R v Police HC Hamilton CRI 2006-419-162
[2007] NZHC 426
•3 May 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
CRI 2006-419-162
R
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 16 April 2007
Appearances: T Sutcliffe for the appellant
J Mackie for the respondent
Judgment: 3 May 2007
JUDGMENT OF STEVENS J
This judgment was delivered by me on Thursday, 3 May 2007 at 11.15am pursuant to r 540(4) of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Solicitor, PO Box 19173, HamiltonT Sutcliffe, PO Box 19021, Hamilton
R V NZ POLICE HC HAM CRI 2006-419-162 3 May 2007
Introduction
[1] This is an appeal against a conviction for causing a vehicle to undergo a sustained loss of traction without reasonable excuse, being an offence against s 36A(1)(c) of the Land Transport Act 1998. The appellant was convicted in the District Court at Te Awamutu as a result of a reserved decision of Judge J E Maze dated 16 August 2006. At a sentencing hearing on 3 November 2006, he was fined
$450 with court costs of $130 and was disqualified from driving for six months.
[2] The notice of appeal dated 14 November 2006 was filed by the counsel who conducted the trial for the appellant in the District Court. The grounds outlined in the notice of appeal were that “the learned District Court Judge was wrong to find it established beyond reasonable doubt that I consciously and deliberately allowed the (undisputed) sustained loss of traction to continue”. Separate particulars of this ground of appeal were also provided.
[3] Subsequently, trial counsel was appointed to the District Court bench and Mr Sutcliffe was instructed to conduct the appeal. After reviewing the file, Mr Sutcliffe considered that the grounds of appeal needed to be amended. Accordingly, by memorandum dated 5 April 2007, the appellant abandoned the ground of appeal in the notice of appeal and grounds of appeal were restated as follows:
1. A miscarriage of justice has occurred because –
1.1 The defence were taken completely by surprise by highly prejudicial evidence that was not disclosed prior to trial.
1.2 Through an error of defence Counsel during the course of the trial the Appellant was deprived of a fair trial because:
1.2.1 He failed to respond adequately to the new evidence and protect the interests of the Appellant
1.2.2 He failed to give the Appellant the opportunity to respond to the new damaging evidence when he gave evidence in his defence.
1.3 The trial Judge misdirected herself in respect of the evidence by dismissing in her judgment the Appellant’s response to the new evidence on the grounds it was not worthy of belief when the Appellant had not given evidence on the point at all.
2.The above grounds of appeal will be supported by two Affidavits. The first Affidavit from the Appellant, John Adam R and new defence witness David Falkiner Wallace. The Affidavit of Mr Wallace is in the form of fresh evidence.
The charge
[4] The charge against the appellant was that he operated a motor vehicle on a road in a manner that caused the vehicle to undergo sustained loss of traction in contravention of s 22A(3) of the Land Transport Act 1998.
[5] Section 22A relevantly provides:
22A Persons not to engage in unauthorised street or drag racing, or other related prohibited activities on roads
…
(3) A person must not, without reasonable excuse, operate a motor vehicle on a road in a manner that causes the vehicle to undergo sustained loss of traction unless the operation of the vehicle in that manner is authorised by law.
The decision under appeal
[6] It is common ground that the decision of Judge Maze correctly identified the elements which the informant must prove beyond reasonable doubt in support of such a charge. These elements are:
• that the defendant operated a motor vehicle; and
• did so on a road; and
• did so in a manner which caused the vehicle to undergo sustained loss of traction; and
• did so without reasonable excuse; and
• the operation of the vehicle in that manner was not authorised by law.
[7] Judge Maze heard argument as to whether this was a strict liability offence. She rejected that contention, holding that the informant must prove that the defendant consciously allowed or caused the loss of traction to continue, and that this requires mens rea as an element of the offence: see Whitburn v Police HC WHA CRN 2088020930 29 June 2004, Laurenson J. It was not disputed on the appeal that this is a correct statement of the law.
[8] In the District Court, it was accepted that certain facts had been established by the prosecution without challenge. These were outlined at [1] of the judgment:
(i) Mr R was the driver of a silver Mercedes Benz CLS55 registration number CTU412 on 29 December 2005 in Mahoe Street, Te Awamutu;
(ii) That particular model of Mercedes Benz has an electronic stability programme (ESP), which includes traction control. ESP can be turned off by a switch on the dashboard controls, immediately in front of the automatic gear control. ESP can be re-activated by using the switch or by accelerating to 40 kph, at which point it automatically re-engages.
(iii) That model of Mercedes can accelerate from 0 to 100 kph in 4.7 seconds;
(iv) Mr R ’s car excited certain interest in the shop assistants working in
Ace Lawnmowers, when Mr R visited their premises about 8am on
29 December 2005.
(v) Mr R offered to demonstrate its acceleration when he left. The assistants stood outside watching as he departed.
[9] The acknowledgement that the shop assistants from Ace Lawnmowers “stood outside watching as he departed” is relevant to a consideration of the affidavit of Mr Wallace which the appellant seeks to adduce as fresh evidence in relation to the appeal.
[10] Judge Maze’s decision succinctly summarises the evidence from the witnesses. These included Mr Jones, the Assistant Manager of Mitre 10, who witnessed the incident from the carpark next to Ace Lawnmowers. Mr Laird was the Manager of Mitre 10 and he witnessed the incident from the same carpark. Constable Greenwood was in a patrol car nearby and heard a vehicle revving its motor for about five seconds and, after ascertaining from the first two witnesses the registration number of the vehicle, went and spoke to Mr R who acknowledged he
was the driver at the time. Constable Greenwood gave evidence of the marks left on the road by the vehicle and noted that they were approximately 26 metres long.
[11] For the defence, Mr R gave evidence. He accepted that he was a very experienced driver who competes in motorsport. He was well used to driving high performance vehicles on and off the racetrack. He was keenly aware of the difference between the racetrack and the highway. The gist of his defence was that he did not intend the tyres to lose traction.
[12] In terms of the detail of his defence, Mr R acknowledged that he had seen a Police car in Market Street and had no intention of drawing attention to himself. As the District Court Judge observed:
[12] … He said he deliberately slowed and then accelerated hard, as he had told the police, to show the Ace staff what the car could do. He said he had been taken by surprise when the car lost traction, and now reasoned he must have switched off ESP without realising it.
[13] He denied he looked to the right grinning in the direction of the men outside the Ace premises. He said as soon as he realised he was losing traction his focus was upon the road and keeping the car under control. He maintained that although the car lost traction he kept it under control at all times. He knew how to deal with that situation safely. He therefore denies his operation of the car caused it to undergo sustained loss of traction.
[13] The District Court also heard from Mr Walker, a car dealer from Wellington, who supplied the vehicle to Mr R . He told the Court that this model Mercedes Benz was the most powerful model that was sold. It had a torque four times that of modest family saloons, but is “a heavy and safe car”. The Court also heard from a Mr Fawcett who had raced high performance and V8 cars for some 20 years, regarding control and acceleration of powerful cars as well as the resulting tyre marks.
[14] Judge Maze made certain findings in respect of the evidence of Mr Jones and Mr Laird and considered them to be credible witnesses whose evidence was, in most respects, an accurate record of what they saw. Reference will be made to the detailed findings later in this judgment.
[15] The hearing of the case occurred on 27 July 2006 and Judge Maze reserved her decision. A short oral judgment accompanied the release of the reserved decision on 16 August 2006. Because it helps to inform some of the issues relevant to the appeal, it is appropriate to quote from paragraph [3] of the oral judgment as follows:
[3] The sole issues as I listed them in the decision were, did he cause the vehicle to undergo the sustained loss of traction and did he have reasonable excuse. On that score I preferred the evidence of the two eye witnesses who saw Mr R driving the car in that manner and looking to the men on the pavement whom they observed just along from them to whom he had already said he would show them what his car could do. Those two men saw the defendant grinning at the time and I accepted that evidence as credible and reliable. That finding of fact was contrary to Mr R ’s evidence that he did not expect the car to lose traction. He did not look at the men and grin, rather he was focusing on the road ahead and bringing the car back under control.
[16] Judge Maze then referred to paragraph [20] of the reserved decision. This provided:
[20] A driver can cause sustained loss of traction even though he travels a short distance or it occurs within a short time. “Sustained loss of traction” means a state sustained in the sense of it being consciously allowed or caused to continue by the driver (Whitburn). Here Mr R left a skid of 26 metres on the road. A tyre depositing residue after the wheels regain traction cannot logically continue to do so for more than a few revolutions of the tyre. I am satisfied the wheels lacked traction for most of that 26 metre distance. Mr Jones and Mr Laird first heard acceleration, and then saw smoke trailing behind the car, and then saw Mr R turn and grin at the men outside Ace. Mr R was therefore not, as he says, overcoming surprise and carefully controlling the vehicle to gradually reduce speed. I infer, as the only reasonable inference from the facts listed above, that Mr R consciously allowed the loss of traction to continue, and to do so over most of the skid mark.
[17] Finally, reference is made to paragraph [21] which contains findings relevant to the issue of mens rea.
[21] I am satisfied the defendant’s actions were deliberate. Whether the ESP was functioning or switched off makes no difference to that finding. He was aware the vehicle had lost traction, and, with that knowledge, caused it to continue. Accordingly the fact ESP may have been off does not provide reasonable excuse.
[18] For the appellant, Mr Sutcliffe accepted that the key issue at trial was whether or not the appellant intended that the vehicle be operated in the manner it was. In the light of the new grounds of appeal, the principle submission was that there had been a miscarriage of justice of the type referred to by the Supreme Court in R v Sungsuwan [2006] 1 NZLR 730. More particularly, the appellant submitted that a number of things went wrong with the District Court trial, including:
a) The defence being taken by surprise by highly prejudicial evidence from two prosecution witnesses.
b) The failure by defence counsel to take appropriate action to address the prejudice arising out of the surprise evidence.
c) The trial Judge misdirecting herself as to the evidence.
[19] In terms of the “highly prejudicial evidence” which emerged from the witnesses, it was common ground in the appeal that evidence of the appellant smiling or grinning at the persons outside Ace Lawnmowers given by Mr Jones was neither recorded in the Police Officer’s brief notebook entry of what Mr Jones said when first spoken to, nor mentioned in any brief-of-evidence of Mr Jones disclosed by the informant. The same is true of the statement by Mr Jones about the persons outside Ace Lawnmowers “cheering and clapping”. Mr Laird described the expression on the appellant’s face as “very relaxed”. Those words were not in the Police Officer’s brief notebook entry of his preliminary contact with Mr Laird. Neither were they in any brief-of-evidence of Mr Laird disclosed by the informant.
Evidence of Mr Jones
[20] The context in which this evidence emerged at trial is best understood by referring to the evidence itself. Mr Sutcliffe cited such evidence, the first being the evidence of Mr Jones in chief at page 4 of the notes of evidence:
Q: Were there any other people, pedestrians in the area that you saw?
A: Sure was, there was the guys from Ace Lawnmowers standing on the footpath.
…
Q: What were they doing?
A: They were cheering and clapping basically. Q: Could you see the driver of the vehicle?
A: Yes.
Q: How clearly could you see them? A: Really clear, really clear.
Q: How were you able to see them?
A: Well, we looked up to see the smoking tyres. Q: Yes?
A: And the gentleman in it was basically driving the car so we got a real good view of him, yeah, simple as that. I was right there. There was no restriction or anything like that.
Q: Was the driver’s window up or down? A: Up.
Q: Could you see the driver’s face? A: Yep.
Q: What direction was he facing when you first saw him? A: Straight ahead.
Q: What direction was he facing once he moved past you? A: Virtually the same I think, yeah.
Q: Were you able to notice anything about his face?
A: Ah about my age, dark hair and um, I thought he had a goatie, moustache and beard with a smile.
Q: Was he smiling the first time he saw you?
A: He was smiling basically at the boys at Ace Lawn Mowers I’d say, that’s just what I got from what I seen.
[21] Mr Sutcliffe accepted that Mr Jones was cross-examined by defence counsel on this evidence. Mr Sutcliffe submitted that Mr Jones maintained his position.
Indeed, it could be said that the answers improved the prosecution evidence. This was a reference to the following evidence at page 8 of the notes of evidence:
Q: I want to suggest to you that there was no way that he was turning and smiling at anybody when you saw him?
A: Oh, I can only say what I seen so
Q: Well either he was facing straight ahead or he was facing to the side?
A: I just (inaudible) as I said, I picked it up half way through the manoeuvre and he (inaudible) big grin and he’s come round to the intersection, that’s what happened, so.
Q: Well Mr R is going to give evidence and he’s going to deny other than looking straight ahead. Do you accept that you may be incorrect of your recollection of that?
A: I don’t think so.
[22] I will return to this evidence later, because it is common ground that Mr R , when he gave his evidence, did not make an express statement consistent with the cross-examination by his counsel when he put the “will say” question to Mr Jones about Mr R “looking straight ahead”.
Evidence of Mr Laird
[23] Mr Laird’s evidence-in-chief at page 12 of the notes of evidence included the following:
… I was looking, crouching down, probably I was no more than less than a metre from bending over from the road, the gentleman driving the car, looking at me, ah not necessarily looking at me, looking towards me, come out of Mobil and his (inaudible) was turned to the right, to me, not looking at the road ahead and identified him as a, do I continue?
[24] Mr Laird continued his evidence-in-chief at page 15:
Q: How long do you think you had the vehicle under observation for
(inaudible)?
A: Right to the corner because that, doesn’t answer the question – Q: Time wise?
A: Time, um, -
Q: How long do you think?
A: Oh, he stopped, that was good, ah, it would be at least 30 seconds ‘cos he did stop at the compulsory stop before he proceeded directly, directly across, yeah.
Q: Any other sounds coming from the vehicle? A: No.
Q: When the vehicle was driving past you was the driver’s window up or down?
A: Down.
Q: Could you see the driver’s face? A: Clearly.
Q: You said earlier that he turned to your side, is that -?
A: At all times until he was past the end of our driveway, I don’t know when the turn, the, ah, the face was not facing the road when he went past me, it was turned, it then went to face the front but it was facing direct towards me, hence I had total clear identification of the driver.
Q: Could you see the expression on the driver’s face? A: Yeah, very relaxed.
[25] There was further evidence on the point from Mr Laird at page 16:
Q: …Were there any other pedestrians other than yourself and Mr Jones in the area at the time?
A: Yeah there were three standing immediately in front of Ace Lawnmowers, the lawn mowing business on part of the premises I occupy, there were three people standing in front of that business.
Q: What were they doing?
A: They thought it was quite amusing.
Q: Well, just pausing there. What were they doing that led you to that conclusion?
A: Well, one was in a jocular vein with the other but this is, this is not the spoken word I know not but one was laughing to the other and they, it was quite good and they carried on to wherever they went but I informed the Police that there were –
[26] Mr Sutcliffe noted that one of the findings of the District Court Judge, quoted in paragraph [20] of the decision, was that the witnesses Jones and Laird “saw
Mr R turn and grin at the men outside Ace…” Moreover, at paragraph [16] of the decision, the Judge made findings of credibility in favour of the evidence given by Mr Jones and Mr Laird and against what she thought had been said on the point by the appellant. As noted at [22] above, Mr R was in fact silent on the point in his evidence. The Judge stated:
[16] I accept Mr Jones and Mr Laird heard a car accelerating before they saw it. When they saw the car, the driver was accelerating hard with smoke visible at the rear. I accept they saw Mr R then turn to his right and grin at the men outside Ace. I prefer their evidence to that of Mr R on this issue, and I am satisfied both men have accurately recorded what they saw, despite Mr Jones’ obvious inaccuracy in seeing the car as black not silver.
Alleged lack of disclosure
[27] Mr Sutcliffe then submitted that, given that there was no “disclosure” of any material from the witnesses Jones and Laird including the words referred to in [19] above, it could not have been anticipated by the defence that the evidence which proved to be so critical in this case would have emerged in the way it did. Mr Sutcliffe submitted that the defence was clearly not prepared to meet this evidence.
[28] In terms of what should have happened at the trial, Mr Sutcliffe submitted that at the very least counsel should have brought to the Judge’s attention the fact that this prejudicial evidence given by Mr Jones and Mr Laird had not been previously advised to the defence. Defence counsel could have intimated to the trial Judge that the defence were “completely embarrassed and were not prepared to meet this evidence”. Accordingly, counsel should have requested an adjournment to consider how to deal with this new evidence.
[29] Mr Sutcliffe submitted that it was apparent from the course of the trial that defence counsel was not able effectively to deal with the evidence of Mr Jones and Mr Laird. This was because, when he led the appellant’s evidence, the appellant was not asked by his counsel to respond to the new evidence. This in turn led to the appellant, for what Mr Sutcliffe described as “understandable reasons”, not being cross-examined on the point. Mr Sutcliffe submitted that this evidence of the appellant’s facial expression “ultimately proved to be critical in her decision”.
[30] In addition to the submissions summarised above, Mr Sutcliffe sought to introduce the evidence of Mr Wallace on the basis that it qualified as fresh evidence. He submitted that such evidence provided an effective answer to the evidence given by Mr Jones and Mr Laird of which the defence first became aware during the trial. He argued that, had this evidence of Mr Wallace been available at the trial, it may well have made a difference. He submitted that it “certainly could not be discounted”.
Legal principles applicable to alleged miscarriage of justice
[31] Both counsel cited the Supreme Court decision of R v Sungsuwan. There, Elias CJ, at paragraph [6], stated that the critical question on an allegation of miscarriage of justice is whether any errors or irregularities in the trial would amount to a denial of the right of a person to a fair trial. In elaboration of this principle, the Chief Justice stated at [6]-[7]:
Miscarriage of justice does not arise because of incidental errors or irregularities in the trial, unless they amount to denial of the right to a fair trial contained in s 25(a) of the New Zealand Bill of Rights Act or unless they are significant enough in themselves to cause the appellate Court to consider the verdict to be unsafe. Where the ground of miscarriage of justice under s 385(1)(c) [Crimes Act 1961] is made out, application of the proviso to s 385 is not likely to be appropriate. It is difficult to envisage that a verdict reached without fair trial or which is unsafe will not amount to a substantial miscarriage of justice.
Counsel error is not itself a ground of appeal under s 385(1). The inquiry is not into the competence of counsel but whether the verdict is unsafe through any deficiency in the trial, however caused. Where, as here, the basis of the ground of appeal is that relevant and admissible evidence was not called (whether because it was not reasonably available at trial or because counsel did not choose to call it), the effect of its absence will have to be assessed. The context may include the cogency of the evidence not called, the other evidence at trial, any additional evidence likely to have been elicited in response had the evidence been called, and any risk to the defence in calling the evidence.
[32] The judgment of Tipping J in Sungsuwan also discussed the requirements to establish a miscarriage of justice at [110] in the following terms:
Ordinarily two things must be shown. First, something must have gone wrong with the trial or in some other relevant way. Secondly, what has gone wrong must have led to a real risk of an unsafe verdict. That real risk arises
if there is a reasonable possibility that a not guilty (or a more favourable) verdict might have been delivered if nothing had gone wrong. It is, of course, trite law that an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe. The presence of a real risk that this is so will suffice.
[33] At [111], Tipping J continued:
The reservation implicit in the word “ordinarily” is necessary because sometimes, albeit rarely, things may have gone so badly wrong that a miscarriage of justice will have occurred without reference to whether there is a real risk of an unsafe verdict. Conversely, in other rare cases, the Court may find it appropriate to intervene on account of a real risk of an unsafe verdict without specifically identifying anything which can be said to have gone wrong. The real risk will itself be enough to constitute a miscarriage without the need to identify a specific error or irregularity as its cause.
[34] Mr Sutcliffe accepted that it was not sufficient in order to succeed on an appeal to simply identify that something has gone wrong. He acknowledged the observation of Tipping J at [115] that,
…the Court must then ask itself whether what has gone wrong has deprived the appellant of the reasonable possibility of a not guilty or more favourable verdict.
[35] Mr Mackie, for the respondent, also cited the case of Herewini v Ministry of Transport [1992] 3 NZLR 482. There, Fisher J considered the jurisdiction of the Court to require the informant to supply briefs of evidence in a summary prosecution. At 495, Fisher J stated:
As I see it, the important source of jurisdiction for present purposes is the Court’s common law power to ensure that a party is not subjected to unreasonable surprises at a hearing. Within reasonable limits, every defendant is entitled to know in advance what case he or she will have to meet. Here, the emphasis lies not upon the disclosure of information already in the possession of the prosecution – which may or may not be information helpful to the defence case – but rather upon ensuring that the defendant is given a reasonable opportunity to prepare a defence. That necessarily entails reasonable notice of the prosecution case. Only if there is reasonable notice can the defence make their own enquiries, research the law and prepare argument and cross examination. (emphasis added)
Fresh evidence
[36] So far as the question of fresh evidence is concerned, Mr Mackie referred to the case of R v International Insurance Brokers (Nelson Marlborough) Ltd [1998]
3 NZLR 190 (CA). Mr Mackie cited from the judgment of Tipping J which summarised the principles at 192-193 as follows:
The principles upon which further evidence is admitted are designed to balance the interests of the person seeking to adduce such evidence on the one hand with the interests of the opposite parties on the other. They are also designed to reflect the public interest in ensuring, so far as is possible, that parties put up their best case at trial. Any other approach would be very wasteful of public resources. The conventional requirements are that the further evidence must be fresh, it must be credible and it must be cogent. Evidence is not regarded as fresh if it could with reasonable diligence have been produced at the trial.
Mr Fardell properly accepted that the intended further evidence in this case was not fresh. While the absence of freshness is not an absolute disqualification, the criteria for admission in such circumstances must be very strict. In our view, when the evidence is not fresh it should not be admitted unless the circumstances are exceptional and the grounds compelling. In addition, it will need to pass the tests of credibility and cogency.
Principles applicable to appeal by way of rehearing
[37] Mr Mackie also cited from the separate but concurring judgment of Thomas J in R concerning the circumstances in which an appellate Court will interfere with a trial Judge’s findings. It will do so, only in exceptional circumstances as indicated in the following passages of 198-199:
The principle that an appellate Court will only interfere with a trial Judge’s findings of fact in exceptional circumstances is so well established it does not require the citation of authority. For present purpose Viscount Haldane LC’s dictum will suffice. In Nocton v Lord Ashburton [1914] AC 932 at p 957, the learned Law Lord said:
…it is only in exceptional circumstances that judges of appeal, who have not seen the witness in the box, ought to differ from the finding of fact of the judge who tried the case as to the state of mind of the witness.
…
It may not be fully appreciated that the deference of an appellate Court to the findings of fact of the Court at first instance is founded on a number of pragmatic considerations which make it inappropriate for the appellate Court to intervene. The advantages possessed by the trial Judge in determining questions of fact are manifest. Of paramount importance, of course, is the fact the trial Judge hears and sees the witnesses first hand over a matter of days, or even weeks, of taking evidence. He or she can form an impression of the reliability of witnesses and, where necessary, their credibility – although in deference to the witness’s feelings the Judge may not always express an adverse conclusion in that regard. As the evidence unfolds the trial Judge gains an impression from the evidence which is not necessarily or usually apparent from the cold typeface of the transcript of that evidence on appeal.
…
An appellate Court has none of these advantages and must acknowledge that the Court at first instance is far better placed to determine the facts. Indeed, it would be an arrogance for an appellate Court to assert the capacity to be able to “second-guess” a trial Judge’s findings of facts when it does not share those advantages.
[38] This appeal under the Summary Proceedings Act 1957 is by way of rehearing, as outlined in s 119(1). The High Court’s general powers on rehearing are outlined in s 121 and s 119 also allows the Court to order that any viva voce evidence be heard again and that fresh evidence may be introduced if it meets the requisite tests. However, the well settled principle from R that an appellate Court will only interfere with a trial Judge’s findings of fact in exceptional circumstances also applies in Summary Proceedings general appeals. This principle has been adopted in a number of summary appeals: see, for example, Tootell v Police HC ROT CRI 2005-470-000037 16 November 2005, Harrison J and Krpan v Police HC AK CRI 2005-404-000207 15 August 2005, Williams J. Therefore, while the Court has the power to rehear proceedings and make findings of fact, it will generally be reluctant to do so.
Submissions for respondent
[39] Mr Mackie spoke to his detailed and helpful written submissions. In terms of a summary of key points opposing the appeal, Mr Mackie referred to the following paragraphs of the written submission as encapsulating the respondent’s position on the appeal:
3. The respondent respectfully submits the appeal should be dismissed. There is no miscarriage of justice in this case. It is not accepted that counsel who appeared for the defendant at the defended hearing was so taken by surprise that the issue raised was not adequately dealt with. Counsel for the appellant cross examined the witnesses as to the correctness of their observations. The appellant responded to the prosecution assertion he was showing off when he was cross examined.
4. The defendant was cross examined on the informant’s theory of the case, that is, that he was showing off by doing a “burn out” as it was described by the prosecution witnesses. The defendant knew the allegation from the start. It could not have been surprising to find that the witnesses would go beyond their briefs of evidence.
5. The defendant gave no evidence in chief as to denials of what the witnesses stated. However, the learned DCJ appears to have given him the benefit of doubt by recording in her judgment that he denied he was smiling or looking to his right as he drove off having put his foot to the floor. Even if he did give direct evidence on this point that left the learned DCJ with two choices, accepting his evidence or rejecting it. Here she rejected it. That left her to return to the prosecution evidence from two witnesses, Laird and Jones which she accepted.
[40] Mr Mackie then referred to paragraph [20] of the decision of Judge Maze and to the five factors which led to the conclusion that Mr R was not “overcoming surprise and carefully controlling the vehicle to gradually reduce speed”. Her Honour added:
I infer, as the only reasonable inference from the facts listed above, that Mr R consciously allowed the loss of traction to continue, and to do so over most of the skid mark.
[41] Mr Mackie noted that the reference to Mr R turning and grinning at the shop assistants outside Ace Lawnmowers was only one of five factors mentioned by Judge Maze. Mr Mackie submitted that there were not just five factors relevant to the critical finding of intention, but approximately ten, including:
a) The appellant stopping the vehicle outside Ace Lawnmowers. b) The appellant putting his foot to the floor.
c) The spinning of the wheels of the vehicle. d) The speed and noise of the tyres.
e) The smoking of the tyres.
f) The skid marks and their extension over a distance of some 26 metres. g) The vast experience of the driver.
h) The facial expression of the driver.
i) The admission to Constable Greenwood that the appellant was showing off to the people outside Ace Lawnmowing.
j) The fact that the vehicle excited certain interest in the shop assistants of Ace Lawnmowers and that Mr R offered to demonstrate the acceleration of the vehicle when he left and the assistants stood outside watching as he departed.
[42] Mr Mackie submitted that the cumulative effect of all of this evidence gave ample support to the findings on intention made by Judge Maze at paragraphs [20] and [21]. In that context, the facial expression of the appellant was only one of many factors and based on the whole of the evidence there was no doubt that the actions of the appellant were intentional and not accidental. Accordingly, there was no miscarriage of justice.
[43] Mr Mackie submitted that, putting aside the issue of the facial expression, all of these additional factors were consistent with the appellant showing off. This proposition was at the heart of the prosecution case and this had been known to the defence from an early stage.
[44] Moreover, Mr Mackie submitted that there was no real element of surprise to the defence. He referred to the affidavit filed by Mr R in support of the appeal in which it was clear that both Mr R and his counsel knew the theory of the prosecution case. They knew the witnesses who would be called in support. There was adequate disclosure, both through the copies of the notebook of the Police Officer and the briefs-of-evidence. The evidence about the facial expression of the
appellant was incidental to the factual narrative and merely corroborative of the substantial weight of evidence that Mr Mackie identified.
[45] Mr Mackie drew attention to the fact that, when he cross-examined Mr R at the hearing, he cross-examined on the gravamen of the prosecution case in a number of passages. In short, he put to Mr R fairly and squarely the fact that he had admitted to the Constable that effectively what he was doing was showing what the vehicle could do. He also put it to him that these events were an act of “bravado”. It was obvious that the persons to whom the appellant was showing off were the shop assistants at Ace Lawnmowers.
[46] Mr Mackie also submitted that defence counsel at the trial had an ample opportunity to, and did, cross-examine the witnesses Jones and Laird on the issue of the appellant’s facial expression. Mr Mackie noted that defence counsel was a very experienced counsel and had extensive experience both as a prosecutor and defence lawyer before he was appointed to the Bench. Accordingly, it was not likely that he was taken by surprise, particularly as he did not seek an adjournment.
[47] In terms of the affidavit from Mr Wallace, Mr Mackie submitted that it was not fresh evidence. Given that defence counsel had spoken to Mr Wallace before the hearing, it appeared that a tactical decision had been made not to call evidence at the trial from Mr Wallace or anyone else from Ace Lawnmowers. It was likely that such evidence would not have been helpful. Accordingly, Mr Mackie submitted that the evidence did not meet the legal requirements of being fresh evidence and should not be admitted. He submitted that the circumstances in relation to the evidence of Mr Wallace were not exceptional and there were no compelling grounds for its reception.
[48] Mr Mackie also submitted that the further evidence must be credible and cogent. In this context, he took the Court through the affidavit and submitted strongly that the evidence was neither credible nor cogent. In particular, Mr Mackie relied upon a letter from defence counsel to the appellant’s current counsel, in respect of which privilege was waived and which was admitted by consent on the appeal. In the letter, defence counsel stated:
Unfortunately, as I mentioned there is a difficulty with calling Dave Wallace as a witness. He is a good man and I have interviewed him at his premises for the purposes of preparing his affidavit. As you will infer from the fact that he is prepared to swear an affidavit, he has no difficulty with telling the truth about what happened that day. However, he does have a difficulty with giving evidence in person in Court and being cross-examined because of what he said to the Police shortly after the incident.
I made a filenote on 16 March 2006 about this, but I note I did not record the details of what his lying to the Police was about. I suggest you talk further to him about this …. I think it was simply that he told the Police he didn’t know anything about John R ’s movements that day whereas in fact he did. He is concerned that that dishonesty would be exposed and would affect his credibility, as well as being very unpleasant for him. I doubt his evidence would lose much weight on that account. I have tried to explain to him several times that what really matters is what he saw that day not what he said to the Police, but he is understandably concerned about the situation and indeed I mentioned to him that he may want to take legal advice himself about his position. …
Appellant’s submissions in reply
[49] Mr Sutcliffe addressed oral submissions in reply. He submitted that, although the evidence of Messrs Jones and Laird regarding the facial expression of the appellant was one of many factors, it was “the straw that broke the camel’s back”.
[50] In respect of the factors other than those mentioned in paragraph [20], which Mr Mackie had relied upon, Mr Sutcliffe referred to the evidence of Mr Walker, the Mercedes dealer, who had given evidence outlining the reasons why from a technical perspective some of these factors might have come into play. In particular, he gave evidence about the noise, the spinning of the wheels, the smoking wheels and other features of the performance of the vehicle.
[51] Mr Sutcliffe acknowledged, however, that the issue of intention was very much a “jury issue”. He submitted that knowledge of the prosecution theory was one thing, proof was another, especially where the evidence went to the heart of the matter. He submitted that the way in which defence counsel conducted the trial was not based on a “tactical decision”.
[52] Finally, Mr Sutcliffe submitted that the evidence of Messrs Jones and Laird regarding the facial expression of the appellant, which was not disclosed pre-trial by the prosecution, was such that it fell outside of the principle outlined by Fisher J in Herewini regarding the disclosure required of the prosecution to ensure that a defendant is not subjected to unreasonable surprises at the hearing. He submitted that the disclosure given in this case did not entail “reasonable notice of the prosecution case”.
Discussion
[53] It is convenient first to consider the question of fresh evidence. Second, there is the question of whether there was a miscarriage of justice which involves consideration of what is said to have gone wrong or misfired at the hearing as a result of the non-disclosure of allegedly prejudicial evidence and how defence counsel dealt with the matter. Finally, reference will be made to how the Court treated evidence concerned and its relationship to the element of intentional conduct.
Fresh evidence
[54] The factual position regarding the proposed evidence from Mr Wallace is that he was known to the appellant and his counsel as a potential witness. There is no dispute that the appellant had acknowledged to the Police Officer that his actions outside Ace Lawnmowers, where Mr Wallace worked, was to show Mr Wallace and his colleagues who were interested in his vehicle what it was capable of doing. As noted, it was part of the agreed facts that Mr R offered to demonstrate acceleration of the vehicle when he left and the assistants stood outside watching as he departed.
[55] It was no doubt in the light of the acknowledgement to the Police Officer and the agreed fact that the shop assistants from Ace Lawnmowers stood on the footpath watching the appellant as he departed, that defence counsel interviewed Mr Wallace as part of his preparation for the case. Defence counsel later wrote to the appellant advising that, depending on the prosecution evidence, the defence may yet wish to call Mr Wallace under subpoena but “a careful decision will need to be made on that closer to the hearing”.
[56] As was made clear by the Court of Appeal in R , the test for admission of fresh evidence on appeal is whether it could with reasonable diligence have been produced at the trial. Here, the defence knew about, and interviewed, Mr Wallace. The defence knew the key prosecution allegations including that the appellant was showing off to the shop assistants at Ace Lawnmowers, including Mr Wallace. Intention or mens rea was clearly in issue.
[57] Evidence from Mr Wallace as to the manner of driving by the appellant and what he saw and heard about the vehicle, the driver, and the way in which the vehicle was being driven, was available to be produced at the trial, if the defence chose to call that evidence. I consider that, in all the circumstances of this case, the evidence is not such as can be characterised as fresh under the principles in R .
Credible and cogent
[58] Even if such evidence had qualified as being “fresh”, the question remains as to whether it was credible and cogent. I agree with the submission of Mr Mackie that the contents of the affidavit do not meet these criteria. One reason for reaching such a conclusion is that Mr Wallace claims, in his affidavit, to have been in the shop when the vehicle accelerated and both rear tyres started to smoke. He then deposes that:
…both I and two other male employees who were then in the shop rushed to the footpath through the doors shown in the photographs to see what was going on. It was a matter of me moving approximately three metres before I was on the footpath. This took literally a matter of seconds. By the time we got out to the footpath the vehicle was already at the intersection at the southern end of the street. …
At no stage did I see Mr R looking towards Ace Lawnmowers. At no stage when the vehicle accelerated and the tyres started to smoke was there anyone from Ace Lawnmowers on the footpath watching Mr R .
[59] But this evidence is inconsistent with one of the agreed facts that the appellant, having offered to demonstrate the acceleration of the vehicle when he left, “the assistants stood outside watching as he departed”.
[60] In terms of credibility and cogency, there is also the content of defence counsel’s note about the “difficulty with calling Dave Wallace as a witness”.
Defence counsel was doubtful about the evidence of Mr Wallace and there was no subpoena issued to have him give evidence at the trial.
Miscarriage of justice
[61] The next question concerns the manner in which the evidence of the facial expression of the appellant and the reaction of the shop assistants outside Ace Lawnmowers emerged at the hearing. The question is whether what occurred amounted to a miscarriage of justice based on the principles in Sungsuwan. A subsidiary question is whether there was any issue of concern to this Court, from the fact that the briefs-of-evidence of Mr Jones and Mr Laird did not include a reference to the facial expression of the appellant or the reactions of the shop assistants at Ace Lawnmowers. The test, as stated in Herewini, is that, within reasonable limits, a defendant is entitled to know in advance what case will be faced at trial. There must be a reasonable opportunity to prepare a defence and this entails reasonable notice of the prosecution case.
[62] Dealing first with the disclosure point, I consider that there was ample disclosure of the theory of the prosecution case and the evidence in support. Both the appellant and his counsel knew that a key allegation was that he was showing what the Mercedes vehicle was capable of. It was plain to the defence that the persons who were interested in the vehicle and were the persons to whom the appellant’s actions were directed, were the shop assistants at Ace Lawnmowers. This was evident from the admitted facts. The defence was also aware of the admission by the appellant to Constable Greenwood that the guys in the lawnmower shop were “showing an interest in his car so he showed them what it could do”. As noted, it was at the heart of the prosecution case that the appellant was showing off to these individuals.
[63] When Mr Jones and Mr Laird gave evidence there was an elaboration of the identification of the appellant as the driver and the evidence which emerged was, I consider, incidental to the other evidential narrative being led by the prosecutor. In no sense was this a case where evidence was deliberately withheld and led by the prosecution to surprise the defence. Indeed, Mr Sutcliffe did not allege that what
occurred was done deliberately. Rather, the evidence of the facial expression of the appellant emerged naturally in the flow of the evidence and was merely corroborative of other evidence which was before the Court.
[64] Accordingly, I consider that in the circumstances of this case, the appellant was given ample opportunity to prepare the defence and had reasonable notice of the key elements of the prosecution case and what the witnesses would say, including the principle theory of the case that he was deliberately engaging in exhibitionist driving of the vehicle.
Defence reaction
[65] The next question is whether the way in which defence counsel dealt with the evidence which emerged at the trial resulted in a miscarriage of justice. Was what occurred such as to render the verdict unsafe? I do not consider it was for a number of reasons. First, defence counsel, who was senior and experienced, cross-examined both Mr Jones and Mr Laird competently on the evidence which they gave. Moreover, defence counsel did not raise the matter with the trial Judge either when the evidence emerged or at the end of the prosecution case, which suggests in combination with the cross-examination that he was both aware of the new evidence and felt that it was not an immediate problem.
[66] Defence counsel did put to Mr Jones the fact that the appellant was “going to give evidence and he’s going to deny other than looking straight ahead”. The implication was that Mr Jones could not have seen any facial expression, let alone that he had a grin on his face. When the appellant gave evidence, he did not clearly deal with where he was looking. His answers in chief were directed at his action in retaining control of the vehicle the whole time to ensure the vehicle ran in a straight direction and did not go into a violent over-steer or under-steer. One might infer from such evidence that he was concentrating hard to achieve this. The implication plainly is that he would have been looking at the road ahead in order to ensure the vehicle travelled straight. The appellant did not give evidence about his facial expression and about not having a grin.
[67] The question is whether the omission by defence counsel to lead precisely what the appellant was going to say, places this case within the category of “a real risk of an unsafe verdict”. I do not accept that this was the case.
[68] One reason for reaching this conclusion is that when the prosecutor did cross- examine the appellant, he clearly put to him the gist of the prosecution case, namely, that his actions were showing off to the shop assistants standing outside Ace Lawnmowers. The appellant then had an opportunity to say precisely what he was doing. My reading of his answers is that he was not particularly forthcoming. Defence counsel did not re-examine Mr R .
[69] Not every counsel error, if this did occur in this case, will result in a miscarriage of justice. The critical question is whether any deficiency in the trial process, however caused, rendered the verdict unsafe. Looking at the way in which this experienced defence counsel handled the case and dealt with the evidence as it emerged does not bring me to the point where I consider that the verdict was unsafe.
The weight of other evidence
[70] Another factor which is influential on this aspect is that, even if one discounted the impact of the evidence and removed it as one of the five factors mentioned by Judge Maze in para [20], it still leaves four other compelling factors referred to in the Judge’s decision and which supported the conclusion that the appellant consciously allowed the loss of traction to continue and that his actions were deliberate. I am satisfied, after having considered all of the evidence that was before the District Court, that there is ample evidence to support this conclusion on the issue of intention. The many factors relied upon by Mr Mackie outlined at [41](a) to (j) also support this view. In other words, it was not just four factors, but also the other factors available from the prosecution evidence. Accordingly, the evidence of the grin and the reaction of the shop assistants outside Ace Lawnmowers was in no sense the straw that broke the camel’s back, as Mr Sutcliffe put it.
[71] Finally, on appeal, it is necessary to remember that the District Court saw and heard all of the witnesses and that an appellate Court should interfere with the trial
Judge’s findings of fact only in exceptional circumstances. Mr Sutcliffe accepted that the intention element was a jury issue. I do not consider that, despite the commendable efforts of Mr Sutcliffe in arguing the appeal, the appellant has shown that exceptional circumstances exist for interfering with the Judge’s finding on the question of intention. Neither do I consider that any miscarriage of justice occurred.
Result
[72] It follows that the appeal must be dismissed. Counsel agreed at the hearing that if the appeal were to be dismissed, an order for costs would follow. I award costs on the appeal to the respondent in the sum of $225 being an agreed sum.
Stevens J
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