Barton v Police - [2013] NZHC 71

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-63 [2013] NZHC 71

BETWEEN DAVID SIMON BARTON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing: 4 February 2013

Appearances: T D Clee for Appellant
C A Anderson for Respondent

Judgment: 5 February 2013

JUDGMENT OF PETERS J

This judgment was delivered by Justice Peters on 5 February 2013 at 12.30 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date: ...................................

Solicitors:
Marsden Woods Inskip & Smith, Crown Solicitor, Whangarei: catherinea@mwis.co.nz

Counsel:
T D Clee, Auckland: tc@tudorclee.net

BARTON V POLICE HC WHA CRI-2012-488-63 [5 February 2013]

[1] The Appellant appeals from a decision of the District Court at Whangarei on

3 October 2012, declining to defer the operation of an order that the Appellant not hold a driver licence (“disqualification order”) for a period of 12 months and one day.[1]

[1] Police v Barton DC Dargaville CRI-2012-011-56, 3 October 2012.

[2] The appeal is brought pursuant to s 107(2A) Land Transport Act 1998 (“LTA”) and is governed by part 4 of the Summary Proceedings Act 1957, with such modifications as may be necessary.[2]

[2] Land Transport Act 1998, s107 (2B).

[3] Following a defended hearing, on 3 October 2012 the Appellant was convicted in the District Court at Whangarei of driving whilst disqualified on a third or subsequent occasion.[3] The Judge held that the Appellant had committed the offence in Dargaville on 15 November 2011, a date when the Appellant was subject to an earlier disqualification order. In addition to making the disqualification order as required by s 32(4)(b) LTA, the Court sentenced the Appellant to a period of
community work.

[3] Ibid, ss 32 (1)(a) and 32 (4).

[4] The Appellant applied to the District Court to defer the operation of the disqualification order, on the basis that he proposed to appeal conviction and sentence. The Court has power to defer the operation of such an order pursuant to s 107(2) LTA.

[5] The District Court declined to defer the operation of the disqualification order on the basis that it was unclear when any appeal would be heard. The Appellant’s appeal against conviction and sentence (“substantive appeal”) is now to be heard on
26 March 2013 at 3.45pm.

[6] The Appellant advances a number of grounds in support of today’s appeal,
those matters going to the strength of the substantive appeal. It is necessary for me to refer to one only.

[7] The only evidence at trial was given was by a Detective House. The gist of the relevant part of the Detective’s evidence was that the Appellant is known to him, that he saw the Appellant at a service station, and that he saw the Appellant get into the driver’s door of a vehicle parked at the service station, which vehicle subsequently was driven away.

[8] The Appellant took, and takes, issue with various aspects of the Detective’s evidence but for present purposes it is sufficient to refer to the evidence as to identification.

[9] The Detective’s…

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 71
Case: [2013] NZHC 71
Decision Date: 5 February 2013

CaseChat Overview and Summary

The case of Barton v Police involves an appeal by David Simon Barton against a decision of the District Court at Whangarei. Barton was convicted of driving while disqualified and subsequently sought to defer the operation of the disqualification order, which the District Court declined. The appeal to the High Court concerns the District Court's refusal to defer the operation of the disqualification order, pending the outcome of Barton's substantive appeal against his conviction and sentence. The substantive appeal is scheduled for 26 March 2013.

The key legal issue before the court was whether the District Court was justified in declining to defer the operation of the disqualification order. Barton argued that the decision was flawed because the identification evidence provided by Detective House was questionable. Specifically, Barton pointed out that the CCTV footage from the service station did not support the Detective's claim of a clear, face-to-face identification. The Crown acknowledged this discrepancy, but the District Court had declined to view the footage and had proceeded with the trial based on the Detective's evidence. The High Court was required to determine whether the District Court's decision not to defer the disqualification order was justified, particularly in light of the potentially unreliable identification evidence.

The High Court found that there was a significant issue with the identification evidence provided by Detective House, as the CCTV footage did not support his claim of a clear, face-to-face encounter with Barton. Justice Peters allowed the appeal and deferred the operation of the disqualification order pending the outcome of the substantive appeal against conviction and sentence. This decision was based on the potential impact of the identification issue on the reliability of Barton's conviction, which would be further examined during the substantive appeal.

Pending the outcome of the substantive appeal, the High Court issued an order deferring the operation of the disqualification order imposed on Barton by the District Court. This deferral will remain in effect until further order of the Court.

Orders