantial attack on the complainant’s wife’s credibility in relation to her initial account of the speed but said he bore in mind that this was an estimate of something which is notoriously difficult to estimate.[18] He said:[19]
Whether it affects her evidence overall I think is an entirely another thing. Overall I found her evidence, too, to be straightforward, detailed and on the face of it perfectly credible. She was describing a very stressful event.
[17]R v Gowing, above n 1, at [25].
[18]At [21].
[19]At [25].
Ultimately, the credibility of the complainant and his wife fell for consideration only in relation to the issue of where they were standing when Mr Gowing rounded the corner. This is because the Judge based his finding in relation to the bike’s speed on Mr Gowing’s own assessment of the speed of travel.[20] And even in relation to the issue of where the couple was standing, as the Judge observed, he was able to test the couple’s evidence on this point against the evidence as to the overall circumstances.[21] He discussed these circumstances as follows. The complainant and his wife had observed Mr Gowing locking the gate and deliberately ignoring them.[22] They knew they were not welcome up at the house. They had received the various text messages from Hollie, which “would have represented a warning to watch out for [Mr Gowing]”.[23] They both heard the loud sound of the quadbike which, the Judge said, apart from anything else indicated that it was approaching quickly.[24] The Judge continued:[25]
So when I look at those factors to my mind it makes perfectly good sense that they would get off the road and stand over in the grass and perhaps expressed another way it makes no sense at all that they would put themselves in danger by standing in the middle of the road. Because of that I accept what the complainant and his wife say about where they were when the defendant came round the corner.
[20]At [50].
[21]At [26].
[22]At [27].
[23]At [27].
[24]At [27].
[25]At [28].
We also address under this ground of appeal Mr Gowing’s application for leave to file evidence on appeal in the form of an affidavit from the appellant’s father, Mr Roger Gowing. Mr Roger Gowing says that when the complainant’s wife was giving evidence he saw her demonstrate what she claimed was the appellant’s use of the throttle as he rounded the corner, by raising her right hand and rolling her wrist in an anti-clockwise direction. He claims this would have conveyed to the Judge that the bike had accelerated hard just before it hit the complainant. But, he says, the quadbike in question does not have a right-hand-grip throttle. It has a lever attached under the handlebar just to the left of the right-hand grip, operated by the rider’s thumb, which does not produce a rolling of the wrist.
Mr Dutch says that this evidence is cogent as it corrects the Judge’s notes of evidence, there being no record in those notes of the demonstration given by the complainant’s wife as to the motion. It is critical, he says, because it also shows she was lying.
In order for evidence to be admissible on appeal the evidence must be, in short, fresh, credible and cogent.[26] Evidence cannot be said to be fresh if it could, with reasonable diligence, have been called at trial. This evidence is not fresh. Mr Dutch could have pursued the issue during cross-examination of the complainant’s wife. Mr Roger Gowing was, after all, in the courtroom and there were expert witnesses who could lay the necessary evidential foundation for the cross-examination, which was the position of the throttle.
[26]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
We also do not consider that the evidence is cogent. The Judge proceeded upon the basis that the speed of the bike remained constant, not that there was any acceleration.[27]
[27]R v Gowing, above n 1, at [53].
Finally, we make the point that these were the Judge’s notes of evidence. If there is an error in them, then the procedure was for counsel to apply to the Judge for an amendment. This would have enabled the Crown to respond at the time. Mr Dutch is now attempting to correct those notes through this roundabout procedure and in respect of a peripheral matter. For these reasons we decline the application for leave to file this additional evidence on appeal.
To conclude on the issue of the complainant’s wife’s credibility, Mr Dutch has not persuaded us that the complainant’s wife’s credibility was seriously undermined, or indeed undermined to any extent, by the various challenges made at the trial or attempted to be made on appeal. The Judge dealt with the issue of the complainant’s wife’s credibility. He concluded the change in her account of the speed at which the bike was travelling did not affect her credibility overall, finding her evidence to be straightforward, detailed, on the face of it perfectly credible, and consistent with the surrounding events.[28] This is a conventional approach to assessing a witness’ evidence. We see no error in it.
Third ground: did the Judge err in taking the view he did in relation to the speed at which Mr Gowing was travelling?
[28]At [25].
Mr Dutch submits that the speed at which Mr Gowing was travelling was a key factor the Court needed to be satisfied of and, given the expert evidence as to the issue of speed, there must have been real doubts about it. Mr Gowing was entitled to the benefit of that doubt.
The difficulty with this ground of appeal is that the Judge accepted Mr Gowing’s account of the speed at which he was going. There is no possible basis upon which it can be argued that Mr Gowing was prejudiced by the approach the Judge took to the issue of speed.
Fourth ground: did the Judge err in the approach he took to the expert evidence?
Mr Dutch says the Judge referred to the videos provided by the experts as reconstructions. He says they were not and it is an error to treat them as such. A reconstruction would have involved a quadbike on the grass area and “ending up crashing down the bank”. It would also have involved a bike hitting an object and would have involved a rider coming around the corner with no prior knowledge of what they were to see. To use the videos as reconstructions, it is argued, inevitably leads to erroneous findings of fact and also assumptions.
One problem with this argument is that while the Judge noted the different “reconstructions” attempted, and conclusions reached, by the Crown and defence expert witnesses, he said he could not place weight upon them because the expert evidence was effectively speculative — “nobody knows precisely what speed the defendant was going or when precisely he might have seen the two pedestrians – the complainant and his wife – or what precisely he did, if anything, by way of response”.[29]
[29]At [35].
The Judge’s approach was therefore to put the expert evidence to one side, and focus instead upon the evidence from the witnesses and the images from the scene in reaching the view that he did.
We also see no indication the Judge misunderstood the significance of the expert evidence. We ourselves have used the word “reconstruction” to describe the video tape. It is an adequate description even if a more accurate description might be “partial reconstruction”.
This ground of appeal also fails.
Sentence appeal
For the purposes of sentencing, Judge MacDonald characterised Mr Gowing’s offending as follows. He said that, although Mr Gowing did not expect to see the couple walking up the driveway, he had time to avoid them:[30] “Instead of avoiding them I was satisfied that you drove at them. As you know I took the view that this was really to scare them but, plainly, matters got out of hand.”
[30]R v Gowing, above n 2, at [5].
In terms of selecting a starting point, the Judge said he bore in mind that Mr Gowing was on a quadbike and that it was effectively a weapon.[31] This meant that although the recklessness was shortlived, it must be viewed as being at a high level. The complainant and his wife were vulnerable, with no real opportunity to avoid Mr Gowing.[32] He noted that the complainant had suffered significant injuries which would have ongoing physical consequences for him.
[31]At [13].
[32]At [14].
The Judge adopted a starting point of 15 months’ imprisonment,[33] but said Mr Gowing was entitled to a reduction on account of his prior good character and his willingness to attend restorative justice. That took him to a starting point of 12 months’ imprisonment.[34] The Judge declined to make an adjustment for a guilty plea.[35] Mr Gowing had entered a guilty plea before trial on the charge on which he was finally convicted but then was given leave to withdraw it.
[33]At [15].
[34]At [16].
[35]At [16].
The Judge was satisfied that the sentence of community detention and community work which Mr Gowing’s counsel sought was not realistic because of the need to hold Mr Gowing accountable for the harm done to the victims and to deter and denounce his conduct.[36] He sentenced him to six months’ home detention and ordered $4,000 reparation.[37]
[36]At [17].
[37]At [19]–[20].
On appeal Mr Dutch does not take issue with the sentence of reparation but submits that the starting point adopted by the Judge was too high. He argues the offending was best seen as analogous to reckless driving causing injury and, even then, the recklessness was, as the Judge conceded, for a short period of time. Mr Dutch contests whether a momentary decision can be viewed as involving a high level of recklessness. He also says the Judge should have given credit for the guilty plea, even though it was withdrawn, as the plea was entered to the charge on which Mr Gowing was eventually convicted.
We see no error in the Judge’s approach to selecting a starting point in respect of this offending. The Judge’s finding was that Mr Gowing deliberately drove the bike at the couple in order to scare or frighten them in such a way as to jeopardise their safety.[38] As the Judge said, the bike was a weapon, the complainant and his wife vulnerable, and the consequences could have been so much worse. The level of recklessness is properly assessed as very high. A sentence of imprisonment was the inevitable starting point and home detention the best outcome Mr Gowing could have hoped for. An end sentence of community service would not be sufficient to hold Mr Gowing accountable for that conduct or for general denunciation and deterrence purposes.
[38]At [5]–[6].
The Judge was also correct to allow no credit for a guilty plea which was, on Mr Gowing’s own account, withdrawn prior to trial. We find no error in the Judge’s approach to sentence.
Result
The application to adduce fresh evidence on appeal is declined. The appeals against conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent