Algie v Police
[2014] NZHC 1361
•17 June 2014
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2014-035-894 [2014] NZHC 1361
DENNIS DAVID ROSS ALGIE Appellant
v
NEW ZEALAND POLICE Respondent
Hearing: 17 June 2014 Counsel:
J K W Blathwayt for Appellant
J A Eng for RespondentJudgment:
17 June 2014
ORAL JUDGMENT OF RONALD YOUNG J
Introduction
[1] A man wearing a red helmet rode a scooter into the parking lot of Pak n Save, Masterton and unsuccessfully tried to park it. He then fell over. He was clearly drunk. He went into Pak n Save, came out and spoke to a security guard outside the supermarket. After unsuccessfully attempting to park the scooter again he went across the road and entered Thirsty Liquor. All of this was observed by two Pak n Save employees. The police were called.
[2] Shortly afterwards a man wearing a red helmet left the liquor store and was immediately spoken to by the police. He had the key to the scooter in his pocket.
But he denied he was the driver of the vehicle.
ALGIE v NZ POLICE [2014] NZHC 1361 [17 June 2014]
[3] Mr Algie was then subject to the breath/blood alcohol provisions of the Transport Act 1962. He was charged with driving with an excess blood alcohol and driving whilst disqualified. He pleaded not guilty.
[4] The District Court Judge was satisfied that the person who drove the scooter was the same person who had spoken to the constable upon leaving the liquor store and that that person was the appellant, Mr Algie.
Appeal grounds
[5] There are two grounds of appeal against conviction. First, that the Judge was wrong in fact and in law “in relation to the identification of the appellant as the rider of the motor scooter” and secondly, that the Judge failed to direct himself on the issue of identification evidence.
The facts
[6] It is necessary to give a detailed description of the facts given the appeal grounds. The prosecution called two female employees who were outside Pak n Save on a break from their employment when the man on the scooter arrived. In addition, Constable Chu, who arrested the appellant, gave evidence.
[7] Ms Charters, the first witness, said she saw a scooter and rider come into the carpark from Chapel Street which “was kind of wobbly”. The scooter and the man driving it went to a disabled carpark and came to a sudden halt and both the rider and the scooter fell over sideways. The driver of the scooter had a red helmet. He was wobbling and staggering.
[8] A co-worker who was with her rang Pak n Save security. Ms Charters described a security officer coming out and talking to the man. She was about
20 metres or so from the scooter at that stage.
[9] Ms Charters said the man then went into Pak n Save and some minutes later came out of Pak n Save and again tried to put the scooter on the stand but was unsuccessful. The witness said that the man went across the road to the Thirsty
Liquor store. Shortly afterwards the police arrived. Ms Charters told the police the person she had seen fall off the scooter was the same person that she then pointed out to the police as leaving the Thirsty Liquor store.
[10] Ms Charters said that as best she could recall the man had been wearing jeans, probably blue, a hoodie and a red helmet. She did not see the man’s face. The woman said she was certain the same man who had been riding the scooter had gone into and had come out of Thirsty Liquor store and that that was the man who was spoken to by the Constable. She had watched everything that happened that night.
[11] She accepted that she was about 100 yards away from the Thirsty Liquor store but she saw no one else going into or coming out of the store at that time. She had not seen the man’s face.
[12] In cross-examination Ms Charters accepted that in her statement to the police that night she had said the man was a “white older gentleman” and was wearing something like a woollen jersey as well as blue jeans and a red motorcycle helmet.
[13] Her co-worker, Ms Allsworth, was standing with Ms Charters that evening. She also saw the erratic driving and the sudden arrival at the car park. She considered the driver was drunk. She saw a security officer from Pak n Save talk to the man and then saw the man go over to the Thirsty Liquor store. As he came out of the store, the police arrived and she and her friend pointed the man out to the Constable.
[14] She described the man as wearing a white woollen jersey with a t-shirt over the top, possibly a hoodie under a red helmet with blue jeans. She could not see the rider’s face clearly. She was certain the person who went into the Thirsty Liquor store had exactly the same clothing as the person who came out of that store a few moments later and that that was the same person who had ridden the scooter.
[15] Constable Chu gave evidence that he spoke with the two women who told him the man who was coming out of the Thirsty Liquor store was the driver of the
scooter. The man had a woollen jersey, a t-shirt over the top, blue jeans and a red helmet. That person was Mr Algie.
[16] The Constable then searched Mr Algie. He found a key which fitted and worked the scooter that the witnesses had said Mr Algie had driven in on. Mr Algie denied driving saying that he would not drive while he was drunk.
[17] The Constable was cross-examined regarding a record made by the police call centre of a call received by them probably from the Pak n Save security guard reporting the incident. The report noted that the security guard had given a description of the drunk person as having a red helmet, grey shirt, grey pants, brown shoes and a green shoulder bag. This “evidence” was subsequently used by counsel in submissions to the Judge and dealt with in the judgment in the District Court. I will return to this aspect of the case later in the judgment.
District Court decision
[18] In a very short judgment the Judge in the District Court recorded the evidence of the two women noting that while there were some differences there were similarities in their description of the man’s clothing. The Judge then dealt with the evidence relating to what the security guard had apparently said to the police call centre. He accepted that there were differences but explained the differences as explicable from lighting and other causes. The Judge said:
[11] I consequently give weight to three aspects of the evidence. First, the consistent reference to a red helmet provided continuity to sightings of the defendant arriving at Pan ‘N’ Save, entering and leaving Pak ‘N’ Save, and entering and leaving Thirsty Liquor. Second, the somewhat different descriptions of pants and top can be explained by darkness and distance and, when those two matters are taken into account, are not radically different. Third, the presence of the keys to the scooter in the defendant’s pocket, to my mind, establishes beyond a reasonable doubt the identity of the defendant as the driver of the scooter.
Discussion
[19] The Judge at trial should not have allowed cross-examination about what the call centre operator had recorded. By then it was second removed hearsay. The security guard was not called to give evidence by the prosecution or defence.
[20] The person at the call centre who had apparently recorded what the security guard had said was not called to give evidence. The Constable who was cross-examined about the call centre notes of course knew nothing of all of this. That evidence was, therefore, inadmissible hearsay and it should not have formed any part of the evidence in the case nor should it have formed part of the Judge’s decision.
[21] I consider the second ground of appeal first, that is, the complaint that the Judge did not warn himself of the dangers of identification evidence as required by s 67A of the Summary Proceedings Act 1957.
[22] I agree with the Crown that this was not an occasion of identification of a defendant and s 67A had no application to the circumstances of this case. Section 67A provides as follows:
67A Identification evidence
Where any evidence of identity is given against the defendant and the defendant disputes that evidence, the Court shall bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, the possibility that the witness may be mistaken.
[23] This section is differently worded from the jury trial equivalent at s 126 of the Evidence Act 2006. Section 67A is concerned with “evidence of identity” being given “against the defendant”. Section 126 is explicitly concerned with visual (as relevant here) identification. However, I accept the Crowns submissions that here the evidence given was essentially descriptive or resemblance evidence. It was circumstantial evidence which, as it turned out given Constable Chu’s evidence, identified the appellant as the scooter driver.
[24] Neither of the two women said Mr Algie rode the scooter. They described a series of events including the clothing worn by the rider. It was for the Judge to decide whether this evidence, together with the other relevant circumstantial evidence, proved the case. It was for the Judge to decide as he did, whether the scooter rider was the same man that the Constable spoke to outside the liquor store.
[25] However, in my view, the Judge did bring an appropriate degree of caution to
the women’s evidence identifying the clothing of the rider.
[26] I am satisfied, therefore, there was no error in the Judge failing to explicitly mention s 67A. I do not consider he was required to give himself the identification warning. This evidence was not evidence of identity covered by s 67A. I reject this ground of appeal, therefore.
[27] The first ground of appeal is essentially a claim that there was insufficient evidence on which to convict.
[28] First, as I have noted, the evidence about what the security guard is alleged to have said to the police call centre is inadmissible. The circumstantial evidence including the evidence of the two women, and their description of the events that evening together with the appellant’s possession of the key to the scooter, overwhelmingly established the prosecution case.
[29] The appellant claimed that there was a reasonable possibility that the appellant had obtained the helmet and keys (and presumably dressed similarly to the driver) in the liquor store from the true driver of the scooter. The fallacy in this argument is there is simply no evidence that this occurred.
[30] For reasons given, therefore, the appeal against conviction will be dismissed.
[31] I turn now to the appeal against sentence. The appellant was sentenced to nine months’ imprisonment on each charge to be served concurrently. The appellant says this sentence was manifestly excessive. Mr Algie has 13 convictions for some form of intoxicated driving starting in 1982. He has 13 convictions for driving while disqualified. His blood alcohol level in the present case was 184 micrograms, more than double the maximum allowed.
[32] The appellant points out that probation officer may have at times misunderstood his conduct believing he has been intoxicated when a medical report
shows that because of the side effects from his long term alcoholism, he may appear drunk when he is not.
[33] Despite that medical evidence there is no doubt that Mr Algie is at high risk of offending in a similar way. The reality is he is not constrained by Court orders. He drives when forbidden and he drives as here, when drunk. He is not motivated to obtain treatment. And so the community are entitled to be protected from him. A significantly longer period of imprisonment, near the maximum could easily have been justified in this case and perhaps was only avoided by the gap in his last previous conviction to this offence. The nine month prison sentence, in my view, was modest. Mr Algie’s offending and his past refusal to be restricted by Court orders illustrates his unsuitability for Home Detention.
[34] The appeal against sentence is also dismissed.
Ronald Young J
Solicitors:
WCM Legal, Solicitors, Carterton
Luke Cunningham & Clere, Crown Solicitors, Wellington
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