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Rejection of accused’s evidence does not mean he/she is guilty

11 May 2023

| Author: Fiona Wu

Criminal Procedure Act 2011 – successful appeal against conviction – careless driving causing injury – error or irregularity causing miscarriage of justice – conviction based on preference for prosecution’s account – charge not proven beyond reasonable doubt – unable to undertake assessment based on notes of evidence – real risk that outcome affected

Bremner v Police [2022] NZHC 322 per Cooke J 

The appellant, John Bremner, was convicted of careless driving causing injury following a judge-alone trial. Bremner was driving his work van, which collided with a motorcycle ridden by Mr Whyte and a pillion passenger.  The collision caused injuries to Whyte and his passenger, and Whyte suffered a broken leg.

During the trial, Whyte and his passenger, Bremner, gave conflicting accounts of what had caused the collision. The trial judge, in convicting Bremner, indicated he preferred the evidence of the prosecution witnesses.  Bremner appeals against that conviction on the ground that there has been a miscarriage of justice.

The appeal proceeded by way of rehearing under s 229 of the Criminal Procedure Act 2011.  The High Court can allow an appeal only if it is satisfied that a miscarriage of justice has occurred – that is, an error during the trial has created a real risk that the outcome of the trial was affected.

Cooke J found that although the trial judge gave cogent reasons for not accepting Bremner’s account, he had focused too much on explaining why Bremner’s evidence was rejected and had not established independently that, on the prosecution’s evidence alone, the charges could be proved beyond reasonable doubt.  Furthermore, in cross-examination, an alternative scenario was put to Whyte which was not sufficiently disproven.  The combination of these factors meant that Cooke J could not conclude that the trial judge was clearly correct, without being the finder of fact at trial.

Applicable principles – appellant must demonstrate a real possibility the verdict is unsafe – the fact defendant gives evidence does not change the burden of the prosecution to prove its case – rejection of the defendant’s evidence does not equal guilt – prosecution evidence must independently prove the charge beyond reasonable doubt

Held:  The error of the trial judge gives rise to a real risk that the outcome was affected.  The appeal is allowed and the matter is remitted to the District Court for Police to consider retrial.


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