Hill v Police [2017] NZHC 2112 (31 August 2017)

Last Updated: 15 September 2017

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

CRI 2017-442-12 [2017] NZHC 2112

BETWEEN	ANGUS IAN HILL Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 August 2017
Counsel:	S J Zindell and A R Goodison for Appellant K Bell for Respondent
Judgment:	31 August 2017

_{JUDGMENT OF SIMON FRANCE J}

[1] Mr Hill was convicted following a Judge-alone trial of the one charge he faced, namely causing his vehicle to undergo a sustained loss of traction.¹ The prosecution evidence came from two police officers who said they saw Mr Hill’s vehicle do the alleged wheel spin. The defence called five witnesses including the defendant who were present at the time. The five witnesses all said it did not happen. The verdict indicates that the Judge preferred the evidence of the police officers. His Honour considered the defence witnesses jointly presented a concocted story.

Applicable law

[2] The appeal is brought pursuant to s 232(2) of the Criminal Procedure

Act 2011, which provides:

(2) The first appeal court must allow a first appeal under this subpart if satisfied that, –

¹ _{Police v Hill [2017] NZDC 15075.}

HILL v POLICE [2017] NZHC 2112 [31 August 2017]

(a) in the case of a jury trial, having regard to the evidence, the

jury’s verdict was unreasonable; or

(b) in the case of 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.

[3] Miscarriage is itself defined in s 232(4):

(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.

[4] Further to this specific definition of what is a miscarriage the Court of Appeal in Wiley v R recently affirmed the continuing applicability of the observation of the Supreme Court in Sungsuwan that the courts will always reserve to themselves the flexibility to identify and intervene in order to prevent a miscarriage of justice, however caused.² The present appeal is advanced under both s 232(b) and (c), and in effect asks the Court for an assessment that an accumulation of events has produced a verdict that should be set aside as unsafe. Reflecting the Sangsuwan and Wiley observations, I am satisfied this remains an available basis for quashing a verdict if

the case for it is made out. This is so even if the basis for the miscarriage does not neatly fall within one of the s 232(4) definitions.

[5] Underlying the present appeal is a submission that the Judge did not fairly consider the defence evidence and predetermined key matters before hearing all the evidence. This ground of appeal requires identification of what is permissible and not permissible in the context of Judge-alone trials where forthright views are often expressed, and where the need to progress cases is an always present imperative. As will be seen it is relatively easy to identify the applicable principles; the difficulty

_{lies in the application.}

² Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [26]; Sungsuwan v R [2005] NZSC 57, [2006]

1 NZLR 730 at [67].

[6] In Henderson v R,³ the appellant claimed the trial Judge had acted with apparent bias throughout his trial. Kόs P expressed the applicable principles in this passage:⁴

[18] A Judge also may give forthright and robust indications of his or her tentative views. A Judge need not remain “as inscrutable as the Sphinx” until the moment he or she passes judgment. Tentative, even indicative, views are helpful: parties may then address the Judge with a view to persuading him or her to a different view. For that reason it is generally better that parties hear such views from the Judge. They do not on their own indicate prejudgment. But the Judge must not go so far as to give an impermissible indication of prejudgment.

[19] It may also be observed that in cases involving lay litigants, a trial Judge has a responsibility to ensure that litigants inexperienced in trial procedure do not spend time on irrelevant matters in a manner wasteful of the resources of the Court. The fact that a Judge undertakes that duty robustly is not to be misconceived as prejudgment. If done fairly overall, it is not. It is responsible trial management, undertaken in the overall interests of justice.

[7] The matter having not been examined that often in New Zealand, it may be of assistance to cite extracts from Antoun v R,⁵ a decision of the High Court of Australia which also provides an informative overview of the principles. The issue in Antoun was the refusal of the trial Judge to hear submissions on a no case to answer application at the end of prosecution evidence. Some of the matters traversed do not arise in the present case, but given the dearth of discussion, it may nevertheless be helpful to set out a longer extract from Kirby J:⁶

[27] So far as the first point is concerned, it is certainly true that the trial judge’s remarks were strong and forthright. In some circumstances, that will be a permissible expression to adopt, especially where the trial judge is conducting a trial as the sole judge of fact and law and the parties are legally represented by counsel able to respond with clarity and forthrightness. Judicial indignation at a particular course of action, or proposed action, may on occasion be understandable. Couched appropriately, at the proper time and in due sequence, it may give rise to no reasonable apprehension of bias. For centuries in courts of our tradition, judges have been telling parties and their lawyers, sometimes in quite robust terms, that they consider that a particular submission or course of action is hopeless, a waste of the court’s time or doomed to fail. I would not want to say anything that needlessly mollycoddled candid judicial speech addressed to trained advocates.

³ _{Henderson v R [2016] NZCA 431.}

⁴ _{Footnotes omitted.}

⁵ _{Antoun v R [2006] HCA 2, (2006) 224 ALR 51.}

⁶ Footnotes omitted.

[28] One of the advantages of a judge-alone trial is that it permits greater efficiency in the isolation of the real issues that will determine the case. Nevertheless, normally at least, it is essential that the judge give parties or their representatives at least some time to advance their submissions. This is because, however abbreviated proceedings may become by reason of pre-trial procedures, the tender of written submissions and other innovations, in a trial (particularly a criminal trial where liberty is at risk) the process conducted in public has its own significance and purpose. The manifest observance of fair procedures is necessary to satisfy the requirements not only of fairness to the accused but also of justice before the public so that they may be satisfied, by attendance or from the record, that the process has followed lines observing basic rules of fairness. Excessively telescoping the procedures in such cases can lead to a sense of disquiet on the part of the accused, and of objective observers whose attitudes, where relevant, must be represented, and given effect, by appellate courts.

[29] A line is drawn between forthright and robust indications of a trial judge’s tentative views on a point of importance in a trial and an impermissible indication of prejudgment that has the effect of disqualifying the judge from further conduct of the proceedings. Sometimes, that line will be hard to discern. But, in this case, I agree with the other members of this court that the trial judge crossed it.

[8] In his judgment Callinan J considered the differences in the Judge’s role between jury trials and Judge-alone trials. After noting some of the obvious differences, his Honour continued:

[81] Judges, unlike juries, are bound to give reasons for their verdicts. It may also be expected that a judge sitting alone might conduct the trial with a little less formality than if a jury were present, and might also express himself more directly in that event. Counsel too, may choose in such a case to frame both their questions and submissions differently, and to a more expeditious and expedient end in those circumstances. Judges are, unlike jurors, schooled by legal education and practice, to separate the facts from the law applicable to them, even though the latter may not be able to erase the law from the mind of the judge when he decides the facts. Judges can and do form preliminary views, sometimes quite strong ones. They should understand however that those views must not be fixed ones. From the first day of a prospective lawyer’s education, and throughout a practitioner’s and a judge’s professional life, the importance of actual and apparent fairness, and the need for actual and apparent abstention from prejudgment are repeatedly stressed. The aphorism, that justice must not only be done, but also must be seen to be done, remains true.

[9] Little needs to be added. The lens through which the matter is to be analysed is the well known test for apparent bias.⁷ In the context of Judge-alone trials, predetermination will not lightly be inferred. This recognises that Judges have obligations to the parties and the system to keep matters focused and progressing.

Further, identifying preliminary views will usually assist counsel to address the key issues. All that said, fairness remains the touchstone, and the appearance for a fair hearing remains crucial to ensuring respect for and acceptance of the system. Against that background I turn to the present case.

Facts

[10] There was a car event near Blenheim which was attended by people associated with boy racing. When it broke up, a group of three cars left around

1:00 am to return to Nelson. A police car followed them. At one point on the journey they came upon Mr Hill’s vehicle which was facing them in the left hand lane. Mr Hill had also attended the Blenheim event but had left separately, shortly before this group of cars. He knew the drivers of the other cars.

[11] Mr Hill says he had spun out on a corner and that was why he was facing the wrong way. The police surmised he had deliberately done a 180 degree spin to achieve it. Nothing turns on this as there is no charge relating to that aspect of the driving. The convoy of three cars plus the police car stopped. It is common ground Mr Hill backed up the road, uphill, and then turned the back of his vehicle towards the left hand bank so as to enable him to drive off up the road in the correct direction. It is as he did this movement heading off up the road that the police allege he did a wheel spin for around three seconds before speeding off. The police immediately followed and pulled him over.

[12] The two officers from the police car gave evidence. They both said they could see, to the left of the convoy of cars and in front of the convoy, the back half of Mr Hill’s vehicle backed towards the bank. The vehicle was illuminated by the lights from the convoy and they could see the wheel spin. The officers were challenged on their ability to observe the vehicle 20 metres in front of them given the number of cars between them and Mr Hill, the hour of the night, and the fact it was a cloudy night so there was no moon.

[13] The defence called five witnesses – Mr Hill and his two passengers, and the drivers of the first two vehicles in the convoy. All five witnesses said they did not see Mr Hill’s vehicle do a wheel spin. When he was stopped by the police at the

time, Mr Hill denied the wheel spin and suggested it was the first two cars in the convoy which had been doing that. He repeated this version at trial, as did his two passengers. The two drivers being referred to, whilst saying they did not see Mr Hill do a wheel spin, denied themselves doing one either. They accepted they had been revving their engines to give Mr Hill a hurry up, but nothing more.

Judgment under appeal

[14] As the verdict indicates, the Judge preferred the evidence of the police officers. I set out the relevant passages at some length as they provide the context for the appeal. Mr Hill is the driver. Messrs Hayden and Emanuel are the passengers. Messrs Gambell and Burrows are the drivers of the first two vehicles in

the convoy:⁸

[65] What is in contention is whether or not I can rely on the police evidence when they say they saw the rear wheels of that Toyota spinning and that the only rational conclusion, if I accept that that did happen, is that it was done on purpose.

[66] I look first at the defence evidence because it seems to me that is the proper starting point. Mr Hill said he was not spinning his wheels. Mr Hayden and Mr Emanuel both said that there was no spinning of the wheels. I have to be aware though that neither of them was able to see the wheels as they both, I think, would accept and they are not therefore in a good position to say in any authoritative way whether the defendant was or was not doing so.

[67] Their evidence on the matter that I have to determine is neutral. What is interesting about their evidence of course is that they both, along with Mr Hill, put the blame fairly and squarely on Messrs Gambell and Burrows as being the persons who were in fact carrying out the burnouts unseen by police although I accept they were concentrating on Mr Hill and his driving.

[68] As I indicated earlier, even if they were doing burnouts, that does not of itself mean Mr Hill was not doing what the police say they saw him doing, but what it all tends to show me when I compare that evidence with what was eventually given as evidence by Mr Gambell and Mr Burrows is that there has been a meeting of the minds, if not the actual heads here and in my view this has all the hallmarks of a concocted story. They have all come along to try and help their mate out, for what reason I do not know, but they should be thankful that I did not just allow them to give evidence and possibly commit perjury and/or self-incriminate themselves into driving charges that would have seen them, in the assistance of their mate, lose their licenses. So they, as I say, dodged a bullet today.

[69] What it all tells me is that their evidence is not worth my consideration. It is all a pack of lies as was the evidence given by Mr Hall. I entirely reject his evidence that his car was not spinning its wheels as the police clearly saw it was and there is no rational explanation for that other than that he was doing it purposely. I rather think the police are right when they say he was doing it to show off to his mates. That after all was the type of company he was in. People who, as one of the witnesses said, follow the boy racer type code.

Decision

[15] The case turned on a very confined issue, namely whether the police officers were correct that the vehicle did a wheel spin. It seems not to be in dispute that if it did occur, the action was deliberate. No-one was suggesting the police officers were making things up, so all that was left to the defence was to raise a reasonable possibility that the officers were mistaken. The route to a reasonable doubt was through emphasising the difficult viewing conditions and calling the other persons present to say they did not see a wheel spin.

[16] In terms of the difficult viewing conditions, it was 1:15 am on a rainy night out in the country. The only light was that coming from the convoy cars, of which the police car was fourth in line. It seems that Mr Hill’s vehicle was uphill of the convoy and around 20 metres in front of the officers. Between them and Mr Hill’s car were the other three convoy cars. Objectively, depending of course on how the evidence emerged, there was scope to establish a reasonable doubt arising from the difficulties the officers had in seeing Mr Hill’s car, and the fact that the other five people present all said there was no wheel spin. Potentially counting against this latter evidence was that the five witnesses could be called mates and seemed to have a common interest in souped up cars, and boy racing, and therefore arguably sympathy with the type of activity with which Mr Hill was charged.

[17] Turning to the matters raised by the appellant, the first relates to an event during the cross-examination of the senior police officer. It is to be recalled that the context was that the police officers were following the cars because the police considered there was a link to boy racing and they wanted to ensure it was an uneventful return journey. The officer accepted this was the case. The following exchange occurred during cross-examination:

Q. And you said that you saw the rear tyres spun on the road surface and then it’s the rear of the vehicle slid on the roadway, in your view the action was deliberate, why is that your view?

A. I’ve had 40 years experience in dealing with cars that do this type of thing and young men who do this type of thing, and in my opinion it’s exactly what they do and an exact example of a sustained loss of traction.

Q. Did you say because it was a young driver?

A. No it’s because of – I mean there’s a number of factors involved.

Number one, we saw this vehicle in a position that was on the wrong side of the road facing us. So obviously from our point of view we were watching this vehicle very, very closely as to what it was going to do next. The vehicle had backed up to a position that was in front of three cars that were of the boy racer, I’ll call them boy racer, sort of fraternity, and I believe that the actions of the defendant was to create a sustained loss of traction in front of these people.

Q. With respect it sounds like you have a bit of a preconceived –

THE COURT ADDRESSES MS GOODISON – NOT TO GO THERE.

[18] In my view there was no basis to prevent this line of questioning. The defence task was to raise a doubt about the correctness of the police officers’ interpretation of what they saw. The mindset brought by the police officer to the incident was a legitimate line of inquiry which flowed naturally from the officer’s prior answers. Whilst it is important not to overstate the impact of these trial occurrences, the reality is that one of the few lines of impeachment available to the defence was wrongly foreclosed. I acknowledge, however, that it can be argued the officer’s mindset, to the extent there was one, was established by the preceding question.

[19] The appellant raises, as a similar example of the defence being hindered, an exchange that occurred during the evidence of the second police officer. Trial counsel started to inquire of the officer whether the drivers of the other cars were questioned. This line of questioning was immediately stopped in what can be described as forceful terms. The Judge explained his intervention was based on the irrelevance of the inquiry as his Honour saw it. Reasonable people could differ on that but it was certainly a view open to the trial judge and is not a matter I see as meriting complaint.

[20] The next issue is a somewhat broader question of whether it can be said the Judge appeared to predetermine the case prior to hearing all the evidence. The defence were to call five witnesses, being the defendant, his two passengers, and the drivers of the first two cars in the convoy. The third of these called was a passenger in Mr Hill’s car. Under cross-examination, and in response to a question from the prosecutor, the witness replied with his own question:

... how can an officer see when he’s the fourth car back where Angus’ rear wheels were in front of the car that’s right at the front?

to which the Court intervened:⁹

He’s told me, both police officers have told me how they could see that and I can tell you, I’m not in any doubt that they could see it. They were on a rise and the left of the vehicle was in their view. I accept that evidence and your question is irrelevant to me, thank you.

[21] A witness responding with a question of his or her own will often provoke reminders about the correct process. However, implicit in the question was an important item of evidence that one would expect to be extracted during re- examination if not done earlier. Through his question the witness appeared to be saying the back wheels of the defendant’s car (which he was in) were not to the left of the convoy but in front of it. If correct, this would limit the capacity of the officers to see from where they were positioned.

[22] The response by the Judge does appear an example of what Kirby J describes as “an impermissible indication of prejudgment”.¹⁰ The position of the wheels of the car was the key fact in the trial – objectively, statements that the Judge already has no doubt that the evidence of the prosecution witnesses is correct, and that contrary views are irrelevant cannot be seen as anything other than an indication of predetermination.

[23] This impression that the Court has failed to keep an open mind is reinforced by what occurred with the next witness, who was the driver of the front car in the

_{convoy. By way of context, Mr Hill and his two passengers had already testified.}

⁹ _{Emphasis added.}

¹⁰ Antoun, above n5, at [29].

They had said not only that Mr Hill did not do a wheel spin, but they believed the first two cars in the convoy were. Since the defence were then calling both of those drivers, the Judge appears to have assumed the witnesses were going to admit to doing a wheel spin as alleged. His Honour therefore decided not only that a self-incrimination warning would be needed, but that the two witnesses should first get independent legal advice. To the first of these witnesses the Judge explained:

... The reasons for that are these, if you give evidence that you were a person who were doing one of these burnouts then you will be charged with sustained loss of traction. The evidence for that being your own testimony and so you are at risk of facing the very charge that you’re now here to talk about. If you are convicted of that charge you will face a penalty including six months disqualification. You need to understand all of that. Secondly, if I get the impression that this is in fact perjury on your part, I will see to it that you are charged with perjury. So I want you to have independent legal advice before you embark on this evidence. If you have that advice and you still want to give evidence, perfect right for you to do so.

[24] In terms of this topic of appearance of pre-determination, the focus here is on the fact of a perjury warning. It seems the Judge had already decided that it would be perjured evidence if the witness said he did a burnout (even though elsewhere the Judge observed that even if this witness did a burnout, it does not mean Mr Hill did not). I appreciate that the Judge qualifies this warning by “if I get the impression”, but in the context of what was said to the previous witness, I consider the perjury warning to be further evidence of pre-determination, especially since it was given before the witness had started his evidence. It appears there was no inquiry of counsel as to the expected contents of the witness’s evidence.

[25] As it happens, this witness (and the next one) denied doing burnouts. The Judge, however, attributed this evidence to his intervention and warning,¹¹ thereby maintaining his assumption as to what the witness was otherwise going to say. There was no basis for this assumption, which was merely speculation. The witness had not made a police statement to anyone, and was appearing under subpoena. There

_{had been no prior indication to the Court as to what the witness would say.}¹² _These

¹¹ Hill, above n1, at [68]. At [60] the Judge described this evidence as the witness “turning turkey”

_{on the defence.}

¹² I observe in passing that care is needed in how these warnings are expressed. In my view a

Judge should not speak with such assuredness about charges being brought, nor that the Judge will ensure charges happen. It is important to recognise and maintain the separate roles each plays in the system.

two matters, but particularly the exchange with the third witness, lead me to conclude that the test for apparent bias and pre-determination is made out.

[26] It is appropriate, however, to address one final area of challenge as it is a matter closely related to the preceding discussion. The appellant submits that aspects of the Judge’s reasoning for rejecting the defence evidence were not valid. The first challenge is to the Judge’s conclusion that that he was being presented with a concocted story which was at least the product of a meeting of minds, if not a face

to face arrangement.¹³ It is submitted and I accept that the actual evidence given

does not support such an inference. What happened is that the first three defence witnesses accused the other two defence witnesses of being the ones who were doing the wheel spins, and these two defence witnesses denied it. The Judge’s conclusion of a concocted story is dependent on the assumption about what evidence the last two witnesses would have given had his Honour not intervened. As already noted, there is no basis to conclude these witnesses may have been going to lie and admit burnouts. Accordingly, I accept the submission the concoction conclusion is not supported by the evidence.

[27] The second challenged aspect of the Judge’s reasoning in rejecting the defence evidence concerns the two passengers in Mr Hill’s car. They both denied that Mr Hill had done a wheel spin. In a line of questioning pursued only by the Judge at the end of their evidence, the Judge asked each witness why they had not gone to the police to say they believed Mr Hill had not done a wheel spin. Their failure to do so was then seen as a factor undermining their credibility.

[28] Although sometimes the timing of the disclosure of evidence by a witness can undermine its credibility, this is not a legitimate inference here. The two young men were passengers in the car when it was stopped. The police could have spoken to them, then or later, if they were interested in their views. That the police did not suggests there would have been no purpose in the two passengers going to the police merely to say we do not think Mr Hill did a wheel spin.

Conclusion

[29] It is not necessary to traverse the other matters raised. I am satisfied that a miscarriage of justice has occurred and the verdict cannot stand. In terms of the statutory criteria, there being an established appearance of pre-determination, I consider there has been an unfair trial and for that reason the verdict is quashed.¹⁴

Given the relative lack of seriousness of the incident, I have given consideration to not directing a retrial but I consider it preferable to leave that decision to the

_{prosecuting authorities. The conviction is quashed and a retrial directed.}

Simon France J