C v Police HC Auckland CRI-2007-404-265
[2008] NZHC 1258
•8 August 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2007-404-265
C
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 5 August 2008
Appearances: Mr A J Haskett for Appellant
Ms E Harrison for Respondent
Judgment: 8 August 2008 at 2.30 pm
JUDGMENT OF LANG J
[on application for leave to appeal to Court of Appeal]
This judgment was delivered by me on 8 August 2008 at 2.30 pm, pursuant to Rule
540(4) of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Meredith Connell, Auckland
Counsel:Mr A J Haskett, Auckland
C V NZ POLICE HC AK CRI-2007-404-265 8 August 2008
[1] On 24 August 2007 Her Honour Judge Burnett convicted Mr C on charges of burglary and converting a truck to his own use. Mr C appealed against his conviction but in a judgment delivered on 30 June 2008 I dismissed his appeal. He now seeks leave to appeal to the Court of Appeal against that decision.
Relevant principles
[2] There is no dispute regarding the principles to be applied in considering an application for leave to appeal to the Court of Appeal.
[3] Section 144 of the Summary Proceedings Act 1957 provides as follows:
144 Appeal to Court of Appeal
(1) Either party may, with the leave of the [High Court], appeal to the Court of Appeal against any determination of the [High Court] on any case stated for the opinion of the [High Court] under section 107 of this Act or against any determination of the [High Court] on a question of law arising in any general appeal:
Provided that, if the [High Court] refuses to grant leave to appeal to the
Court of Appeal, the Court of Appeal may grant special leave to appeal.
(2) A party desiring to appeal to the Court of Appeal under this section shall, within 21 days after the determination of the [High Court], or within such further time as that Court may allow, give notice of his application for leave to appeal in such manner as may be directed by the rules of that Court, and the [High Court] may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.
[4] As will be evident from the wording of s144(2), this Court will only grant leave to appeal to the Court of Appeal if it is of the opinion that the proposed appeal raises a question of law that, by reason for its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision. This reflects the principle that, generally speaking, there should not be a second right of appeal from a decision of the District Court in proceedings brought under the Summary Proceedings Act 1957.
[5] In the leading authority, R v Slater [1997] 1 NZLR 211 the Court of Appeal said (at p 215):
Section 144 was not intended to provide a second tier of appeal from decisions of the District Court in proceedings under the Summary Proceedings Act. Parliament intended such proceedings to be brought to finality with the defendant having an appeal to the High Court other than when the conditions it has specified in subs (2) and (3) are met and leave to appeal is granted. Neither the determination of what comprises a question of law, nor the question whether that point of law raises a question of general or public importance, are to be diluted.
[6] I therefore proceed on the basis that, in order to succeed in this application, Mr C must persuade me that the proposed appeal raises a question or questions of law that are of general or public importance.
The proposed questions on appeal
[7] The application for leave to appeal does not articulate the proposed grounds of appeal in the form of questions of law. Instead, it describes those grounds in a way that would normally be appropriate for a general appeal rather than an appeal by leave. The application records the proposed grounds in the following way:
Justice Lang erred in fact and law, including:
Applying the provisions of the Evidence Act 2006 to the matter whereas the proceeding in the District Court commenced prior to that Act.
Ruling inadmissible and relying on the spreadsheet whereas it was not admissible in either the District or High Courts.
Ruling admissible and relying on the scene or crime fingerprint form whereas it was not produced or authenticated as required.
Ruling admissible and relying on the non-expert evidence of Constable
McKenzie.
Not ruling on the defence evidence or rejecting it as required.
[8] I now deal with each of the proposed grounds in turn.
1. Applying the provisions of the Evidence Act 2006 to this proceeding
[9] Counsel’s point in relation to this issue is that the informations against Mr C were laid and called in the District Court for the first time prior to the date upon the Evidence Act 2006 came into force. As a result, he contended that it was
not open to either the District Court or this Court to apply the provisions of the Act in determining the informations and the appeal.
[10] This submission overlooks the fact that neither my judgment nor that of the Judge in the District Court makes any reference to the provisions of the Evidence Act 2006. I did not determine any issue on appeal with reference to the provisions of the Act. Neither did the Judge in the District Court. For that reason I do not see how it can be said that either Judge erred by applying the provisions of the Act. I do not consider this ground of appeal to be arguable on the facts.
2. The spreadsheet
[11] I did not “rule admissible” or “rely on” the spreadsheets in my judgment. Rather, I held that the objection that counsel for the appellant had taken to the production of that document in the District Court was later withdrawn or waived. As a result, I concluded that both counsel and the Judge in the Court below were entitled to rely on the matters contained in the spreadsheet.
[12] Counsel for the appellant contended that the failure to object to evidence during the trial at first instance is not fatal to raising the same point on appeal. As authority for that proposition he referred me to the decision of the Court of appeal in R v Tafiti CA490/97, 19 March 1998. I accept, in general terms, the correctness of that proposition. In Tafiti, however, the Court referred in this context to R v Samuels [1962] NZLR 1036. In that case the Court of Appeal held that an objection to inadmissible evidence may be advanced on appeal “where the Court is satisfied that the failure to object at trial was due to inadvertence”. There can be no suggestion of inadvertence in the present case. Counsel who acted for Mr C in the District Court raised an initial objection to the production of the document. After the Judge suggested that counsel should read the provisions of the Act, however, counsel took the objection no further.
[13] In advancing the present application counsel now acting for Mr C submitted that the Judge’s intervention had had the effect of “steering” Mr
C ’s previous counsel away from pursuing her objection. There is nothing before me, however, to indicate that that is in fact what occurred.
[14] Having re-read the transcript of the evidence, I remain satisfied that counsel must have elected not to pursue the objection. Instead, she chose to cross-examine Mr Dickey regarding matters of substance referred to in the spreadsheet. She may well have elected to do so because she perceived that the spreadsheet contained material that was helpful to the defence. In those circumstances I remain of the view that it was open to counsel to pursue the objection on appeal when it was effectively waived or abandoned in the District Court. This issue does not raise, in my view, an arguable point of law.
3. The scene of crime fingerprint form
[15] Counsel’s point in relation to this issue is that Constable McKenzie, the police officer who created the scene of crime fingerprint form, did not confirm that he created the form that was later produced as an exhibit. This situation arose because Constable McKenzie did not produce the form. It was produced instead by the fingerprint expert, who gave evidence after Constable McKenzie. The fingerprint expert had received the scene of crime form from the Auckland police, and he identified Mr C ’s fingerprint on the form.
[16] I dealt with this issue in my judgment as follows:
[54] Constable McKenzie confirmed in his brief of evidence, which he read to the Court by consent, that he went to Mr Dickey’s yard on 20
January 2006. There he examined the pickup truck. He was able to develop
a fingerprint impression on the exterior of the driver’s door panel. He then lifted that fingerprint and preserved it by way of fingerprint tape applied to a clear backing sheet. He described the fingerprint as “Lift 01”. He said that he also prepared a scene of crime form at the time that he took the fingerprint lift. This contained relevant case details. Constable McKenzie said that he then put both the fingerprint lift and the scene of crime form in an envelope, and sent them to the Auckland Fingerprint Section.
[55] The fingerprint expert, who is attached to the Auckland Fingerprint Section, then gave evidence. He said that on 9 February 2006 the Auckland Fingerprint Section received an envelope containing a fingerprint lift dated
20 January 2006. He then produced both the fingerprint lift and the scene of crime form as exhibits. The documents speak for themselves. The
fingerprint lift is marked “01”. The scene of crime form was clearly that
which Constable McKenzie prepared, because it records that he prepared the form and it relates to the burglary of the premises of Knight & Dickey Limited. It also shows the lift, described as “01”, as having been taken from the area of the driver’s door to which Constable McKenzie referred in his brief of evidence.
[56] Counsel for Mr C now suggests that the Judge ought to have been left in a reasonable doubt as to whether the fingerprint lift and the scene of crime form that Constable McKenzie prepared and sent to the Auckland Fingerprint Section were the same documents that the fingerprint expert examined. On the evidence, I do not consider that there can be any doubt regarding that issue. There was ample evidence to confirm that the documents that the fingerprint expert produced were the same documents that Constable McKenzie prepared on 20 January 2006 and sent to the Auckland Fingerprint Section.
[17] As I also said in my decision (at [53]), I consider that this issue has probably been raised because appellate counsel was not counsel for Mr C at the trial in the District Court. It is manifestly clear that the fingerprint form that the fingerprint officer produced was in fact the form that Constable McKenzie created. It was a matter of fact for the Judge to determine whether or not the prosecution had proved that that was the case. On the face of the documents themselves, I consider that that issue is settled beyond any doubt. I do not think that this issue raises an arguable point of law.
4. The evidence of Constable McKenzie
[18] In determining the appeal I did not “rule admissible” or “rely upon” the evidence of Constable McKenzie. The issue to be determined on appeal was whether Judge Burnett had placed “inappropriate weight” on the evidence of Constable McKenzie. This evidence was to the effect that Constable McKenzie considered that the fingerprint had been placed on the door of the truck recently.
[19] I held at [39] that the Judge was entitled to place some reliance on the evidence of Constable McKenzie because of his past experience as a scene of crime officer. I was also satisfied , however, that the Judge did not rely solely upon the evidence of Constable McKenzie. Rather, she undertook her own analysis of the evidence. For this reason I determined at [42] that the Judge did not place inappropriate weight on the evidence of Constable McKenzie. I do not see that this issue raises an arguable point of law.
5. The defence evidence
[20] The complaint under this head is that the Judge in the District Court ought to have expressly dealt with the evidence called by the defence. That evidence was to the effect that Mr C had seen Mr Campbell in the truck in town at some undetermined point prior to the date of the burglary. He had approached Mr Campbell and may have leaned against the truck. The defence contended that, in leaning against the truck, Mr C may have left his fingerprint on the door of the truck.
[21] As I indicated in my decision at [65], this explanation fell away once the Judge accepted, as I was satisfied that she was entitled to, that the fingerprint could only have been placed on the door of the truck whilst Mr C was sitting inside it. Mr C accepts that he did not sit inside the truck at the time on the occasion upon which he spoke to Mr Campbell. That being the case, I concluded that the Judge was entitled to reject the defence evidence and that she must have done so notwithstanding the fact that she made no express reference to that fact.
[22] That remains my position. I do not see how the defence explanation was tenable given the location of the fingerprint on the door of the truck. The Judge was entitled, in my view, to reject the defence theory notwithstanding the fact that she did not do so expressly. I do not consider that any point of law arises in relation to this issue.
Conclusion
[23] For the reasons set out above I have not been persuaded that Mr C has raised any arguable point of law. Even if I had found in his favour of the appellant in relation to that issue, I do not consider that the proposed appeal raises any issue of general or public importance. The issues that counsel has raised are discrete, and relate to matters that will have no relevance beyond the present proceeding.
[24] I am not satisfied, either, that there is any risk in the present case that a miscarriage of justice has occurred. I consider that the prosecution case against Mr C was relatively strong, and that the Judge was quite entitled to reach the conclusion that the prosecution had proved that he was responsible for the burglary.
[25] For these reasons I do not consider that this case raises issues that justify a second appeal to the Court of Appeal.
Result
[26] The application for leave to appeal to the Court of Appeal is dismissed.
Lang J
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