ANDERSON v R [2019] NZCA 145

ANDERSON v R [2019] NZCA 145 [7 May 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA585/2018[2019] NZCA 145BETWEEN MATTHEW IAN ANDERSONAppellantAND THE QUEENRespondentHearing: On the papersCourt: Gilbert, Wylie and Thomas JJCounsel: T J Jackson for AppellantK L Kensington for RespondentJudgment: 7 May 2019 at 11 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal is declined.____________________________________________________________________REASONS OF THE COURT(Given by Thomas J)[1] In June 2018, Matthew Anderson was convicted at a Judge-alone trial of onecharge of dangerous driving on the evening of 1 August 2017.1 He appealed hisconviction and sentence to the High Court. His appeal was dismissed inSeptember 2018.2 Mr Anderson now seeks leave to bring a second appeal againstconviction on the basis that a miscarriage of justice has occurred, or may occur, ifleave is not granted. The Crown opposes the application.1 Police v Anderson [2018[ NZDC 12928.2 Anderson v Police [2018] NZHC 2408.Background[2] Frustrated by vehicles driving down the rural road in which he lived, soundingtheir air horns late at night or in the early hours of the morning, Mr Anderson decidedto follow a Nissan ute he thought was involved in order to obtain its registrationnumber. The ute was driven by a Mr Quantock. Ms Little was his passenger.[3] The two vehicles travelled a distance of approximately 43 kilometres fromTe Moana Road, near Geraldine, towards Timaru. Mr Quantock did not give evidenceat the District Court trial but Ms Little did. Her evidence was that Mr Andersonfollowed them closely with his headlights on full beam, at times right on their bumper,while they were travelling at approximately 120 kilometres per hour. She describedMr Anderson's car coming out to pass the ute and then cutting in front of it, requiringMr Quantock to take evasive action. As they left Geraldine, Ms Little called the policeto report Mr Anderson's driving. They were instructed to keep driving and meetthe police in Timaru.[4] Ms Little's evidence was that Mr Anderson continued at high speed, travellingclosely behind the ute, at one stage coming up to pass but getting so close to its sidethat Ms Little said it would not have been possible to open the driver's door. She saidMr Anderson tried to push them off the road. The ute then stayed in the centre ofthe passing lane to prevent Mr Anderson overtaking but he continued to swerve, tryingto pass. Eventually he did, again trying to force the ute off the road. Ms Little said,when the police lights became visible, Mr Anderson's car disappeared.[5] An independent witness, Mr Atkinson, was driving through Winchester whenhe saw two cars travelling very close together at high speed. He describedMr Anderson's driving as aggressive because he was following closely at high speedand the ute had its hazard lights on. Mr Atkinson decided to follow the vehicles butwas forced to travel at a high speed to keep up. He described Mr Anderson continuingto drive aggressively between Temuka and Timaru, coming out and passing the ute,cutting in closely and effectively forcing it off the road as if to try and stop it.[6] Mr Anderson elected to give evidence. He said he followed the ute and triedto get it to stop by using his headlights from behind and by pulling up in front of the uteand putting on his hazard lights. He said the driver of the ute responded by trying torun him off the road onto the grass verge. Mr Anderson said he continued to followthe ute because he wanted its registration number, but the licence plate was obscuredby mud.[7] Judge D J L Saunders in the District Court set out the disputed facts anddecided Mr Atkinson's evidence lent weight to Ms Little's version of events. He foundhim credible, being "truly independent of the circumstances of this case".3 The Judgeheld there was sufficient evidence to determine that Mr Anderson had been driving atspeed and in a way which was clearly dangerous to those in the ute and innocent roadusers. He said, while it may have been that Mr Quantock and his friends causeddisruption in Mr Anderson's neighbourhood, Mr Anderson's actions went beyondwhat was appropriate and "two wrongs don't make a right".4[8] Judge Saunders found the charge of dangerous driving proved beyondreasonable doubt. He said, while he could understand Mr Anderson's initial desire toobtain the number plate of the ute, the ongoing pursuit and overtaking of it was"clearly not justified given the speed" at which the ute was travelling, and that therewere other options available to Mr Anderson short of trying to take the law into hisown hands.5[9] Mr Anderson's grounds of appeal to the High Court were that there wasinsufficient evidence to prove his driving was dangerous and the prosecution wasunfair in not calling Mr Quantock as a witness. Mr Jackson appeared for Mr Andersonat the appeal. In his decision, Nation J recorded Mr Jackson's submissions thatthe factual basis for the conviction was unclear; it was unsafe to rely on Mr Atkinson'sobservations given the dark and wet conditions; and that the prosecution decision notto call Mr Quantock unfairly weighed against Mr Anderson. Mr Jackson submittedthat the failure to call Mr Quantock prevented the defence from questioning him onhis convictions for careless use, dangerous driving, sustained loss of traction anddriving while his licence was suspended, as well as numerous dishonesty convictions.3 Police v Anderson, above n 1, at [4].4 At [10].5 At [9].[10] Nation J discussed the evidence in some detail. He concluded there wasa reasonable basis for the Judge to find Mr Anderson had been speeding, had travelledat speed dangerously close behind the ute and had cut in front of it in ways that wouldhave been dangerous to people in the ute. He observed aspects of Mr Anderson's ownevidence were consistent with this. Nation J concluded that Judge Saunders wasentitled to treat Mr Atkinson as an independent witness whose evidence corroboratedthat of Ms Little.[11] Nation J then addressed Mr Quantock's driving. He observed thatMr Quantock's continued driving at speed, at one point down the middle of the road,might have been explained by his perception of danger had they stopped and beenconfronted by Mr Anderson. Nation J accepted that, in all these circumstances, it waspossible that aspects of Mr Quantock's driving were also dangerous. He noted thatMr Quantock had not been charged with any driving offence and that Ms Little hadtelephoned the police as they left Geraldine and was told to proceed to Timaru.She had remained in contact with the police for much of the journey. Nation J pointedout that the question before the Judge was whether the evidence proved the chargewhich had been brought against Mr Anderson and not whether Mr Quantock's drivinghad also been dangerous.[12] Nation J also addressed the submission that the failure to call Mr Quantock asa witness had caused a serious unfairness. The police had been unable to servea witness summons on Mr Quantock. Nation J pointed out that, had it been consideredessential to a fair trial that Mr Quantock be available as a witness, an adjournment ofthe hearing could have been sought but there was no such request. He also observedthat defence counsel could have put Mr Quantock's driving record to one of the policeofficers who gave evidence but did not do so. He reiterated that the issue in the casewas what happened on that particular night. Nation J concluded:6[57] Both the prosecution and the defence proceeded to trial on the basisthe Police would have to rely on the particular witnesses the Police called toprove the charge. It cannot be said there was an error with the way the caseproceeded on that basis. With all the evidence that emerged, it cannot be saidthere was a miscarriage of justice because Mr Quantock was not called asa witness.6 Anderson v Police, above n 2.The proposed appeal[13] Mr Anderson seeks a second appeal against conviction on the grounds thatthe following issues created a real risk the outcome of the trial was affected:(a) the prosecution failure to call evidence from Mr Quantock; and(b) there was an insufficient evidential basis for the Court to concludethe charge proved beyond reasonable doubt.Decision[14] The Court must not give leave for a second appeal unless satisfied the appealinvolves a matter of general or public importance or a miscarriage of justice may haveoccurred.7[15] A miscarriage of justice is any error, irregularity, or occurrence in or in relationto or affecting the trial which has created a real risk that the outcome of the trial wasaffected or has resulted in an unfair trial or a trial that was a nullity.8 Not every erroror irregularity causes a miscarriage of justice.9 A real risk that the outcome wasaffected exists when there is a reasonable possibility that a not guilty (or morefavourable) verdict might have been delivered if nothing had gone wrong".10[16] We are not persuaded the proposed appeal in this case raises a question ofgeneral or public importance capable of serious argument.[17] The test for whether a second appeal is warranted on the grounds a miscarriageof justice may have occurred is a high one.11 Leave will generally be declined wherethe application raises issues in the nature of a factual assessment specific tothe circumstances of the case.12 The proposed appeal falls into this category. Both the7 Criminal Procedure Act 2011, s 237(2).8 Criminal Procedure Act 2011, s 232(4).9 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].10 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110].11 McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764 at [37][42].12 At [36] citing Thompson v R [2005] NZSC 58, [2005] 3 NZLR 588 at [6].District and High Courts comprehensively considered the evidence and there is nobasis to interfere with their assessment of it.[18] The same grounds of appeal were before Nation J in the High Court at the firstappeal. They were addressed and correctly dealt with. They have insufficientprospects of success and do not justify the granting of leave for a second appeal.[19] We are not satisfied a miscarriage of justice has occurred or may occur if leavefor a second appeal is not granted.Result[20] The application for leave to appeal is accordingly declined.Solicitors:Quentin Hix Legal, Timaru for AppellantCrown Law, Wellington for Respondent