Milne v Police - [2016] NZHC 2825

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2016-409-000099 [2016] NZHC 2825

BETWEEN
LOGAN MARK MILNE

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 22 November 2016

Appearances:

AMS Williams and C Nolan for Appellant
C J Lange and P A Norman for Crown

Judgment:

25 November 2016

JUDGMENT OF DUNNINGHAM J

Introduction

[1] The appellant, Logan Milne, was charged with driving a motor vehicle while suspended and with failing to stop for an enforcement officer. On 31 August 2016 he appeared before Judge Couch at a Judge-alone trial. Judge Couch found him guilty of both offences.1 Mr Milne now appeals against his convictions. The appeal rests on whether the Judge adopted an improper approach to the assessment of the evidence when he gave, as one of the reasons for convicting Mr Milne, that Mr Milne had a motive to lie.

Background

[2] The events which led to the charges occurred on Sunday 10 January 2016 at about 12.05 am. At that time Sergeant Strick was conducting a foot patrol around the South City Mall on Colombo Street, Christchurch along with Constable Stewart.
He saw a Toyota Hilux heading south along Colombo Street and heard a passenger

1 Police v Milne [2016] NZDC 17334.

yell out “fuck the police”. The vehicle then pulled into the South City car park about

five metres from where Sergeant Strick had been standing.

[3] Sergeant Strick approached the driver, Mr Milne, who had just climbed out of the vehicle and Constable Stewart approached the passenger whom he believed had yelled out the window. Mr Milne did not have a licence on him and, when asked for his name, he provided false details. When Sergeant Strick said that they may need to go back to the Central Police Station, Mr Milne turned and ran. After chasing Mr Milne for some time and calling for assistance, Sergeant Strick was able to catch up with him and take him into custody.

[4] Mr Milne was subsequently charged with driving while suspended and failing to remain stopped for an enforcement officer.

District Court trial

[5] At the Judge-alone trial before Judge Couch held on 31 August 2016, Mr Milne’s defence was that he was not the driver of the vehicle at the time in question. Mr Milne gave evidence that his friend Sam was driving the vehicle and he was sitting in the right rear passenger seat behind Sam. He said the reason he gave a false name was because it was his mother’s vehicle, Sam was only on his learner’s licence and may have had a few drinks and he did not want the vehicle impounded. One of the other passengers, Mr Perreia, gave evidence which was broadly consistent with that of Mr Milne as to who was driving and the location of the passengers.

[6] As Judge Couch observed, the defendant’s account of events was distinctly different from that of the Constable. He reminded himself that to find the charges proved, he must be satisfied beyond…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZHC 2825
Decision Date: 25 November 2016

CaseChat Overview and Summary

In the case of Milne v Police, the appellant, Logan Mark Milne, appealed his conviction for driving a motor vehicle while suspended and failing to stop for an enforcement officer. The appeal was heard in the High Court of New Zealand, Christchurch Registry. The central issue was whether the Judge-alone, Judge Couch, adopted an improper approach when assessing the evidence by considering the appellant's motive to lie, which could result in a miscarriage of justice.

Counsel for the appellant argued that Judge Couch's consideration of the appellant's motive to lie was impermissible, citing several cases that support the proposition that a defendant's status as an accused should not be the sole reason to suggest they have a motive to lie. This reasoning, it was argued, could skew the burden and standard of proof against the accused and undermine the presumption of innocence. Conversely, the respondent contended that the comments made by the Judge should be read in context, and when viewed in the entirety of the evidence and reasons given, there was no improper reasoning that would constitute a miscarriage of justice.

Judge Dunningham concluded that the Judge's comments, while potentially problematic in isolation, did not, when read in context, suggest that an impermissible assumption as to the appellant's motive to lie drove the factual findings. The Judge had provided multiple reasons for discounting the appellant's evidence, and the consideration of motive was one among them. The Judge had also been mindful of the burden and standard of proof throughout the assessment of the evidence. Therefore, the appeal was dismissed, and the conviction upheld.

Orders