Neves v Johnson

[2018] WASC 67

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   NEVES -v- JOHNSON [2018] WASC 67

CORAM:   MITCHELL JA

HEARD:   28 FEBRUARY 2018

DELIVERED          :   28 FEBRUARY 2018

PUBLISHED           :  1 MARCH 2018

FILE NO/S:   SJA 1072 of 2017

BETWEEN:   NELIO JOSE NEVES

Applicant

AND

DANIEL JOHNSON
First Respondent

RACHEL KINGSBURY
Second Respondent

LIAM GREIG
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE P MALONE

File No  :FR 890 of 2017, FR 7286 of 2015, FR 6320 of 2015

Catchwords:

Appeal - Leave to appeal against conviction of driving a motor vehicle on a road whilst not authorised - Application to adduce new evidence - No miscarriage of justice

Legislation:

Criminal Appeals Act 2004 (WA), s 7(1), s 8(1)(b), s 9(1), s 9(2), s 14(1), s 14(2), s 39(1), s 40(1)
Road Traffic (Authorisation to Drive) Act 2008 (WA), pt 2
Road Traffic Act 1974 (WA), s 49(1)(a)

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr A Robson

First Respondent           :     Ms S Fox

Second Respondent      :     Ms S Fox

Third Respondent          :     Ms S Fox

Solicitors:

Applicant:     Legal Aid (WA)

First Respondent           :     State Solicitor for Western Australia

Second Respondent      :     State Solicitor for Western Australia

Third Respondent          :     State Solicitor for Western Australia

Case(s) referred to in judgment(s):

ARK v The State of Western Australia [2014] WASCA 45

Beamish v The Queen [2005] WASCA 62

CJD v VAJ [1998] HCA 67; [1998] HCA 76; (1998) 197 CLR 172

Gallagher v The Queen (1986) 160 CLR 392

Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199

Lawless v The Queen 1979) 142 CLR 659

Ratten v The Queen (1974) 131 CLR 510

Rinaldi v The State of Western Australia [2007] WASCA 53

Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96

Smith v The State of Western Australia [2014] WASCA 90

MITCHELL JA: 

(These reasons were delivered extemporaneously and have been edited from the court's record of the decision.)

Charge

1. The appellant was convicted by a magistrate after trial of one count of driving a motor vehicle on a road whilst not authorised under pt 2 of the Road Traffic (Authorisation to Drive) Act 2008 (WA). That is an offence against s 49(1)(a) of the Road Traffic Act 1974 (WA). A pleaded circumstance of aggravation was that his authority to drive had been suspended. It was alleged that, on 18 January 2017, the appellant drove a Holden sedan on Featherflower Road in Hammond Park at a time when his licence was suspended.

Issues at trial

1. At trial, it was not in contest that the appellant was in a Holden Statesman which was driven on Featherflower Road on 18 January 2017.  Nor was in it contest that his driver's licence was under suspension.  The only issue at trial was whether the appellant was the driver of the Statesman.

2. The prosecution case consisted of the evidence of two police officers, Constable Johnson and Senior Constable Chaplyn.  The prosecution case was that the officers observed the Statesman being driven by a sole male occupant who they saw exit the vehicle after it pulled up in a driveway in Featherflower Road.  The officers' vehicle did a quick U‑turn and pulled up behind the Statesman.  The officers spoke to the appellant, who was the only person standing next to the vehicle.[1]

   [1] Trial ts 5.

Prosecution evidence at trial

Evidence of Constable Johnson

1. Constable Johnson's evidence at trial was that he was driving a marked police vehicle in the Hammond Park area.  Constable Chaplyn and another police officer, Constable Hughes, were passengers in the police car.  At about 10.30 am, Constable Johnson was driving on Gaebler Road, a street which ran parallel to Featherflower Road.  When he first saw the vehicle, Constable Johnson was travelling along Gaebler Road towards a roundabout at its intersection with Botany Parade (which ran perpendicular to Featherflower Road and Gaebler Road).[2]  It was a clear sunny day, he was about 50m from the Statesman and there were no other vehicles between him and the Statesman.  He could observe that there was only one occupant in the driver's seat of the Statesman.[3] 

   [2] Constable Johnson described this as driving from right to left on the map which is exhibit P2.

   [3] Trial ts 6 - 7.

2. Constable Johnson saw the Statesman turn right into Baumea Turn (which ran perpendicular to Featherflower Road and Gaebler Road), left into Featherflower Road, and pull into the driveway of the house at 22 Featherflower Road.  Constable Johnson said that he got within 20 m of the Statesman.  As the Statesman turned into the driveway, Constable Johnson kept driving and observed the driver exiting the driver's door as the Statesman was on his left.  There was no one else in the house, the driveway, the vehicle or the street at this time.[4]

   [4] Trial ts 8.

3. Constable Johnson then did a U‑turn and parked outside number 22.  He did not keep an eye on the driver for the approximately five seconds that it took to perform the U‑turn.  Constable Johnson walked across to the driveway, where the appellant was standing at the front of the Statesman with the bonnet up.  There was no one else nearby.[5]  The appellant told Constable Johnson that his friend drove there but had an argument with his girlfriend and they both ran off down the street together.  Constable Johnson did not look for the couple because he could see for a long distance in the street and there was no one there.[6]

Evidence of Constable Chaplyn

[5] Trial ts 9.

[6] Trial ts 10.

1. Constable Chaplyn gave evidence that he saw the Statesman driving towards them on Gaebler Road.  He was not sure which direction along Gaebler Road the police car was travelling.  As the two cars passed, he saw that there was one male person driving the Statesman.  Constable Chaplyn was in the passenger seat of the police car and the Statesman was on the other side of the road, a maximum of about 2 m away.  The police car turned around to follow the Statesman, which made a couple of turns and turned into Featherflower Road, stopping fairly rapidly in the driveway of number 22.[7] 

   [7] Trial ts 16 - 17.

2. The police car drove past the driveway and, as it did so, Constable Chaplyn saw the driver hop out of the driver's side and walk to the front of the Statesman.[8]  At this time Constable Chaplyn was about 5 m, or maybe a little bit further, away from the Statesman.  Constable Chaplyn lost sight of the man for two or three seconds as the police car did a U-turn, but could then see the man at the raised bonnet of the Statesman.  During the whole time that Constable Chaplyn saw the man, he did not see any other cars or any other people walking on the streets or on properties.  He did not look for any other people, because there was no one else in the Statesman.[9]

   [8] Trial ts 17 - 18.

   [9] Trial ts 18 - 19.

3. Constable Chaplyn heard the appellant say that he was not driving the Statesman, and that there was another male and a female in the vehicle.  The appellant said that the female ran away and the male followed, leaving him with the car.[10]

   [10] Trial ts 18.

Evidence adduced by the appellant at trial

The appellant's evidence

1. The appellant gave evidence to the following effect.[11]  He usually lives at an address in South Lake.  However, at the time of the alleged offence he was staying at the house of his 'missus', a former partner and the mother of his children, in Hamilton Hill for a few days.  The Statesman was kept at that house and the appellant's 'missus' would not give him the keys because he was on a suspended sentence.  The appellant's mate, Reece Hoskin,[12] came to the Hamilton Hill house in his vehicle, a Falcon.  The appellant and Mr Hoskin went for a drive in the Statesman.  The appellant's 'missus' gave Mr Hoskin the keys to the Statesman as he had a licence, and he was driving. 

   [11] Trial ts 30 - 38.

   [12] There is a discrepancy between the name of the appellant's mate, transcribed as 'Reece Hoskin' in the trial, but referred to as 'Rhys Hoskins' in Ms Robinson's affidavit.  I have adopted the name transcribed in the trial, except when quoting from the affidavit.

2. The appellant and Mr Hoskin went to the home of Mr Hoskin's girlfriend, Marissa, on Gaebler Road.  The appellant did not know Marissa's surname.  Her home was a unit located to the west of the roundabout at the intersection of Gaebler Road and Botany Parade.  Marissa and Mr Hoskin had an argument in the garage of Marissa's unit.  Marissa left the unit on a blue bike.  Mr Hoskin then drove the Statesman, and they were on the phone arguing.  He saw Marissa as they turned into Featherflower Road from Baumea Turn.  They pulled into a driveway of a house of a person the appellant did not know on Featherflower Road because the Statesman was overheating.  Mr Hoskin exited the car, throwing in the keys, and chased after Marissa.

3. The appellant lent over from the passenger side of the Statesman and popped the bonnet, and jumped out to the front of the vehicle.  As he lifted the bonnet of the Statesman the appellant saw a police car, which he had noticed on Gaebler Road, drive by.  He said that he told the police what he had told the court.

Evidence of Reece Hoskin

1. Mr Hoskin was called as a witness by the appellant.  He said that on 18 January 2017 he was with the appellant and he was driving the car.  Mr Hoskin was having a bit of an argument with his girlfriend.  They found her riding on a blue bike.  Mr Hoskin said that he pulled up and jumped out of the car.  He threw the keys in the car and went after her.  Mr Hoskin later found the appellant walking as Mr Hoskin was walking back to the car.[13]

   [13] Trial ts 39.

2. In cross-examination, Mr Hoskin said that his girlfriend's name was Marissa but, despite going out with her for seven months, he did not know her surname.[14]  Marissa lived on Gaebler Road.[15] 

   [14] Trial ts 40.

   [15] Trial ts 41.

3. Mr Hoskin said that he went to the appellant's house in South Lake.  He could not remember how he got there, but would say that it was on a pushbike.  Mr Hoskin said his car was unregistered at the time and he would not drive it because 'that would be silly'.[16]

   [16] Trial ts 41 - 42.

4. Mr Hoskin drove the Statesman from the appellant's house, and planned 'to go to a scrap yard or something'.[17]  He drove past his girlfriend's house and saw her riding a bike down a side street.  He hadn't seen any police cars.  He quickly went towards her.  He wanted to see her to 'work stuff out' after a prior argument.[18]

   [17] Trial ts 42.

   [18] Trial ts 42 - 43.

5. When Mr Hoskin pulled up, he thought that he stopped in a driveway but was not too sure.  He got out of the vehicle and went after Marissa as she took off on a pushbike.  He never saw police at any stage.[19]

   [19] Trial ts 44 - 45.

The magistrate's decision

1. The magistrate summarised the above evidence.  In the course of summarising Mr Hoskin's evidence, the magistrate observed:[20]

   At the end of the day, Mr Hoskin comes across telling some story that he knows this girl Marissa and I guess we can call her Marissa no-surname, because as far as Mr Neves is concerned, despite his apparent association with Mr Hoskin, and in Mr Hoskin's case, his association for seven months with this girl, she doesn't have a surname and that, I think, is genuinely strange to the point where you would think that somebody is just not telling the truth about that and it's a bit of concern…

   But you really got the impression when Mr Hoskin was giving evidence that he was just searching around.  Mentioned - and I say this without any rudeness - that he had some problems with dyslexia, wasn't good necessarily with names and things like that and just didn't, it seemed to me, like the idea of being pressed on detail.  He was, if I might say, a thoroughly unconvincing witness who really seemed to be searching for detail.

   [20] Trial ts 52 - 53.

2. In rejecting the appellant's and Mr Hoskin's evidence, the magistrate observed:[21]

   Now, for me, what makes me reject both the evidence of Mr Neves and Mr Hoskin is that the key to this would be this girlfriend, Marissa, but neither Mr Neves, nor, for that matter, the girlfriend of seven months, Mr Hoskin, knows the surname of this girl, Marissa.  How completely ridiculous is that.  That just stretches my notion of credibility just to breaking point.  So, sure, I'm coming to the conclusion that I admire Mr Neves' saying, 'No, it wasn't me.  It was my mate, and he had an argument with his girlfriend, and they both ran off, or she was on a bike and she rode off and he chased after her', and he gave that explanation immediately.

   But when it comes down to, 'Okay, fine.  Well, if that's all true, how difficult it is', is it, 'Well, actually, it's just Marissa Somebody, Marissa No Surname'.  And that leaves me in the situation where I just don't believe either Mr Hoskin or, for that matter, Mr Neves, about the existence of this girl, Marissa, and her involvement on the day.  So I reject their evidence, but as I indicated earlier, that doesn't mean the case is proved.

   [21] Trial ts 54.

3. In relation to the prosecution case, the magistrate had observed that:[22]

   And so both the police officers are clear as crystal on the fact they see Mr Neves getting out of the driver's side of the car and he's going over to speak to them very quickly.  Now, it just seems to me that I would have to come to the conclusion that they clearly are misleading the court to say that they were that close and that proximate to rule out the possibility of there being other people involved.

   [22] Trial ts 54.

4. The magistrate concluded that the prosecution had proved the appellant's guilt in the following terms:[23]

   I turn back to see whether the evidence has been established from the prosecution point of view.  And I simply come back to the situation with how difficult can it be? You're in a police car.  You're tasked to look for a Statesman.  You see it.  You follow it.  It has one occupant.  You pull up with the vehicle.  You see it go into a driveway.  You overshoot it.  You do a U-turn.  You stop.  You go over and speak to the person who got out of the driver's seat.  It turns out, to be, in this case, Mr Neves.

   Now, it just seems to me that there's no scope for me to come to the conclusion that this is just some weird and wonderful conspiracy by these police officers, just to make up a story that they definitely saw Mr Neves driving and chose to ignore people running away, and say there was nobody else.  As I say, I don't believe there was a girlfriend there, and otherwise, it seems to me, the story from the police officers is clear as crystal.

   And despite the discrepancies as to parking in the driveway and those things, I don't see that I can't rely on their evidence.  So I am satisfied that that charge has been proved beyond a reasonable doubt, and I convict Mr Neves accordingly.

   [23] Trial ts 54 - 55.

5. The magistrate convicted the appellant and sentenced him to 8 months' immediate imprisonment.  At the time of the alleged offence, the appellant was serving suspended sentences for two offences of driving without authorisation.  The magistrate ordered the appellant to serve the suspended terms of 3 and 4 months' imprisonment concurrently with the sentence of 8 months immediate imprisonment imposed for the offence committed on 18 January 2017.

Ground of appeal

1. The appellant appeals against his conviction on the ground that additional evidence demonstrates that a miscarriage of justice has occurred. 

2. The appellant also contends, and the respondent accepts, that should his conviction of the offence committed on 18 January 2017 be set aside, the sentences for breach of the suspended imprisonment orders should also be set aside.

3. By an application in an appeal filed on 12 February 2018, the appellant seeks leave to adduce additional evidence in the appeal, namely an affidavit of Marissa Robinson.  That application has been referred to the hearing of the appeal.

The additional evidence

1. The affidavit of Ms Robinson, who gives her address as a specified unit in Gaebler Road, is in the following terms:

   1.In January of 2017 I had an argument with Rhys Hoskins in the morning.

   2.Rhys Hoskins was a guy who I was seeing at the time.

   3.Later that day I was riding my pushbike.

   4.I then saw a car pull into a driveway.

   5.I noticed two faces in the car who I recognised to be Rhys Hoskins and Nelio Neves.

   6.I believe it was Rhys Hoskins who was driving the car.

   7.I would say I am 94% certain about this.

   8.Rhys Hoskins jumped out of the car.

   9.Rhys Hoskins then ran after me while I rode away on my pushbike.

   10.I heard his footsteps behind me.

   11.Up the road I eventually stopped and my argument with Rhys Hoskins continued.

   12.Rhys Hoskins has a driving licence.

   Although the affidavit is undated, the affidavit evidence of the appellant's solicitor is that on 10 January 2018, after she failed to attend an appointment, he sent Ms Robinson an affidavit based on a telephone conversation with her.  The sworn affidavit was received by his office on 6 February 2018.[24]

   [24] Affidavit of Andrew James Robson sworn 9 February 2018 pars 3 - 6.

2. Although I was told by the appellant's counsel that a witness summons was issued to secure Ms Robinson's attendance at the hearing on 28 February 2018, she did not appear.  At counsel's request, I adjourned the hearing for an hour to allow an attempt to contact her to be made, and to see if she was simply running late.  There was still no appearance, and counsel had been unable to contact Ms Robinson when the hearing resumed. 

3. Counsel for the appellant said that he did not apply for the issue of an arrest warrant.  Counsel submitted that I should determine the appeal on the basis of Ms Robinson's affidavit and those paragraphs of his affidavit which indicated how Ms Robinson's affidavit was obtained.  Counsel for the respondent did not oppose that course.  She did anticipate a submission she would make in the appeal that, in the absence of oral evidence or cross-examination, I could not form a view as to the cogency of Ms Robinson's evidence.  Counsel for the respondent indicated that she would submit that, on that basis, I could not be satisfied that Ms Robinson's evidence established a miscarriage of justice.  In maintaining his proposal that I deal with the appeal without hearing oral evidence, counsel for the appellant clearly appreciated and accepted the risk that this submission by the respondent would be accepted. 

4. At the hearing of the appeal, I received Ms Robinson's affidavit provisionally and said that I would rule on the application in an appeal in the course of determining the appeal.

General principles

1. The right of appeal which the appellant seeks to invoke is conferred by s 7(1) of the Criminal Appeals Act 2004 (WA). The appellant appeals on the ground provided for in s 8(1)(b) of that Act, which is that there has been a miscarriage of justice. Leave to appeal is required for each ground of appeal under s 9(1) of that Act. Under s 9(2), the court must not grant leave on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.

2. Section 14(1) of the Criminal Appeals Act makes provision for what this court may do in deciding the appeal. Relevantly, the court may dismiss the appeal, allow the appeal, set aside the summary court's decision and sentence imposed as a result of the decision and substitute a decision that should have been made by the court of summary jurisdiction. Under s 14(2), even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers no substantial miscarriage of justice has occurred.

3. Section 39(1) of the Criminal Appeals Act provides that this court must decide the appeal on the evidence and material that were before the Magistrates Court. However, s 39(3) provides that s 39(1) does not affect this court's power in s 40 to admit evidence.

1. Section 40(1) of the Criminal Appeals Act makes provision for the powers which this court has for the purposes of dealing with an appeal. Section 40(1)(a) ‑ (d) gives this court the power to receive evidence, including that of witnesses who were not called at the trial, and records or things which are not exhibits. In Rinaldi v The State of Western Australia,[25] the court held that the common law principles touching upon the distinction between new and fresh evidence are not necessarily determinative of the manner of exercise of the statutory discretion.  However, the court observed that the considerations giving rise to those principles will ordinarily be weighty, so much so that it will be a rare case in which an exercise of the statutory discretion produces a different outcome to that produced by application of the common law principles.  Rinaldi has been applied in many subsequent cases.[26]

   [25] Rinaldi v The State of Western Australia [2007] WASCA 53 [84].

   [26] See, for example, Rodi v The State of Western Australia [2017] WASCA 81; (2017) 51 WAR 96 [99] ‑ [105]; Gibson v The State of Western Australia [2017] WASCA 141; (2017) 51 WAR 199 [58].

2. I doubt whether s 40 does affect the circumstances in which the absence of additional evidence at trial will result in a miscarriage of justice.  On its face, s 40 is concerned with the power of this court to receive additional evidence rather than the grounds on which this court, having received that evidence, must allow the appeal.  Further, the cases dealing with the circumstances in which the absence of additional evidence will give rise to a miscarriage of justice concerned the application of the common form criminal appeal statute rather than the grounds on which a verdict of a jury might be set aside at common law.[27]  The question of whether this court will exercise its discretion to receive additional evidence may be informed by an assessment of whether the additional evidence is capable of establishing a miscarriage of justice.  However, the questions of whether additional evidence should be received, and of whether that evidence establishes a miscarriage of justice, are logically distinct.  Nevertheless, it is appropriate for me to follow the approach adopted in Rinaldi in the present appeal.

   [27] As to which see CJD v VAJ [1998] HCA 67; [1998] HCA 76; (1998) 197 CLR 172 [96] ‑ [98].

3. The unavailability of fresh evidence after a trial by jury gives rise to a miscarriage of justice if the appellate court considers that there is a significant possibility that the jury, acting reasonably, would have acquitted the appellant if the evidence had been before it at trial.[28]  For this purpose, 'fresh' evidence is evidence which either did not exist at the time of the trial or which could not then, with reasonable diligence, have been discovered.  'New' evidence is evidence which was available at the trial or which could, with reasonable diligence, then have been discovered.[29]  There is no miscarriage of justice in the failure to call evidence at trial if that evidence was then available, or, with reasonable diligence, could have been available, unless the new evidence establishes that the appellant is innocent or should not have been convicted.[30]

   [28] Smith v The State of Western Australia [2014] WASCA 90 [159].

   [29] Smith [158].

   [30] Beamish v The Queen [2005] WASCA 62 [9] - [13]; Smith [160].

4. The proper approach to the appellate court's assessment of additional evidence was described by Barwick CJ in Ratten v The Queen:[31]

   In every situation the court must decide on the relevance of the new evidence … It must decide its credibility, that is to say whether or not it is capable of belief, both as to veracity and competence in the case of oral evidence ...  But in some situations, as I shall point out, the court will decide whether it believes the evidence.  In other situations it will be enough that, whatever its own view, the evidence is capable of belief, and likely to be believed, by reasonable men.

   Having considered relevance and credibility, the court will weigh the cogency of the evidence, having in mind always the evidence produced at the trial.  That evidence will be taken in that sense in which, having regard to its verdict, the jury must have accepted it.

   For all these purposes the court may see and hear the witnesses of the new evidence, both Crown and appellant being entitled to examine and cross‑examine as the case may be.  Further, the court will be entitled to receive evidence which tends to support, contradict or weaken the new evidence or the inferences which might be drawn therefrom.

   [31] Ratten v The Queen (1974) 131 CLR 510, 518. This is the appropriate approach under the Criminal Appeals Act:  ARK v The State of Western Australia [2014] WASCA 45 [139].

5. Barwick CJ explained the approach to considering new, as opposed to fresh, evidence in the following terms:[32]

   If the court is considering whether the verdict of guilty should be set aside outright for the reason that innocence is shown, or the existence of an appropriate doubt established, the court will consider all the material itself, forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial, though, as I have said, taking the facts as proved at the trial in the sense which having regard to its verdict the jury must have taken them.

   [32] Ratten (518).

6. There is no issue in this case that Ms Robinson's evidence is to be characterised as new, rather than fresh, evidence.  In an appeal from a magistrate who has given detailed reasons, there is no occasion to infer the facts which a jury must have found from its verdict, in the manner described by Barwick CJ in Ratten.  Otherwise, I see no reason for approaching the question of whether the new evidence establishes a miscarriage of justice any differently where the trial was by a judicial officer rather than a jury. 

7. Of course, the ultimate question always remains whether a miscarriage of justice has occurred.  As Gibbs CJ observed in Gallagher v The Queen:[33]

   However, I would emphasize that no form of words should be regarded as an incantation that will resolve the difficulties of every case.  No test can detract from the force of the fundamental principle that the appeal must be allowed if a miscarriage of justice is shown to have occurred.

   [33] Gallagher v The Queen (1986) 160 CLR 392, 399.

Disposition

1. Bearing in mind the appellant's circumstances as an accused person,[34] the evidence of Ms Robinson is clearly classified as new evidence rather than fresh evidence.  There is no reason why Ms Robinson could not have been called by the appellant as a witness at trial.  The evidence before me does not disclose any explanation for the failure to call her as a witness at trial.

   [34] Ratten v The Queen (517).  See also Lawless v The Queen (1979) 142 CLR 659, 669.

2. Ms Robinson's evidence must be considered together with the evidence adduced at trial.  The police officers who gave evidence had a clear view of the Statesman and its sole occupant, and there does not appear to any significant opportunity for the police officers to have been mistaken about the absence of any other person in the car.  There was nothing to suggest that the police officers were not giving their evidence in an honest manner.

3. There were a number of relatively minor inconsistencies between the evidence of Constables Johnson and Chaplyn:

   (1)Constable Chaplyn described the Statesman passing the police car while travelling in the opposite direction, following which the police car took a U-turn and followed it.[35]  Constable Johnson only referred to following the Statesman.[36]

   (2)Constable Johnson referred to parking the police car on the side of Featherflower Road which was opposite to number 22.[37]  Constable Chaplyn referred to the police car following the Statesman into number 22 and parking behind the Statesman.[38]

   (3)Constable Johnson said he could not recall turning the police car's lights and sirens on.[39]  At one stage in his evidence, Constable Chaplyn was 'pretty sure' that he activated the emergency lights,[40] but he later said that he was not sure and that 'I think I may have but that's a guess'.[41]

   None of those discrepancies call into question the observations which both police officers made of only one person being in the Statesman which they were closely following, and drove past as it entered the driveway of 22 Featherflower Road.

   [35] Trial ts 16 - 17, 20.

   [36] Trial ts 7.

   [37] Trial ts 9.

   [38] Trial ts 18, 20.

   [39] Trial ts 8.

   [40] Trial ts 17.

   [41] Trial ts 21.

4. It is significant that neither Ms Robinson nor Mr Hoskin have given evidence of seeing any police officers on the occasion which they described.  Ms Robinson could identify the date only as being January 2017.  Mr Hoskin was told of the date of the charge, and referred to what happened 'that day',[42] but did not say the time at which the events he described occurred.  Further, in circumstances where he was giving evidence in November 2017, and in the absence of any evidence of his recording the date, he may well have been either mistaken as to the date or simply have assumed that the events he described occurred on the date given.  Even if the events he described occurred on 18 January 2017, his evidence did not clearly indicate that the events happened at the time that the police followed and observed the Statesman being driven by a single person. 

   [42] Trial ts 39.

5. Further, neither Mr Hoskin nor Ms Robinson have given evidence as to precisely where the event they described occurred.  Mr Hoskin could not place the location on the map, exhibit P2, and referred to seeing Ms Robinson in a side street which he did not specifically identify as Featherflower Road.  Ms Robinson's affidavit does not provide any indication of the street in which the events she described occurred.

6. It does appear that Ms Robinson exists, and, had she attended trial and given evidence, the magistrate would not properly have used the vagueness of the evidence about her identity as a basis for rejecting the appellant's and Mr Hoskin's evidence.  However, that is not to say that the prosecution failed to establish beyond reasonable doubt that the appellant committed the charged offence.  The magistrate could still have rejected Mr Hoskin's evidence by reason of his difficulty in providing details, and the discrepancies between the accounts given by Mr Hoskin and the appellant.  Those discrepancies included where Mr Hoskin met the appellant (South Lake v.  Hamilton Hill), how he got there (his Falcon car v.  a pushbike), when Mr Hoskin argued with Ms Robinson (at some time 'prior' v.  in the garage of her unit and on the phone in the car) and whether the appellant and Mr Hoskin visited Ms Robinson's unit.  Those discrepancies could also have lead the magistrate to reject the appellant's evidence.

7. In circumstances where Ms Robinson has not appeared to give oral evidence, and the respondent has had no opportunity to cross-examine her, I am unable to assess the credibility of the evidence in Ms Robinson's affidavit.  Counsel for the respondent submits that this is itself a basis for concluding that a miscarriage of justice is not established.  There is considerable force in that submission.  However, it is unnecessary to determine whether that submission should ultimately be accepted.  That is because, even if the statements of fact contained in Ms Robinson's affidavit were to be believed, they would still not establish that any miscarriage of justice has occurred. 

8. Having regard to the evidence adduced at trial and in this appeal, I do not consider that the appellant's innocence or the existence of a reasonable doubt as to his guilt is established.  That is so even if it is accepted that there was a reasonable possibility that the incident described by Mr Hoskin and Ms Robinson occurred.  I am satisfied, on the basis of the police evidence as to the absence of other persons in the Statesman or its vicinity when they observed it, that, if the incident described by Mr Hoskin and Ms Robinson occurred, it must have occurred at a different time.  This conclusion is consistent with Mr Hoskin's evidence that he did not see any police, and with the absence of any indication in Ms Robinson's affidavit that she saw police.  Such a conclusion is not inconsistent with their evidence, which is vague as to precisely when and where the events they describe occurred.  The evidence adduced by the prosecution at trial was well capable of establishing, beyond reasonable doubt, that the appellant was driving the Statesman when it was observed by police, even when account is taken of Ms Robinson's affidavit and the other evidence led by the appellant at trial. 

9. In all of the circumstances, the evidence does not establish a miscarriage of justice on the basis that Ms Robinson's affidavit establishes that the appellant is innocent or should not have been convicted.  Nor is any miscarriage of justice otherwise established.  As the proposed additional evidence does not establish any miscarriage of justice, leave to adduce the additional evidence should be refused and the appeal dismissed.

Orders

1. For the above reasons, the following orders should be made in the appeal:

   (1)Leave to appeal is granted.

   (2)The application in an appeal for leave to adduce additional evidence in the appeal, filed on 12 February 2018, is dismissed.

   (3)The appeal is dismissed.