Ball v Police

[2013] NZHC 2943

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI 2013-409-92 [2013] NZHC 2943

MATTHEW BALL Appellant

v

NEW ZEALAND POLICE Respondent

Hearing:	7 November 2013
Appearances:	M Sewell for Appellant A Williams for Respondent
Judgment:	7 November 2013

ORAL JUDGMENT OF FOGARTY J

[1]      This is an appeal against a conviction on one charge of driving with excess breath alcohol.

[2]      As the trial Judge said in his opening remarks on sentencing:

Mr Ball it is a great shame that the consequences of these convictions for you are going to be so drastic and I can understand why you put the police to the proof of these charges.

[3]      This  charge  of  driving  with  excess  alcohol  is  different  from  the  normal charge, where the driver is apprehended by the police, breath tested and found to be driving with excess blood alcohol.

[4]      The background of the situation was that this young man had been at the home of a girl on the night of 13 December. They had had a relationship, but by then

it had foundered.  They had a row, a row so noisy that it attracted the attention of the

BALL v NEW ZEALAND POLICE [2013] NZHC 2943 [7 November 2013]

neighbours.   It was the police case that he assaulted the girl, and he has been convicted of that.  It was alleged he left the property and did so by driving off in a motorcar.  He was subsequently apprehended by the police that very night and breath tested, blowing 898.  So it is that he has been charged with an excess breath alcohol offence in its aggravated form.

[5]      In relation to the drink-drive charge there is only one issue, have the police proved beyond reasonable doubt that he drove the vehicle away from the address?

[6]      The complainant’s evidence was that the angry exchange continued outside. She went to retrieve an item of clothing from the car, before giving it back to Mr Ball.  He waited on the porch.  She then gave him the key.  She went back inside.  By giving it back, she says that the accused had loaned her a car that she had the use of on that day.  She heard the vehicle drive off at pace, spinning the wheels.

[7]      The neighbours, I have already noted, had their attention drawn to this row by the noise, and there were two eye witnesses to the car leaving.  They both heard a loud argument between a male and a female.  They saw a man they had seen before at this property, although none could say with certainty that it was Mr Ball.  They described the driver as the man who was involved in the argument.   They say he drove off at pace with the wheels spinning.  Both describe the clothing that this man wore, which included a white singlet.  Mr Ball denied wearing a white singlet that night.   However, Constable Bell, who saw him at the police station while being photographed, told the Judge that he indeed had a white singlet, and so corroborated the account of the eye witnesses.   Mr Ball denied that he was wearing a white singlet.  He denied that he would ever go about exposing so much skin.  He says his skin was not attractive, he simply would not do that.

[8]      The critical piece of evidence was the firm evidence of Constable Bell that he was wearing a white singlet.

[9]      Counsel defending Mr Ball had been recently instructed.  There had been a row with one earlier counsel, and another counsel had been approached.  Mr Fletcher from the Public Defence Service was briefed late in the piece.   He has filed an

affidavit saying that, shortly before the hearing, he requested copies of the arrest photographs.    They  were  not  available  on  the  prosecutor’s  file,  and  were  not available to me on the date of the hearing.   He says in his affidavit that the significance of the arrest photographs was not recognised until the evidence of the officer in charge, Constable Bell, was given, where Constable Bell described what the appellant was wearing at the time of his arrest.

[10]     After  the  hearing,  on  14  August,  he  made  a  further  request  for  the photographs, but this was declined by the prosecutor, via email, because the proceedings had ended.   At this time, he learned that the photographs had been previously disclosed to  the original  counsel, Mr Michael  Bendall.   Mr Fletcher pursued the matter and requested the photographs from Mr Bendall, and attached them to his affidavit.  These show Mr Ball wearing a multi-coloured shirt of some sort, clearly not a white singlet.

[11]     In his evidence, Constable Bell states quite simply, in answer to an open question:

Q.       Did you observe what the defendant was wearing?

A.        Yes he was wearing a white singlet and he had overalls that were tied around his waist, ah, pants and, um, boots on.  I don’t recall the colour of the boots.

Q.       Do you recall the colour of the overalls?

A.        Um, oh they had – oh, um, it was a dark coloured, possibly a dark blue and it was – had, um, some s- fluoro stripes on it which I believe to be orange.

He was asked:

Q.        Was Mr Ball wearing anything else on his top besides the white singlet?

A.       Not that I can recall.

And then, later on, when it comes to the photograph, Constable Ball says:

A.       ...he is fingerprinted and photographed at the station...  I didn’t take

a photo of him.

Q.        In the photograph, I am aware he is shown wearing a hi viz and blue top.  Can you comment on that processing photograph?

A.        Yes, um, I believe there’s an authorised officer there at the time who took the photograph.

Q.       Oh, sorry, you can’t give hearsay, unless you saw it yourself?

A.        Oh yes, yeah ... he was there, he took a photograph, I was standing there and he asked if he could zip up the, um, overalls ‘cos he was cold.

Q.       And where - did the white singlet remain on or did he take that off? A.      It remained on underneath the overalls.

Q.       And did you observe this yourself? A.     Yes.

[12]     The criticism of that evidence is that he did not address the presence of the T-shirt.  If it was just a case of pulling the bib up, it would not explain the presence of the T-shirt.

[13]     Mr Williams,  for  the  Crown,  said  that  it  has  to  be  appreciated  that  the constable was giving evidence some considerable time after the night in question. The night in question was on 13 December 2012.  The hearing was on 13 August

2013.

[14]     I have found this an unusual case.   In normal circumstances, I would not upset the trial verdict.   Judge Moran is an extremely experienced trial Judge. Focussing on the evidence that he had before him, I think the verdict of guilty was inevitable.  I am concerned, however, about the actions of Mr Fletcher.  Normally, one would expect Mr Fletcher to have accepted the verdict.  But it is clear from his affidavit that he was troubled by the absence of the photograph.  He had requested it prior to the hearing.  He followed it up after the hearing.  He obtained it.  I also note he followed it up immediately after the hearing on 14 August.   It was not a case where perhaps he was asked to follow it up later on.  He also says in his evidence, at paragraph 8, that the significance of the arrest photographs were not recognised until the evidence of the officer in charge was given.

[15]     I have decided that I should give weight to the disquiet that Mr Fletcher has about the conduct of this trial.   I am influenced by the drastic consequences to Mr Ball, whose occupation is effectively ended by this conviction, at least for over a year.  He was disqualified, as I said before, from holding a licence for one year and one day.

[16]     I do not mean this judgment to be in any way a criticism of Judge Moran.  On the evidence before him, as I said, the conviction would be inevitable.   But I am sufficiently concerned that there might have been a miscarriage of justice here.  I am also keeping in mind that when miscarriages of justice do occur in many cases they are on problems of identity, and eye witness statements are difficult.  We need to also keep in mind that there was one other man at the house that night, who did leave early.  That is on the accused’s evidence anyway.  He is named, and enquiries can be made.

[17]     After some hesitation, in the end, I have decided that the safest course is to set aside this conviction and order a retrial.

Solicitors:

M Sewell, Christchurch

Raymond Donnelly & Co, Christchurch