Commissioner of Police v Vincent (aka Ashby)

[2015] NZHC 2639

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CIV-2014-404-56

CIV-2012-404-925 [2015] NZHC 2639

UNDER

the Criminal Proceeds (Recovery) Act

2009

BETWEEN

THE COMMISSIONER OF POLICE Plaintiff / Applicant

AND

LEE VINCENT (AKA KEMP WARWICK ASHBY)

First Defendant / First Respondent

DIANE ERLENE ASHBY

Second Defendant / Second Respondent

Hearing:	(on the papers)
Appearances:	M Harborow for the Applicant T J Rainey and STA Ellis for the Respondents
Judgment:	27 October 2015

JUDGMENT OF JUSTICE WOODHOUSE

This judgment was delivered by me on 27 October 2015 at 4:00 p.m. pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

……………………………………

Solicitors:

Mr M R Harborow, Meredith Connell, Office of the Crown Solicitor, Auckland

Mr T J Rainey and Ms STA Ellis, Rainey Law, Solicitors, Auckland

COMMISSIONER OF POLICE v VINCENT [2015] NZHC 2639 [27 October 2015]

[1]      The applicant seeks leave, and an extension of time, to file and serve an affidavit of Detective Gavin Bruce which will adopt the contents of the affidavit of Detective Senior Sergeant Colin Parmenter sworn on 23 November 2012.  Leave and an extension of time are required because the final date for filing any affidavits for the Commissioner was 10 July 2015.   The substantive hearing commences next week, on 2 November 2015.

[2]      The application is opposed by the respondents.

[3]      This application is made because Detective Senior Sergeant Parmenter is unavailable to give evidence in court or by AVL during the week of 2 November. The applicant says that Detective Bruce is familiar with the police investigation and the prosecution giving rise to the present proceeding, and was one of the three officers-in-charge of the investigation.

[4]      The respondents oppose the application on the grounds that it amounts to an application  for Detective Bruce to  give  evidence on  behalf  of  Detective Senior Sergeant Parmenter and there is no legal foundation for such an order to be made. There are further submissions in support of the opposition, but what I have just recorded captures the essence of the respondents’ contention.

[5]      I am satisfied that the application should be granted.   The respondents’ opposition  is  founded  on  a  false  premise.    The  present  application  is  not  an application for one person to give evidence on behalf of another person.  The present application is for Detective Bruce to give original evidence which he is said to be capable of giving and which will be identical to the evidence which would otherwise have been given by Detective Senior Sergeant Parmenter.  This does not breach any rule of evidence, or any other legal principle.  It is common for more than one person to be able to give the same evidence.  If Detective Bruce states on oath that he is able to give the same evidence that has already been recorded in the affidavit of Detective Senior Sergeant Parmenter, then Detective Bruce will be giving original evidence which is the same as the detailed evidence recorded in the earlier affidavit.  It would be no different from what the position would have been if the original affidavit had

come from Detective Bruce rather than Detective Senior Sergeant Parmenter.   Or both police officers could have provided identical affidavits in February 2012.

[6]      There is also no prejudice to the respondents from granting the application to file this affidavit or in giving leave for it to be done after the timetable date.  The evidence the respondents may wish to challenge has not changed.  Detective Bruce’s evidence-in-chief, subject to any proper supplementary evidence-in-chief, will be what is contained in his own affidavit together with the detailed evidence, which he will have adopted, in the affidavit of Detective Senior Sergeant Parmenter.   The respondents will be able to challenge this evidence in exactly the same way they could have challenged the evidence if it had been given by Detective Senior Sergeant Parmenter. And if Detective Bruce is unable to confirm particular pieces of evidence

from his own knowledge that evidence will be inadmissible.

Woodhouse J