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Rowe v Police

Rowe v Police

Case [2024] NZHC 3100 24 October 2024

Appeal

Criminal Liability

Sentencing

Circumstantial Evidence

Causation

Criminal Law

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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…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Rowe v Police

Details

AGLC: Rowe v Police [2024] NZHC 3100
Case: [2024] NZHC 3100
Decision Date: 24 October 2024

CaseChat Overview and Summary

Liam Brody Rowe appeals against his conviction and sentence for operating a motor vehicle causing sustained loss of traction. The appellant contends that the trial judge erred in finding the evidence of a prosecution witness credible, failed to provide adequate reasons for his credibility finding, did not adequately consider why the explanation provided in the appellant's statement was only partially accepted, and erred in finding that the circumstantial evidence was sufficient to prove the charge beyond reasonable doubt. The appellant also seeks to appeal the order that he attend a driving improvement course. The respondent argues that the appeal should be dismissed because the trial judge did not err in his assessment of the evidence, the main witness' evidence provided a strong evidential foundation upon which to conclude the appellant was the driver of the vehicle, the trial judge was entitled to partially accept the appellant's account to the extent it was not in conflict with other evidence, and the circumstantial evidence was sufficient to prove the charge beyond reasonable doubt. The consequences of conviction are not out of all proportion to the gravity of the offending. The court found that the appellant's challenge to the credibility finding made by the trial judge in respect of the prosecution witness' evidence was unsuccessful. The court found that the trial judge's reasoning was commensurate with the complexity of the issues in this case which were straightforward. The conviction appeal on the grounds that the trial judge erred in assessing the evidence is dismissed. The court allowed the appeal against sentence and remitted the matter to the District Court for re-sentencing by the trial judge. The court considered that the appellant's particular difficulties would make the consequences of a conviction out of all proportion to the gravity of the offending. The District Court is in the best position to consider whether the appellant can attend some sort of course and whether a discharge without conviction is appropriate. The court considered that the trial judge is best placed to decide the application for a s 106 discharge. The court is concerned that the trial judge's position is being provided to the High Court second hand. The appeal against sentence is allowed and the matter is remitted to the District Court for re-sentencing by the trial judge.

Orders