DOUDS v NEW ZEALAND POLICE [2017] NZCA 208

DOUDS v NEW ZEALAND POLICE [2017] NZCA 208 [24 May 2017]NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS ORIDENTIFYING PARTICULARS OF PERSONS UNDER THE AGE OF18 YEARS WHO APPEARED AS WITNESSES PROHIBITED BY S 204 OFTHE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA662/2016[2017] NZCA 208BETWEEN EUGENE ARTHUR DOUDSApplicantAND NEW ZEALAND POLICERespondentCourt: French, Mallon and Wylie JJCounsel: J C Hannam for ApplicantA B Richards for RespondentJudgment:(On the papers)24 May 2017 at 3.00 pmJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Mallon J)[1] Mr Douds was convicted of dangerous driving1 following a judge alone trial before Judge Sygrove in the District Court at Hawera.2 He was fined $500, ordered to pay costs of $130 and reparation of $185, and disqualified from driving for six1 Land Transport Act 1998, s 35(1)(b) (maximum penalty three months' imprisonment or a $4,500fine).2 Police v Douds [2016] NZDC 21998.months.3 An appeal against conviction was dismissed by the High Court (Clark J).4Mr Douds now seeks leave to bring a second appeal against conviction.[2] Mr Douds contends a miscarriage of justice occurred. He contends there was reasonable doubt about the reliability of the two prosecution witnesses because their evidence on disputed factual issues was inconsistent. He also says that Clark J erredin one aspect of her assessment of Mr Douds' evidence.[3] The dangerous driving charge arose out of an incident on the evening of 23 February 2016. Mr Douds was alleged to have driven on to a grass verge where two teenage boys were standing, hitting one of the boys and partially running over his bike. Mr Douds, who elected to give evidence in his defence, said he stopped before hitting the boys and was careful not to cause any damage.[4] Mr Douds applied pre-trial for the charge to be dismissed under s 147 of the Criminal Procedure Act 2011. The District Court Judge (Judge Barkle) considered that despite some inconsistencies in the two boys' statements, their evidence ifaccepted supported the charge.5[5] At trial, Judge Sygrove preferred the evidence of the two boys over Mr Douds' evidence. In doing so he noted the unlikelihood of the two boys speakingto the police and giving evidence in court about something that did not happen. He considered that any inconsistencies in their evidence did not go to the heart of the matter. The two boys were consistent on the main aspects of what had occurred. Although the bike was not inspected until sometime later, it had damage consistent with having been hit by the car. On appeal to the High Court, Clark J considered these findings were open to the District Court Judge.[6] In recounting the facts, Clark J stated "[Mr Douds] said he picked up the bikefrom under the front of his car."6 This was a mistake, Mr Douds' evidence was that the bike was in front of a Mitsubishi car at the scene and he had "picked up [the]3 Police v Douds [2016] NZDC 21973.4 Douds v Police [2016] NZHC 3022.5 Police v Douds [2016] NZDC 12493.6 Douds v Police, above n 4 at [4].bike from in front of the Mitsi". We do not accept this mistake could haveinfluenced the Judge's assessment of the appeal. Both the boys gave evidence that the bike ended up under Mr Douds' car. Judge Sygrove preferred the evidence of the boys over Mr Douds' evidence and Clark J concluded he was entitled to do so.[7] We have reviewed the inconsistencies raised by Mr Douds in support of his application for leave to bring a second appeal. These relate to the colour of the car he was driving (one of the boys was mistaken about this); the fact one boy said Mr Douds drove down some fence standards and the other did not; only one of the boys described receiving injuries (a scrape and two bruises); whether these injuries were consistent with being struck by a car at 25–35 km/h; whether one of the boys was pushed to the ground; whether the boys pushed Mr Douds afterwards; whether the grass was wet and whether there were skid marks on the grass. Mr Douds also refers to the absence of any damage to his car and that the bike was not examined for damage on the day of the incident.[8] We agree with the two Courts below that the inconsistencies relied on are differences on peripheral detail. The key question was whether Mr Douds had intentionally driven at them and on that matter the boys were consistent. As the High Court found, Judge Sygrove was entitled to reach the conclusions he did.[9] The threshold for leave to bring a second appeal is high.7 Nothing has been put forward to persuade us that a miscarriage of justice may have occurred. The application for leave to bring a second appeal is declined.Solicitors:Hannam and Co Lawyers, New Plymouth for Applicant Crown Law Office, Wellington for Respondent7 See for example R (CA176/2016) v Police [2016] NZCA 403 at [26].