Handcock v Police [2017] NZHC 1791 (1 August 2017)

Last Updated: 16 November 2017

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI-2012-419-000088 [2017] NZHC 1791

BETWEEN	WILLIAM JOHN HANDCOCK Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	28 July 2017
Appearances:	Appellant in person ML Dillon for Respondent
Judgment:	1 August 2017

_{JUDGMENT OF DOWNS J}

This judgment was delivered by me on Tuesday, 1 August 2017 at 11 am.

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Hamilton.

_{Copy to: Appellant}

HANDCOCK v POLICE [2017] NZHC 1791 [1 August 2017]

The appeal

[1] The appellant was convicted of dangerous driving following a defended hearing before Judge Clark.¹ The Judge imposed a term of community work and disqualified the appellant from holding or obtaining a driver’s license. The appellant appeals conviction and sentence. He is self-represented.

Background

[2] The underlying sequence goes back to 9 October 2011.²

[3] The complainant and appellant were at the Grantham Street boat ramp in Hamilton. The complainant said as he was leaving the boat ramp in his car, the appellant’s ute and boat blocked his path. The complainant said he attempted to drive around the appellant’s ute and boat, but the appellant then drove into him— twice. The complainant said the initial impact caught the rear of his car, as did the second. The complainant said the appellant’s ute remained in contact with his, and the appellant’s then pushed it across the grassed area adjacent to the boat ramp.

[4] The appellant testified. He said the complainant drove into him. The appellant accepted his ute then went into the back of the complainant’s car. However, the appellant said the second collision was not due to any dangerous driving or fault on his part.

[5] Each witness also gave evidence of conflict earlier in the day between the two men in connection with the boat ramp.

[6] At least some of the incident was seen by Mr Silva, a Spanish speaker. Mr Silva gave evidence with the help of an interpreter, although many of his answers appear to have been given in English. More about Mr Silva’s evidence later.

[7] Constable Green attended the scene. She found the appellant’s ute under a

_{tree. By then, the respective vehicles had been disentangled.}

¹ _{Police v Handcock, DC Hamilton, CRI-2011-019-8206, 5 October 2012.}

² See [29]. The appeal is governed by the Summary Proceedings Act 1957.

The appellant’s case

[8] The appellant contends he is the casualty of a miscarriage of justice arising in four ways:

(a) The transcript of his 111 call to the Police was not made available to him in advance of the hearing.

(b) The complainant misidentified the appellant as the person with whom he had experienced particular difficulties before the incident.

(c) Mr Silva could not have had a clear view of the incident.

(d) And contrary to Mr Silva’s evidence, the appellant’s boat could not

have fitted underneath the branches of a tree.

Analysis

[9] As will be apparent, at least three of the appellant’s appeal grounds seek to revisit the Judge’s factual conclusions. Appellate factual review is of course possible. However, determinations of fact are necessarily treated with deference on appeal for good reasons. And, it is incumbent on an appellant to demonstrate material error.

The appellant’s 111 call

[10] The appellant called 111 a few minutes before the two collisions to report an alleged assault by the complainant (he said the complainant spat on him). The fact of that call was referred to in evidence before Judge Clark, but its contents were not in evidence.

[11] The appellant submits if a transcript of the call had been made, the charge would never have been brought by the Police, or if brought, dropped once the transcript had been reviewed by them. The appellant contends this is because what was said during the 111 call and overheard by the Police operator provided material support for his account of events.

[12] This submission is speculative, for, there remains no transcript in relation to the call. All that is before me about the call is what the appellant says he said during it. In Harmer v R, the Court of Appeal held “the accused or convicted person [must show] it is more probable than not that the lost evidence would have been of real benefit to the defence because it would have created or contributed to creating a

reasonable doubt”.³ This test is not met.

[13] In any event, the Judge placed no reliance on events earlier in the day in concluding the appellant was guilty. Indeed, the Judge accepted the appellant’s evidence might have been correct in relation to the first collision; conviction rested on the second collision only.

The complainant’s misidentification of the appellant

[14] The appellant contends the complainant misidentified him as the person with whom there was a serious disagreement earlier in the day, as the appellant was elsewhere.

[15] This ground of appeal suffers similar difficulties. Again, the Judge placed no reliance on events earlier in the day in concluding the appellant was guilty. And again, Her Honour’s conclusion of guilt was based on the second collision, not the first. Moreover, the only issue for the Judge was whether the appellant’s driving was dangerous, not what had happened or not happened before the two collisions.

Mr Silva

[16] In order to understand this ground of appeal, a little more background is required.

[17] Mr Silva and his wife were driving towards the boat ramp. Mr Silva was a front seat passenger. He did not see the first collision; only the second. The car he was in at that point was stationary because his wife had pulled to the side of the road (because of what was happening between the appellant and complainant). Mr Silva described the appellant’s car pushing the complainant’s car back across the grassed

area adjacent to the boat ramp. Mr Silva’s account was consistent with that given by

the complainant in relation to the second collision.

[18] As observed, the Judge was not satisfied beyond reasonable doubt that dangerous driving could be established by reference to the first collision. The Judge accepted the appellant’s account in relation to the first collision might reasonably have been true. However, the Judge considered Mr Silva’s account provided material support for the complainant in relation to the second collision, and a clear

instance of dangerous driving had been established in relation to it:⁴

In this case, what I have been guided by in being able to make an assessment of what took place is the fact that there was the independent observation of Mr Sylva, who saw both the white car and the defendant’s vehicle in a state that he described as then being connected on the grassed area and the vehicles then coming out onto Tisdall Terrace in two different ways, the white car coming out onto the road and stopping, the car following then going in a bigger area around and then stopping after that.

Having heard the independent evidence of Mr Sylva I am satisfied that the police have given me reason to reject the defendant’s account and when I look at the complainant’s account along with Mr Sylva’s independent observation, I am satisfied that the driving observed by Mr Sylva and the description given by Mr Searancke, the complainant, describe driving that was objectively dangerous and driving that fell below the standard that one would expect of a reasonable and competent driver.

I am satisfied that the police have proved the charge of dangerous driving to the required standard and the defendant is convicted.

[19] The appellant contends Mr Silva could not have seen what he said he saw because a building blocked Mr Silva’s view. The point was not put to Mr Silva at the hearing, at which the appellant was represented by counsel. Mr Silva’s testimony rested on the proposition he could see what occurred, otherwise he would not have been able to describe the incident. And Mr Silva was independent of both parties, which is why the Judge placed reliance on his evidence.

[20] A close reading of Mr Silva’s evidence suggests the appellant’s point may be based on a misapprehension of the record. The appellant could be understood as assuming Mr Silva spoke literally when he said he and his wife were “in between the

birth centre”⁵ building and another building near the corner of the road. If that statement is taken literally, a building would have obstructed Mr Silva’s view. However, when one reads Mr Silva’s evidence mindful of his difficulty with the English language, it is tolerably clear he was saying he was parked on the side of the road at a point proximate to the middle of the two buildings, not that he was between the two buildings.

[21] This interpretation is confirmed by the record itself, for, the witness was asked to identify on the map where he was parked, and as is customary, the witness was invited to show the Judge where he was pointing. If the witness had identified a location precluding his view, it is remarkable the Judge and the appellant’s counsel did not notice that, particularly when Mr Silva’s entire testimony rested on the proposition he could see what was happening.

[22] The appellant submits even if this is so, an aerial photograph from Google maps demonstrates Mr Silva could not have had a clear line of sight to a tree described by him in connection with the incident. However, the photographs and diagrams produced in evidence and considered by the Judge suggest otherwise. Moreover, there are obvious dangers in attempting to use aerial photography as determinative of a witness’s line of sight long after the hearing has been concluded, and in the absence of actual evidence on appeal. This ground essentially involves a reconstruction of events, and one particularly ill-suited to appellate re-visitation.

[23] The appellant’s underlying concern appears to be Mr Silva was not truly independent, in the sense the complainant might have gone “fishing” for witnesses. While I understand the concern, there is nothing to substantiate it. And, even if the complainant did locate Mr Silva and ask him to come to court, nothing objectively impeaches his evidence. Mr Silva gave evidence on oath. His evidence was tested by cross-examination. And the Judge accepted his testimony as reliable. In summary, there is no basis by which I could or should set to one side the Judge’s determination Mr Silva’s evidence was reliable.

The tree and the boat

[24] The final ground of conviction appeal also relates to Mr Silva. Mr Silva described the events as occurring next or close to a large tree shown in the photographs. The appellant contends Mr Silva must be wrong about what he saw, as the appellant’s boat could not fit under the tree while on its trailer (without sustaining serious damage).

[25] The argument presupposes Mr Silva is to be understood as saying the appellant’s ute and boat went directly under the tree when pushing the complainant’s car (during the second collision). But as with the line of sight argument, this assumption is not supported by the record. Mr Silva did not say the appellant’s boat went under the tree in connection with the collision with the complainant; rather, Mr Silva said the (appellant’s) ute and boat stopped under the tree after the incident.

[26] In cross-examination, the appellant said if this had happened, the top of his boat would have been “ripped off” given its height and strength, and the level of the branches. Constable Green said she believed the boat would have fitted under the tree, but made no measurements. The Judge acknowledged the officer’s evidence was “not determinative” but treated Mr Silva’s evidence as generally corroborative of the complainant’s evidence.

[27] As observed, Mr Silva did not say the appellant’s boat went under the tree in connection with the collision. Moreover, the contention the boat could not have gone under the tree at any stage was ventilated before the Judge. The appellant’s submission to the contrary merely re-heats a point decided against him absent fresh evidence. And as with the line of sight argument, this point involves a reconstruction of events ill-suited to appellate re-visitation. One would need to know detail of the heights of the various branches, their density, flexibility and so on. To park under a tree can also range between parking under the outer branches and parking immediately next to the trunk. As is so often the case, detail is important.

[28] In summary, the point was live in the court below and Judge’s factual

conclusion was available on the evidence. No error has been demonstrated.

Sentence appeal

[29] The appellant was sentenced to a term of 160 hours’ community work. This level of sentence would normally be unassailable but for a feature peculiar to the case. The defended hearing before Judge Clark was on 5 October 2012; sentencing occurred on 2 November 2012. The appellant filed a notice of appeal within time and his sentence was suspended pending determination of the appeal. However, the appellant was not informed of an appeal hearing until 8 May 2017.

[30] This extraordinary delay is unexplained. So too what material steps, if any, the appellant took to progress his appeal.⁶

[31] In Williams v R the Supreme Court said a defendant’s right to be tried without undue delay under s 25(b) of the New Zealand Bill of Rights Act 1990 encompasses a corresponding appeal.⁷ Given this, Mr Dillon for the respondent responsibly accepted much of the four and a half-year delay between sentencing and notification of the appeal hearing constituted undue delay in terms of the Bill of Rights Act.

[32] The appellant did not appear to contend his conviction should be quashed in light of the delay. That stance is consistent with authority. Williams v R establishes contravention of the right to be tried without undue delay will not normally result in a stay of the charge. That remedy “is likely to be the correct ... only if the delay has been egregious, or there has been prosecutorial misconduct or a sanction is required against a prosecutor who does not proceed promptly to trial after being directed by a

Court to do so”.⁸ Similarly, if a defendant is convicted after being on bail pending

trial, “a reduction in the term of imprisonment is likely to be the appropriate

remedy”.⁹ The quashing of a conviction for undue delay is reserved for an

_{“extreme” case.}¹⁰

⁶ In M v R [2012] NZCA 270 at [82] the Court of Appeal held a defendant’s conduct in relation to

_{delay remains a relevant consideration in this area.}

⁷ _{Williams v R [2009] NZSC 41, [2009] 2 NZLR 750 at [10].}

⁸ _{At [18].}

⁹ _{At [18].}

¹⁰ At [18].

[33] There is no suggestion in this case of prosecutorial misconduct or trial unfairness in consequence of delay. Indeed, the trial itself was prompt. Unusually, the delay here is exclusively appellate. In these circumstances, the obvious remedy is to allow the sentence appeal and substitute no further sentence. The case is now stale. To require the appellant to serve the balance of the term of community work would be unjust. Equally, however, there is no reason to disturb the conviction when the trial itself was fair, the delay arose thereafter and the record is silent as to meaningful steps by the appellant to progress his appeal. If the appellant had brought the delay to light by seeking a fixture, it is almost certain any breach would have been promptly remedied.

[34] In reaching this conclusion, I acknowledge the delay is not far removed from extreme. However, high authority suggests it should not be categorised this way. In Elaheebocus v State of Mauritius the defendant was convicted of counterfeiting banknotes.¹¹ The overall delay in that case was eight and a half years: more than four years between arrest and conviction, a further three between the filing and hearing of the appeal, and another 18 months until judgment. The Privy Council

concluded there had been a breach of the constitutional guarantee of trial “within a reasonable time” but did not quash the conviction. The Board, instead, reduced the four year term of imprisonment to a term of three and a half years’ imprisonment. In Darmalingum v The State the appellant was convicted of forgery eight and a half years after arrest.¹² There was a further delay of five years between the filing of an appeal and its determination by the Supreme Court of Mauritius. Another 23 months passed before the Privy Council heard the case. It concluded the delay was so egregious—by then 15 and a half years—the defendant’s convictions should be

quashed.

[35] To return to this case, the charge was laid on 16 December 2011; the appellant tried on 2 November 2011. So, trial occurred within 12 months from the

_{date of charge. The overall delay is a little over five and a half years.}

¹¹ _{Elaheebocus v State of Mauritius [2009] UKPC 7.}

¹² Darmalingum v The State [2000] UKPC 30; [2000] 1 WLR 2303 (PC).

Result

[36] The conviction appeal is dismissed but the sentence appeal allowed. The sentence is quashed.

[37] I thank the appellant for his courteousness at the hearing.

...................................

Downs J