Blair v Police

[2013] NZHC 61

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI-2012-425-50 [2013] NZHC 61

SCOTT JAMES WILLIAM BLAIR

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         5 February 2013

Appearances: JAT Ross for the Appellant

R Donnelly for the Respondent

Judgment:      5 February 2013

ORAL JUDGMENT OF FOGARTY J

[1]      This is an appeal against a decision of the District Court (Judge Hubble). The Court found the appellant guilty on a charge of being found without reasonable excuse in an enclosed area at an address in Invercargill.  This followed after a short trial, and an oral judgment of the Judge.

[2]      The Crown case was that a woman had been awoken by a dog, went out and saw a male person on her property, and saw the person leap over the neighbours’ fence and head off into the night.  She was not able to identify him, other than to say that the person was wearing dark clothing which was loose, and the person was of

slight build and male. The Judge said the whole case was about identity.

BLAIR V NEW ZEALAND POLICE HC INV CRI-2012-425-50 [5 February 2013]

[3]      The police came with a police dog.  The dog picked up a scent and tracked it to the address of the appellant, who was found in the house.  The appellant had told the police at the time that he had been sleeping, implying they had woken him up. But  there was  other  evidence that  persuaded  the Judge  that  someone  had  been walking around the flat.  When the appellant presented, he was dressed in a dark top and dark jeans. The Judge relied essentially on the tracker dog’s course, picking up a scent and going to the appellant’s address.  The Judge does not refer to anybody else being in the house. The Judge does not refer to the evidence of Mr Karetai.

[4]      There was  an  admission  of facts  by agreement,  lodged  under s 9  of  the Sentencing Act, signed by the sergeant prosecutor for the informant and Mr Ross, counsel for the defendant, which records that Mr Karetai provided a sworn statement to the police, and that his evidence as per the attached brief “is accepted without requirement for further proof.”  The Judge did not refer to this evidence at all.  I am satisfied, after discussion with Mr Ross who was present, that it is possible that the brief was not handed directly to the Judge, but simply handed to the registrar, and that the brief was not drawn to the attention of the Judge.

[5]      It is Mr Karetai’s evidence that he had arrived at the appellant’s address at

1.30 am.   He was unable to gain access to the bottom floor.   He gained access through the second floor door, which required someone from the inside to let him in. The reason for not attaining access to the bottom floor is that the key to that door had been left at a tavern previously by Mr Blair.  Mr Blair was inside and let Mr Karetai in.  They both fell asleep watching television.  Mr Karetai was awoken by his dog barking, and the police were at the door.

[6]      On that evidence, Mr Blair may have been in the house between the period

1.30 am and the police arriving.  The offence occurred at 2.40 am, prior to the police arriving 160 West Street.  The possibility is that the appellant may have woken up while Mr Karetai was asleep, left 160 West Street and gone to the private premises in respect of which he has been charged.  The difficulty with that evidence is how did he get back in?  Unless possibly he left the upstairs door open.

[7]      The appellant’s argument is, taking into account Mr Karetai’s evidence, the

Crown case cannot be proved beyond a reasonable doubt.

[8]      I  am  satisfied  on  the  probabilities  that  Judge  Hubble  did  not  have  the evidence of Mr Karetai drawn to him, for his reasoning is detailed and would have referred to the evidence of Mr Karetai, had he been aware of it.

[9]      As a Judge on appeal, I do have the power to set aside the conviction and substitute a conviction or an acquittal after consideration of the whole of the record. Or I do have the ability to remit the case to the District Court for a rehearing, and I do have the ability to make that subject to a condition should the police wish to pursue the case. The Crown would prefer that the case was sent back for a rehearing, and I take that as a judgment by the Crown that the expense of that is warranted in the  public  interest.    Naturally,  Mr  Ross  for  the  appellant  wishes  the  Court  to substitute its own verdict.

[10]     As an appellate Judge, I consider I am still at some disadvantage from Judge

Hubble, who heard the evidence that was given before him.

[11]     For that reason, I am satisfied that the conviction is unsafe, and I am setting that aside.  It is set aside.  I am remitting the matter back for rehearing should the Crown elect to pursue the charge.  I am inviting the Crown to exercise its discretion one way or the other, having had an opportunity to analyse the significance of the unchallenged evidence of Mr Karetai.

[12]     I am left in some doubt as a matter of law, whether at a rehearing the Crown is held to the agreed statement of facts that I have just referred to.  Whether or not the Crown is held to that is a matter that can be argued should there be a rehearing before the Judge presiding over the rehearing.

Solicitors:

Sholefield Cockroft Lloyd, PO Box 166, Invercargill –  [email protected]

Preston Russell Law, PO Box 827, Invercargill –  [email protected]