ANDERSON v POLICE [2018] NZHC 2408

ANDERSON v POLICE [2018] NZHC 2408 [13 September 2018]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2018-476-000004[2018] NZHC 2408BETWEEN MATTHEW IAN ANDERSONAppellantAND NEW ZEALAND POLICERespondentHearing: 7 September 2018Appearances: T J Jackson for the AppellantH V Bennett for the RespondentJudgment: 13 September 2018JUDGMENT OF NATION JIntroduction[1] On 18 June 2018, Judge Saunders in the District Court convicted Mr Andersonof dangerous driving and imposed a fine of $1000, along with Court costs andwitnesses' expenses. Mr Anderson was also disqualified from driving for six months.[2] Mr Anderson appeals his conviction on the grounds there was not sufficientevidence his driving was dangerous and the prosecution was unfair in not calling as awitness the driver of another vehicle, Mr Quantock. He also appeals the impositionof the six months' disqualification from driving.Facts[3] Mr Anderson had been angered by people driving along the road where he liveswith his family at night sounding an airhorn, something that appears to have been anongoing issue. At about 7.45 pm on 1 August 2017, it happened again and MrAnderson left his property in a Holden Commodore and pursued the other vehicle.[4] The first part of the events involved him trying to catch up with an orangeNissan Navara driven by Shaun Quantock. Emma Little was a passenger in the Nissan.For a distance of 43 kilometres, through Winchester and Temuka to Washdyke, overan approximate 40 minute period, the two vehicles were involved in what appeared tohave been, at times, a high-speed pursuit.[5] There was a dispute over who was the aggressor in these events. Mr Andersondisputed that he was travelling dangerously. He said his sole intent was to get closeenough to identify the number plate of the Nissan, which he was only able to dotowards the end of the trip as there had been mud on the vehicle obscuring his view.Mr Quantock did not give evidence, but Ms Little described what appeared to be adeliberate attempt to try and pull them over on more than one occasion on their trip toTimaru. She was sufficiently concerned to have contacted Police.[6] Dean Atkinson also gave evidence as an independent witness to the events. Hewas concerned about the way the vehicles were driving and decided to follow them ata safe distance.[7] Once the vehicles reached Washdyke, Mr Anderson says he decided to abandonthe chase as Mr Quantock was driving very dangerously. In Washdyke, Mr Quantockand Ms Little pulled into a petrol station and met the Police as arranged. Mr Atkinsonfollowed and gave a statement to Police.[8] Ms Little had given a statement to the effect that Mr Anderson had thrown abaseball bat at the vehicle, but Mr Anderson strongly disputed this.Jurisdiction and approach on appeal against conviction[9] The appellant has an automatic right of appeal to this Court.1[10] Section 232(2) Criminal Procedure Act 2011 provides that the High Court mayonly allow an appeal against conviction if satisfied that the trial judge "erred in his orher assessment of the evidence to such an extent that a miscarriage of justice hasoccurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.2[11] Section 232 makes it clear that not every error or irregularity causes amiscarriage of justice. Instead, there must be a "real risk" that the outcome wasaffected. R v Sungsuwan defines a "real risk" as "a reasonable possibility that a notguilty (or more favourable) verdict might have been delivered if nothing had gonewrong".3[12] R v Condon held that a mere departure from good practice does not render atrial unfair.4 Instead, the errors or irregularities must depart from good practice in amanner "so gross, or so persistent, or so prejudicial, or so irremediable" that the Courtmust quash the decision.5Approach on appeal against sentence[13] Appeals against sentence are allowed as of right by s 244 Criminal ProcedureAct, and must be determined in accordance with s 250 of that Act. An appeal againstsentence may only be allowed by this Court if it is satisfied there has been an error inthe imposition of the sentence and that a different sentence should be imposed.61 Criminal Procedure Act 2011, s 229.2 Section 232(4).3 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110] per Tipping J.4 Condon v R [2006] NZSC at [78].5 Randall v R [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by theSupreme Court in Condon v R, above n 4, at [78].6 Criminal Procedure Act, ss 250(2) and 250(3).[14] A refusal to waive or lessen an otherwise mandatory disqualification periodinvolves both:7(a) an assessment of fact and application of law in determining whether"special reasons" exist; and(b) the exercise of judicial discretion in making an order other than themandatory disqualification.[15] In Morgan v Police, Collins J held that such an appeal is subject to thestandards of appeal articulated by the Supreme Court in Austin, Nichols & Co Inc vStichting Lodestar.8 This means that the appellate Court must reach its own view onthe merits of the appeal, bearing in mind that the appellant bears an onus of satisfyingthe Court that it should differ from the decision under appeal.9[16] In this case, the Judge did not (and was not asked to) consider whether specialreasons, in terms of s 81 of the Land Transport Act 1998, did apply. As there is a highlevel of prescription in terms of what constitutes a special reason, the Court shouldapproach this appeal afresh and come to its own conclusion.10The District Court decision[17] After setting out the disputed facts, the Judge decided that the evidence of MrAtkinson was credible, Mr Atkinson being "truly independent of the circumstances".Mr Atkinson's evidence lent weight to Ms Little's account of the events.[18] The Judge held that, while he could understand Mr Anderson's initial desire toobtain the number plate of the vehicle, the ongoing pursuit and overtaking of theNissan was "clearly not justified given the speed at which the Nissan" was travelling.There were options available to Mr Anderson "short of trying to take the law into hisown hands".7 Morgan v Police [2013] NZHC 3431 at [13].8 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [4].9 Morgan v Police, above n 7, at [14].10 This is consistent with the approach in Taipeti v R [2018] NZCA 56.[19] The Judge decided there was sufficient evidence to determine that MrAnderson had been driving at a speed and in a way that was clearly dangerous to thosein the Nissan and innocent road users. He therefore convicted Mr Anderson ofdangerous driving.[20] The Judge noted that "two wrongs don't make a right" and, while it may wellhave been Mr Quantock and his friends causing disruption in Mr Anderson'sneighbourhood, Mr Anderson's actions went beyond what was appropriate.[21] In imposing the minimum mandatory disqualification period of six months, theJudge noted that Mr Anderson could ask the Court in due course for a limited or worklicence to alleviate some of the hardship he would face as a result of disqualification.[22] The Judge accepted there was not sufficient evidence to sustain the charge ofpossession of an offensive weapon.SubmissionsAppellant submissions[23] Counsel for Mr Anderson, Mr Jackson, first submitted that the factual basis forthe conviction was unclear, specifically whether the Judge pinpointed a singledangerous act proved beyond reasonable doubt or made an inference from provedfacts, where the inference was so strong as to admit no other conclusion. Mr Jacksonsubmitted that the Judge either vacillated between the two approaches or relied on MrAtkinson's evidence of a single incident to bolster a general or overall assessment nototherwise able to be proved. Counsel submitted that the Judge did not identify eithera single act or an aggregation but rather proceeded from a general conclusion that therewere dangerous circumstances.[24] Mr Jackson submitted that it was unsafe to rely on Mr Atkinson's observations,particularly given the dark and wet conditions. His evidence, Mr Jackson submitted,fell short of proving beyond reasonable doubt that Mr Anderson drove dangerously, asone could equally infer that it was Mr Quantock at fault. Mr Jackson submitted thathis independence, to use the lower court's description, could not elevate his accountbeyond that of the other two witnesses.[25] Mr Jackson also strongly criticised the fact that Mr Quantock did not giveevidence at the trial. He says that the prosecution elected not to call him, thus "theprosecution was, in a tactical way, unfairly weighted against" Mr Anderson and that"there is an element of abuse of process in that approach". He also said this "amountedto a prosecution decision to adduce selective evidence and was unfair". Mr Jacksonsaid the Police decision not to charge Mr Quantock "compromise[d] the fair and even-handed disposition of criminal proceedings". Mr Quantock not giving evidenceprevented the defence from questioning him on his previous convictions for carelessuse, dangerous driving, sustained loss of traction and driving while his licence wassuspended, along with his numerous dishonesty convictions.[26] If the Court decided to uphold the conviction, Mr Jackson submitted that theCourt should revisit the imposition of a six month disqualification. While this was themandatory minimum period, s 81 Land Transport Act provides for a discretion wherethere are "special reasons relating to the offence". The District Court Judge did notconsider this option. Mr Jackson submitted that, in all the circumstances, includingthe harassment Mr Anderson had faced without support from the Police, and MrQuantock's role in the offending, there were special reasons so that a disqualificationshould not be imposed.Respondent submissions[27] Counsel for the Police, Ms Bennett, submitted that the Judge did not err in hisassessment of the evidence to such an extent that a miscarriage of justice occurred andthat a miscarriage of justice has not occurred for any other reason.[28] In terms of Mr Jackson's submission that the factual basis for the convictionwas insufficient, Ms Bennett submitted there was no gap in the evidence. Shesubmitted the Judge was entitled to rely on Mr Atkinson's evidence, whichcorroborated Ms Little's evidence.[29] Regarding Mr Jackson's submission that unfairness resulted from MrQuantock not giving evidence, Ms Bennett submitted that the Police did attempt tocall him but had failed to serve a summons on him. Had Mr Anderson been concernedat the beginning of trial, Ms Bennett submitted he could have made an applicationunder s 113 Criminal Procedure Act to adjourn the trial. Ms Bennett submitted that,if it was an error not to have Mr Quantock appear as a witness, it was not an error ofsufficient seriousness to warrant the verdict being set aside without further enquiry,given the evidence from Ms Little.[30] Ms Bennett also rejected the allegations of unfairness in the conduct of theprosecution. She submitted there was no evidence beyond Mr Jackson's submissionsto support this.[31] Further, in terms of the sentence appeal, Ms Bennett submitted the Judge wascorrect in not considering there were special reasons which meant Mr Anderson shouldnot be disqualified for six months. Dangerous driving was not the only course ofaction available to Mr Anderson and he went beyond what was justified.AnalysisConviction appeal[32] The charge of dangerous driving can be proved in two ways:11(a) pinpointing a single dangerous act; or(b) inference from proved facts, where the inference is so strong as to admitno other conclusion.[33] While the Judge may not have considered these two paths expressly, hisdecision was consistent with his having approached matters in that way.[34] For Mr Anderson, Mr Jackson submitted it was not clear whether the Judge'sultimate decision was based on his assessment of just one incident that occurred after11 Stratford v Ministry of Transport [1992] 1 NZLR 486 (HC) at 490.the two vehicles had passed through Temuka or because of Mr Anderson's drivingover a more sustained period.[35] I consider the Judge's decision was based on both.[36] The Judge began his decision by saying it arose out of Mr Anderson'sdispleasure at people making a noise with their airhorns outside his home and leavinghis property to try and obtain further information about a Nissan vehicle that had justpassed his property. He said the initial part of the enterprise involved Mr Andersontrying to catch up with the Nissan, the passenger witness from that vehicle, Ms Little,describing what appeared to be a deliberate attempt to try and pull them over on morethan one occasion on their trip back to Timaru and the vehicles being involved in what,at times, appeared to be a high speed pursuit over some 43 kilometres and perhaps a38 minute period.[37] The Judge said his decision could ultimately be based on the evidence from anindependent witness, Mr Atkinson. The Judge said Mr Atkinson, out of concern, hadfollowed what he thought was a high speed pursuit between the Winchester turnoffnorth of Temuka through to Washdyke, just north of Timaru. Mr Atkinson had drivento the BP station where the Police were speaking to the driver of the Nissan. The Judgereferred to Mr Atkinson having seen an incident at passing lanes just south of Temukawhere the two vehicles had reconnected.[38] The Judge said that, once Mr Anderson was on State Highway 1, with thenumber of vehicles that use that road, his manner of driving and the speed at which hewas driving was clearly something that put lives of innocent road users at risk. Hesaid it was in those circumstances that he found the charge had been proved.[39] The Judge said the evidence he had to concentrate on was the evidence thatrelated to the method of driving over this period of time. I read that as a reference tothe whole of the driving rather than just a specific incident.[40] The Judge was at an advantage in assessing the credibility of each of thewitnesses whose evidence he heard through being able to follow the precise questionsand answers in the context where that occurred at trial.[41] On all the evidence he heard, there was a reasonable basis for the Judge to findthat Mr Anderson was intensely angry at the way he thought people in the Nissan hadbeen making a noise outside his property which was distressing to his family. Therewas evidence that Mr Anderson was determined not just to get their registrationnumber but to stop the vehicle and talk to the people in it about what he thought theyhad been doing. Consistent with this, when the Nissan stopped to give way at theintersection of the Geraldine/Winchester Road with State Highway 1, Mr Andersonnot only got out of his vehicle and was close enough to get a clear view of theregistration number, but said he slapped the Nissan with his hand.[42] Mr Anderson would have been able to obtain the registration number from therear of the Nissan when he pulled up behind it at the intersection with the main roadand when he got out of his vehicle. His credibility as to what he had to say about hisdriving would not have been assisted by his saying in evidence that he pursued theNissan through to Washdyke to obtain the registration number and was only able toobtain the registration number in the Washdyke area because, by then, it had beenwashed clean enough by the rain, causing him to leave State Highway 1 and head offtowards Pleasant Point.[43] It was Ms Little's evidence that, as they were going through Washdyke, theywere being followed by the Commodore, but as they approached the hill towards thesouthern end of Washdyke and saw the flashing lights of a Police vehicle approachingthem, they looked behind and the Commodore was gone.[44] Although Mr Anderson denied this, it does seem likely that, as he was at somepoint behind the Nissan, he saw the lights of an approaching Police car and turned offthe highway so as not to have any contact with the Police. Despite his later complaintto the Police when they interviewed him about what had happened this night, he hadnot made any complaint about Mr Quantock's driving in the interim.[45] Ms Little gave evidence as to Mr Anderson's driving on Te Moana Road,through Geraldine, from there to State Highway 1, through Winchester and fromTemuka to Washdyke, just north of Timaru. On her evidence, there was a reasonablebasis for the Judge to find that Mr Anderson had been speeding, had travelled at speeddangerously close behind the Nissan, and had cut in front of the Nissan in ways thatcould have been dangerous to people in that vehicle. There were aspects of MrAnderson's own evidence which were consistent with this.[46] Ms Little described an incident in passing lanes just north of Washdyke. Shesaid they would have been travelling at 140 kph and the Commodore tried to go pastand force them off the road again. She said that Mr Quantock had swerved around theCommodore because, if he had tried to brake, the Nissan would have run into the backof the Commodore. She said Mr Quantock had gone onto the grass and so passed theCommodore on the left.[47] It was not suggested to Ms Little in cross-examination that her description ofdriving events was fundamentally wrong.[48] Significantly, in ringing the Police as they travelled out of Geraldine, Ms Littlehad acted as if she was afraid of what might happen and had remained in contact withthe Police as the chase continued. The way in which Mr Anderson was driving hadcaused an independent witness to be concerned at the potential for danger in what wasgoing on.[49] The Judge was entitled to treat Mr Atkinson as an independent witness whoseevidence corroborated the evidence of Ms Little. In particular, Mr Atkinson'sevidence, as to the way Mr Anderson had forced the Nissan off the road approachingWashdyke, was consistent with Ms Little's evidence.[50] Mr Quantock, the driver of the Nissan, through fear of Mr Anderson and whathe might do, may have decided that there would be danger for him and/or his passengerif they stopped and were confronted by Mr Anderson. That may have explained whyMr Quantock kept driving away at speed and, at a point when they were in an areawith passing lanes, drove in the middle of the road to make it more difficult for MrAnderson to pass. It may also explain why, instead of stopping as Mr Anderson wantedhim to, he passed Mr Anderson's vehicle on its left.[51] It is possible that, in all these circumstances, aspects of Mr Quantock's drivingwere also dangerous. The explanation for his not having been charged with anydriving offence is probably that it was as they were leaving Geraldine that Ms Littletelephoned the Police, said they were fearful of the situation they were in, were toldto proceed to Timaru and remained in contact with the Police for much of the journey,with the expectation that a Police car would be sent out to meet them, as in facthappened.[52] What the Judge had to determine was whether the evidence before him provedthe charge that had been brought against Mr Anderson, not whether Mr Quantock'sdriving had also been dangerous. I am satisfied that, on all the evidence the Judgeheard, there was no error with the decision he reached.[53] I am satisfied there was no error in the way the Judge assessed the evidence ofthe various witnesses and certainly no error that caused a miscarriage of justice.[54] It was also suggested for Mr Anderson that there was a serious unfairness withthe trial in that Mr Quantock had not been called as a witness. There is no evidencebefore me as to why that was so. Neither of the Police officers who gave evidencewere cross-examined about this. I have been told that the Police were unable to servea witness summons on Mr Quantock. Ms Little said in her evidence that Mr Quantockwas her former partner. Mr Jackson, in his submissions before me, made it clear hewas not suggesting the prosecutor had acted improperly in any way.[55] In his evidence, Mr Anderson referred to something Mr Quantock had said ina statement to the Police. Had Mr Anderson or his counsel thought it was essential toa fair trial that Mr Quantock be available as a witness, counsel could have asked thatthe hearing be adjourned. Counsel made no such request.[56] I was told that Mr Quantock has previous convictions for driving offences. AsMs Bennett submitted, defence counsel could have put Mr Quantock's driving recordto one of the Police officers who gave evidence. Counsel did not do so. However, aJudge may have regarded Mr Quantock's previous convictions as being of littlerelevance and, so, inadmissible. What was at issue in this case was what happened onthe particular night in question. Mr Anderson did not, at any point in his evidence,assert that he drove the way he did because of the way Mr Quantock was driving. Hisexplanation for driving the way he did was that he wanted to get the registrationnumber of the Nissan.[57] Both the prosecution and the defence proceeded to trial on the basis the Policewould have to rely on the particular witnesses the Police called to prove the charge. Itcannot be said there was an error with the way the case proceeded on that basis. Withall the evidence that emerged, it cannot be said there was a miscarriage of justicebecause Mr Quantock was not called as a witness.[58] For all these reasons, Mr Anderson's conviction must stand.Sentence appeal[59] In terms of the sentence appeal, a refusal to waive or lessen an otherwisemandatory disqualification period involves both:12(a) an assessment of fact and application of law in determining whether"special reasons" exists; and(b) the exercise of judicial discretion in making an order other than themandatory disqualification.[60] A special reason is defined in R v Crossen as:13A mitigating or extenuating circumstance, not amounting in law to a defenceto the charge, yet directly connected with the commission of the offence, andone which the Court ought properly to take into account when imposingpunishment.12 Morgan v Police, above n 7, at [13].13 R v Crossen [1939] NI 106 at 112.[61] The principles applying to the application of special reasons are as follows:14(a) special reasons are only factors of particular or exceptional character;(b) they must arise from the circumstances in which the offence wascommitted, or the manner of its commission as a whole, and notcircumstances peculiar to the offender;(c) personal circumstances are irrelevant, except to the extent they influencethe events leading up to the commission of the offence or are part andparcel of the offending itself;(d) the special reason must be of a sufficiently compelling nature to justify adeparture from the usual consequences;(e) the special reason must not conflict with the essential purpose of thestatutory provision; and(f) where all reasonable or possible alternatives are not explored, it is unlikelythat special reasons will be found.[62] The Judge accepted that Mr Anderson was understandably aggrieved at theway vehicles going passed his home had disturbed his family through soundingairhorns. Mr Anderson's concern about this did not however mean that he was dealingwith an emergency situation which could be seen as justifying the way he drove oversome 43 kilometres and in the manner which the Judge found to be dangerous. Therewere other alternatives available to him.[63] On all the evidence before him, the Judge could not have found there werespecial circumstances justifying the departure from the mandatory requirement for asix month disqualification.14 Anderson v Police [2016] NZHC 942 at [15]-[16].[64] For all these reasons, the appeal is dismissed. Mr Anderson's disqualificationis to take effect from 7.00 am on 15 September 2018.Solicitors:Quentin Hix Legal Ltd, TimaruGresson Dorman & Co., Timaru.