McLean v Police [2016] NZHC 75 (4 February 2016)

Last Updated: 4 March 2016

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI-2015-412-00032 [2016] NZHC 75

BETWEEN	DONALD JOHN MCLEAN Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	2 February 2016
Appearances:	Appellant in Person C E R Power for Respondent
Judgment:	4 February 2016

_{JUDGMENT OF VENNING J}

This judgment was delivered by me on 4 February 2016 at 10 am, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date...............

Solicitors: Crown Solicitor, Dunedin

Copy to: Appellant

MCLEAN v NZ POLICE [2016] NZHC 75 [4 February 2016]

Introduction

[1] Following a defended hearing before Judge M B T Turner in the District Court at Dunedin Mr McLean was convicted on a charge of, without reasonable use operating a motor vehicle, FSM611 in a manner that caused the vehicle to undergo sustained loss of traction.¹ At a subsequent sentencing hearing Mr McLean was convicted and sentenced by the Judge to 70 hours’ community work, and disqualified from holding or obtaining a driver’s licence for one year and one day commencing

18 September 2015. In addition the Judge made an order for the confiscation of the car involved, namely the Ford GT motor vehicle 1972 model, registration number FSM611.²

[2] Mr McLean, who represented himself at the hearing before the District Court Judge, also filed his own notice of appeal against conviction and sentence. As to the grounds of appeal Mr McLean stated:

[Miscarriage] of justice with the conviction and an error in the sentence imposed insufficient legal [advice] prior to conviction leading to insufficient evidence being given at sentencing which led to seizure of vehicle and conviction causing undue harm and excessive harm.

Procedural background to the appeal

[3] Mr McLean did not appear when his appeal was first called on 16 November

2015. Nation J issued a minute on 18 November 2015 reciting the background to the matter noting that as Mr McLean had failed to appear in support of his appeal it could have been dismissed for want of prosecution.³ Despite that the Judge adjourned the matter to a hearing of 14 December 2015. In the same minute the Judge directed Mr McLean to file written submissions in support of the appeal no later than Friday, 27 November 2015.

[4] Mr McLean failed to file the submissions as directed. However at the hearing on 14 December 2015 he appeared and indicated he wanted to have the

¹ _{NZ Police v McLean [2015] NZDC 15157.}

² _{NZ Police v McLean [2015] NZDC 19043.}

³ McLean v NZ Police HC Dunedin CRI-2015-412-32, 18 November 2015 (Minute).

matter adjourned through to the new year on the basis he had applied to the Legal Services Agency for legal aid with respect to the matter. Gendall J accordingly adjourned the matter to 2 February 2016 at 10.00 am indicating to Mr McLean that any further adjournments beyond that date were unlikely given the history.

The points taken on appeal

[5] Mr McLean appeared on 2 February 2016 and presented his own submissions in support of the appeal. Mr McLean has still not filed any written submissions, however, he has sent several email communications to the Court in which he recorded:

Application on the basis too much emphasis was placed on the witnesses accounts of events where in fact only the driver knew the exact circumstances and challenges driving the car presented, police had access to the car and the constable had discussed doing tests but by not doing so affected the perception of the car and the right to have a fair trial.

In another email:

Application against part of sentence [where] police testified I have 5 vehicles registered in my name only 4 were vehicles one was a trailer and when this wasn’t mentioned I thought my [wife’s] car was in my name it wasn’t this took away my application of hardship when asked if I had one car with a registration and wof (I could have stated hardship to myself if I had one car).

And:

Also part of appeal polices [sic] main witness [Kathryn Rose Gill creditability] as she was [committing] benefit fraud at the time of giving evidence.

[6] At the hearing Mr McLean advanced the further following matters:

(a) First he presented a statutory declaration in which he stated that:

... on the 26/1/2015 whilst driving car FSM611 I

momentarily lost control of the vehicle.

(b) Mr McLean then repeated his email to the effect that the female witness, Ms Gill, had reason to give false evidence given that she was facing fraud charges herself.

(c) Next Mr McLean challenged the evidence of the off duty constable

Mr Wall on the basis he was a long way away from the scene.

(d) Mr McLean then referred to a newspaper report of a District Court decision Bartlett which recorded that the District Court Judge Maze had said that to prove the charge:⁴

it needed to be proved it was a conscious and deliberate act of the driver, rather than accidental.

Mr McLean relied on his statutory declaration to support his argument the loss of traction was not deliberate.

[7] On the issue of sentence Mr McLean submitted he would suffer extreme hardship if the car was confiscated as he owed a significant sum of money on the car, namely $60,000 to his parents’ family trust. To support that he presented a letter from the solicitors for the trustees.

[8] Mr McLean also sought to provide a horsepower rating of the car in issue to the Court.

Approach to the appeal

[9] This is an appeal under s 232 of the Criminal Procedure Act 2011:

232 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow a first appeal under this subpart 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.

⁴ The Timaru Herald, 7 June 2013.

(3) The first appeal court must dismiss a first appeal under this subpart in any other case.

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the 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.

(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

[10] The Court may hear and receive further evidence⁵ or receive further evidence.⁶

The legal test

[11] Although Mr McLean was only able to provide a newspaper report of the Bartlett decision (a decision of the District Court) what is required to be proved for a charge under s 22A(3) “sustained loss of traction” is not in issue. It was confirmed by the High Court in Whitburn v Police. Laurenson J stated it meant:⁷

“a state sustained in the sense of it being consciously allowed or caused to continue by the driver”.

This Court has confirmed that what is required is an intentional loss of traction. The offence does not depend on the length of time or distance travelled but rather whether the conduct was the conscious act of the driver rather than a merely accidental loss of traction.

The appeal against conviction

[12] Mr McLean must satisfy the Court the District Court Judge erred in his assessment of the evidence and conclusion that Mr McLean consciously allowed or caused the sustained loss of traction to such an extent a miscarriage of justice has

_occurred.

⁵ _{Criminal Procedure Act 2011, s 334(3).}

⁶ _{Criminal Procedure Act 2011, s 335.}

⁷ Whitburn v Police HC Whangarei CRN 2088020930, 29 June 2004 at [23].

[13] The District Court Judge heard three witnesses for the prosecution.

[14] Ms Gill, the duty manager at the Law Courts Hotel, heard a very loud engine which attracted the attention of everyone in the bar. She described the incident:

... I heard this very loud engine coming up quite fast and everyone like looked and it came up quite quickly and ‘cos there was a lot of traffic it slowed down slowly and slid into another lane and then it stopped, well it kind of stopped and there was like, he dropped his clutch and accelerated through a red light and we thought it was quite dangerous when we actually saw it and said, “Shit that was dangerous.”

And later:

A. Okay it’s like when you’re driving your car and you’re sitting there and yeah and you take your foot off the clutch and the accelerator [and] your car goes whoosh, the wheels spin, loss of traction and go. I grew up in the country and like, yeah, we did that. We didn’t do that on the roads but I do know what it is, yeah.

Q. How long did this happen with this vehicle for?

A. Just enough to get the power going and, just a matter of seconds, it’s all it takes and then ‘cos it’s a big muscle kind of car it just went.

[15] Tyron Wall, an off duty police officer, described crossing the road after leaving his vehicle and observing Mr McLean’s car accelerate heavily from the intersection. He described it as:

A. So I thought the vehicles were stationary at the lights, um, when I’ve heard the loud rev I’ve looked up. In the left-hand lane there’s been a muscle car, style vehicle, V8 rev its engine really loud, take off at a very, very fast speed. The wheels were squealing, squeaching and it was leaving. Enough for me to go wow that’s pretty full on, um, the car when it accelerated it’s I guess it could be explained like a torque so the suspension is gripped and it’s lowered to the ground as it’s taken off and as it was, as the wheels were spinning it was sort of drifting slightly to the right. It was a decent length that it took off, enough that if you took your foot off the accelerator you would be able to stop that.

Q. How long were the wheels spinning for?

A. In my opinion long enough that it was I thought wow that’s deliberate. My thoughts were that at the lights that there was possibly, racing another vehicle.

[16] While objection might have been taken to the officer’s opinion that it was deliberate the evidence supported the Judge’s finding that the loss of traction was sustained.

[17] Then there was the evidence of Duty Sergeant Hamlin. He was called as an expert witness on the basis he was an advanced automotive technician and had eight years’ experience. He was present at the police station when Mr McLean came to the station and was discussing his explanation for his actions. Mr McLean put to him a question as an explanation:

Q. So something that’s got about 650 horsepower at the flywheel like my car, got a bit of gout in my foot and it lifts the foot off the button clutch by accident, possibly too quickly, wouldn’t be beyond the realms of possibility that it would do a skid by a – basically by itself?

A. Possibly but highly improbable.

[18] Then Mr McLean gave evidence. He said that he did not do a wheelie, a skid or a loss of traction on purpose. If it did happen it was due to his vehicle’s performance. He explained the noise the witnesses heard as the squeal belt, noisy gear drives and noisy exhaust pipes. He said the car had a button clutch which made it very difficult to drive. Mr McLean’s evidence was not that his vehicle did not lose traction but rather that if it did it was due to his vehicle’s performance and was not intentional.

[19] In the course of his judgment the Judge correctly recorded that the issues were whether Mr McLean drove the vehicle in such a manner as to cause it to lose traction and if he did so whether it was sustained, in other words whether it was the conscious and deliberate action of Mr McLean as a driver rather than accidental.

[20] The Judge was satisfied, beyond reasonable doubt, on the basis of the evidence of Ms Gill and Constable Wall that the vehicle lost traction and secondly, again having regard to the evidence of Ms Gill and Constable Wall, supported by Sergeant Hamlin’s evidence, that the inference was open that Mr McLean’s actions were deliberate other than accidental. There was sufficient evidence available for the Judge to properly come to those conclusions. Mr McLean’s statutory declaration

presented to the Court on appeal adds nothing to the evidence. It is effectively a repetition of his evidence that he gave under oath before the District Court Judge. The Judge heard and rejected that evidence, preferring the evidence of the other, independent witnesses. There was no evidence Ms Gill’s evidence was false or contrived. The Judge was entitled to draw the inference, on the basis of all the evidence, including the photographs of the length of the tyre friction marks on the roadway that Mr McLean had acted deliberately in causing the sustained loss of traction.

[21] I declined to receive the further evidence as to the horsepower of the car. Mr McLean gave evidence as to the horsepower of his car at the hearing before the District Court.

[22] There was no obligation on the police to test Mr McLean’s car as he submitted. The issue was whether the evidence advanced was sufficient to prove the charge beyond reasonable doubt. None of the matters raised by Mr McLean support his submission of a miscarriage of justice.

The sentence appeal

[23] As Mr McLean had a previous conviction for dangerous driving causing injury in 2012 (which fell within the list of offences in s 129(1)(a) of the Sentencing Act 2002) within the four year time period set out in s 129(1)(b) Mr McLean was subject to s 129(3). In the absence of extreme hardship to Mr McLean or undue hardship to any other person the Judge was required to order the confiscation of Mr McLean’s motor vehicle. The Judge had no discretion.

[24] Mr McLean opposed confiscation in the District Court on the basis the vehicle was owned by him and his wife and the car was used by her to transport children to and from various events. However, Mr McLean accepted before this Court on appeal that in fact his wife has another car, in her own name, and that she is separated from him. There is no basis to suggest that confiscation of the car operated by Mr McLean would cause undue hardship to his wife or family.

[25] Mr McLean argued on appeal that confiscation would cause him extreme hardship. The test for extreme hardship requires consequences beyond those which would normally be contemplated as flowing naturally from confiscation of a motor vehicle.

[26] The determination of what amounts to extreme hardship must be determined in a common sense way and in relation to the facts of the particular case. It is to be determined objectively and not on the basis of how the particular offender may perceive the extent of the hardship. The potential financial loss arising by reason of the forced sale of a motor vehicle does not of itself amount to extreme hardship.⁸

[27] In the present case Mr McLean suggested that he would face a considerable loss of money if the car was sold. He suggested its value was between $40,000 and

$100,000 and that he owes $60,000 to his parents for it. The further evidence does not support Mr McLean’s broad submission. The letter from the solicitor that Mr McLean presented to the Court confirms that as at 23 September 2015 Mr McLean owed the I V McLean Family Trust $60,000 but whether there was any security held for that loan or what that loan may relate to remains unclear.

[28] Further, upon sale of the car, after the costs of storage, and sale, if a security interest is held the proceeds would be used to pay out the security interest. If no security interest is held over the car then subject to deduction of Mr McLean’s fines and relevant Court costs and levies, the balance would be paid to him.⁹

[29] Next, in the course of his submissions Mr McLean described himself as a landlord. He suggested that he or his interests owned nine rental properties. He estimated the properties were worth approximately $1.4 million with outstanding loans of $1.3 million owing to the bank. Again, these were bald assertions, made in submission without any evidence to support them. But they do not support his

_{submission the confiscation of the car would cause extreme hardship.}

⁸ _{Rahui v Police HC Napier AP28/01, 26 October 2001.}

⁹ Sentencing Act 2002, s 137.

[30] Mr McLean has also given varying accounts as to how many vehicles he owned. In the course of submissions he said that he only owned the car in question, a trailer, his son’s car, a work car and a similar type of car to the one in issue, but which has never been warranted or registered in New Zealand. That is contrary to the evidence he gave before the Court that he owned three cars: two Fairmont GT’s and a ute.

[31] The onus was on Mr McLean to show extreme hardship. His evidence falls well short of establishing that even on the balance of probabilities.

Result

[32] The appeal against conviction and sentence is dismissed. The order for confiscation is confirmed.

Venning J