Anderson v Police [2018] NZHC 2408 (13 September 2018)

Last Updated: 24 September 2018

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE

CRI-2018-476-000004 [2018] NZHC 2408

BETWEEN	MATTHEW IAN ANDERSON Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	7 September 2018
Appearances:	T J Jackson for the Appellant H V Bennett for the Respondent
Judgment:	13 September 2018

JUDGMENT OF NATION J

Introduction

[1] On 18 June 2018, Judge Saunders in the District Court convicted Mr Anderson of dangerous driving and imposed a fine of $1000, along with Court costs and witnesses’ expenses. Mr Anderson was also disqualified from driving for six months.

[2] Mr Anderson appeals his conviction on the grounds there was not sufficient evidence his driving was dangerous and the prosecution was unfair in not calling as a witness the driver of another vehicle, Mr Quantock. He also appeals the imposition of the six months’ disqualification from driving.

ANDERSON v POLICE [2018] NZHC 2408 [13 September 2018]

Facts

[3] Mr Anderson had been angered by people driving along the road where he lives with his family at night sounding an airhorn, something that appears to have been an ongoing issue. At about 7.45 pm on 1 August 2017, it happened again and Mr Anderson left his property in a Holden Commodore and pursued the other vehicle.

[4] The first part of the events involved him trying to catch up with an orange Nissan Navara driven by Shaun Quantock. Emma Little was a passenger in the Nissan. For a distance of 43 kilometres, through Winchester and Temuka to Washdyke, over an approximate 40 minute period, the two vehicles were involved in what appeared to have been, at times, a high-speed pursuit.

[5] There was a dispute over who was the aggressor in these events. Mr Anderson disputed that he was travelling dangerously. He said his sole intent was to get close enough to identify the number plate of the Nissan, which he was only able to do towards the end of the trip as there had been mud on the vehicle obscuring his view. Mr Quantock did not give evidence, but Ms Little described what appeared to be a deliberate attempt to try and pull them over on more than one occasion on their trip to Timaru. She was sufficiently concerned to have contacted Police.

[6] Dean Atkinson also gave evidence as an independent witness to the events. He was concerned about the way the vehicles were driving and decided to follow them at a safe distance.

[7] Once the vehicles reached Washdyke, Mr Anderson says he decided to abandon the chase as Mr Quantock was driving very dangerously. In Washdyke, Mr Quantock and Ms Little pulled into a petrol station and met the Police as arranged. Mr Atkinson followed and gave a statement to Police.

[8] Ms Little had given a statement to the effect that Mr Anderson had thrown a baseball bat at the vehicle, but Mr Anderson strongly disputed this.

Jurisdiction and approach on appeal against conviction

[9] The appellant has an automatic right of appeal to this Court.¹

[10] Section 232(2) Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.²

[11] Section 232 makes it clear that not every error or irregularity causes a miscarriage of justice. Instead, there must be a “real risk” that the outcome was affected. R v Sungsuwan defines a “real risk” as “a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.³

[12] R v Condon held that a mere departure from good practice does not render a trial unfair.⁴ Instead, the errors or irregularities must depart from good practice in a manner “so gross, or so persistent, or so prejudicial, or so irremediable” that the Court must quash the decision.⁵

Approach on appeal against sentence

[13] Appeals against sentence are allowed as of right by s 244 Criminal Procedure Act, and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.⁶

¹ Criminal Procedure Act 2011, s 229.

² Section 232(4).

³ R v Sungsuwan [2005] NZSC 57; [2006] 1 NZLR 730 (SC) at [110] per Tipping J.

⁴ Condon v R [2006] NZSC at [78].

5. Randall v R [2002] UKPC 19; [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the Supreme Court in Condon v R, above n 4, at [78].

⁶ Criminal Procedure Act, ss 250(2) and 250(3).

[14] A refusal to waive or lessen an otherwise mandatory disqualification period involves both:⁷

(a) an assessment of fact and application of law in determining whether “special reasons” exist; and

(b) the exercise of judicial discretion in making an order other than the mandatory disqualification.

[15] In Morgan v Police, Collins J held that such an appeal is subject to the standards of appeal articulated by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.⁸ This means that the appellate Court must reach its own view on the merits of the appeal, bearing in mind that the appellant bears an onus of satisfying the Court that it should differ from the decision under appeal.⁹

[16] In this case, the Judge did not (and was not asked to) consider whether special reasons, in terms of s 81 of the Land Transport Act 1998, did apply. As there is a high level of prescription in terms of what constitutes a special reason, the Court should approach this appeal afresh and come to its own conclusion.¹⁰

The District Court decision

[17] After setting out the disputed facts, the Judge decided that the evidence of Mr Atkinson was credible, Mr Atkinson being “truly independent of the circumstances”. Mr Atkinson’s evidence lent weight to Ms Little’s account of the events.

[18] The Judge held that, while he could understand Mr Anderson’s initial desire to obtain the number plate of the vehicle, the ongoing pursuit and overtaking of the Nissan was “clearly not justified given the speed at which the Nissan” was travelling. There were options available to Mr Anderson “short of trying to take the law into his own hands”.

⁷ Morgan v Police [2013] NZHC 3431 at [13].

⁸ Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103 at [4].

⁹ Morgan v Police, above n 7, at [14].

¹⁰ This is consistent with the approach in Taipeti v R [2018] NZCA 56.

[19] The Judge decided there was sufficient evidence to determine that Mr Anderson had been driving at a speed and in a way that was clearly dangerous to those in the Nissan and innocent road users. He therefore convicted Mr Anderson of dangerous driving.

[20] The Judge noted that “two wrongs don’t make a right” and, while it may well have been Mr Quantock and his friends causing disruption in Mr Anderson’s neighbourhood, Mr Anderson’s actions went beyond what was appropriate.

[21] In imposing the minimum mandatory disqualification period of six months, the Judge noted that Mr Anderson could ask the Court in due course for a limited or work licence to alleviate some of the hardship he would face as a result of disqualification.

[22] The Judge accepted there was not sufficient evidence to sustain the charge of possession of an offensive weapon.

Submissions

Appellant submissions

[23] Counsel for Mr Anderson, Mr Jackson, first submitted that the factual basis for the conviction was unclear, specifically whether the Judge pinpointed a single dangerous act proved beyond reasonable doubt or made an inference from proved facts, where the inference was so strong as to admit no other conclusion. Mr Jackson submitted that the Judge either vacillated between the two approaches or relied on Mr Atkinson’s evidence of a single incident to bolster a general or overall assessment not otherwise able to be proved. Counsel submitted that the Judge did not identify either a single act or an aggregation but rather proceeded from a general conclusion that there were dangerous circumstances.

[24] Mr Jackson submitted that it was unsafe to rely on Mr Atkinson’s observations, particularly given the dark and wet conditions. His evidence, Mr Jackson submitted, fell short of proving beyond reasonable doubt that Mr Anderson drove dangerously, as one could equally infer that it was Mr Quantock at fault. Mr Jackson submitted that
his independence, to use the lower court’s description, could not elevate his account beyond that of the other two witnesses.

[25] Mr Jackson also strongly criticised the fact that Mr Quantock did not give evidence at the trial. He says that the prosecution elected not to call him, thus “the prosecution was, in a tactical way, unfairly weighted against” Mr Anderson and that “there is an element of abuse of process in that approach”. He also said this “amounted to a prosecution decision to adduce selective evidence and was unfair”. Mr Jackson said the Police decision not to charge Mr Quantock “compromise[d] the fair and even- handed disposition of criminal proceedings”. Mr Quantock not giving evidence prevented the defence from questioning him on his previous convictions for careless use, dangerous driving, sustained loss of traction and driving while his licence was suspended, along with his numerous dishonesty convictions.

[26] If the Court decided to uphold the conviction, Mr Jackson submitted that the Court should revisit the imposition of a six month disqualification. While this was the mandatory minimum period, s 81 Land Transport Act provides for a discretion where there are “special reasons relating to the offence”. The District Court Judge did not consider this option. Mr Jackson submitted that, in all the circumstances, including the harassment Mr Anderson had faced without support from the Police, and Mr Quantock’s role in the offending, there were special reasons so that a disqualification should not be imposed.

Respondent submissions

[27] Counsel for the Police, Ms Bennett, submitted that the Judge did not err in his assessment of the evidence to such an extent that a miscarriage of justice occurred and that a miscarriage of justice has not occurred for any other reason.

[28] In terms of Mr Jackson’s submission that the factual basis for the conviction was insufficient, Ms Bennett submitted there was no gap in the evidence. She submitted the Judge was entitled to rely on Mr Atkinson’s evidence, which corroborated Ms Little’s evidence.
[29] Regarding Mr Jackson’s submission that unfairness resulted from Mr Quantock not giving evidence, Ms Bennett submitted that the Police did attempt to call him but had failed to serve a summons on him. Had Mr Anderson been concerned at the beginning of trial, Ms Bennett submitted he could have made an application under s 113 Criminal Procedure Act to adjourn the trial. Ms Bennett submitted that, if it was an error not to have Mr Quantock appear as a witness, it was not an error of sufficient seriousness to warrant the verdict being set aside without further enquiry, given the evidence from Ms Little.

[30] Ms Bennett also rejected the allegations of unfairness in the conduct of the prosecution. She submitted there was no evidence beyond Mr Jackson’s submissions to support this.

[31] Further, in terms of the sentence appeal, Ms Bennett submitted the Judge was correct in not considering there were special reasons which meant Mr Anderson should not be disqualified for six months. Dangerous driving was not the only course of action available to Mr Anderson and he went beyond what was justified.

Analysis

Conviction appeal

[32] The charge of dangerous driving can be proved in two ways:¹¹

(a) pinpointing a single dangerous act; or

(b) inference from proved facts, where the inference is so strong as to admit no other conclusion.

[33] While the Judge may not have considered these two paths expressly, his decision was consistent with his having approached matters in that way.

[34] For Mr Anderson, Mr Jackson submitted it was not clear whether the Judge’s ultimate decision was based on his assessment of just one incident that occurred after

¹¹ Stratford v Ministry of Transport [1992] 1 NZLR 486 (HC) at 490.

the two vehicles had passed through Temuka or because of Mr Anderson’s driving over a more sustained period.

[35] I consider the Judge’s decision was based on both.

[36] The Judge began his decision by saying it arose out of Mr Anderson’s displeasure at people making a noise with their airhorns outside his home and leaving his property to try and obtain further information about a Nissan vehicle that had just passed his property. He said the initial part of the enterprise involved Mr Anderson trying to catch up with the Nissan, the passenger witness from that vehicle, Ms Little, describing what appeared to be a deliberate attempt to try and pull them over on more than one occasion on their trip back to Timaru and the vehicles being involved in what, at times, appeared to be a high speed pursuit over some 43 kilometres and perhaps a 38 minute period.

[37] The Judge said his decision could ultimately be based on the evidence from an independent witness, Mr Atkinson. The Judge said Mr Atkinson, out of concern, had followed what he thought was a high speed pursuit between the Winchester turnoff north of Temuka through to Washdyke, just north of Timaru. Mr Atkinson had driven to the BP station where the Police were speaking to the driver of the Nissan. The Judge referred to Mr Atkinson having seen an incident at passing lanes just south of Temuka where the two vehicles had reconnected.

[38] The Judge said that, once Mr Anderson was on State Highway 1, with the number of vehicles that use that road, his manner of driving and the speed at which he was driving was clearly something that put lives of innocent road users at risk. He said it was in those circumstances that he found the charge had been proved.

[39] The Judge said the evidence he had to concentrate on was the evidence that related to the method of driving over this period of time. I read that as a reference to the whole of the driving rather than just a specific incident.
[40] The Judge was at an advantage in assessing the credibility of each of the witnesses whose evidence he heard through being able to follow the precise questions and answers in the context where that occurred at trial.

[41] On all the evidence he heard, there was a reasonable basis for the Judge to find that Mr Anderson was intensely angry at the way he thought people in the Nissan had been making a noise outside his property which was distressing to his family. There was evidence that Mr Anderson was determined not just to get their registration number but to stop the vehicle and talk to the people in it about what he thought they had been doing. Consistent with this, when the Nissan stopped to give way at the intersection of the Geraldine/Winchester Road with State Highway 1, Mr Anderson not only got out of his vehicle and was close enough to get a clear view of the registration number, but said he slapped the Nissan with his hand.

[42] Mr Anderson would have been able to obtain the registration number from the rear of the Nissan when he pulled up behind it at the intersection with the main road and when he got out of his vehicle. His credibility as to what he had to say about his driving would not have been assisted by his saying in evidence that he pursued the Nissan through to Washdyke to obtain the registration number and was only able to obtain the registration number in the Washdyke area because, by then, it had been washed clean enough by the rain, causing him to leave State Highway 1 and head off towards Pleasant Point.

[43] It was Ms Little’s evidence that, as they were going through Washdyke, they were being followed by the Commodore, but as they approached the hill towards the southern end of Washdyke and saw the flashing lights of a Police vehicle approaching them, they looked behind and the Commodore was gone.

[44] Although Mr Anderson denied this, it does seem likely that, as he was at some point behind the Nissan, he saw the lights of an approaching Police car and turned off the highway so as not to have any contact with the Police. Despite his later complaint to the Police when they interviewed him about what had happened this night, he had not made any complaint about Mr Quantock’s driving in the interim.
[45] Ms Little gave evidence as to Mr Anderson’s driving on Te Moana Road, through Geraldine, from there to State Highway 1, through Winchester and from Temuka to Washdyke, just north of Timaru. On her evidence, there was a reasonable basis for the Judge to find that Mr Anderson had been speeding, had travelled at speed dangerously close behind the Nissan, and had cut in front of the Nissan in ways that could have been dangerous to people in that vehicle. There were aspects of Mr Anderson’s own evidence which were consistent with this.

[46] Ms Little described an incident in passing lanes just north of Washdyke. She said they would have been travelling at 140 kph and the Commodore tried to go past and force them off the road again. She said that Mr Quantock had swerved around the Commodore because, if he had tried to brake, the Nissan would have run into the back of the Commodore. She said Mr Quantock had gone onto the grass and so passed the Commodore on the left.

[47] It was not suggested to Ms Little in cross-examination that her description of driving events was fundamentally wrong.

[48] Significantly, in ringing the Police as they travelled out of Geraldine, Ms Little had acted as if she was afraid of what might happen and had remained in contact with the Police as the chase continued. The way in which Mr Anderson was driving had caused an independent witness to be concerned at the potential for danger in what was going on.

[49] The Judge was entitled to treat Mr Atkinson as an independent witness whose evidence corroborated the evidence of Ms Little. In particular, Mr Atkinson’s evidence, as to the way Mr Anderson had forced the Nissan off the road approaching Washdyke, was consistent with Ms Little’s evidence.

[50] Mr Quantock, the driver of the Nissan, through fear of Mr Anderson and what he might do, may have decided that there would be danger for him and/or his passenger if they stopped and were confronted by Mr Anderson. That may have explained why Mr Quantock kept driving away at speed and, at a point when they were in an area with passing lanes, drove in the middle of the road to make it more difficult for Mr
Anderson to pass. It may also explain why, instead of stopping as Mr Anderson wanted him to, he passed Mr Anderson’s vehicle on its left.

[51] It is possible that, in all these circumstances, aspects of Mr Quantock’s driving were also dangerous. The explanation for his not having been charged with any driving offence is probably that it was as they were leaving Geraldine that Ms Little telephoned the Police, said they were fearful of the situation they were in, were told to proceed to Timaru and remained in contact with the Police for much of the journey, with the expectation that a Police car would be sent out to meet them, as in fact happened.

[52] What the Judge had to determine was whether the evidence before him proved the charge that had been brought against Mr Anderson, not whether Mr Quantock’s driving had also been dangerous. I am satisfied that, on all the evidence the Judge heard, there was no error with the decision he reached.

[53] I am satisfied there was no error in the way the Judge assessed the evidence of the various witnesses and certainly no error that caused a miscarriage of justice.

[54] It was also suggested for Mr Anderson that there was a serious unfairness with the trial in that Mr Quantock had not been called as a witness. There is no evidence before me as to why that was so. Neither of the Police officers who gave evidence were cross-examined about this. I have been told that the Police were unable to serve a witness summons on Mr Quantock. Ms Little said in her evidence that Mr Quantock was her former partner. Mr Jackson, in his submissions before me, made it clear he was not suggesting the prosecutor had acted improperly in any way.

[55] In his evidence, Mr Anderson referred to something Mr Quantock had said in a statement to the Police. Had Mr Anderson or his counsel thought it was essential to a fair trial that Mr Quantock be available as a witness, counsel could have asked that the hearing be adjourned. Counsel made no such request.

[56] I was told that Mr Quantock has previous convictions for driving offences. As Ms Bennett submitted, defence counsel could have put Mr Quantock’s driving record
to one of the Police officers who gave evidence. Counsel did not do so. However, a Judge may have regarded Mr Quantock’s previous convictions as being of little relevance and, so, inadmissible. What was at issue in this case was what happened on the particular night in question. Mr Anderson did not, at any point in his evidence, assert that he drove the way he did because of the way Mr Quantock was driving. His explanation for driving the way he did was that he wanted to get the registration number of the Nissan.

[57] Both the prosecution and the defence proceeded to trial on the basis the Police would have to rely on the particular witnesses the Police called to prove the charge. It cannot be said there was an error with the way the case proceeded on that basis. With all the evidence that emerged, it cannot be said there was a miscarriage of justice because Mr Quantock was not called as a witness.

[58] For all these reasons, Mr Anderson’s conviction must stand.

Sentence appeal

[59] In terms of the sentence appeal, a refusal to waive or lessen an otherwise mandatory disqualification period involves both:¹²

(a) an assessment of fact and application of law in determining whether “special reasons” exists; and

(b) the exercise of judicial discretion in making an order other than the mandatory disqualification.

[60] A special reason is defined in R v Crossen as:¹³

A mitigating or extenuating circumstance, not amounting in law to a defence to the charge, yet directly connected with the commission of the offence, and one which the Court ought properly to take into account when imposing punishment.

¹² Morgan v Police, above n 7, at [13].

¹³ R v Crossen [1939] NI 106 at 112.

[61] The principles applying to the application of special reasons are as follows:¹⁴

(a) special reasons are only factors of particular or exceptional character;

(b) they must arise from the circumstances in which the offence was committed, or the manner of its commission as a whole, and not circumstances peculiar to the offender;

(c) personal circumstances are irrelevant, except to the extent they influence the events leading up to the commission of the offence or are part and parcel of the offending itself;

(d) the special reason must be of a sufficiently compelling nature to justify a departure from the usual consequences;

(e) the special reason must not conflict with the essential purpose of the statutory provision; and

(f) where all reasonable or possible alternatives are not explored, it is unlikely that special reasons will be found.

[62] The Judge accepted that Mr Anderson was understandably aggrieved at the way vehicles going passed his home had disturbed his family through sounding airhorns. Mr Anderson’s concern about this did not however mean that he was dealing with an emergency situation which could be seen as justifying the way he drove over some 43 kilometres and in the manner which the Judge found to be dangerous. There were other alternatives available to him.

[63] On all the evidence before him, the Judge could not have found there were special circumstances justifying the departure from the mandatory requirement for a six month disqualification.

¹⁴ Anderson v Police [2016] NZHC 942 at [15]- [16].

[64] For all these reasons, the appeal is dismissed. Mr Anderson’s disqualification is to take effect from 7.00 am on 15 September 2018.

Solicitors:

Quentin Hix Legal Ltd, Timaru Gresson Dorman & Co., Timaru.