Mann v Police
[2015] NZHC 588
•27 March 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI 2014-409-000139 [2015] NZHC 588
BETWEEN STUART DOUGLAS MANN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 26 March 2015 Appearances:
A Bailey for Appellant
A C Trinder and K B Bell for CrownJudgment:
27 March 2015
JUDGMENT OF DUNNINGHAM J
Background
[1] Mr Mann appeals the decision of Judge B P Callaghan on 10 December 2014 convicting him for “sustained loss of traction” under s 36A(1)(c) of the Land Transport Act 1998.1 Mr Mann was sentenced on the same day to a fine of $650 and
a period of six months’ disqualification from driving.2
The Facts
[2] At 8.00 pm on the 5 July 2014, Constable Newman was sitting in his stationary police vehicle at the intersection between State Highway 1 and 7 at the turnoff to Hanmer Springs. The Constable’s evidence is that he saw a Ford utility vehicle stop at the give way at the intersection, indicating to turn right. This vehicle
was driven by Mr Mann.
1 Police v Mann DC Christchurch CRI-2014-009-006563, 10 December 2014 [Conviction].
2 Police v Mann DC Christchurch CRI-2014-009-006563, 10 December 2014 [Sentencing].
[3] The Constable contends that Mr Mann excessively revved his engine before taking off at speed causing the rear wheels to spin. Mr Mann then made a right turn causing the vehicle to “fish-tail”, and he continued to make the vehicle fish-tail from right to left five or six times up to the Waipara River Bridge.
[4] Mr Mann recounts a different version of events which entail him simply having taken the corner too fast, accidentally knocking the gear stick into neutral and then briefly losing control when he put the vehicle back in gear.
[5] Mr Mann appeals against the conviction of the Judge on the basis that the decision was arrived at on the basis of erroneous reasoning, and a miscarriage of justice resulted.
[6] A person may appeal their conviction to the first appeal court as of right.3 The High Court is the first appeal court for a conviction entered by a District Court presided over by a District Court Judge.4
Jurisdiction
[7] Under s 232 of the Criminal Procedure Act 2011 this Court must allow an appeal if it is satisfied that a miscarriage of justice has occurred for any reason.
Section 232 defines a “miscarriage of justice” to mean:
(4) … any error, irregularity, or occurrence in or in relation to or affecting the trial that-
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[8] Under s 232(4)(a) of the Criminal Procedure Act 2011, a “real risk” exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict
3 Criminal Procedure Act 2011, s 229(1).
4 Criminal Procedure Act 2011, s 230.
might have been delivered if nothing had gone wrong.”5 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.6
[9] An “unfair trial” exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair.”7 Instead, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that the court must quash the decision.8
District Court Judgement
[10] The case against Mr Mann relied on the evidence of Constable Craig Newman who witnessed the event which gave rise to the charge. The appellant and his passenger, Glenn Candy, gave evidence for the defence.
[11] The accounts given by the witnesses for the prosecution and defence were markedly different and required the Judge to make credibility findings.
[12] The defence proffered an explanation which is that, when approaching the intersection at “probably more than desirable speed” the defendant knocked the gear stick and when he put it back into drive, the car revved and it slid once. Mr Candy supported Mr Mann’s version of events that Mr Mann accidentally popped the vehicle out of gear and when he put it straight back over to drive, that is what made the wheels spin. Rather than the vehicle fish tailing five or six times over a period of
100 metres, the defence witnesses said the back end stepped out sideways once, over
a short distance.
5 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
6 At [110].
7 Condon v R [2006] NZSC 62 at [78].
8 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in Condon v R, at [28].
[13] The Judge confronted the divergence in the evidence given and made a number of credibility findings. Having discussed the fact that Mr Mann was an experienced mechanic he said:
I am dubious to say the very least about the excuse for knocking the gear stick. I find it hard to comprehend that if you have got your weight on the console how the hand could possibly knock the gear stick. It implies that the hand is on the gear stick and I just find it quite incredible to be honest that this could happen, particularly with a mechanic driving the car.
[14] He also observed that Mr Mann and Mr Candy were close friends and he
though it likely that Mr Candy’s evidence was “rehearsed evidence”.
[15] In terms of the prosecution evidenced, he observed that Constable Newman, a constable of 13 years experience was on duty and he had “absolutely no reason to invent [his evidence]”.
[16] However, in making these findings, he also observed:
It is always very difficult when there are two versions and there are no so called independent witnesses and I find myself coming back to this, bearing in mind that I the suggestion of knocking the gearstick quite incredible and I do not believe it.9
Who has the reason in this case not to be truthful? Well, of course, the defendant and I know it is not easy when you have been charged with something”.10
[17] While he also acknowledged that the defendant “does not have to prove or disprove anything”, he went on to say that:
The defendant of course has more to lose and I suspect the defendant has tried to reinvent what has happened.
Grounds for appeal
[18] The appellant brings the appeal on the basis of a miscarriage of justice because of the Judge’s improper approach to the assessment of the evidence. Mr Bailey submitted that the Judge’s reason to discredit evidence of the accused in
an impermissible way, in that he relied on the accused’s motive to lie solely on the
9 At [17].
10 At [16].
basis that he was the accused. He relies in particular on the passages than the judgment which says: 11
Who has reason in this case not to be truthful? Well of course the defendant
…
[19] And:12
The defendant of course has more to lose and I suspect the defendant has tried to reinvent what has happened.
[20] In arguing that such reasoning was flawed, Mr Bailey directed me to the
Court of Appeal’s decision in in R v Leef, which stated that:13
But it is quite another matter, and an incorrect approach, for prosecuting counsel or the Judge to suggest in submissions or in summing-up that an accused’s motive to lie results from no more than the fact that he or she is the accused.
[21] The Court of Appeal continued:
[30] If it is suggested that the accused’s status as such is his or her sole motive to lie, such a direction invites more searching scrutiny of an accused’s evidence than that of the complainant or other Crown witness. It almost inevitably risks skewing the burden and standard of proof against an accused.
[22] Finally, the Court concluded:
[32] Here, even though the Judge again mentioned the burden and standard of proof after commenting on the appellant’s motive, our view is that the bluntness of the comment about Mr Leef’s motive to lie greatly outweighed that passage. Read as a whole, the effect of [77] of the summing- up was to leave the jury with the clear impression that the accused had a strong motive to lie simply because he was the accused. That impression, taken with the Judge’s direction two paragraphs later to apply “robust common sense” to the resolution of the facts, leads to the conclusion the summing-up was unfair to the accused. For the reasons discussed above and in Robinson the appropriate course is to allow the appeal against conviction and order retrial.
[23] Mr Bailey also relied on the Supreme Court decision in R v Stewart to support the appellant’s position:14
11 At [15].
12 At [16].
13 R v Leef CA14/06, 24 August 2006 at [29].
[26] A witness should not be accused of having a motive to lie without there being an appropriate evidential foundation for the accusation. A generalised allegation that an accused person has a motive to lie simply to avoid conviction is particularly serious because it subverts the presumption of innocence. Only if the accused were presumed guilty could there be any basis for the suggested motive.
[24] Finally, counsel cited the Canadian Supreme Court case of R v Laboucan:15
The concern arises from the fact that both innocent and guilty accused have an interest in not being convicted. Indeed, the innocent accused has a greater interest in securing an acquittal. Therefore, any assumption that an accused will lie to secure his or her acquittal flies in the face of the presumption of innocence, as an innocent person, presumably, need only tell the truth to achieve this outcome.
Did the Judge make an error?
[25] The respondent submitted that the statements in the judgment needed to be viewed in the context as preceding these comments, the Judge had already accepted Constable Newman’s evidence as reliable and rejected, as incredible, the defence version of events. When viewed in that context, neither of the comments detracted from proper consideration of the burden of proof or the presumption of innocence.
[26] However, I am satisfied that, regardless of the context, both the Court of Appeal and Supreme Court have given strong indication that such statements will never be appropriate. Although, in Leef, the Court of Appeal considered the Judge’s remarks in the summing up to a jury and the Supreme Court considered the remarks made by the prosecution in closing, I have no doubt that the same reasoning should be applied to a Judge who has used inappropriate logic in his or her judgment.
[27] Accordingly, I am satisfied the Judge did make an error in his reasoning and the next question is whether this created a real risk that the outcome of the trial was affected or resulted in an unfair trial. It is clear that the Judge had made a number of credibility findings. These included the following:
(a) In relation to Mr Candy’s evidence, he concluded that it had “some connotations of it being rehearsed”; 16
14 R v Stewart (Eric) [2009] NZSC 53, [2009] 3 NZLR 425.
15 R v Laboucan [2010] 1 SCR 397 at [12].
(b)In relation to Constable Newman’s evidence he was satisfied he had “no particular axe to grind. He was merely carrying out his functions on the night”; and17
(c) Of Mr Mann’s explanation of events, his conclusion was that: “the suggestion of knocking the gearstick [was] quite incredible and I do not believe it”.18
[28] The essence of the respondent’s submissions was that the Judge arrived at these three findings quite independently of the observation that the defendant had a reason to lie. Such statements therefore did not create a real risk that the outcome of the trial was affected nor create an unfair trial as the outcome would have been arrived at despite the erroneous reasoning of the Judge.
[29] In contrast, the appellant submitted that I could not discount the possibility that the impermissible line of reasoning articulated by the Judge influenced the other findings of fact. Indeed, despite expressing reasons for rejecting one version in favour of the other, it appears he returned to the impermissible line of reasoning to reach a final view, saying “I find myself coming back to this … Who has the reason in this case not to truthful?”. Even though the Judge followed this statement with the observation that the defendant “does not have to prove or disprove anything”, I simply cannot be satisfied that the reasoning that the defendant had a motive to lie because he had been charged with an offence did not influence the Judge’s credibility findings.
[30] I accept that I am unable to determine that the Judge’s credibility findings stand independently from the erroneous reasoning. For that reason, I am satisfied that the appeal should be allowed and the conviction set aside.
[31] That then leads to the question of what order I should made under s 233 of the Criminal Procedure Act, and I invited submissions from counsel on that. The
respondent sought an order for retrial. Mr Bailey, for the appellant observed that the
16 At [7].
17 At [17].
18 At [17].
appellant had already lost possession of his vehicle for 28 days and had to pay a
$450 fee for the impounding of the vehicle and had to engage counsel to run the appeal. In light of the actual sentence imposed (a fine of $650 and a period of six months disqualification from driving) the circumstances were such that I should exercise my discretion not to order a retrial.
[32] Again I accept Mr Bailey’s submissions. Given the relatively low level of seriousness of the offence, and the punitive consequences which have already flowed from the charge, I think there is little to be gained by directing a rehearing of the matter.
[33] Accordingly, the appeal is allowed and the conviction and sentence are quashed.
Solicitors:
A Bailey, Barrister, Christchurch
Patient & Williams, Christchurch
Raymond Donnelly & Co., Christchurch