C v Police HC Timaru CRI 2009-476-22

[2009] NZHC 2299

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY

CRI 2009-476-000022

C 

Appellant

v

POLICE

Respondent

Hearing:         15 December 2009

Appearances: Appellant in Person

D A O'Connor for Respondent

Judgment:      15 December 2009

JUDGMENT OF FOGARTY J

[1]      This is an appeal against conviction.  Mr C   is appealing from having been convicted of being the owner of a motor vehicle which was being operated on a road when the reading of the distance recorder was more than the maximum reading specified in the licence for that vehicle.  This was a diesel Nissan.

[2]      Mr C   defended the charge in the District Court at Timaru before two Justices of the Peace.  His essential defence was that there was a mistake, that it was not his vehicle that had been stopped by the constable, and accordingly he should have been acquitted.  He had a number of arguments in the Court below including

that the mileage showing on the distance recorder in his vehicle was 237,820, which

C   V POLICE  HC TIM CRI 2009-476-000022  15 December 2009

is less than what he had paid up for which was 239,132;  that the infringement notice that had been sent to him had the registered number of the Nissan as SS5977 when the registered number was SS5971.

[3]      The decision of the Justices of the Peace reveals that they resolved these issues by finding that it was Mr C   who was the driver of the vehicle, although that is not an essential element of the offence, who Constable Currie spoke to when he was examining the vehicle in question.

[4]      The Justices of the Peace appeared to establish Mr C  ’s identity in two ways, one which was an error of law, and one which was perfectly lawful.  The error of law is that the Court relied on what we call a “dock identification”.   Constable Currie gave his evidence in the traditional way whereby police constables identify the person in Court as being the person they spoke to at the scene.   That is a traditional way but has been, for some time, illegal and it is a pity that this practice still continues.    The Justices of the Peace were probably not aware that there are very strict rules now about dock identification which have to be followed before such evidence can be given.   It was compounded in this case because the Justices called Constable Currie back into the witness box at the end of the trial, reminded him that he was under oath, and asked him to identify Mr C  .  The recording of the constable said:

Yes. That is the man that I did stop.

[5]      The constable went on to say:

... I would have recorded his – he handed me his licence so I have recorded the number in my notebook.

(at 19 of the notes of evidence)

[6]      In paragraph [4] of the Justices’ decision they rely both on this positive identification in the dock and the fact that the details of his driving licence were also recorded on that specific day.

[7]      Because of my concern about the danger of relying on a dock identification, I

did seek comfort from counsel for the police, Mr O’Connor, to see what was in the

constable’s notebook.   The details of the identity of Mr C   appear on one page.  They have his name, his surname, his Christian names and as his address, the same address appearing on the infringement notice, C/- Glenmark Holiday Camp, Beaconsfield Road, Timaru.

[8]      Mr C   said that would not be the information that would have been obtained off the computer registration of the driver’s licence.   To my mind that confirms that the evidence that appears in the notebook would have been obtained from the person that the constable was speaking to at the time.

[9]      Essentially,  Mr  C  ’s  argument  has  become,  although  he  naturally formally denies it, that Constable Currie has “mocked up” his notebook creating a false document.  This matter, I am satisfied, was explored thoroughly by the Justices of the Peace at the trial, and it is simply not open to Mr C   to raise that allegation here today.  He denies he is raising that allegation.  But that is the only way he can argue against the evidence that was before the Justices of the Peace.  The constable offered to show his notebook.  I am not sure whether the Justices saw it but I have seen the notebook here today.

[10]     As I have explained to Mr C   a number of times in the course of the hearing, I do not sit here having another trial.  This is a rehearing on the record.  My principal task is to ensure that there has been no mistake made by the trial Judges, in this case, two Justices of the Peace.  I have identified one mistake, the reliance on dock  identification.    However,  I have  been  able  to  set  that  aside  and  examine whether or not the case was proved by the police absent that evidence.  I am satisfied it has and I see no grounds for setting the decision aside.

[11]     Accordingly, this appeal is dismissed.

Solicitors:

Crown Solicitor, Timaru, for Respondent

cc: J S C  , C/- Glenmark Holiday Camp, 30 Beaconsfield Road, Timaru 7972