BROADMORE v NEW ZEALAND POLICE [2021] NZHC 2482

BROADMORE v NEW ZEALAND POLICE [2021] NZHC 2482 [21 September 2021]IN THE HIGH COURT OF NEW ZEALANDINVERCARGILL REGISTRYI TE KŌTI MATUA O AOTEAROAWAIHŌPAI ROHECRI-2021-425-000012[2021] NZHC 2482BETWEEN DAVID JOHN BROADMOREAppellantAND NEW ZEALAND POLICERespondentHearing: 20 September 2021Appearances: J K Fraser for AppellantR W Donnelly for RespondentJudgment: 21 September 2021JUDGMENT OF DUNNINGHAM JThis judgment was delivered by me on 21 September 2021 at 3 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDateIntroduction[1] On 9 June 2021, Mr David Broadmore was convicted on one charge ofintentional damage of a motor vehicle1 following a defended hearing beforeJudge Russell in the Queenstown District Court.2 On the same day, Judge Russell1 Summary Offences Act 1981, s 11(1)(a).2 Police v Broadmore [2021] NZDC 13218.sentenced Mr Broadmore by ordering him to pay reparation in the sum of $2,654.78to make good the damage he had caused.3[2] Mr Broadmore appeals his conviction, on the ground the Judge erred inconcluding he intentionally or recklessly damaged the victim's motor vehicle.Facts[3] The charge Mr Broadmore faced in the District Court related to damaging aMazda motor vehicle. Mr Kenneth Super was the conditional purchaser of the Mazdavehicle and he had it in his possession. Mr Broadmore is an acquaintance of Mr Super,and there had been some discord between them as Mr Broadmore had previouslyrequested to travel to Wanaka to stay with Mr Super in breach of the prevailingCOVID-19 level 3 lockdown. However, Mr Super would not confirm to the relevantauthorities that Mr Broadmore's home was with Mr Super in Wanaka and he believedMr Broadmore was unhappy about that.[4] On 2 July 2020, Mr Super was at his Wanaka home. The vehicle was parkedon a concrete pad outside his house. At approximately 5.30 pm, Mr Broadmore pulledup in his vehicle in front of Mr Super's house next to Mr Super's vehicle. At the time,Mr Super was in his house and on the telephone to Mr Hymers, the vendor of thevehicle.[5] Mr Broadmore said he arrived at the property to enquire about a television sethe said he had loaned to Mr Super. Mr Super told him the TV had subsequently brokenand he had disposed of it. Mr Super feared repercussions from his earlier refusal tolet Mr Broadmore stay at his property during the level 3 lockdown and would not lethim in the house. The men had a discussion at the door regarding the TV whileMr Hymers remained on the phone, listening in. Mr Broadmore became angry withMr Super's responses and said "You know me, and I'll be back at 2 am."Mr Broadmore banged on Mr Super's window before getting into his vehicle.3 Police v Broadmore [2021] NZDC 13161.[6] Both Mr Super and Mr Broadmore agree that Mr Broadmore backed his caraway from Mr Super's house, then forward towards a fence. Mr Broadmore said hedid not go too close to the fence because of building debris lying on the ground.Mr Super said Mr Broadmore then reversed at some speed and struck the rear ofMr Super's car with an audible crash, resulting in damage to the rear of the vehicleestimated to cost $2,597.28 to repair. Mr Broadmore did not stop to examine thedamage but drove from the property.[7] Mr Broadmore accepted he was angry on the night in question and acceptedhis driving was responsible for the damage. However, he attributed the cause of theincident to mud, which he said he had stuck on his shoes. When he applied the brakeshe said he felt nothing happened, so he momentarily lifted his foot up off the brakeand down again: and a big chunk of mud that was sitting on my accelerator from when I hadfirst moved the car caused the accelerator to depress which is why I briefly accelerated again.[8] Mr Broadmore's evidence was that he would not deliberately reverse intoMr Super's vehicle and did not in fact intend to do so.Principles on appeal[9] This Court may only allow an appeal against conviction if satisfied, in the caseof a Judge-alone trial, that the Judge "erred in his or her assessment of the evidence tosuch an extent that a miscarriage of justice has occurred", or that "a miscarriage ofjustice has occurred for any reason".4 A miscarriage of justice means any error,irregularity, or occurrence in or in relation to the trial that has created a real risk thatthe outcome of the trial was affected, or has resulted in an unfair trial.5[10] The appeal proceeds by way of rehearing and this Court is required to form aview of the facts.6 If this Court reaches a different view on the evidence, it follows4 Criminal Procedure Act 2011, s 232(2)(b).5 Section 232(4).6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [26]-[32].the trial judge necessarily will have erred and the appeal must be allowed.7 The onusis on the appellant to show that an error occurred.District Court decision[11] Judge Russell noted that Mr Broadmore did not dispute his driving wasresponsible for the damage caused. The issue for determination was whetherMr Broadmore intentionally damaged Mr Super's vehicle or, alternatively, whether hewas reckless as to whether the car was damaged or not.[12] The Judge discussed Mr Broadmore's explanation for the incident but recordedthat it was not supported by the weather conditions. The Judge found Mr Broadmorewas candid about his general frame of mind, having acknowledged he could comeacross aggressively owing to his anti-personality disorder, post-traumatic stressdisorder (PTSD) and attention deficit hyperactivity disorder (ADHD). The Judge alsoremarked that Mr Broadmore admitted to being aggressive towardsConstable Wallbank when police attempted to interview him. Judge Russell noted that"[c]learly an unpleasant incident" had occurred at Mr Broadmore's motelaccommodation when he was arrested, but this was only relevant in supportingMr Broadmore's general state of mind at the time.[13] The Judge accepted Mr Broadmore's evidence that he did not intentionally anddeliberately set out to back into Mr Super's vehicle, having regard to Mr Broadmore'sevidence he did not want to damage his own vehicle. The Judge also acceptedMr Broadmore's and Mr Super's evidence that Mr Broadmore was angry andfrustrated following their discussion.[14] The Judge found Mr Broadmore has a tendency to lose control, particularlyduring times of stress and anger and that the night in question was one such occasion.He was satisfied an argument had occurred that included profanities andMr Broadmore had banged against Mr Super's windows in anger. The Judgedetermined Mr Broadmore was angry, frustrated and had lost control over his emotionsand it was in this frame of mind that he entered his vehicle.7 At [38].[15] Given the evidence that the weather was dry at the time and there had been norecent rain, the Judge dismissed Mr Broadmore's "mud on the shoes" explanation.Instead, the Judge held that, in a state of anger, Mr Broadmore reversed his vehicleand backed at some speed into Mr Super's motor vehicle. It was accepted that, at thevery last moment, Mr Broadmore may have realised an impact was imminent andapplied his brakes. Nonetheless, the Judge determined such driving conduct, carriedout in a state of anger, was reckless. That conclusion was reinforced by the factMr Broadmore did not stop after the impact occurred. The Judge considered a prudentdriver in full control of himself undoubtedly would have stopped and inspected thedamage after the damage occurred, and then discussed what had occurred with thevehicle owner. In contrast, the Judge found Mr Broadmore left the section in an angryand frustrated state of mind.[16] Judge Russell concluded that recklessness was enough to satisfy the mentalelement required for the charge. He held the charge had been proved beyond areasonable doubt and convicted Mr Broadmore of the offence.SubmissionsAppellant's submissions[17] Mr Fraser, on behalf of Mr Broadmore, submitted the District Court Judgeerred by not accepting Mr Broadmore's evidence and finding he drove recklessly.Mr Fraser recounted Mr Broadmore's evidence that there had been significant rainfalland the topsoil he had driven on was slippery and submitted the Judge did not haveproper regard to this evidence. Mr Broadmore's account is that his shoes becamemuddy from being outside, which impacted his ability to deploy the brakes whendriving his car and the Judge erred in not accepting this. The Judge also overlookedphotographic evidence of "skid marks in the mud" in the area of the incident.[18] Mr Fraser also submitted the Judge placed too much weight onMr Broadmore's emotional state in assessing the evidence of his driving conduct. Inhis submission, the fact Mr Broadmore was angry (which he accepted), did not supporta finding of recklessness, or at least not to the extent the Judge relied on this fact.Respondent's submissions[19] Mr Donnelly, on behalf of the respondent, submitted the sole issue on appealwas Mr Broadmore's mens rea, that is, whether he acted intentionally or recklessly indamaging Mr Super's vehicle.[20] Mr Donnelly submitted the Judge's factual determination as to whether therehad been significant rainfall was not in error. The Judge expressly had regard toMr Broadmore's evidence about the recent weather and to the fact Mr Broadmoreconceded in evidence that his memory may have been tainted on this subject. WhileMr Broadmore maintained it was "soggy", this was contradicted by ConstableWallbank's evidence that the ground was dry and it had not been raining. The factConstable Wallbank was looking for tyre marks meant he was well placed to ascertainthe condition of the lawn and so his evidence that the ground was dry could be readilyaccepted.[21] Consequently, Mr Donnelly submitted Mr Broadmore's claim that a "big chunkof mud" was sitting on the accelerator and this caused the pedal to depress, lackedplausibility. He submitted if the ground was not soggy, such a chunk of mud couldnot have attached to Mr Broadmore's shoe. As a result, the Judge's rejection of thisportion of Mr Broadmore's evidence showed no identifiable error and can bedismissed.[22] Mr Donnelly also submitted there was no error in the Judge placing weight onMr Broadmore's state of mind in determining the charge. Mr Donnelly highlightedthat Mr Broadmore himself accepted he was angry and this was corroborated byMr Super's evidence. Given Mr Broadmore's willingness to physically lash out (bypunching the window) and the fact he threatened Mr Super, his claim the damage heimmediately went on to cause was wholly accidental, lacked merit. Mr Donnellymaintained it was Mr Broadmore's anger that motivated and linked his behaviour andthe Judge was correct in considering it relevant to the charge of wilful damage.Analysis[23] For Mr Broadmore's appeal to be successful the District Court Judge must haveerred in his assessment of the evidence to such an extent that a miscarriage of justicehas occurred.8 There is no challenge to the Judge's articulation of the law, includingon what is required to establish the requisite mens rea element of wilful damageoffending. It is his assessment of the facts that is challenged.[24] Mr Broadmore's first point on appeal is the District Court Judge erred inrejecting Mr Broadmore's evidence that the muddy ground from recent raincontributed to the incident. In addition, he claims the District Court Judge erred inoverlooking the skid marks in the mud in the area of the incident.[25] In his evidence before the District Court, Mr Broadmore stated:And as for the weather, it was wet and it had been for quite some time beforethat, but I do concede by the looks of it, it wasn't raining that night and ithadn't been raining there within a few hours at least so maybe I did get thatmemory wrong. I'd come a long way that day, maybe it was raining up(inaudible 15:52:45) and then it sort of dried out a bit around Wanaka and somy perception of it being a rainy night, I can only explain that as probablywhy but I do concede it doesn't look like it was raining that night but it wasdefinitely wet, definitely soggy. The dry mud tracks yes, on the surface themud may look dry but underneath it will be slick as wet mud and when youtry to brake on a dry surface which has a slick undercoating, that top surfaceof dry mud will just slide along much like an avalanche would down amountain. So that is why I collided with Mr Super's car.[26] However, the evidence of Mr Super and Constable Wallbank was that it hadnot been raining. This was supported by photographic evidence of the site taken at thetime of the offending which showed the concrete pad was dry and there was noevidence of mud.9 There was also no evidence of skid marks in the mud, whether inthe photographs or otherwise. Indeed, Constable Wallbank inspected the ground fortyre tracks which related to the incident, but could find only "historic" tracks that wereset in dry mud. The fact the ground was not marked by car movements on the daysupports the conclusion that the ground was firm and dry. In my view, the8 Criminal Procedure Act, s 232(2)(b).9 Police v Broadmore, above n 2, at [8].District Court Judge did not err in rejecting Mr Broadmore's explanation of the causeof the collision.[27] Mr Broadmore's second ground of appeal is the Judge erred in placing toomuch weight on his emotional state. In evidence, Mr Broadmore spoke frankly abouthis personality disorder, ADHD and foetal alcohol syndrome. He admitted beingangry and frustrated prior to the incident. This was supported by the evidence ofMr Super and of Mr Hymers. Mr Broadmore used profanities and banged onMr Super's window before getting in his car and reversing into Mr Super's car. In myview, the Judge was entitled to take into account Mr Broadmore's acknowledged stateof mind when determining whether Mr Broadmore deliberately drove aggressively, inclose proximity to Mr Super's vehicle, and consciously taking the risk he would hit it.[28] Having discounted Mr Broadmore's explanation that it was an accident, andtaking account of Mr Super's evidence of Mr Broadmore's aggressive driving at thetime of impact, it was open to the Judge to conclude Mr Broadmore drove recklessly,resulting in the damage to Mr Super's car.[29] It follows that I do not consider the District Court Judge erred in his findingthat Mr Broadmore drove recklessly, causing damage to the vehicle.Conclusion[30] The appeal is dismissed.Solicitors:John K Fraser Law Ltd, InvercargillCrown Solicitor, Invercargill