Barton v Police - [2013] NZHC 607

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI 2012-488-63 [2013] NZHC 607

BETWEEN DAVID SIMON BARTON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 26 March 2013

Counsel: T Clee for Appellant
C A Anderson for Respondent

Judgment: 26 March 2013

(ORAL) JUDGMENT OF HEATH J

Solicitors:
Crown Solicitor, PO Box 146, Whangarei
Counsel:
T Clee, Private Bag 92185, Auckland

BARTON V NEW ZEALAND POLICE HC WHA CRI 2012-488-63 [26 March 2013]

[1] Mr Barton was charged with driving a motor vehicle on a road in Dargaville, on 15 November 2011, while disqualified from holding or obtaining a driver licence. The charge was put on the basis that he had previously been convicted on at least two occasions of an offence against s 32(1) of the Land Transport Act or corresponding offences to which s 32(5) refers.

[2] Following a defended hearing in the District Court at Dargaville on 3 October

2012, Judge Duncan Harvey gave an oral decision in which he found Mr Barton guilty on the charge. He was convicted and subsequently sentenced to 200 hours community work. Mr Barton was also disqualified from driving for a period of 12 months and one day.

[3] Mr Barton appeals against conviction. He does so primarily, though other grounds are raised, on the basis that the identification evidence on which the Judge relied was flawed. There was no direct evidence of anyone having seen Mr Barton driving. A finding to that effect could only be made from inferences that the Judge was prepared to draw from evidence of identification given by Detective House, who had seen a person at a service station who drove away in a car. The identification evidence was based on “recognition” of a person whom the detective said he had seen before.

[4] There are two aspects of the appeal which together have led me to the conclusion that the conviction is unsafe.

[5] The first concerns the inability of the prosecution to play, during the course of Detective House’s evidence in chief, a CCTV recording taken at the relevant service station. It appears that when efforts were made to play the recording in open Court, the television system failed. Judge Harvey ruled that the CCTV would not be admitted in evidence on the grounds that it could not be played in open Court, where other interested members of the public might see it.

[6] What transpired after that event is the second aspect giving rise to my concerns. Detective House had given evidence that he had recognised Mr Barton

when seeing him from a number of angles. In evidence in chief he did not refer to having seen Mr Barton “front on”. While under cross-examination from counsel for Mr Barton, Judge Harvey sought to clarify a question put as to Detective House’s ability to identify the person whom he saw as Mr Barton, given that a visor was being worn. The exchange that took place is recorded in the notes of evidence as…

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 Barton v Police

Details

AGLC: Barton v Police [2013] NZHC 607
Case: [2013] NZHC 607
Decision Date: 26 March 2013

CaseChat Overview and Summary

In the High Court of New Zealand, Mr David Barton appealed against his conviction for driving while disqualified. The conviction arose from an incident where Mr Barton was allegedly seen driving a vehicle from a service station by Detective House, who subsequently identified him as the driver. The District Court found Mr Barton guilty, and he was sentenced to 200 hours of community work and disqualified from driving for 12 months and one day. Mr Barton's appeal primarily focused on the reliability of Detective House's identification evidence. The appeal centred on two key issues: the failure to play a CCTV recording at the service station due to technical difficulties, and Detective House's testimony about having seen Mr Barton's face unobstructed, which was later found to be incorrect.

The court was required to determine whether the conviction was based on reliable evidence and if the failure to play the CCTV footage and the incorrect testimony affected the safety of the conviction. The court noted that the CCTV footage was not played due to technical issues, and Judge Harvey decided not to admit it in evidence. Furthermore, Detective House's testimony about seeing Mr Barton's face unobstructed was later found to be incorrect, leading to questions about the reliability of the identification evidence. The Crown conceded that Detective House was mistaken about seeing Mr Barton unobstructed, which raised doubts about the reliability of the identification evidence.

The court concluded that the conviction was unsafe due to the issues with the identification evidence. The failure to play the CCTV footage and the incorrect testimony about seeing Mr Barton's face unobstructed created doubts about the reliability of the evidence. The court decided to allow the appeal, set aside the conviction, and order a rehearing in the District Court. The court also declined to order costs, as it was uncertain whether Detective House genuinely made a mistake or had a more sinister motive for his evidence. The court left the question of costs open for Mr Barton to revisit if he were found not guilty on the rehearing.

Orders