M v Police HC Auckland CRI 2010-404-67

[2010] NZHC 1095

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-67

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         29 June 2010

Counsel:         M Read for Appellant

J Brown for Respondent

Judgment:      30 June 2010

JUDGMENT OF MILLER J

[1]      The appellant, Mr M  , appeals against his conviction on a charge of assault with a weapon, a Subaru Impreza car.  He also appeals against sentence.

[2]      The  assault  with  a  weapon  charge  arose  from  an  incident  in  which Mr M  , after a fight, is said to have deliberately driven the car at the victim (a Mr Ford) and knocked him down.

[3]      At the summary hearing Mr M   conceded that he was the driver.   The defence was that he lacked the necessary intent.

M V NEW ZEALAND POLICE HC AK CRI 2010-404-67  30 June 2010

[4]      The Judge reminded himself that the prosecution bore the onus of proof.  He also reminded himself of relevant factors when assessing witnesses’ credibility.  He preferred the evidence of an independent and sober witness, a Mr Batty, which he found to be corroborated by other witnesses. Mr M  ’s evidence was rejected.

[5]      The narrative the Judge found proved was that after driving to Jervois Road, the appellant and his associates got into a fight with the victim and his associates on the road.   Ms Smith then got into the Subaru, which belonged to the appellant’s associate, a Mr Hoffman, and started to drive the car away, towards the western end of Jervois Road.  (The road is a cul-de-sac, with the closed end being the western or Waitakere end;  the open end of the road points east, in the direction of Auckland City.)

[6]      Ms Smith’s purpose was to break up the fight.  She succeeded.  Seeing her beginning to drive off, the appellant stopped fighting and jumped into the car’s passenger seat, shouting at her to get out.  Ms Smith stopped the car near the cul-de- sac end of Jervois Road and got out.

[7]      The appellant then got behind the wheel, drove past the group with whom he had been fighting, and picked up Mr Hoffman.  He was in an angry state of mind. He did a three point turn and, some minutes later, drove back along Jervois Road into the cul-de-sac.  As he did so he drove the car into the group of people at about

20kph, striking Mr Ford.  He did another three point turn and drove away at speed. During the last turn another man, Mr Brown, who evidently tried to drag him from the car, was knocked down.

[8]      In reaching these conclusions the Judge rejected the defence account, which was that the appellant had driven the car down Jervois Rd once only, having taken the car from Ms Smith.  He claimed that he drove in the city or eastern direction and struck Mr Ford accidentally.   The Judge expressly dismissed the evidence of the appellant,  finding  him  unreliable,  and  Mr  Hoffman,  finding  him  relevantly untruthful.  The defence case was, the Judge concluded, an exercise in obfuscation.

[9]      The issue was whether the appellant had formed the relevant intention.  He had suffered a brain injury the  year before and  that evening had suffered head injuries;  indeed, he said he had been knocked unconscious in the fight.  He had been drinking to the point of intoxication, and said he had not been taking his anti-seizure medication.  He called a registered psychologist, Dr Sakdlan, to give evidence about the impact of all of this on his capacity to form an intention.  However, the judge observed that the psychologist did not hear the evidence, and assumed the facts given to him by the appellant were correct when they were not.  When the actual facts were put to him he was evidently somewhat embarrassed.  He resiled somewhat from his conclusions.     The  hospital  records  suggested  the  brain  injury  had  not  been particularly serious.  The Judge found the appellant was able to form the necessary intent, and did so.

[10]     The appellant was sentenced by a different Judge on 2 March 2010.  He was sentenced not only for the assault with the car but also for another assault with a weapon (an unprovoked attack at a bar using a glass, causing injuries that required

12 stitches), presenting an imitation firearm (a toy pistol), intentional damage and driving a vehicle when forbidden.

[11]     The Judge noted that a prison sentence was a distinct possibility.  However, he sentenced the appellant to 6 months community detention, 12 months supervision and $650 reparation for the assault with a weapon involving a glass.  He imposed a concurrent sentence of 6 months community detention for presenting the imitation firearm.  For the vehicular assault with a weapon the appellant was sentenced to 6 months  community  detention  and  200  hours  of  community  work  and  was disqualified from driving for 6 months.  He was convicted and discharged for driving while forbidden and ordered to pay $50 reparation for the intentional damage charge.

[12]     The appellant now contends that there was insufficient evidence to establish that it was he who drove the vehicle that struck Mr Ford.  He contends that the Judge had insufficient regard to s 67A of the Summary Proceedings Act 1958, which requires the Court to exercise caution before convicting in reliance on identification evidence.  The Judge did not expressly direct himself to s 67A.

[13]     The appellant points to two aspects of the evidence.  First, it is said that the evidence of the police witnesses did not establish identity, only that there were in all likelihood two people in the car.  Second, on the Police case the Subaru was driven out of the area before returning to strike Mr Ford, then did a three-point turn and headed back towards Auckland City.   It was the second time the car had done a three-point  turn,  and  the  eyewitnesses  were  plainly  confused  about  the  two occasions.  That matters because, on the appellant’s account, he may have swapped seats while the car was out of view, raising the possibility that Mr Hoffman was the driver when the car struck Mr Ford.

[14]     This is a radical departure from the case presented at trial, where the defence case was that it was an accident and no one suggested to Mr Hoffman, a police witness, that he was the driver.   No witness was asked for an eyewitness identification;   the police evidence identifying the appellant as the driver was circumstantial.  Ms Smith did not know the person who got into the car with her then drove it back along the street, but it was common ground that it was the appellant; counsel - Mr Read - cross-examined her on that footing.

[15]     Identity was not in issue because the appellant admitted it.  He did so when speaking to the police on 16 December 2008, and (repeatedly) in evidence.   For example, he said in evidence that “... the reason I didn’t stop was because I mean obviously I’d just hit somebody ...” and “... I believe that was before I hit the victim in the car ... .”

[16]     In the circumstances, it is flat wrong to suggest that the Judge erred by not directing himself to s 67A.  It is unsurprising indeed that counsel could point to no case in which a fact-finder was required to give a s 67A warning when the accused had given evidence and admitted the actus reus.  That is so because under the section the Judge must exercise care only when identification evidence is in dispute.  And even had identity been in issue, no visual identification evidence was given, meaning

that no warning was needed: Auckland City Council v Bailey.[1]   The evidence placing

the appellant behind the wheel was circumstantial.

[1] Auckland City Council v Brailey [1988] 1 NZLR 103.

[17]     Also produced in evidence was a police video interview of the appellant.  The Judge viewed it, but no transcript was produced.  Both counsel agreed that I might view it.  I have done so.  In it the appellant confirms that he drove the car when it struck Mr Ford.   He said for example that “I definitely knew I hit someone, I remember seeing it” and “I knew I did hit someone with the car”.

[18]     Mr Read - who was also trial counsel - nonetheless argued that the police evidence did not establish identity, pointing out that some of the witnesses were confused about when Mr Ford was struck and no witness identified the appellant as the driver.  Mr Hoffman was in the car when it drove away on the first occasion and there is evidence both that it went out of sight and that two people were in it when it struck Mr Ford.  Accordingly, the police evidence does not establish identity.

[19]     It is true that on the other eyewitness evidence the Judge had to infer that the appellant remained the driver throughout, although the car (with two people in it) disappeared from view for a time.  But the real difficulty confronting the appellant is his admissions.  Mr Read sought to argue that the admissions ought to be discounted because the appellant admitted driving the car into Mr Ford when he left the street for the first (and on his account, only) time.   However, there is no doubt that Mr Ford was struck once only by the car.  Further, the appellant’s police interview is consistent with the police theory of the case, in that he admitted that others surrounded the car and tried to get him out.  Other witnesses say that event occurred after he drove back into the cul-de-sac and struck Mr Ford.  The better view is that, as the Judge found, the appellant was wrong about when he struck Mr Ford.

[20]     I have considered whether the Judge was right to place any weight on the admissions.  He found that the appellant was stressed and drunk and accepted that he “may not recall” what happened.  But the Judge also reviewed the evidence about intention and found that the appellant had “some appreciation of the key facts” and some capacity to make a decision to take the car and exact revenge.   His actions were voluntary, conscious and deliberate.  That suggests that his later, considered, admissions  about  those  key  facts  also  deserve  weight.    His  video  interview  is certainly consistent with that.

[21]     Finally, the appeal is in substance a challenge to the way in which the case was conducted at trial;   that is so because at trial the appellant accepted he was driving when Mr Ford was struck, albeit that he said it happened when he first left the street.  There is no affidavit from the appellant explaining why he conducted his defence in that way instead of disputing identity, and Mr Hoffman, the only other candidate as driver, was never asked whether he drove the car into Mr Ford.

[22]     For these reasons the appellant has failed to show that the Judge was wrong.

[23]     Mr Read did not say anything about the sentence appeal, and I can see no basis for interfering with the concurrent sentence.

[24]     The appeal is dismissed

Miller J

Solicitors:

Crown Solicitor’s Office, Auckland