Milne v Police
[2016] NZHC 2825
•25 November 2016
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 CrownJudgment:
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 reasonable doubt that the defendant was indeed the driver of the vehicle and, “on the defendant’s own evidence and that of Mr Perreia, that was not so. I therefore cannot find the defendant guilty unless I am able to entirely discount that evidence”.
[7] The Judge went on to say he discounted that evidence for several reasons. These were:
(a) “Firstly, the defendant has a strong incentive to present a version of events which exculpates him. He knows, as did Mr Perreia, that if he is convicted of this offence he will be subject to mandatory disqualification”. Mr Perreia also admitted that he did not wish to see Mr Milne get into trouble.
(b)The next reason given by the Judge was that he found “wholly illogical and unbelievable” that it was a passenger on the left side of the vehicle who yelled at the police officers who were over on the right side of the road. He held that Sergeant Strick’s evidence, that it was the person in the rear right-side passenger seat who shouted through an open window, was more sensible and rang true.
(c) Finally, despite one error in Sergeant Strick’s evidence, which he acknowledged, this did not detract from the quality of evidence he gave about what he witnessed when the vehicle had stopped.
[8] Consequently he concluded as follows:2
Overall, as I say, I find the evidence of the defendant and of Mr Perreira as to the driver of the vehicle unbelievable and I reject it. Rather, I accept the evidence of Sergeant Strick and I find as a fact that the defendant was the driver of the vehicle. He will therefore be convicted.
Submissions
Submissions for the appellant
[9] Counsel for the appellant submitted that Judge Couch adopted improper reasoning when assessing the evidence of Mr Milne and, as a result, a miscarriage of justice has occurred. Simply put, Judge Couch assessed the appellant’s evidence by assuming that he had a motive to lie simply because a conviction would result in a mandatory disqualification. That his reasoning was impermissible is supported by a number of cases. The appeal should therefore be allowed and the conviction set
aside.
2 Police v Milne, above n 1, at [15].
Submissions for the respondent
[10] The respondent accepts that there is ample authority that judges and prosecutors should avoid comments suggesting that the defendant’s status as accused is his or her sole motive to give exculpatory evidence. Nevertheless, case law does not propose an absolute prohibition against commenting on a defendant’s motive to lie or to give exculpatory evidence. It is necessary to evaluate the comment within the context of the facts and circumstances at trial, before concluding the reasoning was improper and has given rise to a real risk of a miscarriage of justice.
[11] Here, it is submitted that the distinction between judges and juries as the trier of fact is material to whether prejudice arises such that the presumption of innocence is subverted and the trial is unfair. There is a greater risk of illegitimate reasoning with juries and such comments may prove more influential and therefore prejudicial. Furthermore, juries do not give written decisions which allow scrutiny of their reasoning processes.
[12] In any event, the Judge’s comments should be read in context of the evidence given at trial. When viewed in context, it can be seen that the Judge did not subvert the presumption of innocence. Rather, the facts of the case raised an evidential foundation to consider exculpatory lies.
[13] When one considers the other two factors relied on in the Judge’s reasoning, the quality of the prosecution evidence and the implausibility of the defence evidence, it is clear that the burden of proof was not inverted in any real sense. Read as a whole, there was no improper reasoning by the Judge and the appeal should accordingly be dismissed.
Jurisdiction
[14] Mr Milne is able to appeal against his conviction to the High Court as of right.3 The appeal must be allowed if Mr Mile is able to satisfy this Court that Judge Couch erred in his assessment of the evidence to such an extent that a
miscarriage of justice has occurred or if a miscarriage of justice has occurred for any other reason.4
[15] Section 232(4) defines a “miscarriage of justice” to mean 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.
[16] A “real risk” has been held to exist when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.5 Mr Milne is not required to “establish a miscarriage in the sense that the verdict actually is unsafe”, he must only establish that there is a real possibility the verdict would be unsafe.6
[17] An “unfair trial” exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In R v Condon, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.7 Rather 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
Discussion
[18] The appeal is straightforward in that it boils down to one point: whether Judge Couch’s reasoning when rejecting the defence evidence was permissible and, if not, whether it created a real risk that the outcome of the trial was affected.
[19] The statement in issue was as follows:
4 Section 232(2)(b) and (c).
5 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
6 At [110].
7 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78].
8 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the
Supreme Court in R v Condon, above n 7, at [28].
[11] I do entirely discount that evidence. That is for several reasons. Firstly, the defendant has a strong incentive to present a version of events which exculpates him. He knows, as did Mr Perreia, that if he is convicted of this offence he will be subject to mandatory disqualification.
[20] Counsel for the appellant put forward a number of cases to support the contention that this reasoning was impermissible. Firstly, the Court of Appeal in R v Leef in the context of a jury trial stated that:9
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] The appellant also relied on the following statement of the Supreme Court in
R v Stewart to support his position:10
[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.
9 R v Leef CA14/06, 24 August 2006 at [29].
10 R v Stewart (Eric) [2009] NZSC 53, [2009] 3 NZLR 425.
[27] The Court of Appeal rightly said in R v E (CA308/06), in commenting on a submission of the prosecutor that the accused “has every reason to tell untruths about what occurred because he has the reason for avoiding a finding of guilt in this case”:
It has been held that it is never legitimate for a Judge to make such a suggestion and it is just as unacceptable (if not more so) for a prosecutor to do so. Making such a submission has the effect of suggesting that the evidence of an accused should be scrutinised more carefully than that of a complainant or other Crown witness simply because he or she is the accused. This is wrong and unfair — see Robinson v R (No 2), R v Bentley and R v Leef. The situation may have been saved by a very strong direction by the Judge but none was given.
[24] Finally, counsel cited the Canadian Supreme Court in R v Laboucan within the context of the entire decision:11
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.
[25] The respondent submits that it is necessary to read the comments of the Canadian Supreme Court in R v Laboucan within the context of the entire decision. More specifically the following statement of Charron J:
17 In reviewing a trial judge's reasons for disbelieving the accused, a court should also be mindful of the useful distinction drawn by Doherty J.A. in R. v. Morrissey (1995), 97 C.C.C. (3d) 193 ((Ont. C.A.)), where he cautioned against reading a trial judge's reasons as if they were an instruction to a jury. The Court has repeatedly endorsed his observations (at p. 204):
A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road-map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.
[26] Thus the respondent points out that a distinction should be drawn between statements made when instructing a jury and statements made by a trial judge in the
context of giving reasons for a verdict. Furthermore, where, as in Laboucan, the
11 R v Laboucan [2010] 1 SCR 397 at [12].
credibility of the accused was in question, and full reasons were given by the Judge as to why he did not believe the accused, it may well be appropriate to address the defendant’s motive to lie in the Judge’s reasoning.
Discussion
[27] In most cases, it will not be appropriate to consider the accused’s motive to lie in assessing his credibility as a witness. As was said in Laboucan “as a general rule, triers of fact would be well advised to avoid that path altogether, unless they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal”. However, a trial Judge’s consideration of an accused’s motivation to be untruthful must be examined within the context of the trial and the reasons given as a whole. The critical question is whether the trial Judge’s comments undermine the presumption of innocence.
[28] The issue in this case is whether, when reading the decision as a whole, I can be satisfied that the Judge did not proceed on the basis of the impermissible assumption that simply because Mr Milne was the defendant, he would lie to avoid conviction.
[29] In his judgment, the Judge provided three reasons as to why he discounted the appellant’s evidence. First, he held that Mr Milne had a strong incentive to present an exculpatory version of events. Second, he considered Mr Milne’s aspects of evidence were wholly illogical. Third, he was impressed with the quality of Sergeant Strick’s evidence.
[30] Here, I am satisfied that the reasons given do not suggest that an impermissible assumption as to motive to lie drove the factual findings. Rather the factual findings as to credibility were reinforced by the finding as to motive, and the issue of motive was traversed in the evidence. The appellant himself admitted that he ran away from Sergeant Strick because “his licence was suspended”. The fact that he ran away invites the inference that he was the driver of the vehicle and he ran from Police to avoid discovery of his true identity. It was only when he was caught that he gave a version of events that endeavoured to exculpate him as the driver.
[31] Furthermore, while the appellant says that this is not a case where the respondent can point to the Judge reminding himself of the burden and standard of proof, I do not accept that. It was clear he was mindful of the burden and standard of proof and expressly stated that he could not find the defendant guilty unless he was entirely able to discount both the defendant’s evidence and that of Mr Perreia.
[32] I accept, therefore, that there was an evidential foundation for the Judge’s conclusion as to the appellant’s motive to lie and, this was supported by the Judge’s other findings as to the credibility of the respective witnesses. Consequently, this was not an instance of the Judge venturing into impermissible reasoning which could have led to a miscarriage of justice.
[33] For this reason the appeal is dismissed.
Solicitors:
Public Defence Service, Christchurch
Raymond Donnelly & Co., Christchurch