Taia v Police HC Napier CRI-2011-441-9

[2011] NZHC 644

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI-2011-441-9

BETWEEN  BENJAMIN PINEAMINE TAIA Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         10 May 2011

Counsel:         A Willis for Appellant

J D Lucas for Respondent

Judgment:      15 June 2011 at 4:00 PM

JUDGMENT OF ALLAN J.

This judgment was delivered by

The Hon. Justice Allan on

15 June 2011 at 4:00pm

pursuant to Rule 11.5 of the High Court Rules

……………………………………………..

Registrar/Deputy Registrar

Solicitors/Counsel: Crown Solicitor, Napier

A J Willis, PO Box 838 Hastings.

Copy for:

Judge Adeane, District Court Hastings.

TAIA V NEW ZEALAND POLICE HC NAP CRI-2011-441-9 15 June 2011

[1]      Mr Taia appeals against his conviction in the Hastings District Court on

23 February 2011 on a charge of attempting to drive a motor vehicle with excess breath alcohol.

[2]      The single issue on appeal is whether, on the evidence, Mr Taia’s conduct was sufficient to constitute an “attempt”.

The District Court decision

[3]      The hearing in the District Court was relatively brief.  Only three witnesses gave oral evidence.  One was Mr Apiata who was an eye witness.  The other witness for the prosecution was Constable Barclay, who apprehended the appellant.  Mr Taia gave evidence in his defence.  In addition, there was a handup brief of evidence from Constable Atkinson, who also attended the scene.

[4]      Judge Adeane gave a short oral judgment at the conclusion of the evidence. It is convenient to reproduce it in its entirety.

[1]       Mr Taia is charged with attempting to drive a motor vehicle with excess breath alcohol – 592.  There is only one issue in the case and that is whether his conduct constituted an attempt.  The onus is on the prosecutor to prove beyond reasonable doubt that an attempt was made and, for present purposes and accepting defence submissions, an attempt can be characterised as a real and substantial step towards committing the offence and not mere preparation.

The facts of the matter are that in response to a neighbour’s complaint a police officer attended and found the defendant’s motor car parked approximately a metre off the kerb.   The defendant was slumped asleep behind the wheel. He smelt heavily of alcohol and there were alcohol bottles strewn around the vehicle.  At the time the constable arrived the vehicle had its engine racing, its headlights on and its wipers in operation.   There is evidence from the neighbour who set the police enquiries in train that the vehicle had been in that place and that state for approximately an hour before the police call. The defendant subsequently explained that he had simply got in the vehicle and started it up to warm himself – good judgment indicating that he should not attempt to drive because he had consumed liquor.   He explains that he first got into the back of the vehicle where it was convenient to sleep but opened the windows for fresh air and woke about an hour later to find that he was colder than comfortable.  At this point he explains he got into the front seat of the car and ran the motor with a view to warming up the heating system.

[2]       Not  insignificantly  two  aspects  of  the  circumstantial  prosecution case were not touched on by the defendant in his evidence in chief at all. The first of those was the fact that the vehicle’s headlights were on.   The defendant says that these are automatic light-sensitive headlights which go on without needing to be switched on.  Why then the prosecutor asked were the wipers also going?  The defendant explains that he may have knocked the switch with his knee and put them on accidentally.

[3]       The defendant further explains that he had intended to summons a relative to either pick him up or drive him home in his vehicle but, yet another coincidence, his battery on his cell phone was flat and he could not make the call. Hence the need to camp out in his van after being asked to leave the party.

[4]       There can be direct evidence of matters and circumstantial evidence of  matters.    In  this  case  there  is  no  obviously  direct  evidence    of  the defendant driving the motor vehicle.   It is parked in a position where one might draw an inference, if other supporting material was present, that it had in fact not been parked but had been moved to some extent i.e. driven.  But in this case there is other circumstantial evidence.   The circumstantial evidence subsists in the fact that the vehicle was parked off the kerb, that the headlights were on, that the wipers were on and that the motor was running. The defendant was slumped asleep when found by the police and had apparently been that way for some time.   But the question in the case is whether, beyond reasonable doubt, this Court is comfortable in drawing the inference that the circumstantial facts apparent, and specifically the fact that the motor was running, demonstrate that the defendant was at a sufficiently proximate  time  taking  steps  toward  committing  the  offence  of  drunken driving rather than some mere preparatory measure.

[5]       I have seen and heard the defendant give evidence.   As I say the most difficult aspects of the case against him were not addressed until cross- examination and, at the end of the day, I have to say that acceptance of the defendant’s version of events would involve acceptance as a reasonable possibility that a series of unlikely coincidences all pointing against him have  come  together.    I am not  brought  to  that  point.    In  my  view  the combined inferences which can safely be drawn from all the known facts speak not merely of preparation to commit an offence but an attempt to do so by starting the engine of the car.   That, of course, is the essential matter relied on but all the surrounding facts, the position of the vehicle and the fact that both the lights and wipers were operating is supportive of the inference which I prefer and nothing raised by the defendant causes any reasonable doubts about it.

[6]       In the circumstances the charge is proved.

The evidence

[5]      Mr Willis challenges certain of the Judge’s factual findings and some of the

inferences drawn by the Judge.  It is accordingly necessary to review the evidence.

[6]      Mr Apiata was awake at about 5:30am on 5 September 2010.  The appellant’s vehicle was parked outside his house.   Mr Apiata heard the sound of a vehicle revving its engine loudly and looked out of his window in order to see what was happening.  He saw the appellant’s white van.  A Maori male was hunched forward in the driver’s seat.  The vehicle’s lights were on and the windscreen wipers were working.    The  revving  of  the  engine  went  on  for  about  an  hour,  according  to Mr Apiata.  Eventually, he went outside to see what was afoot.  This was about 30 to

60  minutes  after  his  attention  had  first  been  attracted  to  the  vehicle.    It  was Mr Apiata who called the police.   On his evidence the engine was running from about 5:00am when Mr Apiata first noticed the vehicle, until after 6:00am.

[7]      Constable  Barclay  attended  the  scene  at  about  6:15am.     He  saw  the appellant’s van parked approximately one metre from the kerb.   The engine was running and the headlights were on.  The keys were in the ignition.  The appellant was in the driver’s seat, hunched forward over the steering wheel.   The constable opened the door and upon smelling alcohol commenced breath alcohol procedures.

[8]      A little later, at the police station, Constable Barclay took a statement from Mr Taia.  The latter told Constable Barclay that he had been at a friend’s place for a party, that he jumped into his van for a sleep and turned the heater on to warm up the van.  He confirmed to the constable that he had been in the driver’s seat with the engine running, the lights on, the keys in the ignition, and that he had probably been in that position for an hour with the heater going.  He said also that he thought that he had fallen asleep once the heater started warming the van.  In cross-examination, Constable  Barclay  was  unable  to  say  whether  or  not  the  vehicle  was  in  gear (although with the engine running it is a reasonable inference that it was not).  The constable did, however, confirm that Mr Taia did not have his seat belt on.

[9]      Constable Atkinson,  who  also  attended  the  scene,  said  that  the  van  was parked approximately one metre from the kerb with its engine running, the vehicle headlights were on and the keys of the motor vehicle were in the ignition.

[10]     Mr Taia said that on the evening of 4 September 2010 he went to Huia Street,

Hastings, for a friend’s birthday.   During the evening there was a need for further

alcohol.  Another person drove the appellant’s van to the bottle store and back. The appellant was a passenger.  Upon arriving back at the party, the appellant went inside with the fresh supplies, leaving the driver to park the van.  The appellant did not see him do so.  The party concluded at about 4:00am.  The appellant was then required to leave.  He said that he was going to text his son and daughter-in-law to pick him up because he knew that he had consumed too much alcohol to be able to drive legally, but his cell phone was flat.  In cross-examination, he confirmed that he made no other effort (for example by using another telephone) to make a call for that purpose.  Instead, he decided to sleep in the back of the van out on the road.  He told the Court that he had a “little bed thing at the back” of the van, and he opened the window because it was warm in the van.  He slept for a period but then woke to find that the temperature had dropped and that he was freezing.  He thought perhaps an hour or an hour-and-a-half had elapsed because “it was just going on daybreak”.  He says that he exited the van through the slide door and then made his way into the driver’s seat to warm the vehicle because he was “just shivering”.   He started the vehicle and once he felt the heat “fell asleep instantly”.

[11]     He gave evidence also about a turbo timer which he said was fitted on his van.  This device enables the engine to continue to run for a set period even though the ignition is turned off.  His evidence is that the turbo timer proved to be faulty because, even though he had turned the turbo timer off, the engine continued to run.

[12]     When woken by the police, he passed the ignition keys to Constable Barclay as directed.  He disputes the constable’s evidence that he (the constable) removed the keys from the ignition.   Because the turbo timer was not working properly, the removal of the keys from the ignition had no effect on the engine, which was still running.  In order to turn off the engine, it was necessary to push a button.  When that was done, the engine stopped.

[13]     In summary, Mr Taia said that he was not attempting to drive the vehicle because he knew there was still alcohol in his system.  His intention was to sleep in the van, and when morning arrived and it was reasonable to go back into the house, he would use his friend’s phone.

[14]     In cross-examination, certain matters were raised that were not touched upon during Mr Taia’s examination-in-chief.   He was asked about the need to turn the headlights on.   His answer was that they switched on automatically when ignition occurred.  He was also asked about the windscreen wipers.  His evidence in cross- examination was that he did not turn them on but that he must have knocked them while asleep or otherwise inadvertently.  He was asked also about the revving of the engine.  He responded to the effect that he did not realise that he was revving the engine and must have done so while asleep, with his foot on the accelerator.

Attempts – legal principles

[15]     The law on criminal attempts is set out in s 72 of the Crimes Act 1961.

72       Attempts

(1)       Every one who, having an intent to commit an offence, does or omits an act for the purpose of accomplishing his object, is guilty of an attempt   to   commit   the   offence   intended,   whether   in   the circumstances it was possible to commit the offence or not.

(2)       The question whether an act done or omitted with intent to commit an offence is or is not only preparation for the commission of that offence, and too remote to constitute an attempt to commit it, is a question of law.

(3)       An  act  done  or  omitted  with  intent  to  commit  an  offence  may constitute an attempt if it is immediately or proximately connected with the intended offence, whether or not there was any act unequivocally showing the intent to commit that offence.

[16]     This section has recently been the subject of careful scrutiny by the Court of Appeal in R v Harpur.1    There, the Court noted that the breadth of s 72(1) and the looseness of the language employed suggested that Parliament intended the courts to apply the provision flexibly and in accordance with the justice of the case.   The Court of Appeal considered that such an approach by the legislature is entirely understandable  having  regard  to  the  infinite  variety  of  factual  circumstances  in which attempts are charged.2   The Court also noted s 72(3), introduced for the first time  when  the  Crimes Act  was  re-enacted  in  1961.    The  intention  of  the  new

subsection was to reverse the “unequivocality test” applied in earlier cases, some of

1 R v Harpur (2010) 24 CRNZ 909 (CA).

2 Ibid, at [13].

which had resulted in unsatisfactory outcomes.  The Court noted that subs (3) now made it clear that an act could constitute an attempt even if there was no act unequivocally establishing intent.   It was  now open to the Crown to rely upon extrinsic evidence to establish an accused person’s intent.   The conduct of such a person was to be considered in its entirety for that purpose.3    The Court also considered the desirability of introducing a “real or substantial step” test, which has found favour in certain other jurisdictions.   Ultimately, the Court concluded that while there was much to be said for such an approach, there was no warrant for

introducing a formula because in the end each case must be the subject of judicial evaluation.4

[17]     I note that in the present case Judge Adeane said that an attempt “... can be characterised as a real and substantial step toward committing the offence and not mere preparation.”5 It is not suggested on appeal that he was wrong to do so.

Earlier authorities involving similar factual circumstances

[18]     In Police v Graham,6 the defendant was charged with driving a motor vehicle on a road with excess alcohol in his blood, contrary to s 56(1) of the Land Transport Act 1998.  He was found by the police unconscious in his safely and properly parked car at 10:00pm. His seatbelt was on, the lights of the vehicle were on, and the engine was running.   His evidence was that he had been drinking in a tavern.   When he came out he realised he was incapable of driving but did not want to leave his prized BMW exposed to criminal interference.   He had no recollection of turning on the lights  or  starting  the  engine,  but  was  adamant  that  he  did  not  intend  to  drive anywhere.  His blood alcohol level was 1206 mcgs of alcohol per litre of breath, the legal limit being 400 mcgs.

[19]     Judge Hubble found that there were no acts that were sufficiently proximate to the alleged intended offence to constitute an attempt.  In reaching that conclusion

3 Harpur, n 1, at [15] and [36].

4 At [48] above.
5 Police v Taia DC Hastings CRI-2011-020-203, 23 February 2011.

6 Police v Graham [2002] DCR 922.

he relied upon R v Wilcox,7 which the Court of Appeal in Harpur considered to have been wrongly decided.8    Mr Graham had no recollection as to how the engine and lights were turned on, but Judge Hubble found that it was possible that he was motivated by a collateral purpose other than a criminal object;  for instance, turning on the engine to run the heater if he was intending to stay in the car during the night.9

[20]     The second case is Berry v Police.10     There, Mr Berry was charged with driving a motor vehicle while having an excess breath alcohol concentration. He was found by police officers in the early hours, asleep at the wheel of his car with the engine running.  The vehicle was correctly parked in a designated street carpark and did not appear to have been moved.   Mr Berry said in evidence that he had no memory of starting the engine or of putting his seatbelt on.  He said that on reaching the car he threw his briefcase into the back seat, pushed the driver’s seat back and went to sleep.  The next thing he recalled was his interaction with a police constable. The  constable  gave  evidence  of  having  removed  the  car  subsequently.     He considered that the seat was not in fact in a reclined position.  While being driven to the police station, Mr Berry told a police constable that he had been intending to drive home, but that he had not got that far.  Panckhurst J considered both Wilcox

and Graham.   He relied upon a passage in Wilcox,11  to the effect that an attempt

requires “commencement of execution, a step in the commission of the actual crime itself”.

[21]     Panckhurst J allowed the appeal “by a small margin”, essentially for the same reasons as had commended themselves to Judge Hubble in Graham.  He held that it was probable that Mr Berry had an intention to drive and to that end he started the engine, being an action “immediately or approximately connected” with setting the vehicle in motion.  However, because the vehicle had remained in a parked position for  over  an  hour,  Panckhurst  J  considered  that  this  was  not  the  only  rational

conclusion that could be drawn.   The circumstances also permitted the reasonable

7 R v Wilcox [1982] 1 NZLR 191 (CA).

8 Harpur, n 1, at [37].
9 At [19].
10 Berry v Police HC Dunedin, CRI-2006-412-46, 14 December 2006.

11 Wilcox, n 7, at 195.

conclusion that he had started the engine without any conscious desire to set the vehicle in motion.12

[22]     Mr Lucas submits that neither Graham nor Berry would have been decided in the same way today in the light of the observations of the Court of Appeal in Harpur. In Graham, there was some evidence that, in starting the engine, the appellant had been attempting to drive the vehicle.  In Berry, the Judge misdirected himself on the constituent elements of an attempt.  Mr Lucas submits that in each of those cases the act of turning on the engine and the lights and of securing the seatbelt, when considered cumulatively, ought to have led to the conclusion that the appellant was in each case intending to drive and that each had taken a real and substantial step towards accomplishing  that  objective.    Mr  Lucas  argues  that  neither Judge had sufficiently paid attention to the surrounding circumstances.

[23]     I am not sure that Mr Lucas is necessarily correct.  But it is unnecessary to reach a firm conclusion about the likely result of those cases, considered in the light of Harpur.  I regard those two authorities simply as providing useful illustrations of the need to carefully analyse the available evidence before determining whether or not an attempt has been established where the charge relates to an intoxicated driver in a motor vehicle.

Discussion

[24]     In the light of Harpur, the proper approach here in considering whether the appellant had attempted to drive, was to determine whether he had taken a real and substantial step towards accomplishing his objective.  Following Harpur, intention can be inferred from the evidence of what the appellant actually did, and in the light also of the surrounding circumstances.

[25]     I accept at once Mr Lucas’ point that, in the exercise of their summary criminal jurisdiction, District Court Judges are bound to use their commonsense. That must be right.   The point is often put in another way, by reference to the

entitlement of the fact-finder to draw logical inferences from proven facts.

12 Wilcox, above n 7, at [24].

[26]     I turn to the judgment under appeal.

[27]     The Judge noted that when the police officer attended the scene he found the appellant’s motorcar parked approximately one metre from the kerb.  The appellant was slumped asleep at the wheel and smelt heavily of alcohol.  Judge Adeane said that when the police arrived, the engine of the vehicle was racing, its headlights were on and its wipers were in operation.   It is not, I think, quite right to say that the engine was “racing”.   The evidence of Constable Barclay and Constable Atkinson was that the engine was “running” at the time.

[28]     The Judge also noted Mr Apiata’s evidence to the effect that the vehicle had been in that place and in that state for approximately an hour before his call to the police.  The Judge then referred to the appellant’s own explanation, which I observe was given not only in evidence, but also at the first opportunity to Constable Barclay not long after the appellant’s apprehension.13

[29]     The Judge then considered two aspects of the circumstantial prosecution case which, he said, “not insignificantly ... were not touched on by the defendant in his evidence-in-chief at all”.

[30]     The first of those matters concerned the fact that the vehicle’s headlights were on.   The appellant said in cross-examination that the headlights were automatically light-sensitive, operating without requiring any overt step.  The Judge considered it significant that evidence about the state of the lights was given by the appellant in cross-examination rather than in examination-in-chief;  he seems to have considered that the weight of this evidence was diminished by the fact that it was

given only in cross-examination.14   It is difficult to know why that should be so.  The

omission to deal with the point in examination-in-chief was consistent also with a somewhat sloppy presentation of the case by his counsel.  There was no evidence from the police to suggest that the appellant’s evidence about the lights was wrong. It is for the informant to establish its case, and not for the appellant to disprove it.  It

is difficult to understand why the evidence regarding the automatic character of the

13 At [1] of the decision.

14 See also [5] of the decision.

headlights should have been placed to one side simply because it was given in cross- examination.

[31]    The second factual circumstance to which the Judge especially referred concerned the fact that the wipers were working.  The appellant explained that he may have knocked the switch with his knee and put them on accidentally.  The Judge made no express finding as to that evidence, except to later conclude that the fact that the wipers were working formed part of the material from which an inference adverse to the appellant could be drawn.  Again, the fact that the evidence was given in cross-examination would not, in my view, diminish its weight.

[32]     The Judge then turned to the question of inferences.  He accepted that there was no direct evidence that the appellant had driven the vehicle.  But he said that the position in which it was parked was such that “one might draw an inference, if other supporting material were present, that it had in fact not been parked but had been moved to some extent, i.e. driven.”   The Judge made no reference to Mr Taia’s evidence that the van had been used during the evening to purchase further liquor supplies, and that it had been driven by a friend at that time.  Neither is there any reference to the fact that it was the friend who parked the vehicle, and not Mr Taia.

[33]     There was before the Court direct evidence from Mr Taia that the vehicle had remained in the position in which it had been parked by the appellant’s friend earlier in the evening. That is implicitly acknowledged by the Judge, when he indicated that the inference as to actual driving by the appellant would be available only where there was other circumstantial evidence to support it.

[34]     That circumstantial evidence was said by the Judge to be found in “... the fact that the vehicle was parked off the kerb, that the headlights were on, that the wipers were on and that the motor was running”.  The fact that the vehicle was parked off the kerb adds nothing, because it is the same point as that which the Judge found to give rise to the inference in the first place.  The fact that the headlights were on was explained by the appellant in evidence.  There was no evidence to the contrary.  The Judge has made no adverse credibility finding about the appellant.  In my view, it

would be unsafe  to  regard the  fact  that  the  headlights  were  on  as  evincing  an

intention on the appellant’s part to drive the vehicle.

[35]     The next point is that the wipers were on. As the Judge noted, this is perhaps the strongest point for the prosecution.   Mr Taia’s explanation that he must have knocked the switch with his knee is not especially convincing.

[36]     The final point concerns the fact that the motor was running.   This was explained  in  some  detail  by  the  appellant,  both  in  evidence  and  to  the  police constable at the time.  The appellant said that he had decided to sleep in his van until morning.  When he became cold, he moved into the driver’s seat in order to turn on the ignition for the purpose of activating the heating system.   The Judge did not expressly reject that explanation.  Rather, he said that acceptance of the appellant’s version of events “... would involve acceptance as a reasonable possibility that a series of unlikely coincidences all pointing against him have come together”.

[37]     That finding requires examination in the light of the evidence before the

Court, and of the way in which the hearing proceeded.

[38]     The appellant told the Court that his friend had parked the vehicle and that it remained throughout in the position in which it had been parked.   There was no evidence to the contrary.   It was never suggested to the appellant in cross- examination that it was he (the appellant) who had moved the vehicle or that he had driven it.   The appellant was not challenged in cross-examination on his evidence that the lights turned on automatically when the ignition was engaged.  The appellant was not wearing his seatbelt – a factor that is consistent with his evidence that he was merely sitting in the driver’s seat in order to warm up.  Neither was there any evidence as to the state of the hand-brake or as to whether or not the car was in gear.

[39]     Of obvious significance was the appellant’s explanation about his reasons for starting the heater by turning on the ignition.  It was not suggested to him in cross- examination that the heater was not on, or that his explanation was false. Mr Apiata, an independent witness, gave evidence to the effect that he thought the person in the vehicle was “warming” it.  That is consistent with the appellant’s evidence as to his

purpose.   Mr Apiata, who evidently kept watch on the vehicle for a significant period, said that the vehicle did not move once he commenced observing it.

[40]     Although I agree that the evidence concerning the state of the wipers is consistent with an intention to drive, the remaining factors relied upon by the Judge are equally consistent, in my view, with the appellant’s evidence that he had started the car (and therefore automatically the lights) in order to heat the car so that he could remain warm until daybreak.  Where there are equally available inferences, it is not proper to choose the inference that is adverse to an accused person.  The Judge called in aid the fact that the appellant could have used a landline in the house where the party had been conducted in order to call someone to pick him up.  That is, of course, a relevant factor but it is, in my view, equivocal.  The appellant was entitled to decide, as he said he did, to spend the remainder of the night in his van where there was a small bed, rather than having someone drive some distance in order to pick him up at a very late hour.

[41]     I referred earlier to the need to adopt a common sense approach to cases such as this.  But the Court is entitled to rely only upon facts given in evidence and upon inferences that can safely be drawn from those facts.  Here, the only evidence that might be thought to be inconsistent with the appellant’s account is the fact that the wipers were on.  In my opinion, that was not sufficient to lead to a finding of guilt. Although there was a body of circumstantial evidence which justified the police decision to prosecute, it was insufficient in my view, given the appellant’s explanation, to establish the prosecution case beyond reasonable doubt.   The prosecution was obliged to establish to that standard that the appellant intended to drive the vehicle.  He gave an explanation, at the time and in evidence, inconsistent with such an intention. The circumstantial evidence was largely equivocal.   In my view, the appellant ought to have been acquitted.  The prosecution had not excluded the reasonable possibility that the appellant’s account was correct.

Result

[42]     For  the  foregoing  reasons,  the  appeal  is  allowed  and  the  appellant’s

conviction is quashed.

........................................

C J ALLAN J.