Gray v Police

[2023] NZHC 1330

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2023-404-18

[2023] NZHC 1330

BETWEEN

MICHELLE TINA GRAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:

30 May 2023

Appearances:

T Clee for Appellant

R McCoubrey for Respondent

Judgment:

30 May 2023

JUDGMENT OF WOOLFORD J

Solicitors:           Meredith Connell (Office of the Crown Solicitor), Auckland Counsel:     T Clee, Auckland

GRAY v NEW ZEALAND POLICE [2023] NZHC 1330 [30 May 2023]

[1]    On 18 November 2019, Michelle Tina Gray was charged with driving with excess breath alcohol and careless driving. Following a Judge-alone trial in the Waitakere District  Court  on  4  July  2022,  Judge  T  Singh  gave  a  decision  on  14 December 2022 in which he dismissed the charge of driving with excess breath alcohol, but convicted and discharged Ms Gray on the charge of careless driving.1 Ms Gray now appeals against the conviction of careless driving.2

[2]    The appeal can be dealt with shortly as the Crown responsibly acknowledge that, in the particular circumstances of this case, a miscarriage of justice has occurred.

Test to be applied

1. In determining an appeal, the first appeal court must allow the appeal if:

(a)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred;3 or

(b)in any case, a miscarriage of justice has occurred for any reason.4

Application to adduce new evidence

[4]    Ms Gray seeks to adduce fresh evidence in the form of affidavits from herself and trial counsel, who is present in Court today. No objection is taken to their admission, and they are accordingly admitted as fresh evidence. Ms Gray has waived privilege and so they contain evidence of advice given and instructions received. There is no real difference between the two accounts.

Grounds of appeal

[5]Three grounds of appeal are advanced:

1      Land Transport Act 1998, ss 8 and 37. Maximum penalty a fine not exceeding $3,000.

2      Police v Gray [2022] NZDC 26023.

3      Criminal Procedure Act 2011, s 232(2)(b).

4      Section 232(2)(c).

(a)A miscarriage has taken place because Ms Gray was not properly advised as to her decision not to give evidence;

(b)Ms Gray’s instructions to apply for a discharge without conviction were not followed; and

(c)no or insufficient reasons were given by the Judge for the finding of guilt on the careless driving charge.

Respondent’s position

[6]    The Crown does not agree that a miscarriage resulted because Ms Gray was wrongly advised as to whether or not to give evidence but accepts that a miscarriage resulted from the latter two reasons advanced by Ms Gray.

Discussion

[7]    Focusing then on the two grounds of appeal in respect of which the Crown accepts a miscarriage resulted, trial counsel accepts that Ms Gray instructed him to make an application for a discharge without conviction if the Judge found her guilty of the careless driving charge. In the circumstances as they unfolded that day, trial counsel accepts that he did not do so. In explanation, he says he did not get the opportunity to make an application because the Judge immediately convicted and discharged Ms Gray at the commencement of the hearing on 14 December 2022, without giving reasons or asking for submissions on sentence.

[8]    The Crown also accepts that a miscarriage occurred because the Judge did not give reasons for finding Ms Gray guilty of careless driving. The duty to give reasons is contained in s 106(2) of the Criminal Procedure Act 2011 (the Act), which provides:

106     Decision of court

…

(2)       The court must give reasons for its decision under subsection (1).

…

[9]In this case, all the Judge said was:

[2] In respect of the carless  driving charge,  this is a  charge that  was  proven beyond reasonable doubt on the evidence before the Court. The circumstances were in question though. That was because there was doubt as to whether damage was caused to other vehicles by Ms Gray. I find as a fact that the evidence of the prosecution is insufficient to prove that Ms Gray caused damage to other vehicles whilst driving carelessly. I will turn to the sentencing of this after the decision on the lead charge.

…

[17] For the careless driving charge, I convict and discharge.

[10]   The Judge was obliged to give reasons for convicting Ms Gray of careless driving notwithstanding that the evidence may have revealed a basis for such a conclusion. Here the Crown refers to the Supreme Court case of Sena v Police5, in which the Court stated a Judge’s reasons:

[36]  … should show an engagement with the case, identify the critical  issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. The language of s 232(2)(b) reflects an assumption that the reasons given by a judge will reflect that judge’s assessment of the evidence and why that assessment resulted in a conviction. A failure to provide such an assessment frustrates the operations of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial.

[11]   The Crown accepts that the Judge’s reason fell short of what is required by    s 106(2) of the Act and Sena.

Result

[12]   For the reasons articulated by the  Crown,  I  allow  the  appeal  and  quash Ms Gray’s conviction for careless driving. I do not order a retrial. The public interest does not require a retrial of this allegation.

Woolford J

5      Sena v Police [2019] NZSC 55.