Puna v Police
[2016] NZHC 1863
•11 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-159 [2016] NZHC 1863
TUAKEU PUNA
v
NEW ZEALAND POLICE
Hearing: 8 August 2016 Appearances:
M Meyrick for the Appellant
N W Dobbs for the RespondentJudgment:
11 August 2016
JUDGMENT OF THOMAS J
This judgment was delivered by me on 11 August 2016 at 2.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Solicitors:
Berman and Burton, Ellerslie.
Kayes, Fletcher and Walker, Manukau.
PUNA v NEW ZEALAND POLICE [2016] NZHC 1863 [11 August 2016]
Introduction
[1] Mr Tuakeu Puna was convicted of driving with excess breath alcohol, third or subsequent, under the Land Transport Act, s 56(1) and (4), following a Judge-alone trial.1
[2] He now appeals his conviction, on the grounds that the police officer who gave evidence at his trial only stated that he saw Mr Puna drive a car on his driveway, which was not a “road” for the purposes of the Land Transport Act.
Factual background
[3] The Police officer’s evidence was that at 11.55pm on Friday 29 May, while he was conducting a bail check at Mr Puna’s property, Mr Puna arrived at the address driving his Isuzu vehicle. The officer observed that he was affected by alcohol as he had bloodshot eyes and smelt of alcohol. A passive breath test returned a positive result for alcohol and the breath screening test revealed a result over 400 mcg/l.
[4] The officer then informed Mr Puna that he was required to accompany him to the local police station, informed him of his right to a lawyer and then asked him a series of questions. He recorded the exchange as follows:
Q: How many drinks have you had tonight? A: 4 or 5 Heinekens.
Q: Where did you drive to?
A: I started drinking at work and drove home from work, not even 5 kms.
Q: Did you think that you would be over the limit?
A: I don’t know what the limits are, I didn’t want to stay on.
[5] At the Police station, the breath alcohol test procedures were followed and returned a result of 617 mcg/l of breath.
District Court Decision
[6] Mr Puna appeared before Judge McAuslan for a judge alone trial on 16 May
2016, with judgment issued the same day. The Judge noted that the defence case was entirely based on the argument that the defendant only drove on the driveway, and that a private driveway could not constitute a road, and recorded that matters pertinent to the issue had not been put to the constable who read his statement.
[7] The Judge also noted that the constable’s statement had been in error as to the time of the bail check, which, based on the later times noted elsewhere particularly on the breath and blood alcohol procedure sheet, should have read 9.55 pm.
[8] The Judge recorded the outline of facts as stated above, and said “There was a clear admission then to the constable of having been drinking and then driving”. The Judge recorded the Constable’s summary of what had happened as follows:
[7] … He then said prior to the defendant being given his rights pursuant to
the
Bill of Rights Act he had said he had ridden up the road to get chocolate bars for the children; after the Bill of Rights he said about the drinks after work
and then driving.
[8] Under cross-examination it was put to the constable that the defendant would say that he had driven home from work about 6.00 pm. It is apparent from the answers in cross-examination that that was not the impression that the constable got but of course he was not able to say what the defendant was doing at 6.00 pm as he had not turned up to the address until 9.55 pm. That was the end of the prosecution case.
[9] The Judge summarised the defendant’s position as being that he lived in the fourth house on the right down a 25-metre driveway, that he had driven home from work some time after six and that he was simply moving his car in his driveway. He claimed he had been home for two to three hours drinking in his car so his daughter did not see him. When asked why he made the comments he did to the Police officer, he said “he thought he was trying to say that he had started drinking at work and then continued at home”.
[10] The Judge stated that in her view, the case did not turn on the definition of “road” and whether it extended to a shared driveway because “given that the later explanations provided by the defendant in his evidence were not put to the constable that they can carry very little weight”. The Judge said:
The constable’s evidence was quite clear that the defendant had driven up the driveway and arrived at the address in his vehicle. It was not put to him that the defendant had not driven on a road but the inference that can be drawn from what he said to the constable is that he had been at work, driving home from work and having had some drinks at work. There was no mention to the constable of having driven home from work at 6 o’clock and I find his evidence with respect to this moving of the car confused and frankly untenable; and none of it was put to the police officer.
[11] The Judge held that the only inference she could draw from the evidence was that Mr Puna had driven home and up the driveway where the Police were waiting to check his bail. She stated “I do not find his evidence convincing, he did not impress as a witness of the truth, he varied in his account, he embellished his explanations and significantly as I have mentioned none of his contentions were put to the constable.”
[12] The Judge then considered the legal question of whether the shared driveway was a road in the alternative. She said that it was a question of fact in each case. She said that the fact that this driveway was a shared driveway used by a number of different residences and people on a very regular basis meant that it was a different situation from other cases. The Judge, relying on a decision of Judge Harvey finding that a shared driveway could be a road,2 found that the driveway in this case would have constituted a road.
Appellant’s submissions
[13] Counsel for the appellant, Mr Meyrick, submitted that the house was a rear section, accessed by driveway from the road. There was no evidence Mr Puna was driving on the road, and the Court relied on an inference he must have been. He said that, although challenged, Mr Puna’s evidence was not discredited. The Judge appeared to confuse the onus of proof, in Mr Meyrick’s submission.
[14] Mr Meyrick submitted that a driveway on private property was not a road unless it leads to a place where the public have access as of right, such as a church or public hall.3 He accepted that some persons, such as couriers, have an implied licence but this was far from a broad public right of access. In these circumstances, he said that driving on a driveway was not driving on a road, and that there was no basis for his conviction.
Respondent’s submissions
[15] For the respondent, Mr Dobbs submitted that there was evidence from which the Court could properly infer that the defendant had been driving on the road. Further, he submitted that a shared driveway can be a road under the Land Transport Act.
[16] In respect of the first submission, Mr Dobbs said that there were significant and relevant matters of Mr Puna’s case which were not put in cross examination, which necessarily inhibited the assessment of the evidence. In particular, Mr Puna’s evidence was not put to the Constable. In Mr Dobbs’ submission, the Court did not have to take into account matters which were asserted as part of the defence case but not properly put to the witness, under s 92(2) of the Evidence Act 2006. Equally, the Court was entitled to admit it in the basis that the weight given to it would be affected by the fact that the Constable did not have the opportunity to explain any contradictions.
[17] Mr Dobbs said that the Court was equally entitled to reject the appellant’s evidence entirely. Mr Puna accepted that he gave inconsistent explanations to the Police that night, as to whether he had driven to get some chocolate bars or had driven home from work. He was inconsistent in his recall of what he had told the Police, initially claiming he had explained to them that the driving had taken place earlier in the night and later admitting he had not told them that as he was not asked.
[18] Finally, in the alternative, Mr Dobbs said that there was a divergence of authority on the question of whether a driveway is a road; but that with reference to the Land Transport Act, the question was only whether the driveway was accessible
to the public. Driveways were publicly accessible from the roadside, and particularly shared driveways were used from time to time by members of the public. With reference to similar cases,4 he submitted that the approach adopted by the trial judge to determining that the driveway was a road was a proper one which took account of the purpose of the Land Transport Act to protect members of the public from unsafe driving and intoxicated drivers.
Appeal against conviction
[19] Section 229 of the Criminal Procedure Act 2011 sets out a person’s right to appeal against conviction. Under s 230 of that Act, this is a first appeal from a Judge alone trial.
[20] Under s 232, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”:
232 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart in accordance with this section.
(2)The first appeal court must allow a first appeal under this subpart if satisfied that,—
…
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c) in any case, a miscarriage of justice has occurred for any reason.
(3)The first appeal court must dismiss a first appeal under this subpart in any other case.
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
4 Jones v Hobbs [1952] NZLR 789 (SC); Toy-Troughton v Police HC Hamilton AP49/02, 6
December 2002; R v Cave CA393/04, 1 August 2005.
(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.
(5)In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.
[21] As s 232 makes clear, not every “error or irregularity” causes a miscarriage of
justice.5 The error or irregularity must lead to either of the consequences listed in s
232(4)(a) or (b).
[22] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”6 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.7
[23] In assessing the credibility of witnesses, Elias CJ in Austin, Nichols & Co Inc v Stichting Lodestar said:8
The appeal court must be persuaded that the decision is wrong but in reaching that view no “deference” is required beyond the “customary” caution appropriate when seeing the witnesses provides an advantage because credibility is important.
…
Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment. If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High Court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.
[24] In O’Neill v Police, Harrison J said that the decision of Austin Nichols was not a major departure from the well-settled principles for determining first instance
5 “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].
6 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.
7 At [110].
8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].
appeals. In coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility, but it must nevertheless review the evidential basis for factual findings carefully.9
Analysis
Mr Puna’s evidence
[25] The District Court Judge made a clear finding that the evidence did not support Mr Puna’s version of events. She did not accept that the evidence showed that Mr Puna had only been driving on his driveway. She explicitly determined Mr Puna’s guilt on the basis of the constable’s evidence, Mr Puna’s statements to the Police that night, and her rejection of his evidence that he had only been driving on his driveway. She was satisfied beyond reasonable doubt that he drove on a road with excess breath alcohol.
[26] The Crown referred to s 92 of the Evidence Act, which relevantly provides:
92 Cross-examination duties
(1) In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those matters.
(2) If a party fails to comply with this section, the Judge may—
(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or
(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or
(c) exclude the contradictory evidence; or
(d) make any other order that the Judge considers just.
[27] The Judge chose to consider Mr Puna’s evidence, despite the fact that the
Constable had not been able to respond to the version of events he put forward. Her comments throughout the judgment, however, indicate that she effectively took the
9 O’Neill v Police HC Auckland CRI-2007-404-405, 9 October 2008 at [5].
route proposed by s 92(2)(b), stating “I find that given the later explanations provided by the defendant in his evidence were not put to the constable they can carry very little weight.”10 This is a route clearly envisaged by the terms of the statute.
[28] In Mr Meyrick’s submission, there was no failure by the defence to put necessary matters to the police constable. He said there was nothing which needed to be put to the police officer because he did not give evidence directly contrary to that of Mr Puna.11 Mr Dobbs submitted that certain matters should have been put to the police officer given that the defence elected to give evidence and was therefore submitting that the Judge should give weight to the evidence in deciding whether there was reasonable doubt.
[29] Had the police officer’s evidence been that he had observed Mr Puna driving on a road, it is clear that the defence should have put to the police officer that Mr Puna was not driving on a road.
[30] In my assessment, the defence is treading a thin line when the circumstances of this case are considered, particularly given that the logical inference from the police officer’s evidence was that Mr Puna had been driving on the road. In any event, what undoubtedly should have been put to the police officer was Mr Puna’s evidence that it was when he stopped his car that the Police turned and saw him sitting in it, because this directly contradicted the police officer’s evidence that the car drove up from the roadside.
[31] Furthermore, Mr Puna’s evidence was that the first thing he said to the police
officer was to ask whether he could move the police car so Mr Puna could park in his normal parking spot. That was important because it could have corroborated
10 At [16].
11 As observed by the Judge, the prosecution had approached the case on the basis that the issue was who was driving. Support for that belief is found in the notation on the charging document
made on 12 November 2015 when Mr Meyrick appeared at a callover. The District Court Judge noted on the file “at issue whether defendant was driving”. While I accept it is for the prosecution to prove the essential elements of the charge beyond reasonable doubt, care needs to be taken not to create a misleading impression prior to the hearing on which the other side could reasonably be expected to rely.
Mr Puna’s version of events. That, therefore, should have been put to the police
officer.
[32] It should also have been put to the police officer that Mr Puna was parked by the side of the house and the police drove past him.
[33] The Judge was correct therefore to treat the evidence in the way in which she did, pursuant to s 92(2) of the Evidence Act. Those were significant matters which were relevant and in issue and contradicted the evidence of the witness.
[34] I am satisfied that the Judge took into account the evidence of all the witnesses and the inconsistencies in Mr Puna’s explanation, which I will now address.
[35] Mr Puna was asked about the police officer’s evidence that he saw Mr Puna driving a car down the long driveway. Mr Puna agreed that he was driving down the long driveway. This is inconsistent with his evidence that he had been parked on one side of the house so he could drink alcohol without the children in the house being aware of it and he then moved his car around to behind the space in which the police car was parked. That manoeuvre was inconsistent with driving down the long driveway.
[36] The Constable’s evidence was that Mr Puna arrived at the address and came down the driveway from the direction of the road. At no stage did he imply or could it be inferred from his evidence that Mr Puna was driving around the driveway area, which was Mr Puna’s evidence. He said he drove “from the right-hand side of the house around to where I usually park” which was on the left.
[37] Mr Puna gave evidence that he sat in his car drinking alcohol for nearly three hours because he did not want to drink in front of the children. He said that he was parked in the dark when the police drove past him so then he drove his car around to behind the place where he usually parked. Both those behaviours might be considered somewhat unusual, in particular that, having been drinking and seen the
Police drive past, Mr Puna would then choose to move his car and park behind the
Police car.
[38] The next issue was the statement made to the police that night. I put to one side what Mr Puna first said to the police about going out to buy some chocolate, and focus on what he said after he was cautioned. Mr Puna told the police he had started drinking at work and drove home from work but it was not even 5 kms.
[39] It would be surprising to say the least if Mr Puna, a man with at least two prior convictions for driving with excess breath alcohol, did not tell the police that he had been home for at least three hours, drinking in his car between the time that he consumed any alcohol at work and when he was spoken to by police. This observation does not undermine Mr Puna’s right to silence as he answered the Police questions after being cautioned. Nor does it have the effect of shifting the onus onto Mr Puna.
[40] It is clear that the Judge found Mr Puna to be a poor witness. As the judge presiding over the trial, she was best placed to make the assessment as to whether he was truthful or not. However, in any event, Mr Puna’s different comments at different stages, including in cross-examination, support the judge’s view.
[41] The Judge was entitled to make an adverse finding as to the credibility of Mr Puna’s version of events and to convict him on the basis that he had been driving. I am satisfied on the evidence that the Judge was correct to draw the inferences that she did from the totality of the evidence. On the evidence before the Judge, the conclusions reached were open to her.
Driveway
[42] The Judge then considered the question of whether the driveway was a road.
[43] There was no real evidence about the driveway. Mr Puna said he lived on the fourth house on the right down a 25 metre driveway. The Judge noted that the driveway was a driveway shared by a number of different residences, meaning a number of different people would be using it on a regular basis. She said that the
public had physical access to the driveway, shared by at least 4 people on the right and there would be a number of legitimate reasons why people would choose to drive up and down the driveway.
[44] She acknowledged two lines of authority as to the extent of the public access necessary to constitute a road and relied on the purpose of the legislation, as referred to in other cases, as being to ensure that members of the public are protected from unsafe driving wherever possible. The Judge also noted another District Court case Police v Te Riini as finding that a driveway shared by two dwellings could constitute a road.
[45] Road is defined in s 2 of the Land Transport Act as follows:
road includes—
(a) a street; and
(b) a motorway; and
(c) a beach; and
(d) a place to which the public have access, whether as of right or not; and
(e) all bridges, culverts, ferries, and fords forming part of a road or street or motorway, or a place referred to inparagraph (d); and
(f) all sites at which vehicles may be weighed for the purposes of this Act or any other enactment
[46] The relevant part of the definition in this case is “a place to which the public have access, whether as of right or not”. In Taylor v Police, Heath J considered whether a driveway could be a road for the purposes of the Act. He considered two conflicting lines of case law, and held that:12
I prefer the reasoning of Wilson J in Police v Smith on this issue as, having regard to the way in which the term is defined in s 2(1) of the Act, Mr and Mrs Howie's driveway is not a place to which the public, in general, resort as a matter of course, though not necessarily of right. Applying the latter part of the extract which I have quoted from Wilson J's judgment, it is not enough that the driveway might be physically open for the public to wander in; it must be so open and so well-known to be open that in fact the public do, continually or from time to time, without asking permission, enter upon it. There is no evidence of that; neither would one expect there to be. In
12 At [18].
my view, the Court can accept that a driveway is private in nature unless that assumption is displaced by admissible evidence to the contrary.
(emphasis added)
[47] The Wilson J judgment to which he referred stated:13
The essence of this appeal is the meaning of ‘any place to which the public have access, whether as of right or not’. It is clear that only those places to which the public - that is, the general public - have access, as of right or not, constitute ‘roads’. The evidence in this case is clear and unequivocal that it is private land -there is no evidence that any member of the public is entitled to go on it or does go on it, whether or not by any right, except for business or social purposes. It is not, in other words, a place to which the public in general resort as a matter of course, though not necessarily of right. It seems to me that this clearly brings it within the test laid down in the case of Harrison v Hill 1932 SC (J) 13, 16, where that very distinction was clearly made. It is not enough that premises or a place may be physically open for the public to wander in on. It must be that they are so open and so well known to be open that in fact the public do, either continually, or from time to time, without asking anybody's permission, enter upon them. If they do that, it is a place to which the public have access whether as of right or not, and it is a road.
(emphasis added)
[48] However, in Toy-Troughton v Police, decided in the same year as Taylor, Harrison J held that a driveway into a marae was a public place, based on an earlier decision of McBreen v Ministry of Transport.14 In McBreen, the Court of Appeal said “Whether a place is one to which the public have access, whether as of right or not, is a question of fact.” Harrison J referred to the differing decisions as emphasising the degree to which the question is a factual inquiry. He found that the marae, and driveway, was open to all who visited it. He saw the question as being one of whether the public could access it, not whether they had the right to or regularly did
use it as a public space.
[49] A number of other decisions have taken different views on whether a driveway can be considered a road, most turning on analysis of the specific driveway in question.15 Other High Court decisions have also held that the question is
primarily one of fact.16 In Wikatene, the Court said:
13 Police v Smith [1976] 2 NZLR 412 (SC) at 413.
14 Toy-Troughton v Police HC Hamilton AP49/02, 6 December 2002, citing McBreen v Ministry of
Transport [1985] 2 NZLR 495 (CA).
15 See, for example, Cave v Police HC Christchurch CRI-2004-409-000024, 4 August 2004
Trite though it is to say so, each case must obviously be decided on its particular facts, the important question being whether the public have access, whether as of right or not. The words “whether as of right or not” indicate that what is meant is not legal access, but rather physical access.
…
Another important passage in McBreen is the comment by Cooke J at p 498:
“It is far from absurd to make dangerous driving an offence in any place to which the public have access, whether as of right or not. If a motor vehicle is driven on a place to which the public have access, whether or not they usually exercise access by vehicle, the mischief at which s 57 is aimed may be present … ”
[50] In Police v Te Riini the District Court referred to a small strip of concrete between the footpath and the letterboxes at the end of a driveway, and found that the concrete strip was accessible by the public. The Judge said that members of the public could drive along that area to visit either house, or to make an enquiry at either house, and noted that persons could use private driveways as a part of turning manoeuvres.
[51] The major distinction in the differing case law is, in essence, whether the definition of road requires that the public simply be capable of accessing the particular area, or whether the public had to be generally able to access that area, as suggested by Heath J. There does not appear to be any serious argument about the fact that, in essence, each decision will turn on its facts, despite Heath J’s comments that a driveway will generally be private. His Honour specified that the Court will generally accept that a driveway is private in nature unless that assumption is displaced by admissible evidence to the contrary, i.e. evidence on the facts showing otherwise. This again centres the assessment on the particular driveway in each case. Heath J was clearly focussed on private driveways owned by one occupant, which
would likely primarily be private.
(deciding that a farm paddock being used as a car park for an agricultural show was a road while it was used for that purpose); Police v Peters DC Tauranga CRI-2009-070-000917, 7 April 2009 (holding that a dirt track, around which there was no evidence of use, whilst able to be accessed by the public but was not a public place or a place to which the public typically have access); Police v Te Riini DC Whangarei CRI-2009-088-000955, 24 July 2009 (holding that an area of concrete between the road and a residential driveway could be physically accessed by the public and was a road).
16 Wikatene v Police HC Wellington AP37/01, 6 March 2001 at [7] – [8].
[52] There is a valid public safety argument, which underlies the Land Transport Act, toward taking wide views of the term “road”. However, it must also be recognised that there are some places which are not typically publicly accessible and are not used by the public, and the fact that they are capable of being accessed by the public does not automatically render them public, and roads. The fact that there could be legitimate reason to proceed down a private driveway does not mean that, in every context when it is being used, it is a road.
[53] The words, “a place to which the public have access”, connote the idea that the public actually does have access to an area by entering it continually or from time to time. That is not typically the case with a driveway, even a shared one. Almost anything can be technically accessed by the public. A person living in a house with a single driveway can also be expected to have visitors and others occasionally coming down their driveway. In my view, that is not sufficient to make it a public place.
[54] The case of a shared driveway is an interesting one. Generally, such a driveway is in the ownership of one property with the other properties having rights of thoroughfare. Where the shared driveway provides access to private residences, as opposed to commercial buildings, it is difficult in my assessment to contend that the driveway is a place to which the public have access. In the usual course, members of the public would not expect to have access to a driveway servicing one private residence and I doubt the position is any different when four private residences are involved. Unlike the marae in the case of Toy-Troughton, private residences are not open to all who visit them. It is even clearer in my view in this case where Mr Puna’s residence was the last of four houses sharing the driveway. Mr Puna’s defence was that he was parked on one side of the house and then drove to park on the other side. That must mean that, on his evidence, he was driving only in the vicinity of his own house. In that context, I am not satisfied that the area of the driveway in question could be considered a place to which the public have access.
[55] However, as I say, this matters not because the evidence accepted by the
District Court Judge, quite properly in my view, was that Mr Puna drove up the
driveway from the road. Had the facts been as the defence contended then he would not have been driving on a road. The evidence, however, leads to the conclusion that Mr Puna had indeed been driving on a road.
Result
[56] For the reasons given, I uphold the Judge’s findings of fact that Mr Puna drove on a road while the proportion of alcohol in his breath exceeded the legal
limit. The appeal is dismissed.
Thomas J
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