W v Police HC Whangarei Cri-2010-488-22

[2010] NZHC 1389

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-488-000022

BETWEEN  W

Appellant

ANDPOLICE Respondent

Hearing:         13 August 2010

Counsel:         Chris Muston for Appellant

Michael Smith for Respondent

Judgment:      13 August 2010

[ORAL] JUDGMENT OF HUGH WILLIAMS J.

Appeal against conviction is dismissed

[1]      On 14 May 2010 following a defended hearing the appellant, Mr W  , was convicted by Judge Maude on charges of careless use of a vehicle and driving with excess blood alcohol, both on 14 October 2009.  He was sentenced that day to 100 hours community work and six months disqualification.

[2]      He  now  appeals  to  this  Court  against  his  conviction,  essentially on  two principal grounds.

[3]      Before reviewing the grounds, it is useful to recount the slightly unusual but very efficient way in which the prosecution was defended.  When the matter came on for hearing the only issue was who had been driving the car on 14 October 2009

when it had an accident in the early hours of the morning, the prosecution being

W V POLICE HC WHA CRI-2010-488-000022  13 August 2010

based on that feature.  It was made clear by Mr Muston, counsel both in the District Court and on appeal, that all other aspects of the prosecution were accepted and accordingly the Judge only needed to focus on the single issue as to whether it was proved beyond reasonable doubt that it was Mr W   who was driving the car when the accident occurred, and who had alcohol on his breath, or whether it was his passenger, a Ms Bailey.

[4]      That redounds as far as the first ground of appeal is concerned, which is that the Judge did not direct himself expressly as to the burden and standard of proof in his judgment.

[5]      It is certainly true the Judge did not actually use words saying that the onus of proof is on the prosecution and the standard of proof is beyond reasonable doubt, but that is not an inflexible requirement.

[6]      This is a ground of appeal as insubstantial as the one sometimes encountered that a Judge’s enunciation of the burden and standard of proof is no more than a ritual  incantation  not  actually followed  by the  Judge when  he or  she comes  to consider the issues.

[7]      There is no requirement on a Judge in every case to say that he or she recognises and applies the burden and standard of proof.  There are certain aspects of every prosecution which need not be recounted unless they are specifically put in issue - for instance, that the witnesses give evidence on oath.  It is only when there happens to be some challenge to the evidence being sworn that those matters need to be canvassed by either the Prosecution or on appeal.

[8]      Similarly, with the burden and standard of proof.   This was a prosecution before an experienced District Court Judge dealing with such matters over and over again.  There is no need, and certainly no legal requirement for a Judge to enunciate the burden and standard of proof every time a matter comes before him or her.

[9]      That is particularly the case in this instance, given the way in which the

Prosecution proceeded.  It was simply a credibility conflict between Ms Bailey, who

was called for the prosecution and who said that she had been driving the vehicle earlier in the evening, apparently under instruction from Mr W   since Ms Bailey was a learner driver, and notwithstanding the time in the morning when the accident occurred.  She said that before the accident Mr W   took over the wheel and it was he who was at the wheel when the accident occurred.   Mr W  ’s evidence was to the contrary.

[10]     Thus, it was simply a matter for Judge Maude to decide whether Ms Bailey’s evidence was accepted in preference to Mr W  ’s in which case, inevitably, the burden and standard of proof were discharged or whether Mr W  ’s evidence raised a reasonable doubt, in which case of course the burden and standard of proof would not have been met.

[11]     The Judge clearly in a series of propositions developed by him in para [6] of his judgment[1] took the view that Ms Bailey’s evidence was to be preferred. Accordingly the conviction followed.  In doing so the Judge must have accepted that the burden and standard of proof had been complied with.

[1] Police v W   CRI-2009-088-004970 14 May 2010 paras [6] (a)-(h) Maude DCJ.

[12]     The  second  issue  raised  on  appeal  relates  to  photographs  produced  in evidence of Ms Bailey’s midriff which show quite severe bruising on the centre of her torso and towards her left hand side.

[13]     It was suggested, both in the District Court and on appeal, that the bruising was consistent with it being caused by the buckle of the seat-belt and that, because the bruising was more to the left and not apparent on the right, that was consistent with Ms Bailey being the driver of the vehicle at the time of the accident rather than Mr W  .

[14]     Certainly that interpretation of the photographic evidence was open to the District Court Judge but it was not the only piece of evidence that he needed to consider.

[15]     It was put to Ms Bailey in cross-examination that the location of the bruising indicated it was she who was driving rather than Mr W  , but she vigorously refuted that in cross-examination and when the Judge came to consider all the issues in the prosecution he carefully outlined them in para [6] (a)-(h) to reach his view that Ms Bailey’s evidence was to be preferred to that of Mr W  .  He specifically dealt with the photographs and the bruising, and summarised the evidence on the issue. The Judge said that the bruising was “consistent with the positioning of the seat-belt, which is acknowledged by everyone she was wearing, having been drawn tight.”

[16]     This was a case where the vehicle ran off the road and there was a relatively severe accident in which both occupants were bruised and suffered minor injuries. The issues canvassed in the District Court included the location of the bruising.  The Judge, however, took the view that the bruising to the left hand side was caused by the tightness of Ms Bailey’s seat-belt - perhaps an unlikely explanation – but it is clear that she and Mr W   were both thrown around in the car by the accident and the bruising could have been caused from another source.

[17]     In any event, the location and type of bruising was simply one of the issues for the Judge to consider.  He did consider it along with the other issues.  In the end he concluded that Ms Bailey’s evidence was more cogent than Mr W  ’s and entered the conviction.  There has been nothing demonstrated on appeal to suggest that was not a conclusion open to the Judge in the circumstances.

[18]     Mr Muston advised that Mr W   has been serving his disqualification since the date of conviction and accordingly no order needs to be made in that regard.

[19]     Mr Muston also said that Mr W   has been complying with the sentence for community work so, again, no further order is required in that regard as well.

[20]     The appeal is dismissed.

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

HUGH WILLIAMS J.

Solicitors:
Crown Solicitor, Whangarei 0140

Email:  [email protected]

Christopher Muston, P O Box 1905 Whangarei 0140.

Email:  [email protected]

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