Enoka v Police [2020] NZHC 2157 (24 August 2020)

Last Updated: 8 September 2020

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2020-485-054 [2020] NZHC 2157

BETWEEN	TYRONNE CHRISTIANSEN MORGAN ENOKA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	18 August 2020
Counsel:	A P Dye for appellant N Azam for respondent
Judgment:	24 August 2020

RESERVED JUDGMENT OF DOBSON J

• [1] Following a judge-alone trial before Judge Tompkins in the Hutt Valley District Court on 15 July 2020, the appellant (Mr Enoka) was convicted on one charge of operating a motor vehicle in a manner causing the vehicle to undergo a sustained loss of traction (a burn-out) without reasonable excuse.¹ Mr Enoka was sentenced to 100 hours’ community work and was disqualified from driving for six months.²

• [2] Mr Enoka has appealed this conviction on the ground that the Judge erred in his assessment of the evidence to the extent that a miscarriage of justice has occurred.

¹ Land Transport Act 1998, ss 36A(1)(c) and 22A(3).

² Police v Enoka [2020] NZDC 5553.

ENOKA v NEW ZEALAND POLICE [2020] NZHC 2157 [24 August 2020]

The facts

• [3] On 18 December 2018, Police Constables Lee and Wayer were on duty in a Police car on an intersection of Fergusson Drive, the main thoroughfare through Upper Hutt. They observed a cloud of thick smoke covering the entirety of the road some 380 metres away from where they were on Fergusson Drive. They observed an orange and white car drive out of the smoke, travelling towards them.

• [4] The orange car drove past the constables and the driver of the following car pointed at the orange car, in a gesture apparently to the constables. They followed the orange car and subsequently stopped it. Mr Enoka was the driver. The constables observed a strong smell of burnt rubber and identified loose rubber fragments around the rear wheel guards and arches of his car. The constables concluded that Mr Enoka had caused a sustained loss of traction and he was charged accordingly.

• [5] The constables examined the surface of Fergusson Drive in the area of the thick smoke and observed a large number of skid marks, some of which were faded but others of which were dark black and of recent origin. The constables did not venture down the driveway of the adjoining property at 1063B Fergusson Drive.

• [6] At his trial, Mr Enoka’s counsel called evidence from an associate, Mr Morrison. Mr Morrison occupied a rear unit in a two unit block at 1063B Fergusson Drive, adjacent to the point of that road at which the loss of traction was alleged to have occurred. Mr Morrison’s evidence was that he, Mr Enoka and a number of associates had gathered at his address for a barbecue on the day in question. Mr Morrison described there having been “a few burn-outs” during the day. In particular, he described how Mr Enoka had parked his vehicle some 20 or 30 metres up his driveway from Fergusson Drive and past a wider concrete apron area. Mr Morrison described seeing a Harley Davidson motor bike driven by an unidentified person leave his property and perform a burn-out on Fergusson Drive before driving south towards Upper Hutt City. Mr Morrison stated that shortly afterwards Mr Enoka had performed a stationary burn-out not on Fergusson Drive, but rather in the somewhat wider concreted driveway apron inside the boundary of his property.

The District Court judgment

• [7] There was no issue that Mr Enoka’s car had performed a burn-out. The contested element requiring proof by the Police was that this had occurred not in the driveway of the property at which Mr Morrison lived, as he stated in his evidence, but outside that property on Fergusson Drive where the constables had observed dense smoke and recent marks from skidding tyres.

• [8] The Judge treated the Police case as relying on inferences to establish beyond reasonable doubt that Mr Enoka had performed the burn-out on Fergusson Drive. On that issue, the Judge reasoned:

• [10] Having observed Mr Morrison give his evidence, I was not impressed by the way in which he gave his evidence or, indeed, its content, given the sheer unlikelihood that Mr Enoka would put his otherwise pristine and restored car at significant risk of scraping nearby fences or trees in the very confined space of Mr Morrison’s driveway by performing either a stationary burn-out or, indeed, any other form of sustained loss of traction, given the ease with which a vehicle undergoing that manoeuvre can move around outside the control of the driver.

• [11] Setting aside Mr Morrison’s evidence as unsatisfactory, the compelling inference to be drawn is that Mr Enoka, having seen the unidentified Harley Davidson motorbike perform a farewell burn-out gesture before travelling south, likewise undertook the same manoeuvre on Fergusson Drive before heading in the opposite direction and, as it happens, past the patrol car occupied by the two constables.

• [9] On the basis of those findings, the Judge was satisfied that the charge had been proven.

Grounds of appeal

• [10] Departing somewhat from his written submissions, Mr Dye’s oral submissions began with the proposition that all reasonable possibilities that Mr Enoka’s burn-out had been done in Mr Morrison’s driveway could not be eliminated. The Police case depended on inferences which could only be built on a small number of established facts in circumstances where other conclusions were equally open from those known facts.
• [11] Any suggestion that Mr Morrison had a motive to support Mr Enoka by misdescribing where the burn-out had occurred would require an inference that was adverse to the witness. Arguably, that inference could not be drawn when the prospect of Mr Morrison being influenced by that motive had not been put to him in cross- examination.

• [12] Mr Dye criticised the Judge’s treatment of Mr Morrison’s evidence on two grounds. First, there was insufficient reason for rejecting it and, second, its rejection involved an inference, the grounds for which were not sufficiently decisive. Mr Morrison’s evidence was not contradicted by any other evidence in this case.

• [13] In responding to the appeal, Mr Azam defended the adequacy of the Judge’s reasons. In a judge-alone trial involving contested factual matters within a relatively narrow compass, it was open to the Judge, having heard the evidence, to set it aside as “unsatisfactory”.

• [14] Mr Azam appealed to matters of common sense given how highly unlikely it was that Mr Enoka would do a burn-out in the confines of a relatively narrow driveway when the car was obviously a prized possession in very good condition, and one which he would try hard to avoid damaging. In the factual context, Mr Azam submitted it was legitimate for the Judge to carry out the comparative risk assessment of whether Mr Enoka would risk damage to his vehicle and cause unpleasant smoke hazards for the associates standing in the driveway (or even risk endangering them, given their close proximity to where the manoeuvre was occurring) or alternatively follow the example of the Harley Davidson and conduct the manoeuvre in the roadway.

Analysis

• [15] The Supreme Court in Sena v Police made the following observations about the task of a Judge when producing a determination for a judge-alone trial:³

[Judges] should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached.

³ Sena v Police [2019] NZSC 55 at [36].

• [16] The Court also observed:⁴

... appellate judges dealing with a case on the basis of a written record of what happened at trial and the submissions of counsel are unlikely to be as well- placed as a trial judge to determine contested questions of fact based on contested oral evidence. For instance, what a witness means may be conveyed, at least in part, by gesture or intonation, something which will not be apparent on the written record. More generally, the appellate process in which appellate judges are taken, sometimes rather selectively, to the aspects of the evidence on which counsel rely does not replicate the advantages of a trial judge which we have just described.

• [17] The factual issue is a narrow one: whether the prosecution proved beyond reasonable doubt that the manoeuvre Mr Enoka admits took place on Fergusson Drive, or in an adjacent private driveway. The prosecution relied upon the observation of very substantial amounts of smoke hovering over the whole width of Fergusson Drive, as observed by the constables from some distance away. They also observed Mr Enoka’s car emerging from that smoke in circumstances where it is not contested that it had undertaken a loss of traction sufficiently recently for the constables to still observe a strong smell of burning rubber and see fragments of rubber when it was stopped shortly after.

• [18] The evidence established that the Harley Davidson motor cycle had undertaken such a manoeuvre at that point on Fergusson Drive at virtually the same time.

• [19] The alternative to the inference available on those facts (which was that the orange vehicle seen emerging from the smoke was the cause of it) was that the burn-out performed by Mr Enoka occurred off the roadway, that he moved into the very substantial amount of smoke generated by a vehicle with half the number of wheels without his vehicle being observed, but then appeared out of that dense smoke in circumstances consistent with being the vehicle that created it.

• [20] Conducting the manoeuvre in the private driveway would create a risk of damage to the car, and possibly observers very close by, if the burn-out could not be precisely controlled. Photographs produced at the hearing confirm that the vehicle was obviously an exceptionally well cared for restored Ford Mark I Cortina.

⁴ At [40] (footnotes omitted).

• [21] In all those circumstances, I am satisfied that it was entirely open to the Judge to draw the inferences he did in rejecting Mr Morrison’s version of events.

• [22] The adequacy of his reasons for doing so must be considered in context. This was a short judge-alone trial where the contested factual issue was a narrow one. The Judge heard and saw Mr Morrison’s evidence and was entitled to assess it in light of the other evidence on the contested issue.

• [23] Within the context of this judge-alone trial, I am satisfied that he adequately explained his reasons for rejecting Mr Morrison’s version as to the location at which the burn-out occurred.

• [24] I note that the evidence from one of the constables made reference to the driver of the car following behind Mr Enoka’s when he went past the Police car and pointing at Mr Enoka’s car. That might lead to a further inference that Mr Enoka was the driver who had caused the smoke from the burn-out. However, that would be an unreliable inference without any dialogue with the driver who indicated. There is no suggestion that the Judge placed any reliance on this point.

• [25] It follows that the appeal against conviction is dismissed.

Dobson J

Solicitors:

Public Defence Service, Wellington for appellant Crown Solicitor, Wellington for representation