M v Police HC Whangarei CRI 2007-488-50

[2007] NZHC 836

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2007-488-000050

BETWEEN  M

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         24 August 2007

Counsel:         C F Eckard for Appellant

K R Thomas for Respondent

Judgment:      24 August 2007

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Cor Eckard Law Office, Whangarei

Crown Solicitor, Whangarei

M V NEW ZEALAND POLICE HC WHA CRI 2007-488-000050  24 August 2007

Introduction

[1]      Ms M   was charged with driving a motor vehicle on a road while disqualified and driving with an excess breath alcohol concentration, having previously  been  convicted  on  that  or  a  similar  offence,  on  at  least  two  other occasions.

[2]      The  proportion  of  alcohol  identified  by  the  evidential  breath  test  was

1062mgs of alcohol per litre of breath – not far removed from three times the legal limit of 400mgs.  There was no challenge to the evidential breath test result.  Nor was there any challenge to her status as a disqualified driver.

[3]      The sole issue at a defended hearing in the District Court at Dargaville was whether Ms M   was the driver of the vehicle at the relevant time.  Judge de Ridder found that she was and convicted her on both charges.  Mr M   appeals against those convictions.

The appellate challenge

[4]      The appeal challenges Judge de Ridder’s factual finding that the Informant had  proved,  beyond  reasonable  doubt,  that  Ms  M    was  the  driver  of  the vehicle.  Mr Eckard, on her behalf, submits that the Judge erred because:

a)        First, he drew an inference to find that she was the driver which was unavailable on the proved facts.

b)       Second,  that  he  did  not  accept  that  the  evidence  given  by  Ms

M   left open the reasonable possibility that she was the driver.

In essence, the second point amounts to a challenge on the basis that there were equally available inferences open to the Judge which should have been resolved by giving the benefit of the doubt to Ms M  .

The judgment under appeal

[5]      Having  heard  evidence,  Judge  de  Ridder  gave  an  oral  judgment  at  the conclusion of the hearing, while the evidence and the impressions the witnesses had made upon him were fresh in his mind.

[6]      On the night in question, Constable White was driving down Logan Street. He noticed a male carrying a baby.  In his view, the male appeared upset.  Further down the road Constable White came across a vehicle which had crashed into a fence.    The  car  horn  was  sounding.    The  vehicle  lights  were  on.    When  he approached the vehicle he saw a female seated in the driver’s seat, with her head on the horn making it work.

[7]      When approached, she told Constable White that she had not been drinking but had crashed the car because of an argument with her partner.  Because Constable White was about to attend to another matter  of some  urgency,  he  sent  a  radio message to another constable to deal with the incident at the crash scene.  Two other females arrived at the scene.

[8]      There was a heated conversation involving the woman alleged to be the driver.   There were no other people in the car when Constable White first saw it. Subsequently, the driver was identified as Ms M  .

[9]      Mr M   was processed in the usual way in relation to breath alcohol concerns.  She signed papers indicating that she was the driver of the vehicle and submitted to an evidential breath test.

[10]     There was evidence from Ms M   that she and her partner had driven home from a function with her partner driving.   An argument ensued.   The crash occurred, she said, when she grabbed the wheel of the car and her partner lost control of the vehicle.  The partner walked off with the baby, who was also in the car.  She could not recall, in evidence, what she said to the Police.

[11]     After setting out that background, Judge de Ridder stated the issue for his determination and his findings of fact in the following terms:

[8]    The issue for me is simply which evidence I prefer.   There are two matters that assist me greatly, or three should I say in this matter.  The first is that it is clear that when Constable White arrived at the scene the defendant was in the driver’s seat of the car.  Secondly the defendant accepts that she was severely affected by alcohol that night and of course that is backed up by the high reading of alcohol that she returned.  But significantly, and most importantly out of all this evidence is the fact that the defendant’s case is that she saw the need for some help and she had to sound the horn.  Quite why she had to get into the driver’s seat and put her head on the horn to do that is beyond me and the fact is clear that that indeed was the case, all she had to do was reach through the driver’s door and press the horn.  She did not do that, she was seated in the driver’s seat with her head on the horn when Constable White arrived.  I am quite satisfied in those circumstances that she was the driver and that these charges are proved beyond reasonable doubt.

[12]     As Mr Eckard observed in submissions, the opening comment of the Judge was technically not correct.  The issue is not whose evidence the Judge preferred but what inference could properly be drawn from the evidence called before him.  Given that the Judge was giving his decision orally at the conclusion of a defended hearing, that slip is understandable and cannot affect the ultimate outcome of any appeal. The decision of the Judge must stand or fall based upon his reasons for finding that Ms M   was the driver of the vehicle.

Analysis

[13]     On appeal, in my view, the question is whether the conclusions expressed in para [8] of the judgment, were open to him on the evidence.

[14]     In summary, three reasons were given by the Judge to support his finding that Ms M   was the driver.   First, she was located in the driver’s seat when the constable arrived at the scene of the accident.   Second, she accepted that she was severely affected by alcohol, something that was objectively confirmed by the high breath alcohol reading and, I add, by eye witnesses to her behaviour.  Third, she saw some need to get help in sounding the car’s horn.  The Judge found it incredible that, if she were not the driver, Ms M   would have moved herself into the driver’s

seat before sounding the horn.  The fact that she was seated in the driver’s seat with her head on the horn was significant in the Judge’s assessment.

[15]     Mr  Eckard  has  sought  to  impeach  the  Judge’s  finding  by  focussing  on evidence that was available and which, if considered in isolation from other evidence given at the defended hearing, could have resulted in the Judge not being satisfied beyond reasonable doubt that Ms M   was the driver.  However, with respect, that is not an appropriate approach to the evaluation of evidence in a case like this.  It was necessary for the Judge to look at the totality of the evidence to  ascertain whether any fact could be proved by inference.

[16]     In a case like this, all that was required was for the inference to be logical and rational, as opposed to speculation or a guess.  I refer to R v Puttick (1985) 1 CRNZ

644 (CA) at 647.  Delivering the judgment of the Court, Thorp J said:

Inference is simply one of the mental processes which may be used by a jury in  carrying out its  primary  task  of  assessing  the  evidence  and  deciding whether or not it establishes the guilt of the accused beyond reasonable doubt. Where the charge has several essential elements, proof of guilt necessarily involves proof of each of those elements to the same standard. It does not, however, require proof beyond reasonable doubt of every fact which may be relevant to proof of each essential element.

Since there is no distinction either in law or logic between facts established by direct evidence and those established by inference, so long as collateral or evidentiary facts need not be proved beyond reasonable doubt a direction that only "irresistible" inferences are permissible must constitute an unjustifiable restriction of the normal and proper use of inference. It must also tend to restrict the use by the jury of the combined knowledge and experience of its members, which is its greatest contribution to the trial process.

. . . .

. . . It would have sufficed had the jurors been advised that in assessing the meaning of the evidence they were entitled to draw inferences, but that such inferences should be logical inferences from proven facts, not mere speculation or guesswork.

Those observations are equally appropriate to the role of a Judge as fact finder in a summary hearing or sitting alone on an indictable charge.

[17]     While Mr Eckard submitted that equally available inferences should have meant  Ms  M    obtained  the  benefit  of  the  doubt,  the  problem  with  that

submission  is  that  Ms  M  ’s  evidence  was  so  unreliable  (because  of  her drunken state) it could properly have been put to one side by the Judge when making his assessment on the inference to draw.

[18]     Having read the evidence I am satisfied that the Judge’s finding of fact that Ms M   was the driver was open to him.  I am also satisfied that the reasons he gave for drawing the inference were cogent and sufficient.

Result

[19]     For those reasons, the appeal is dismissed.

P R Heath J