A v Police HC Wanganui CRI 2009-483-22

[2009] NZHC 1170

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI 2009-483-22

A

v

NEW ZEALAND POLICE

Hearing:         3 September 2009 (Heard at Wellington)

Counsel:         D Goodlet for Accused

L C Rowe for Crown

Judgment:      3 September 2009

JUDGMENT OF SIMON FRANCE J (Appeal against conviction)

[1]      This is an unopposed appeal against conviction.   For reasons that can be briefly stated I consider that the Crown concession is proper.  The issue which arises for me is whether its request for a rehearing should be granted.

Facts

[2]      Mr A   was charged with driving while disqualified.

[3]      On 16 January 2009 an off duty officer was involved in a driving incident.  A

green Cherokee jeep was accelerating fast away from lights on the inside of the

A V NEW ZEALAND POLICE HC WANG CRI 2009-483-22 3 September 2009

officer.  He went to change lanes; the officer tooted his horn and the driver of the jeep gestured with his fingers.  There then followed a short period of harassment by the jeep driver, including tailgating before they turned in opposite directions.  The officer did not get the number plate.  He went to the police station and filed a report. He had a good opportunity to see the person, and he noticed heavy tattooing on the right arm and hand.

[4]      One week later, while on duty, he saw the jeep parked in Hackett Street, Wanganui.  He took the registration number.  Two to three days later he drove by the address.   The jeep was not there but sitting on the porch was the man the officer believes was the driver.  Nothing else was done about that.  In Court the officer made a dock ID of Mr A  .

[5]      Mr A   was not arrested on this matter till three months later.  Why it had come to be believed he was the driver is not known.

Discussion

[6]      That is the extent of the police evidence.  The appeal has preceded on one of counsel error, it being said that Mr A  ’ alibi defence was not put.   The alibi witness was called but proper alibi evidence was not led from him.  Mr A   was not called.   His version of why, and the advice he says he received, if accepted would indicate a significant counsel error.

[7]      There is no affidavit from trial counsel.  Mr Rowe has spoken to her and has included in his submission the gist of counsel’s response.   No affidavit is filed because the Crown accept that, regardless of whose fault it is, the defence was not put.  A rehearing is sought.

[8]      Mr A   evidence, amongst other things, is that he knows the person who lives at the address outside which the jeep was parked.  He is a person who scares Mr A   so that is why he did not approach him prior to trial.  Mr A   says this person has tattooing as described by the prosecution witness.

[9]      The   experienced   District   Court   Judge   was   plainly   concerned   about identification, and what he perceived was an elusive alibi defence.   He asked the alibi witness to describe Mr A  ’ tattooing.  I presume this was done to read into the record what the Judge could see in Court.  Mr A  , on counsel’s instructions, was sitting in Court with his right sleeve rolled up, and the other rolled down.  The description does not seem to match the off duty officer’s description of the driver’s. The Judge concluded that the absence of evidence from the accused was enough in this case to see the prosecution onus as discharged.

[10]     In my view the case has several unsatisfactory elements.  The only evidence is effectively a dock identification by a person who saw the driver briefly in a road rage incident, and then again, he believes, ten days later at a house.  His belief that it was the driver on the porch is necessarily influenced by his having seen what he thinks was the same jeep outside that address three days earlier.   Whether it is a correct identification is not for this Court to say.   What can be said is that it is a classic blueprint for a mistaken identification and, quite frankly, these issues were not tested at all by trial defence counsel.

[11]     It is not clear on the prosecution evidence why it might be Mr A  .  He does not own the jeep.  The police know who does, and spoke to her.  Presumably that person’s statement could not produce evidence helpful to the prosecution in terms of providing evidence of an opportunity for Mr A   to have driven.  If not, was the jeep owner’s inability to help of benefit to the defence?   No doubt her statement was disclosed.

[12]     As noted, in his evidence filed on appeal, Mr A   says he knows who lives at the house where the officer says he saw the driver.  If the witness, a police officer, said he saw the driver at that house, was the occupant interviewed?  Is he, as Mr A   says, known to the police?  Does he have similar tattoos?  Was any sort of identification effort made using photos of both these men?

[13]     The prosecution led no evidence at all of a connection between Mr A   and  either  the  jeep  or  the  address  at  where  the  driver  was  seen.     But,  in

cross-examination, the only defence witness said that Mr A   stayed with him the witness or with his cousin:

Where’s his cousin, where’s that? Over the river.

Do you know what street?

Yeah 50 Hackett.

50 Hackett Street? Yeah.

So he goes there and says sometimes too does he? Occasionally yeah.

[14]     50 Hackett Street is the relevant address where the officer saw the person he thinks was the driver.  Was this very good/fortuitous cross-examination or was there prior knowledge of a connection?   If so, why was it not led?   I do not know. Conversely, why in his affidavit now before the Court Mr A   does not address this, but rather continues to speak as if the resident at 50 Hackett Street is a stranger is equally a concern to me.  This trial witness had said in evidence that the man was a cousin of Mr A   with whom he stayed.

Conclusion

[15]     I have concluded there should be no rehearing.  The identification evidence led by the prosecution was inadmissible.   It was not the product of a formal procedure.   The prosecution therefore needed to establish, before calling it, that it had been obtained in circumstances establishing beyond reasonable doubt its reliability.  It could not have done that.

[16]     Mr Rowe submits that since there was no objection to the evidence, the fact that the prosecution had not proved its admissibility should not tell against a rehearing.  There is general merit in that point, but here the prosecution could not have succeeded had it tried.  It was doomed to miss by a considerable margin.  That being so, I am of the view there should be no rehearing.

[17]     The appeal is allowed, the conviction is quashed and no rehearing is ordered.

Simon France J

Solicitors:

D Goodlet, Barrister, Wanganui, fax [phone]

L C Rowe, Armstrong Barton, PO Box 441, Wanganui, email:  lan[email protected]