ENOKA v NEW ZEALAND POLICE [2020] NZHC 2157

ENOKA v NEW ZEALAND POLICE [2020] NZHC 2157 [24 August 2020]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2020-485-054[2020] NZHC 2157BETWEEN TYRONNE CHRISTIANSEN MORGANENOKAAppellantAND NEW ZEALAND POLICERespondentHearing: 18 August 2020Counsel: A P Dye for appellantN Azam for respondentJudgment: 24 August 2020RESERVED JUDGMENT OF DOBSON J[1] Following a judge-alone trial before Judge Tompkins in the Hutt Valley DistrictCourt on 15 July 2020, the appellant (Mr Enoka) was convicted on one charge ofoperating a motor vehicle in a manner causing the vehicle to undergo a sustained lossof traction (a burn-out) without reasonable excuse.1 Mr Enoka was sentenced to100 hours' community work and was disqualified from driving for six months.2[2] Mr Enoka has appealed this conviction on the ground that the Judge erred inhis assessment of the evidence to the extent that a miscarriage of justice has occurred.1 Land Transport Act 1998, ss 36A(1)(c) and 22A(3).2 Police v Enoka [2020] NZDC 5553.The facts[3] On 18 December 2018, Police Constables Lee and Wayer were on duty in aPolice car on an intersection of Fergusson Drive, the main thoroughfare through UpperHutt. They observed a cloud of thick smoke covering the entirety of the road some380 metres away from where they were on Fergusson Drive. They observed an orangeand white car drive out of the smoke, travelling towards them.[4] The orange car drove past the constables and the driver of the following carpointed at the orange car, in a gesture apparently to the constables. They followed theorange car and subsequently stopped it. Mr Enoka was the driver. The constablesobserved a strong smell of burnt rubber and identified loose rubber fragments aroundthe rear wheel guards and arches of his car. The constables concluded that Mr Enokahad caused a sustained loss of traction and he was charged accordingly.[5] The constables examined the surface of Fergusson Drive in the area of the thicksmoke and observed a large number of skid marks, some of which were faded butothers of which were dark black and of recent origin. The constables did not venturedown the driveway of the adjoining property at 1063B Fergusson Drive.[6] At his trial, Mr Enoka's counsel called evidence from an associate,Mr Morrison. Mr Morrison occupied a rear unit in a two unit block at1063B Fergusson Drive, adjacent to the point of that road at which the loss of tractionwas alleged to have occurred. Mr Morrison's evidence was that he, Mr Enoka and anumber of associates had gathered at his address for a barbecue on the day in question.Mr Morrison described there having been "a few burn-outs" during the day. Inparticular, he described how Mr Enoka had parked his vehicle some 20 or 30 metresup his driveway from Fergusson Drive and past a wider concrete apron area.Mr Morrison described seeing a Harley Davidson motor bike driven by an unidentifiedperson leave his property and perform a burn-out on Fergusson Drive before drivingsouth towards Upper Hutt City. Mr Morrison stated that shortly afterwards Mr Enokahad performed a stationary burn-out not on Fergusson Drive, but rather in thesomewhat wider concreted driveway apron inside the boundary of his property.The District Court judgment[7] There was no issue that Mr Enoka's car had performed a burn-out. Thecontested element requiring proof by the Police was that this had occurred not in thedriveway of the property at which Mr Morrison lived, as he stated in his evidence, butoutside that property on Fergusson Drive where the constables had observed densesmoke and recent marks from skidding tyres.[8] The Judge treated the Police case as relying on inferences to establish beyondreasonable doubt that Mr Enoka had performed the burn-out on Fergusson Drive. Onthat issue, the Judge reasoned:[10] Having observed Mr Morrison give his evidence, I was not impressedby the way in which he gave his evidence or, indeed, its content, given thesheer unlikelihood that Mr Enoka would put his otherwise pristine andrestored car at significant risk of scraping nearby fences or trees in the veryconfined space of Mr Morrison's driveway by performing either a stationaryburn-out or, indeed, any other form of sustained loss of traction, given the easewith which a vehicle undergoing that manoeuvre can move around outside thecontrol of the driver.[11] Setting aside Mr Morrison's evidence as unsatisfactory, thecompelling inference to be drawn is that Mr Enoka, having seen theunidentified Harley Davidson motorbike perform a farewell burn-out gesturebefore travelling south, likewise undertook the same manoeuvre on FergussonDrive before heading in the opposite direction and, as it happens, past thepatrol car occupied by the two constables.[9] On the basis of those findings, the Judge was satisfied that the charge had beenproven.Grounds of appeal[10] Departing somewhat from his written submissions, Mr Dye's oral submissionsbegan with the proposition that all reasonable possibilities that Mr Enoka's burn-outhad been done in Mr Morrison's driveway could not be eliminated. The Police casedepended on inferences which could only be built on a small number of establishedfacts in circumstances where other conclusions were equally open from those knownfacts.[11] Any suggestion that Mr Morrison had a motive to support Mr Enoka bymisdescribing where the burn-out had occurred would require an inference that wasadverse to the witness. Arguably, that inference could not be drawn when the prospectof Mr Morrison being influenced by that motive had not been put to him in cross-examination.[12] Mr Dye criticised the Judge's treatment of Mr Morrison's evidence on twogrounds. First, there was insufficient reason for rejecting it and, second, its rejectioninvolved an inference, the grounds for which were not sufficiently decisive.Mr Morrison's evidence was not contradicted by any other evidence in this case.[13] In responding to the appeal, Mr Azam defended the adequacy of the Judge'sreasons. In a judge-alone trial involving contested factual matters within a relativelynarrow compass, it was open to the Judge, having heard the evidence, to set it aside as"unsatisfactory".[14] Mr Azam appealed to matters of common sense given how highly unlikely itwas that Mr Enoka would do a burn-out in the confines of a relatively narrow drivewaywhen the car was obviously a prized possession in very good condition, and one whichhe would try hard to avoid damaging. In the factual context, Mr Azam submitted itwas legitimate for the Judge to carry out the comparative risk assessment of whetherMr Enoka would risk damage to his vehicle and cause unpleasant smoke hazards forthe associates standing in the driveway (or even risk endangering them, given theirclose proximity to where the manoeuvre was occurring) or alternatively follow theexample of the Harley Davidson and conduct the manoeuvre in the roadway.Analysis[15] The Supreme Court in Sena v Police made the following observations aboutthe task of a Judge when producing a determination for a judge-alone trial:3[Judges] should show an engagement with the case, identify the critical issuesin the case, explain how and why those issues are resolved, and generallyprovide a rational and considered basis for the conclusion reached.3 Sena v Police [2019] NZSC 55 at [36].[16] The Court also observed:4 appellate judges dealing with a case on the basis of a written record of whathappened at trial and the submissions of counsel are unlikely to be as well-placed as a trial judge to determine contested questions of fact based oncontested oral evidence. For instance, what a witness means may beconveyed, at least in part, by gesture or intonation, something which will notbe apparent on the written record. More generally, the appellate process inwhich appellate judges are taken, sometimes rather selectively, to the aspectsof the evidence on which counsel rely does not replicate the advantages of atrial judge which we have just described.[17] The factual issue is a narrow one: whether the prosecution proved beyondreasonable doubt that the manoeuvre Mr Enoka admits took place on Fergusson Drive,or in an adjacent private driveway. The prosecution relied upon the observation ofvery substantial amounts of smoke hovering over the whole width of Fergusson Drive,as observed by the constables from some distance away. They also observedMr Enoka's car emerging from that smoke in circumstances where it is not contestedthat it had undertaken a loss of traction sufficiently recently for the constables to stillobserve a strong smell of burning rubber and see fragments of rubber when it wasstopped shortly after.[18] The evidence established that the Harley Davidson motor cycle had undertakensuch a manoeuvre at that point on Fergusson Drive at virtually the same time.[19] The alternative to the inference available on those facts (which was that theorange vehicle seen emerging from the smoke was the cause of it) was that theburn-out performed by Mr Enoka occurred off the roadway, that he moved into thevery substantial amount of smoke generated by a vehicle with half the number ofwheels without his vehicle being observed, but then appeared out of that dense smokein circumstances consistent with being the vehicle that created it.[20] Conducting the manoeuvre in the private driveway would create a risk ofdamage to the car, and possibly observers very close by, if the burn-out could not beprecisely controlled. Photographs produced at the hearing confirm that the vehiclewas obviously an exceptionally well cared for restored Ford Mark I Cortina.4 At [40] (footnotes omitted).[21] In all those circumstances, I am satisfied that it was entirely open to the Judgeto draw the inferences he did in rejecting Mr Morrison's version of events.[22] The adequacy of his reasons for doing so must be considered in context. Thiswas a short judge-alone trial where the contested factual issue was a narrow one. TheJudge heard and saw Mr Morrison's evidence and was entitled to assess it in light ofthe other evidence on the contested issue.[23] Within the context of this judge-alone trial, I am satisfied that he adequatelyexplained his reasons for rejecting Mr Morrison's version as to the location at whichthe burn-out occurred.[24] I note that the evidence from one of the constables made reference to the driverof the car following behind Mr Enoka's when he went past the Police car and pointingat Mr Enoka's car. That might lead to a further inference that Mr Enoka was the driverwho had caused the smoke from the burn-out. However, that would be an unreliableinference without any dialogue with the driver who indicated. There is no suggestionthat the Judge placed any reliance on this point.[25] It follows that the appeal against conviction is dismissed.Dobson JSolicitors:Public Defence Service, Wellington for appellantCrown Solicitor, Wellington for representation