Bowman v Police [2016] NZHC 1300 (15 June 2016)

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Bowman v Police [2016] NZHC 1300 (15 June 2016)

Last Updated: 14 July 2016

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-485-000030 [2016] NZHC 1300

BETWEEN	NGAWINI ANNE BOWMAN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 June 2016
Appearances:	C J Tennet for Appellant S W P Woods for Crown
Judgment:	15 June 2016

_{JUDGMENT OF DUNNINGHAM J}

[1] The appellant, Ngawini Bowman, appeals both her conviction and sentence on the following charges:

(a) wilful damage under s 11 of the Summary Offences Act 1981; and

(b) dangerous driving under s 35(1)(b) of the Land Transport Act 1998.

[2] Ms Bowman was convicted following a Judge-alone trial before Judge Tuohy.¹ She was sentenced to 100 hours’ community work on both charges. In addition, she was required to pay $70 in reparation on the wilful damage charge and, on the dangerous driving charge, she was disqualified from driving for six months. She was also ordered to pay $160 in witness costs.

[3] The charges arose out of an altercation when the victim was hanging two large bedding sheets over her first floor balcony to dry. Ms Bowman, who was

¹ Police v Bowman [2016] NZDC 6788.

visiting the occupant in the bottom flat, yelled abuse to the victim. When the victim came out onto her deck and attempted to pull her sheets back up over the deck railing, Ms Bowman pulled them from below and cut them with a knife.

[4] When the victim went out to the roadside to call the police, Ms Bowman got into her car which was parked on the opposite side of the road, revved the engine repeatedly and then accelerated towards to the victim at speed before coming to an abrupt stop, no more than one metre from where the victim was standing. This action caused the victim to step backwards in fear of being struck by the vehicle. Ms Bowman is then alleged to have laughed at the victim while she revved the engine again and yelled further abuse at her before driving away.

Grounds of appeal

[5] The notice of appeal specifies the grounds of appeal as follows:

(a) as to the conviction of dangerous driving the Judge erred in fact and in law in his assessment of the evidence and to such an extent that a miscarriage of justice has occurred;

(b) as to the conviction (dangerous driving only) the learned Judge erred in his assessment of the evidence (including in drawing inferences) to such an extent that a miscarriage of justice has occurred;

(c) further and additionally as to sentence on both, the learned Judge erred in fact and law in imposing the amount of witness expenses.

[6] The third ground of appeal relating to the correct calculation of witness costs was resolved when the appellant’s counsel accepted it only related to witness costs for that day’s hearing and did not include costs for any previous Court date.

Conviction appeal

[7] The appeal of the conviction for dangerous driving is governed by s 232 of the Criminal Procedure Act 2011. Subsection (2) provides that the appeal Court must allow an appeal against conviction if satisfied that:

...

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c) in any case a miscarriage of justice has occurred for any reason.

[8] A miscarriage of justice is defined in subsection (4) to mean:

... any error, irregularity, or occurrence in relation to or affecting a trial that- (a) has created a real risk that the outcome of the trial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity.

[9] Mr Woods provided careful legal submissions on whether the law that applied under the predecessor to s 232, being s 385 of the Crimes Act 1961, still applied to prescribe that appeal courts are performing a review function on appeal, not one of substituting their own view of the evidence.

[10] However, in my view, if the appeal is being brought under s 232(b) (as it would seem is the case here) there can be closer appellate scrutiny of the reasoning process adopted by the Judge, while nevertheless being mindful of any disadvantage the appellate Court may have in not seeing and hearing the witnesses.²

[11] However, for the reasons I will discuss, the difference between a review and a rehearing approach to the assessment of evidence is not material in this case. Even if I approach the Judge’s conclusions on the evidence on a rehearing basis, I see no

_{reason to differ from the Judge’s conclusions.}

² See the discussion in Adams on Criminal Law (online looseleaf ed, Westlaw) at [CPA232.03].

The District Court decision

[12] In the present case, the appellant submits the Judge erred in two ways in reaching his findings on the dangerous driving charge:

(a) in the inferences that were drawn from the evidence; and

(b) in finding the driving was “dangerous” in terms of s 7 of the

Land Transport Act 1998.

[13] In reaching his findings, the District Court Judge recounted the evidence of the victim which explained that after the altercation with Ms Bowman over the bed sheets, the victim went out onto the roadside to call the police. As she did this, she identified Ms Bowman getting into car on the opposite side of the road.

[14] The Judge then recorded:³

She watched that person get into the car, start it, rev it a number of times causing it to rock back and forth, which [the victim] interpreted as an implied threat to run into the back of her car. Then, she said, the silver Subaru driven by Ms Bowman reversed and then accelerated across the road towards her, mounted the footpath and break and stopped about a half metre or metre from her, ...

[15] The Judge recorded that the victim was “cross-examined at length and was not shaken on any material aspect of the evidence that I have just related”. Furthermore, a neighbour corroborated that evidence in that she heard a sound of a vehicle screeching, a sound of braking, and then saw, from her front window, the silver Impreza in front of her car in the carport.

[16] Mr Tennet did not identify what the incorrect inferences were that he considered the Judge made. He simply said in submissions that the erroneous inferences related to:

(a) the size of the turning area on the road and therefore the speed at which the appellant went; and

(b) the evidence from the neighbour and from the victim meant that the appellant was effectively on the road at all times.

[17] I can only assume that, as Mr Woods for the respondent says, the appellant impugns the Judge’s conclusion because it relied on inferences about the speed of her car given the size of the cul de sac in which it was driven, and the precise position upon coming to a halt.

[18] While I accept that, as was said in Bradburn v Police,⁴ an appeal Court “may intervene if it reaches the conclusion that the Judge at first instance has acted wrongly in drawing inference from [the] facts, or if the Judge has considered irrelevant material or failed to consider relevant material placed before the Court”, the only conclusion I can see that was drawn from the factual evidence accepted by the Judge was that the driving was dangerous because:

(a) the driver did accelerate towards the victim from across the roadway;

and

(b) the driver did stop within a metre of the victim.

[19] The Judge did not rely on any inferences in establishing these facts. He relied on the direct evidence from the victim and the corroborating evidence from the victim’s neighbour.

[20] The appellant has raised no basis for rejecting these finding of facts. This ground of appeal therefore fails.

Was the driving dangerous?

[21] The second ground of appeal was that the Judge was in error in finding the driving was dangerous in terms of s 7. Referring to Stratford v MOT,⁵ the appellant submitted that there was not “proof beyond reasonable doubt of a single incident”

_{and therefore “the driving cumulatively cannot amount to dangerous driving”.}

⁴ _{Bradburn v Police HC Whangarei AP8/99, 19 April 1999.}

⁵ Stratford v MOT [1992] 1 NZLR 486.

Instead counsel for the appellant suggested that the finding should have been one of

“inconsiderate use”.

[22] The suggestion that the Judge did not rely on proof beyond reasonable doubt in order to reach his conclusion there was dangerous driving, cannot be sustained. The Judge accepted the clear evidence from the victim, corroborated by the neighbour, to make the findings as to the acceleration of the car across the road to the victim, and of it braking and stopping no more than a metre away from her. These were not stated to be found on the balance of probabilities, and the conclusion that these factors constituted dangerous driving was expressed as being “without any doubt”.

[23] I also reject the submission that, on the facts as established, the Judge was in error to make the finding that the driving was “dangerous”. By driving in that manner, the appellant plainly posed a danger to the person she was driving directly towards. It was deliberate conduct which the Judge was entitled to conclude that, had she made an error of any sort, it could have led to injury, if not worse, to the victim.

[24] As the respondent pointed out, the finding was analogous to that in Greenwood v Police.⁶ In that case, the Court determined that the defendant was properly convicted of dangerous driving where the car was driven at between 25 and

30 kilometres an hour, and where he swerved his car deliberately at the victim, who was on the footpath, to within a metre or so of the victim. As in this case, it was recognised that the smallest misjudgement could easily have had more serious consequences, and so made the driving dangerous.

[25] The Judge’s finding that the established facts of the incident amounted to

dangerous driving was unimpeachable. The appeal against conviction is therefore dismissed.

⁶ Greenwood v Police HC Hamilton M250/84.

Appeal against sentence

[26] The respondent also appeals her sentence of 100 hours’ community work on both charges on the grounds that this was manifestly excessive when compared to the maximum and minimum periods of community work available to the Court.

[27] The appeal against sentence is, of course, governed by s 250(2) of the Criminal Procedure Act 2011 which requires the Court to allow the appeal if, for any reason, there is an error in the sentence which justifies a different sentence being imposed. It is well accepted that a sentence is in error if it is manifestly excessive and outside the range of reasonable sentences that could have been imposed.

[28] The appellant submits that 100’ hours community work “for the act of wilful damage” was manifestly excessive. However, that overlooks the fact that the community work was imposed on both that charge and the charge of dangerous driving.

[29] While the Judge’s sentencing remarks were brief, it is clear there were a number of aggravating features of the offence, and of the offender, which justified the reasonably onerous sentence of community work.

[30] In terms of the offending itself, it was as the Judge described it “aggressive and nasty”. The wilful damage involved the use of a weapon being a knife and it occurred while the victim was endeavouring to pull the sheet away from Ms Bowman. Furthermore, Ms Bowman expressed no remorse for the offending, either at the time or subsequently.

[31] In addition, the appellant has an extensive list of previous convictions including for wilful damage, assault, and the use of weapons, which stretches over more than a 30 year period. These are all factors which point to a sentence of relative severity for the type of offending involved.

[32] In all the circumstances, the appellant has been unable to demonstrate that a sentence of 100 hours’ community work on the two charges was manifestly excessive and therefore in error.

[33] Again, this aspect of the appeal is dismissed.

Solicitors:

C J Tennet, Wellington

Luke Cunningham & Clere, Wellington