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: [email protected]

Counsel:

T D Clee, Auckland:  [email protected]

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 evidence as to identification was that the Appellant was at the counter of the shop on the forecourt of the service station, and that the Detective got a clear view of the Appellant when the latter walked directly past him and the Detective was able to “straight look right at his face and [the Appellant] saw me, [and] acknowledged me”.[4]   Other parts of the transcript record the Detective giving similar evidence to the Court.

[4] Notes of Evidence date 3 October 2012, line 29 and 30 at 12.

[10]     The District Court Judge referred to the Detective’s identification evidence in his decision.[5]

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

[11]     The Appellant contends that Detective House did not come face to face with the person he identified as the Appellant, and that this is apparent from the CCTV footage obtained from the service station.  The Crown now accepts that Detective House did not come face to face with the person said to be the Appellant.  At the hearing of the appeal, counsel for the Appellant took me to what he says is the relevant part of the footage.   On that portion at least it does not appear that the Detective did get the direct face to face view of which he gave evidence.

[12]     I should say something about the CCTV footage.  Counsel advise me that the Police wished to adduce the footage at the trial in the District Court.  Counsel for the Appellant objected to their doing so.   The issue arose early on in the Detective’s

evidence.   The Judge ruled that he would not view the footage because, amongst

other things, the footage could not be viewed on the Court system but only on a laptop and that viewing the footage in that would preclude other interested parties, including the public, from watching it.

[13]     The Judge having ruled to that effect, the case proceeded and the Detective gave, and was cross examined on, his identification evidence.  I note that counsel for the  Appellant  did  not  revisit  the  matter  of  the  footage  with  the  Judge  at  the conclusion of the Detective’s case, so as to make it clear that counsel considered the Detective’s evidence to be irreconcilable with the footage.   Given that, I was somewhat reluctant to view the footage when I heard the appeal but the Crown had no objection to me doing so, and I understand that the Court has given leave for it to be adduced on the appeal against conviction.

[14]     Having viewed the footage, I am satisfied that an issue does arise as to the evidence given by the Detective.  That may lead to an issue as to the reliability of the identification of the Appellant and strengthen the case on appeal.  Of course, it may be that the conviction is not disturbed, whatever the CCTV footage shows, but that is a matter for the substantive appeal.

[15]     For the reason given, I allow this appeal.  Pursuant to s 107(2) LTA,   I make an order deferring the further operation of the period of disqualification imposed on the Appellant in the District Court at Whangarei on 3 October 2012.  Such deferral is to continue pending further order of the Court.

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M Peters J