Wilson v The King

[2025] NZHC 1445

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2025-419-000012 [2025] NZHC 1445

BETWEENDIEAGO TAPARA ANARU ROPATA WILSON

Appellant

AND  THE KING

Respondent

Hearing:                   4 June 2025

Appearances:           A Veatupu and S Hartstone for Appellant

L Glaser for Respondent

Judgment:                5 June 2025

JUDGMENT OF LANG J

[on appeal against conviction]

This judgment was delivered by Justice Lang On 5 June 2025 at 10.00 am

Registrar/Deputy Registrar Date:…………………………

Solicitors/counsel:

Hamilton Legal, Crown Solicitor at Hamilton Public Defence Service, Hamilton

WILSON v R [2025] NZHC 1445 [5 June 2025]

[1]    Following a defended hearing in the District Court, Judge I D R Cameron found Mr Wilson guilty on a charge laid under s 36A(1)(c) of the Land Transport 1998 (the Act).1 This alleged that he had operated a motor vehicle on a road in a manner that caused sustained loss of traction.2 The Judge convicted and discharged Mr Wilson on that charge.

[2]Mr Wilson appeals against conviction.

The hearing in the District Court

[3]    The only witness for the prosecution was Constable Barton. She said that at about 12.30 am on 4 November 2022, she and another officer in a patrol vehicle saw a motor vehicle doing what are known colloquially as “donuts” in an industrial area on the outskirts of Hamilton. She said the vehicle was driving around in a “figure 8” pattern on a grassed area and across a footpath. Constable Barton activated her vehicle’s flashing lights and approached the other vehicle. There was no dispute at trial that Mr Wilson was the driver of that vehicle.

[4]    Constable Barton said that she had seen smoke coming from the vehicle’s tyres and that she could see grass and mud stuck to the vehicle’s wheels. She also said she saw skid marks on a nearby grassy area and on the footpath. However, she agreed in cross-examination that the photographs produced at the hearing only showed wheel marks on the grassed area.

[5]    Mr Wilson gave evidence and said that he had been driving on the grassy area to test a new front axle he had installed on the vehicle earlier in the day. He denied that he had caused the vehicle to lose traction and said that any smoke must have come from the vehicle’s exhaust system rather than the tyres. He said there was no footpath in the vicinity of where he was driving.

1      New Zealand Police v Wilson [2024] NZDC 23779.

2      In contravention of s 36A(1)(c) of the Land Transport Act 1998.

The Judge’s decision

[6]    The Judge summarised the evidence for the prosecution and gave the reasons for his decision in the following paragraphs of his remarks:

[7]    Turning to the prosecution evidence, Constable Barton was very clear that she had observed a loss of traction of the rear wheels of the vehicle from a distance of only some 15 metres away. Consistent with this was her evidence that grass was being thrown up and that smoke was emanating from the wheels. Such smoke is consistent with tyres undergoing loss of traction, rather than the exhaust of a diesel vehicle.

[8]    The constable was also adamant that the vehicle, while undergoing loss of traction of the wheels, had traversed the footpath, leaving rubber marks behind. The constable also confirmed that the furrows caused on the grass were from the loss of traction of the tyres.

[9]    In the result, I accept the evidence of Constable Barton in its entirety. This includes her evidence that there was a footpath which the vehicle traversed during the loss of traction. This is despite the defendant's claim that there was no footpath but only a driveway. Given my finding that the vehicle also traversed the footpath during the sustained loss of traction, there can be no doubt that this activity was occurring while the vehicle was on a road, a footpath clearly being part of that road.

[10]    For completeness, I make it clear that I reject the defence contention that even had there been a loss of sustained traction, that was not an intentional act on the part of the defendant because he was merely testing the four-wheel capacity of the vehicle. I reject the contention that he was testing the four- wheel drive capacity of the vehicle and find that he intentionally caused a sustained loss of traction. The spinning of the rear tyres described by the constable is consistent with the vehicle being in ordinary drive and not four- wheel drive mode.

[11]    Accordingly, I find that the prosecution has established beyond reasonable doubt that the defendant did drive a motor vehicle on a road on 4 November 2022 and that he intentionally caused that vehicle to undergo a sustained loss of traction, and that there was no reasonable excuse for him to do so.

Appellate approach

[7]    The appeal is governed by s 232 of the Criminal Procedure Act 2011 (CPA). A first appellate court must allow an appeal against conviction if it is satisfied either that:

(a)the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred;3 or

3      Criminal Procedure Act 2011, s 232(2)(b).

(b)in any case a miscarriage of justice has occurred for any reason.4

[8]    In this context a miscarriage of justice means any error that has created a real risk that the outcome of the trial was affected.5

[9]    The approach to be taken by an appellate court on an appeal against conviction under s 232 was confirmed by the Supreme Court in Sena v Police.6 In that case the Court confirmed that an appellate court must reach its own conclusion as to the correctness of the verdicts reached in the court below. However, the appellant bears the onus of establishing why the verdicts were wrong.7

The appeal

[10]   Mr Veatupu advances two grounds of appeal.8 These are that the Judge erred in concluding that Mr Wilson had driven over a footpath and had caused his vehicle to lose traction whilst doing so. Secondly, he contends the Judge erred in rejecting Mr Wilson’s evidence that he was testing the vehicle when he was driving it on the night of the incident giving rise to the charge.

Analysis

[11]   Both grounds of appeal need to be viewed in light of the fact that, in order to prove the charge, the prosecution needed to establish beyond reasonable doubt that Mr Wilson caused his vehicle to lose traction whilst driving it on an area that came within the description of a “road” for the purposes of the Act.

[12]   The definition of “road” in the Act includes “any place to which the public has access, whether of right or not.”9 This reflects the legal position well before the current Act came into force. In this context counsel for the respondent referred me to the following passage from the judgment of Wilson J in Police v Smith:10

4      Section 232(2)(c).

5      Section 232(4).

6      Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.

7 At [38].

8      During the hearing Mr Veatupu abandoned a third ground of appeal that related to the Judge’s findings in relation to wheel marks shown in photographs of the grassy area.

9      Land Transport Act 1998, s 2(1).

10     Police v Smith [1976] 2 NZLR 412 (SC) at 413.

The essence of this appeal is the meaning of ‘any place to which the public have access, whether as of right or not’. It is clear that only those places to which the public – that is, the general public – have access, as of right or not, constitute ‘roads’. The evidence in this case is clear and unequivocal that it is private land – there is no evidence that any member of the public is entitled to go on it or does go on it, whether or not by any right, except for business or social purposes. It is not, in other words, a place to which the public in general resort as a matter of course, though not necessarily of right. It seems to me that this clearly brings it within the test laid down in the case of Harrison v Hill 1932 (SC(J) 13, 16, where that very distinction was clearly made. It is not enough that premises or a place may be physically open for the public to wander in on. It must be that they are so open and so well known to be open that in fact the public do, either continually, or from time to time, without asking anybody’s permission, enter upon them. If they do that, it is a place to which the public have access whether as of right or not, and it is a road.

[Emphasis added]

[13]   As the passage set out above at [6] confirms, the Judge found the charge proved because he accepted Constable Barton’s evidence that Mr Wilson had driven across a footpath. He rejected Mr Wilson’s evidence to the effect that there was no footpath in the area where the offending was alleged to have taken place. A footpath obviously falls within the definition of a road because it is a place to which the public has access as of right. The Judge also accepted the constable’s evidence that she saw skid marks on the footpath.

[14]   At trial Constable Barton produced photographs taken at the time of the incident. These were inconclusive as to the existence of a footpath because of the lack of lighting. The constable also accepted that none of the photographs showed any skid marks on the paved area that she said was a footpath. She nevertheless maintained that she had seen skid marks on the footpath on the night of the incident.

[15]   However, aerial photographs produced by consent at the hearing of the appeal show that Mr Wilson’s evidence was correct. There was no footpath in the vicinity of the alleged offending. The only paved area in that area was a driveway leading to a large commercial or industrial building.

[16]   The fact that the paved area was a driveway rather than a footpath would have made no difference if the prosecution could establish that Mr Wilson had caused his vehicle to lose traction whilst he was driving it on the driveway. The driveway would

plainly fall within the definition of “road” for the purposes of the Act because it was regularly used by members of the public to travel to the nearby commercial or industrial premises.

[17]   Importantly, however, Mr Wilson denied when he gave evidence that he had driven on the driveway. His evidence was that he had driven only on a grassy area adjoining the roadway that was depicted in all the photographs. This was private property and there was no evidence that members of the public use it or have access to it. Photographs produced at the trial also showed wheel marks or furrows in this area. Mr Wilson confirmed his vehicle had made those marks but denied that they were caused through loss of traction.

[18]   An appellate court is always cautious when asked to disturb a finding as to credibility made at first instance. The Supreme Court emphasised in Sena that fact finders at first instance will generally enjoy an advantage in forming opinions as to the credibility of witnesses.11 They have the benefit of seeing and hearing the witnesses and are therefore well placed to form a view as to the sort of people they are.12

[19]   In this case one of the principal reasons the Judge preferred Constable Barton’s evidence to that given by Mr Wilson related to the explanation he had given at trial as to why he was driving the vehicle on the night of the incident giving rise to the charge. The Judge rejected his explanation for the following reasons:13

The defendant’s evidence was that he was merely testing the four-wheel drive mode of the vehicle. He stated that he did this by driving in figure of eights on the grass area concerned. However, there was no such explanation forthcoming from the defendant at the time of his arrest. The constable’s evidence was that no statements were forthcoming from any of the individuals, including the defendant’s associates. Had the defendant been simply testing the four-wheel drive mechanism without spinning the wheels one would have expected the defendant to have so advised the police officer at the time. The fact that he did not significantly undermines his credibility.

[20]   This reasoning overlooks the fact that Mr Wilson did give this explanation to Constable Barton on the night of his arrest. Further, his explanation on that night was

11     Sena v Police, above n 6, at [38].

12     Sena v Police, above n 6, at [39].

13     New Zealand Police v Wilson, above n 1, at [5](b).

referred to on several occasions during the evidence. The Judge therefore erred in relying on this factor in reaching his decision as to Mr Wilson’s credibility.

[21]   When Mr Veatupu cross-examined Constable Barton at trial he did not put it to her directly that Mr Wilson had only been driving on the grass. Rather, he had her acknowledge that she saw him driving in the area near where the grass ends and the paved area begins. He also gained an acknowledgement from her that none of the photographs produced at trial showed any skid marks on the paved area.

[22]   When Mr Wilson gave evidence, the prosecutor did not challenge his claim that he had only driven on the grassy area. Rather, he phrased his questions in a manner that suggested the prosecution accepted that Mr Wilson had been driving only on the grass. The Judge did not refer to this in his decision.

[23]   The critical factor in the present case was whether Mr Wilson’s evidence that he drove only on the grassy area was sufficient to raise a reasonable doubt as to the correctness of Constable Barton’s evidence that he had driven on what she described as the footpath. The reliability of Constable Barton’s evidence on this issue is now undermined significantly by the fact that there was no footpath in the area where she said the offending occurred. It is also common ground that none of the photographs taken on the night of the incident depicted skid marks on the driveway.

[24]   Taking these factors into consideration, and viewing the evidence afresh, I am left in a state of reasonable doubt as to whether Mr Wilson caused his vehicle to lose traction whilst it was on the driveway. It is reasonably possible that his explanation that he only drove on the grassy area is correct. It follows that the Judge erred in his assessment of the evidence to the extent that it may have affected the outcome of the trial. This is therefore one of those relatively rare cases in which a trial Judge’s findings as to credibility cannot be upheld on appeal.

Result

[25]   The appeal against conviction is allowed and the conviction is set aside. I do not consider it appropriate to remit the charge for rehearing in the District Court. The fact that the Judge imposed no penalty on Mr Wilson provides a reliable indication as

to his assessment of the seriousness of the offending. Matters should therefore be left where they currently lie.

Lang J