Austin v Police - [2013] NZHC 54

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-285 [2013] NZHC 54

BETWEEN AARON JAMES AUSTIN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 February 2013

Counsel: AJ Haskett for Appellant
KV Mills for Respondent

Judgment: 4 February 2013

ORAL JUDGMENT BY RODNEY HANSEN J

Solicitors: Legal Defence Service Limited, P O Box 90265, Auckland 1142 for Respondent
(Email: lawyer@legaldefence.co.nz )
Meredith Connell, P O Box 2213, Auckland 1140 for Respondent
(Email: kate.mills@meredithconnell.co.nz )

AARON JAMES AUSTIN V NEW ZEALAND POLICE HC AK CRI-2012-404-285 [4 February 2013]

Introduction

[1] On 23 August 2012, after a hearing before Judge Fitzgerald in the Auckland District Court, Mr Austin was convicted on a charge of driving while disqualified. He was fined $600 and disqualified from driving for six months.

[2] Mr Austin’s defence relied on evidence that at the time he drove he did not know that he was disqualified. This is the so-called Millar defence based on a requirement that while knowledge of disqualification is to be assumed in the absence of evidence suggesting otherwise, if there is such evidence the prosecution must
affirmatively prove knowledge beyond reasonable doubt.[1]

[1] Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 669.

[3] Mr Austin appeals against conviction on the grounds that the Judge wrongly excluded evidence of prior consistent statements that would have assisted the defence. Alternatively, it is submitted that even without those prior consistent statements, the evidence did not establish to the requisite standard that Mr Austin knew that he was disqualified at the time he was apprehended.

Background facts

[4] Mr Austin was disqualified from driving for six months on 6 May 2011. He was stopped by the police while riding his motorbike on 14 October 2011. He told both police officers to whom he spoke at the time that he believed his disqualification had come to an end. In evidence at the hearing, Mr Austin reasserted his belief, claiming that he believed the period he was disqualified from driving ended on 6 October 2011. He said that the miscalculation of one month was “just a stuff up on my behalf”. In cross-examination it was put to him that he was aware that he could not get his licence back until November. He emphatically rejected that proposition.

[5] In re-examination, Mr Haskett, who also represented Mr Austin in the District

Court, sought to introduce evidence of conversations in which Mr Austin had

discussed with a friend the date on which the period of disqualification would expire. He argued that these conversations were admissible under s 35(2) of the Evidence Act 2006 on the basis that the prosecution’s cross-examination challenged Mr Austin’s veracity by a claim of recent invention. The application was declined by Judge Fitzgerald who did not accept that there had been a claim of recent invention.

Judge’s decision

[6] In his decision Judge Fitzgerald rejected Mr Austin’s claim that he believed his period of disqualification ended on 6 October 2011. He said there were unsatisfactory aspects…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Austin v Police

Details

AGLC: Austin v Police [2013] NZHC 54
Case: [2013] NZHC 54
Decision Date: 4 February 2013

CaseChat Overview and Summary

In the case of Austin v Police, Aaron James Austin, the appellant, challenged his conviction for driving while disqualified, which was imposed by the Auckland District Court. The central issue in the appeal was whether the District Court judge had erred in excluding evidence of prior consistent statements, which the appellant's counsel argued would have supported his defence that he was unaware of his disqualification at the time of the offence. The appellant contended that the exclusion of this evidence was a miscarriage of justice, potentially altering the outcome of the case. Alternatively, the appellant submitted that even without the excluded evidence, the prosecution had failed to prove beyond reasonable doubt that he knew he was disqualified.

The court examined the admissibility of the prior consistent statements under section 35(2) of the Evidence Act 2006, which permits the introduction of such statements if they are necessary to counter a challenge to the witness's veracity or accuracy, including claims of recent invention. The District Court judge had ruled that the prosecution's cross-examination did not constitute a claim of recent invention, thus excluding the prior consistent statements. The High Court found that the prosecution had indeed challenged the appellant's veracity on the basis of recent invention, and that the District Court judge's interpretation of "recent" was too narrow. Consequently, the High Court concluded that the evidence should have been admitted, leading to a miscarriage of justice.

The High Court determined that the appeal should be allowed, and the conviction quashed. The matter was remitted back to the District Court for a rehearing, allowing for the consideration of the excluded evidence. This decision highlights the importance of correctly applying the principles of evidence law, particularly in relation to challenges of veracity and the admissibility of prior consistent statements.

Orders