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 follows:

THE COURT:

Q.        What’s been put to you is that you couldn’t see this man’s face

because he had a visor on?

A.       I saw his face clearly, as clear as I see it today.  It had a peak on it that I – I would establish – would estimate would be approximately

50 metres poking straight out from the head in a straight thing, his face was totally unobstructed and I had a clear view of him, both

when I saw him from the 45 degree angle from behind and then he turned and walked directly past me, within that close, as he walked

out of the store and I was walking up – sorry, approximately 40 centimetres close to me  as he walked directly past me, I had a straight look right at his face and he saw me, he acknowledged me.

(emphasis added)

[7]      It is clear that Judge Harvey accepted Detective House’s evidence and was prepared to draw an inference from it that Mr Barton drove a vehicle.  In particular, the Judge said:

[2]       The prosecution case has consisted of the evidence of Detective

House.  Detective House gave evidence that at approximately 1.55pm on 15

November  he  was  at  the  Mobil  Service  Station  which  abuts  Normanby

Street.   He went into the service station.   He approached the chocolate counter where he told me there are various specials from time to time.  He then began to move towards the counter where there was one other person standing.  As he did so that person turned his head and the detective said he immediately recognised that person as being the defendant David Barton ...

[3]       The detective went on to say that he watched this person carefully; that initially the defendant tried to use an Eftpos card for a purchase; that was unsuccessful.  The detective watched him take a $20 note from a shirt pocket and pay for his purchase.  He said that he then turned around and he immediately confirmed his identification and said the person who went from the counter out on to the forecourt was the defendant David Barton.   He watched Mr Barton go across the forecourt and get into a Toyota Estima motor vehicle.  The detective said that he observed no other persons around or in that vehicle.

[4]       The detective then attended to his own purchases which he estimated would have taken, he initially said a minute or two, but later in his evidence

said possibly only a few seconds.  He then went out on to the forecourt.  The

Toyota Estima had gone.

...

[7]       There is no direct evidence that Mr Barton drove that motor vehicle from the forecourt on to Normanby Street.   Accordingly, if he is to be convicted he may only be convicted if I am able to draw an inference from proven facts.   I remind myself that it is not for the defendant to prove anything; it is for the prosecution to prove its case beyond reasonable doubt. The defendant does not have to do or say anything.  The fact that he does not, does not add to the case against him.  The simple question that I have to ask myself is am I able to safely draw the inference that it was the defendant who drove the Toyota Estima from that forecourt?

[8]       There is no doubt, that it is unchallenged, that the person that the detective saw leave the service station went to that car and got into the driver’s side.   I have found that person was the defendant.   I accept the identification evidence.  ...

[9]       Accordingly, I am left with a situation that Mr Barton leaves the service station, gets into the driver’s side of his motor vehicle and very shortly thereafter, there not being any other persons seen around or in that motor vehicle, when the detective arrives on the forecourt the vehicle has gone.  The only sensible inference that I can draw from those facts is that it was the defendant that drove that motor vehicle.  He was disqualified at the time and, accordingly, on this charge he is convicted.

(emphasis added)

[8]      In written submissions filed for the purpose of this appeal, Ms Anderson, for the Crown has conceded that Detective House was “mistaken” in giving evidence at the defended hearing about seeing Mr Barton in that unobstructed way.   That concession arises out of a review of the CCTV footage that the prosecution could not play at the defended hearing.  Although Ms Anderson sought to persuade me that there were other bases on which the Judge might have found that Detective House’s identification evidence was reliable, I cannot safely conclude that the Judge would not have taken a different view had the detective been forced to admit his error about having seen Mr Barton “face on” in an unobstructed manner.

[9]      I do not propose to say any more about the evidence given on the question of identification.  That will fall to be reconsidered by a Judge at a hearing I intend to order.

[10]     Mr Clee, for Mr Barton, submitted strongly that the information should be dismissed, if the appeal were allowed.  The usual course is to order a rehearing in a case of this type which involves alleged offending of at least a moderate nature.1

[11]     On the papers, at this  stage,  I cannot  say whether Detective House  was genuinely mistakenly or whether, as Mr Barton will no doubt suggest, there was a more sinister motive for his  evidence.   That  being so,  it  is  appropriate for the information to be reheard in the District Court.

[12]     I am mindful also that no attempt was made to draw the Judge’s attention to

the need for the footage to be played to cross-examine on the new evidence given.

[13] Mr Clee has also raised a question of costs. For the same reason, in relation to any possible motivation to give false evidence, I am not prepared to order costs. That is an issue which Mr Barton may wish to revisit should he be found not guilty on the rehearing. It would be open to him to make an application under the Costs in Criminal Cases Act 1967, should circumstances permit that course. I make no comment on whether such an application might or might not be successful.

[14]     For those reasons, the appeal is allowed.  The conviction entered against Mr

Barton and the sentence imposed in consequence are  set aside.   A rehearing is ordered.

P R Heath J

1      See, for example, Wilgermein v R [2010] NZCA 597, at para [9].