GRAY v NEW ZEALAND POLICE [2023] NZHC 1330

GRAY v NEW ZEALAND POLICE [2023] NZHC 1330 [30 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-18[2023] NZHC 1330BETWEEN MICHELLE TINA GRAYAppellantAND NEW ZEALAND POLICERespondentHearing: 30 May 2023Appearances: T Clee for AppellantR McCoubrey for RespondentJudgment: 30 May 2023JUDGMENT OF WOOLFORD JSolicitors: Meredith Connell (Office of the Crown Solicitor), AucklandCounsel: T Clee, Auckland[1] On 18 November 2019, Michelle Tina Gray was charged with driving withexcess breath alcohol and careless driving. Following a Judge-alone trial in theWaitakere District Court on 4 July 2022, Judge T Singh gave a decision on14 December 2022 in which he dismissed the charge of driving with excess breathalcohol, but convicted and discharged Ms Gray on the charge of careless driving.1Ms Gray now appeals against the conviction of careless driving.2[2] The appeal can be dealt with shortly as the Crown responsibly acknowledgethat, in the particular circumstances of this case, a miscarriage of justice has occurred.Test to be applied[3] In determining an appeal, the first appeal court must allow the appeal if:(a) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage ofjustice has occurred;3 or(b) in any case, a miscarriage of justice has occurred for any reason.4Application to adduce new evidence[4] Ms Gray seeks to adduce fresh evidence in the form of affidavits from herselfand trial counsel, who is present in Court today. No objection is taken to theiradmission, and they are accordingly admitted as fresh evidence. Ms Gray has waivedprivilege and so they contain evidence of advice given and instructions received.There is no real difference between the two accounts.Grounds of appeal[5] Three grounds of appeal are advanced:1 Land Transport Act 1998, ss 8 and 37. Maximum penalty a fine not exceeding $3,000.2 Police v Gray [2022] NZDC 26023.3 Criminal Procedure Act 2011, s 232(2)(b).4 Section 232(2)(c).(a) A miscarriage has taken place because Ms Gray was not properlyadvised as to her decision not to give evidence;(b) Ms Gray's instructions to apply for a discharge without conviction werenot followed; and(c) no or insufficient reasons were given by the Judge for the finding ofguilt on the careless driving charge.Respondent's position[6] The Crown does not agree that a miscarriage resulted because Ms Gray waswrongly advised as to whether or not to give evidence but accepts that a miscarriageresulted from the latter two reasons advanced by Ms Gray.Discussion[7] Focusing then on the two grounds of appeal in respect of which the Crownaccepts a miscarriage resulted, trial counsel accepts that Ms Gray instructed him tomake an application for a discharge without conviction if the Judge found her guiltyof the careless driving charge. In the circumstances as they unfolded that day, trialcounsel accepts that he did not do so. In explanation, he says he did not get theopportunity to make an application because the Judge immediately convicted anddischarged Ms Gray at the commencement of the hearing on 14 December 2022,without giving reasons or asking for submissions on sentence.[8] The Crown also accepts that a miscarriage occurred because the Judge did notgive reasons for finding Ms Gray guilty of careless driving. The duty to give reasonsis contained in s 106(2) of the Criminal Procedure Act 2011 (the Act), which provides:106 Decision of court(2) The court must give reasons for its decision under subsection (1).[9] In this case, all the Judge said was:[2] In respect of the carless driving charge, this is a charge that wasproven beyond reasonable doubt on the evidence before the Court. Thecircumstances were in question though. That was because there was doubt asto whether damage was caused to other vehicles by Ms Gray. I find as a factthat the evidence of the prosecution is insufficient to prove that Ms Graycaused damage to other vehicles whilst driving carelessly. I will turn to thesentencing of this after the decision on the lead charge.[17] For the careless driving charge, I convict and discharge.[10] The Judge was obliged to give reasons for convicting Ms Gray of carelessdriving notwithstanding that the evidence may have revealed a basis for such aconclusion. Here the Crown refers to the Supreme Court case of Sena v Police5, inwhich the Court stated a Judge's reasons:[36] should show an engagement with the case, identify the criticalissues in the case, explain how and why those issues are resolved, andgenerally provide a rational and considered basis for the conclusion reached.The language of s 232(2)(b) reflects an assumption that the reasons given bya judge will reflect that judge's assessment of the evidence and why thatassessment resulted in a conviction. A failure to provide such an assessmentfrustrates the operations of s 232(2)(b) and may well engage s 232(2)(c); thison the basis that a reasoned judgment is essential to a fair trial.[11] The Crown accepts that the Judge's reason fell short of what is required bys 106(2) of the Act and Sena.Result[12] For the reasons articulated by the Crown, I allow the appeal and quashMs Gray's conviction for careless driving. I do not order a retrial. The public interestdoes not require a retrial of this allegation.________________________________Woolford J5 Sena v Police [2019] NZSC 55.