Rowe v Police
[2024] NZHC 3100
•24 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-270
[2024] NZHC 3100
BETWEEN LIAM BRODY ROWE
Plaintiff
AND
NEW ZEALAND POLICE
Defendant
Hearing: 26 August 2024 (further submissions heard on 18 October 2024) Appearances:
A Kala for Appellant
S E Arnerich for Respondent
Judgment:
24 October 2024
JUDGMENT OF WILKINSON-SMITH J
[Appeal against conviction and sentence]
This judgment was delivered by me on 24/10/2024 at 10 am.
………………………… Registrar/Deputy Registrar
Solicitors:
Kayes Fletcher Walker Ltd, Manukau Public Defence Service, Auckland
ROWE v NEW ZEALAND POLICE [2024] NZHC 3100 [24 October 2024]
Introduction
[1] Following a judge-alone trial before Judge S Patel on 28 March 2024,1 the appellant, Liam Rowe, was found guilty of one charge of operating a motor-vehicle causing sustained loss of traction.2
[2] On 4 June 2024, he was convicted, disqualified from driving for a period of six months, and ordered to attend a driving improvement course.3
[3] Mr Rowe appeals his conviction and sentence. The appeal was initially filed as a conviction appeal but at the hearing it became apparent that Mr Rowe also wished to appeal the order that he attend a driving improvement course. An application for leave to appeal sentence out of time was filed on the basis that Mr Rowe has learning difficulties that make his attendance at a classroom-based course impractical without a reader/writer.
[4] I heard from Mr Rowe’s mother at the hearing with the agreement of counsel and I note from the file that Mr Rowe had a communications assistant at the hearing in the District Court.
Background
[5] On the evening of 28 March 2023, Steven Wilcocks saw a vehicle being driven in the Mellon’s Bay carpark. The driver was causing the vehicle to spin, and smoke was coming from the tyres. Mr Wilcocks heard “screaming tyres” and the car engine being revved. He saw the car from inside his house initially and then went outside where he watched the vehicle from a distance of one to 1.5 meters. CCTV footage from Mr Wilcocks’ home address adjacent to the carpark shows him emerging from his house and standing close to the vehicle. The vehicle can be seen travelling in circles with smoke coming from its rear tyres.
1 New Zealand Police v Rowe [2024] NZDC 12601.
2 Land Transport Act 1998, ss 22A(3) and 36A(1)(c).
3 New Zealand Police v Rowe [2024] NZSC 22215.
[6] Mr Wilcocks gave evidence that he saw the front and rear registration plates of the vehicle and recognised it as the same registration number he had previously written down because of earlier concerns about the way in which the car was being driven. Mr Wilcocks also recognised the car as a Commodore.
[7] Immediately after the car left the carpark, Mr Wilcocks telephoned police to report the incident. He described the car as a silvery-green coloured Holden and gave the registration details “[redated]”.
[8] The appellant, Mr Rowe, is the registered owner of a silver Holden Commodore [redated].
[9] A police officer, Constable Hammond, contacted Mr Rowe by telephone and on 12 April 2023 Mr Rowe and his mother visited the Police Station. Constable Hammond subsequently served Mr Rowe with a letter pursuant to s 118 of the Land Transport Act 1998 requesting that the owner, driver, or occupants of the vehicle be advised to police in relation to the event on 28 March 2023.
[10]In response to the s 118 letter, Mr Rowe provided a letter stating:
I, Liam Rowe, was the said driver of the vehicle [redated] on the date of 28 March 2023. To my knowledge, I am the only person who was the driver of my vehicle at the alleged time. I state that my vehicle was not in the vicinity of the alleged Mellons Bay Road carpark, Mellons Bay, at the time of 9.15 pm.
[11] Mr Rowe was charged with operating a motor vehicle causing sustained loss of traction. He pleaded not guilty, and a defended hearing was heard exactly one year later on 28 March 2024.
[12] The prosecution called two witnesses, namely Mr Wilcocks and Constable Hammond. At the conclusion of the hearing, Judge Patel issued a decision finding Mr Rowe guilty. Sentencing proceeded on 4 June 2024. Mr Rowe was convicted and disqualified from driving for six months and ordered to attend a driving improvement course.
The District Court decision
[13] In his decision Judge Patel set out the background before noting that the onus of proving the charge rests on the prosecution and that there was no onus on Mr Rowe to prove his innocence. Judge Patel recorded that there was no direct evidence of who was driving the vehicle seen by Mr Wilcocks. Judge Patel set aside the description of the driver given by Mr Wilcocks describing it as “generic”.
[14] The issue for the Court was whether the police had proof beyond reasonable doubt that it was Mr Rowe driving the vehicle. That issue rested on whether the standard of proof could be met by circumstantial evidence from which it might be inferred that Mr Rowe was driving. His Honour framed that in the following way:
[19] Is it reasonably possible that Mr Willcocks was mistaken about the number plate and type of vehicle that he saw? If it is I must dismiss the charge. However, I consider that Mr Willcocks was able to accurately see the number plate of the vehicle and see what type of vehicle it was. Although it was dark and smoke was coming from the tyres, there was street lighting. The CCTV shows that Mr Willcocks was in a position to able to see both the front and the back of the vehicle registration plates as it spun around.
[15] The Judge recorded that Mr Wilcocks was familiar with the vehicle as he had seen it and noted its registration details twice previously. Judge Patel considered that Mr Wilcocks fetching his notebook to confirm the details of the registration plate to the 111 call taker did not impact the witness’ reliability. Judge Patel accepted Mr Wilcocks’ explanation that he did so to ensure that he relayed the registration plate correctly.
[16] There was an issue with the colour of the vehicle with Mr Wilcocks saying to the 111 call taker that he saw a “silvery-green” vehicle. Judge Patel considered that this inaccuracy might be explained by the observation being made under streetlighting. Judge Patel considered that the observation of the registration plate was accurate.
[17] Judge Patel then turned to Mr Rowe’s letter provided in response to the s 118 notice. In that letter, Mr Rowe accepted that he was the driver of the silver Holden Commodore [redated]. Judge Patel recorded that, if it was accepted that although he was driving the vehicle at that time, Mr Rowe was not in the Mellon’s Bay area then the proper verdict was not guilty. If Mr Rowe’s letter raised a reasonable
doubt, then again Mr Rowe must be found not guilty. Judge Patel stated that even if Mr Rowe’s explanation were rejected, that would not automatically lead to a finding of guilt. His Honour reminded himself of the need to go back and consider the evidence that was accepted and, whether on that basis, the charge had been proven to the required standard.
[18] The Judge rejected Mr Rowe’s statement that he was not in the Mellon’s Bay carpark on the evening of the incident. That finding was an inevitable result of the earlier finding that the Judge was sure that Mr Wilcocks was not mistaken about the registration plate of the car he saw in the Mellon’s Bay carpark. As there was no suggestion at all that anyone else was the driver of the vehicle that night, the only available inference was that Mr Rowe was driving his vehicle in the Mellon’s Bay carpark and caused it to undergo a sustained loss of traction.
The conviction appeal
[19]The grounds of the conviction appeal are:
(a)the Judge erred in finding the evidence of a prosecution witness credible in identifying Mr Rowe’s vehicle;
(b)the Judge failed to provide adequate reasons for his credibility finding;
(c)the Judge failed to provide adequate reasons as to why the explanation provided in Mr Rowe’s statement was only partially accepted; and
(d)the Judge erred in finding that the circumstantial evidence was sufficient to prove the charge beyond reasonable doubt.
(e)A discharge without conviction should be granted if the conviction appeal fails on the other grounds.
[20]The respondent submits that the appeal should be dismissed because:
(a)the Judge did not err in his assessment of the evidence;
(b)the main witness’ evidence provided a strong evidential foundation upon which to conclude Mr Rowe was the driver of the vehicle;
(c)Judge Patel was entitled to partially accept Mr Rowe’s account to the extent it was not in conflict with other evidence; and
(d)the circumstantial evidence was sufficient to prove the charge beyond reasonable doubt.
(e)The consequences of conviction are not out of all proportion to the gravity of the offending.
[21] The appeal against conviction is governed by s 232(2)(b) and (c) of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied that:
(a)the trial Judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)a miscarriage of justice has occurred for any reason.
[22] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that:4
(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.
[23] The appeal is by way of rehearing.5 The appellate court must form its own view of the evidence.6 In doing so, the appellate court must recognise any advantages enjoyed by the trial Judge in assessing evidence and must exercise “customary caution” where the challenge is to credibility findings based on contested oral
4 Criminal Procedure Act 2011, s 232(4).
5 Sena v New Zealand Police [2019] NZSC 55, [2019] 1 NZLR 575 at [20] and [26].
6 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].
evidence.7 If the appellate court comes to a different view of the evidence to the trial Judge, that is necessarily indicative of error, and the appeal must be allowed.8 It is for the appellant to show that the Judge erred either by pointing to an error in the assessment of the evidence or by pointing to a miscarriage which occurred for some other reason.9
[24] Not every error in the assessment of evidence will result in a successful appeal. The error must lead to a miscarriage of justice either because of a real risk that, without the error the appellant would have secured a more favourable result; or because the error made the trial unfair.10
[25] Further, not every error or irregularity will result in an unfair trial. The assessment is to be made in respect of the trial overall.11 What is required is a fair trial not a perfect trial.12
Discussion
[26] Mr Rowe challenges the credibility finding made by the trial Judge in respect of Mr Wilcocks’ evidence. Generally, credibility findings are for the trial Judge to make, and an appellate court will be slow to overturn a credibility finding made by a Judge who had the benefit of hearing and seeing the witness.
[27] Mr Rowe impugns the Judge’s credibility finding on the basis that Mr Wilcocks did not provide the registration from his observations on the night of the offending but from notebook entries made one and two weeks prior to the alleged offending. On those previous occasions he had seen the car in the evening and noted the registration plate and colour of the car as silver. In the 111 call straight after the incident, Mr Wilcocks did not provide the registration details until he had had a chance to look at his notebook entries. Essentially, it is submitted that Mr Wilcocks assumed the vehicle he saw on 28 March 2023 was the same vehicle he had seen earlier. It is
7 Sena v New Zealand Police, above n 5, at [38].
8 At [38].
9 At [38].
10 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].
11 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [35].
12 E (CA727/09) v R [2010] NZCA 202 at [67]–[68]; R v Matenga [2009] NZSC 18, [2009] 3 NZLR
145 at [30]; and Ellis v R [2011] NZCA 90 at [58], citing R v Find [2001] 1 SCR 863.
further submitted that the decision contains insufficient reasons for the credibility finding.
[28] Having reviewed the notes of evidence it is clear Mr Wilcocks was firmly of the view that he recognised the car that he saw on the night of 28 March 2023 as the same vehicle he had earlier seen. Mr Wilcocks gave evidence that he was able to see the registration plate on the night of the incident and saw both the front and back registration plates. He referred to his notebook when speaking to the 111 call taker to ensure that he advised the registration plate correctly. But he was clear that he recognised both the car and the registration plate.
[29] Mr Rowe criticises the level of reasoning in the decision. He says that the reasons did not adequately address the fact that Mr Wilcocks mainly recorded details of Holdens and Falcons in his notebook and the delay in time of one to two weeks between the previous entries made in the notebook regarding the vehicle registration [redated]. Mr Rowe says these facts mean that Mr Wilcocks could have identified the wrong Holden.
[30] Mr Rowe also criticises the decision on the basis that there was no reason articulated as to why Mr Wilcocks observed the car as silver in the same area and lighting previously but as silvery-green on the night in question. In his decision Judge Patel specifically states that the streetlighting could explain the discrepancy and that the basis of his Honour’s decision was that he accepted the witness’ evidence that the registration plate was the same registration plate he had previously recorded. The registration plate provides a more reliable identification than a description of the colour of a car seen at night and under lights in a situation where there is considerable smoke around the vehicle.
[31] Mr Rowe criticises the Judge’s reasons for accepting his acknowledgement that he was the only person who drove his vehicle [redated] but not accepting the statement in the same document that he was not in Mellon’s Bay area at the time. It is obviously open to a trial Judge to accept some parts of a witness’ statement and not accept others. The two statements contained in the letter provided by Mr Rowe are different in nature. The statement that he was the only driver of the car is a statement against interest. The
statement that he was not in the Mellon’s Bay carpark on the night in question is an exculpatory statement. The Judge was quite entitled to regard those two statements separately. Having decided that Mr Wilcocks was reliable and credible in terms of the registration plate which he saw on the night in question the only possible finding was that the vehicle registered to Mr Rowe was in the Mellon’s Bay carpark on 28 March 2023.
[32] The only issue then remaining was the identity of the driver on the night. Given Mr Rowe’s acknowledgment that he was the only person driving the vehicle at the time, the following available inference is that Mr Rowe was the person driving his vehicle in the Mellon’s Bay carpark when the vehicle was seen by Mr Wilcocks. The Judge’s reasoning is perfectly explicable from the decision.
[33] Mr Rowe submits that the circumstantial evidence was insufficient to discharge the onus on the prosecution to establish the charge beyond reasonable doubt.
[34] The issue in this case turned upon whether Mr Wilcocks correctly identified the registration plate. Mr Wilcocks’ evidence was that he recognised the vehicle as a vehicle he had seen earlier whose registration plate he had recorded. Circumstantial cases rely on coincidence reasoning. The car that Mr Wilcocks saw was the same make as Mr Rowe’s car, namely a Holden. Mr Wilcocks described it being the same or very similar in colour. It had a registration plate that was sufficiently similar that Mr Wilcocks recognised it as a number he had previously recorded. The chance of this being a different vehicle with a registration plate similar to the vehicle Mr Wilcocks had previously seen is sufficiently remote to permit the Judge to come to the finding that he did.
[35] The extent of reasoning is commensurate with the complexity of the issues in this case which were straight forward. An eyewitness observed the vehicle at very close range and recognised the registration plate. The eyewitness was careful and had previously recorded the registration plate. He had an opportunity to observe the registration plate on both the front and rear of the vehicle. I can find no error in the assessment of the evidence by Judge Patel. The finding reached was entirely open to his Honour on the evidence.
[36] The conviction appeal on the grounds that the trial Judge erred in assessing the evidence is dismissed.
The sentence appeal
[37] Mr Rowe filed an application for leave to appeal the sentence out of time (seeking to cancel the order to attend a driving improvement course). The grounds were that the challenges caused by Mr Rowe’s learning difficulties made the imposition of such a sentence inappropriate. Mr Rowe could not attend such a course without a reader/writer and cannot afford to pay for the services of a reader/writer.
[38]An adjournment of the hearing was granted to allow:13
(a)the parties to receive Judge Patel’s sentencing notes;
(b)Mr Rowe to advance a discharge without conviction application in this Court; and
(c)Mr Rowe to complete three practical driving sessions in advance of the application.
[39] Mr Rowe subsequently applied to advance an application for discharge without conviction under s 106 of the Sentencing Act 2002. He had not applied for a discharge without conviction at the sentencing hearing in the District Court.
[40] On 12 September 2024, I granted leave to file the appeal against sentence out of time and ordered that the sentence appeal would be reconvened when Judge Patel’s sentencing notes were available. I did not, at that stage, grant leave to advance an application for discharge without conviction.
[41] On 18 October 2024, I heard further submissions on the application for leave to apply for a discharge without conviction.
13 Rowe v New Zealand Police HC Auckland CRI-2024-404-270, 12 September 2024.
Discussion
[42] It is common ground between the parties that failure to apply for a discharge without conviction at first instance is not fatal.14 Mr Rowe says that Judge Patel indicated that a discharge without conviction would be considered if Mr Rowe completed a Right Track course, voluntary community work, and wrote a letter of apology to the complainant.
[43] Mr Rowe has provided an affidavit setting out that he was not able to complete the requirements due to his difficulties in a classroom setting as a result of autism spectrum disorder and attention deficit hyperactivity disorder (ADHD). He erroneously believed that he could not apply for a s 106 discharge unless he met what he understood were mandatory requirements. Mr Rowe’s mother also provided an affidavit setting out the day-to-day difficulties Mr Rowe faces a result of his cognitive disorders.
[44] In order to obtain a discharge without conviction the usual test for such a discharge will need to be met. A discharge without conviction will not be granted unless the consequences of conviction are out of all proportion to the gravity of the offending.15 Even then the Court has a discretion as to whether to grant a discharge.
[45] Mr Rowe filed an affidavit setting out his intention to become a truck driver. He has not taken any practical steps towards such a career at this stage, and, in any event, I would have concerns about disguising a driving conviction in order to avoid prospective employers becoming aware of it when the employment involves driving. The real issue in this case is whether Mr Rowe’s particular difficulties would make the consequences of a conviction out of all proportion to the gravity of the offending.
[46] Counsel for Mr Rowe, submits that Judge Patel would have been willing to consider a discharge without conviction if Mr Rowe had undertaken driving courses. The reason Mr Rowe did not undertake such courses is that he has ADHD and autism, and the classroom environment would make engagement impossible without a
14 O’Neill v New Zealand Police [2020] NZHC 284; and Bedford v R [2021] NZCA 395.
15 Sentencing Act 2002, s 107.
reader/writer or communications assistant. Mr Rowe had a communications assistant during the District Court hearing.
[47] I accept that engagement in a classroom-based learning environment would be more difficult for Mr Rowe than for most defendants and, in fact, may have little utility given his difficulties in such an environment. I am also concerned that disqualification would be detrimental given Mr Rowe’s particular difficulties. Mr Rowe is likely to find himself in a cycle of disqualified driving and reoffending if his autism and ADHD mean that he has particular difficulty complying with the disqualification. On the other hand, he must comply with the road rules both for his safety and the safety of other road users. If he cannot, he should not be driving.
[48] I discussed with counsel whether engagement with some practical driving courses would be a more effective rehabilitative measure.
[49] I initially indicated that, before Mr Rowe engages the additional expense of undertaking practical driving lessons and obtaining a report, the appeal against conviction based on the challenge to identification needed to be decided. I intended to issue the decision in respect of the identification issue separately to further consideration of the appeal against sentence. To that end the sentence appeal was adjourned to 9 am on 3 December 2024 in this Court.
[50] I said that if the appeal against conviction were successful on the basis of the challenge to identity, that date could be vacated. If the appeal against conviction were not successful, I intended to hear further argument as to whether a discharge without conviction is appropriate and if not whether the order to attend a driving improvement course should be cancelled.
[51] I indicated to counsel that I would regard “three lessons with a certified driving instructor who can provide a report to the Court” as the minimum level of rehabilitation likely to be relevant to whether a discharge without conviction should be granted.
[52] Counsel for the respondent, submitted that Mr Rowe has not demonstrated that the direct or indirect consequences of a conviction are out of all proportion to the gravity of the offending; and that further efforts are needed to engage in rehabilitation. The respondent also submitted that, if engagement in the driver improvement course is impossible, the Court should impose a short period of supervision to allow other courses to be identified.
[53] Imposing a sentence of supervision for the sole purpose of obtaining funding to allow Mr Rowe to attend a suitable driving course is inappropriate. A sentence of supervision has consequences which would likely make such a sentence manifestly excessive.
[54] One issue raised in this sentence appeal relates to how the Court can assist neurodiverse defendants to attend relevant programmes. The driving improvement programme is rehabilitative more than punitive although it has a financial consequence for a defendant who must meet the cost of the course.
[55] Judge Patel did not impose a fine, no doubt recognising the financial consequence of the order to attend the course. Where a defendant has a disability or condition that makes a particular sentence more onerous, that is properly taken into account when imposing sentence. This issue was not raised before Judge Patel.
[56] I have come to the view that, rather than adjourning the matter for a further hearing in this Court, I should allow the appeal against sentence and remit the matter to the District Court for re‑sentencing.16
[57] I am concerned that the fact that Mr Rowe would need to meet the costs of a reader/writer places an additional financial burden on him that is not faced by other defendants even if he could complete the courses (which is far from established). Many people who come before the Courts have issues with numeracy and literacy. They should still have the benefit of rehabilitative courses. I consider that the District Court is in the best position to consider whether that can be achieved. Attendance at some sort of course is relevant to the application for discharge without
16 Criminal Procedure Act 2011, s 251(2)(c).
conviction and relevant to the appeal against the order to attend an improving driving course.
[58] If a s 106 discharge is not granted, I regard the sentence imposed by Judge Patel as entirely appropriate, subject only to Mr Rowe’s practical difficulties in completing the improving driving course.
[59] I consider that Judge Patel is best placed to decide the application for a s 106 discharge. Judge Patel heard the trial evidence and had the benefit of the report from the communications assistant. Judge Patel is also best placed to assess whether a discharge without conviction is an outcome that would have been considered but for Mr Rowe’s mistaken belief that he was precluded in applying for it. I am concerned that Judge Patel’s position is being provided to me second hand.
[60] I allow the appeal against sentence and remit the matter to the District Court for re-sentencing by the trial Judge.
Wilkinson-Smith J
7
0