Daniels v Police
[2015] NZHC 358
•4 March 2015
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2014-409-036 [2015] NZHC 358
BETWEEN IAN MALCOLM DANIELS Appellant AND
POLICE Respondent
Hearing: 19 February 2015 Counsel:
J D Lucas for Appellant
N A Pointer for RespondentJudgment:
4 March 2015
JUDGMENT OF THE HON JUSTICE KÓS
[1] A bad day for Mr Daniels, and one about to get worse. After drowning his sorrows at a local bar he went out to his truck and started the engine. At that point a police constable emerged from the shadows of the night, breath-tested Mr Daniels and arrested him.
[2] Judge O’Driscoll convicted Mr Daniels of attempting to drive a motor vehicle
with excess breath alcohol.1 He was sentenced to 12 months supervision, fined
$1,500, and was also disqualified from holding a driver’s licence for 12 months and one day.
[3] Mr Daniels now appeals against conviction and sentence.
Background
[4] It was unchallenged in evidence that at about 1.30 am on Saturday 9 March
2013, Mr Daniels was sitting in the driver’s seat of his truck, with engine on,
1 Land Transport Act 1998, s 56; Police v Daniels DC Christchurch CRI-2013-009-002738,
9 April 2014.
DANIELS v POLICE [2015] NZHC 358 [4 March 2015]
headlights on, and an indicator blinking.2 At that point Constable Christianson, as I
have said, breath-tested and arrested him.
[5] What was challenged was what Mr Daniels said to the constable. The constable’s evidence was that Mr Daniels had said that he was “just having a sleep”. And that Mr Daniels could not explain why he had started the engine to do that. The constable’s notebook entries were produced in evidence. They include a contemporaneous note to that effect. It was apparently taken between 1.34 am and
1.45 am. Mr Daniels’ previous counsel did not challenge the constable’s recollection directly. But he did put to him that Mr Daniels’ evidence would be that he had started the engine in order to recharge the battery in his cellphone so that he could make a phone call. The constable said Mr Daniels had not given such an explanation at the time.
[6] Mr Daniels gave evidence before the Judge. He explained that he had had a very bad day with family issues. As a result he had been drinking for some hours at the bar. He said he had only started the engine to charge the cellphone. He went on to say:
I turned the key on, the truck was running, and I dialled my friend’s number. I couldn’t get a hold of one of them so I rang my other mate Dave’s number and I got through to him. But that’s when the police officer approached the vehicle so I just basically told him and hung up.
In cross-examination he gave a slightly different account:
Q. You say that when the constable approached, you were actually talking to your friend Dave on the phone?
A. I had his number dialled, I’ve got it on my phone bill which I can’t actually download at the moment because I am not with that provider any more.
[7] He denied saying that he was “having a sleep”. He said he had not had time for a sleep after leaving the bar.
2 There was some dispute as to which indicator was blinking. The Judge said it was of little moment to the prosecution case anyway. There was a real possibility it had simply been left on when the vehicle was parked. I agree. The headlights being on is, however, a different matter.
[8] In convicting Mr Daniels, Judge O’Driscoll was firmly of the view that Constable Christianson’s evidence was to be preferred where in conflict with that of Mr Daniels. He had taken notes, contemporaneously. They appeared to be accurate. They confirmed the statement made about being there to have a sleep. The constable had not been drinking, whereas the defendant had (his breath alcohol reading was
794 mcg). Mr Daniels had not given the new cellphone explanation to the constable at the time.
Conviction appeal
[9] The first issue is whether new evidence should now be received.
New evidence?
[10] As the passage quoted in [7] above shows, Mr Daniels felt that his phone records would support his position. He did not have them with him at trial. Now he has accessed them. They show one call, made at 1.36 am on the relevant day, lasting for 1 minute or less. He seeks leave to introduce this evidence on appeal. In an affidavit he explains that he could not get the Vodafone bill from his emails, despite numerous attempts. He could not access his inbox. He said “I really wanted to show the Court the phone records”. But he accepts he did not do anything to obtain them direct from Vodafone.
[11] Section 119(3) of the Summary Proceedings Act 1957 permits the Court to consider new evidence. But there are two qualifications. The first, provided expressly in the provision, is that the new evidence “could not in the circumstances have reasonably been adduced at the hearing”. The second is that the evidence is credible and cogent (in the sense that it might make a material difference to the outcome). I accept of course, as the Court of Appeal said in R v Bain, that the
overriding test is whether it is in the interests of justice to consider the evidence:3
The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on the criterion being fulfilled.
[12] On appeal before me, two witnesses were called.
[13] Mr Daniels gave evidence explaining, first, the difficulty he had had with his emails. I have commented on that already.4 Then he also gave evidence about the telephone conversation demonstrated by the new phone records. He said that the call was to a friend of his, David Fry. Mr Fry is a police officer. He and Mr Daniels had got to know each other in the territorial army. Unsurprisingly, Mr Fry was not terribly pleased to be woken at 1.36 am. Mr Daniels said:
I told him that I wanted to talk and catch up. I then noticed a police officer approaching my vehicle. I said to him that a “… cop was coming. What do I do?” He was very abrupt and told me “I can’t help you. Do what they ask” and then hung up.
[14] That recollection was challenged in cross-examination by Ms Pointer. She put to him that he only rang Mr Fry after he had been approached by the police. Mr Fry said so, and the words “What do I do?” were consistent with that. Mr Daniels denied that was so.
[15] The other witness was Mr Fry. He was called by the respondent. His evidence was it was a brief phone call. It had woken him. Mr Daniels had told him that “he had been picked up by the police for drunk driving”. Mr Fry thought he could hear a police radio in the background. He denied Mr Daniels’ explanation that the police had intervened part way through the conversation. Although the conversation had occurred almost two years ago, he believed his memory was reasonably clear because it was a significant and unusual phone call. He was clear that Mr Daniels had already been caught drink driving, and was “resigned” about that fact.
Discussion
[16] I reach the following conclusions.
[17] I do not find this evidence fresh, in the sense it could not reasonably have been obtained at the time of the original trial. Mr Daniels was plainly conscious of
the importance of the Vodafone records to corroborate his defence. He said he made numerous attempts to enter his inbox. He accepted in cross-examination that he could have rung Vodafone directly and obtained a copy of the accounts from them. I cannot believe that that option did not, in the circumstances, occur to him.
[18] That being said, however, if the evidence were credible and cogent (in the sense it might make a difference to his conviction), I would have put this requirement to one side, despite the express words of s 115(3). The Court of Appeal in Bain indicated that might be done. That permissive approach has been reinforced by the recent decision of the Court of Appeal in Banks v R.5
[19] I do not, however, find the new evidence either credible or cogent.
[20] The new evidence tendered shows, unquestionably, a telephone call being made to Mr Fry at 1.36 am. If Constable Christianson’s notes are correct as to timing, that occurred in the nine minute gap between the constable giving Mr Daniels the evidential breath test, and then reading him his rights (1.34 am), and Mr Daniels’ interview resuming at the Hornby Police Station around the corner (at
1.45 am). During that time Constable Christianson appears to have had time to make notes in his notebook. It is equally credible that Mr Daniels had time then to make a telephone call. There is no evidence that his cellphone had been taken from him.
[21] Mr Fry’s evidence was clear that Mr Daniels had already been picked up by the police for drunk driving at the time the brief call was made. Having heard the two conflicting accounts, I accept the evidence given to me by Mr Fry. And, to the extent his evidence differs, I do not accept the account given by Mr Daniels. In doing so I bear in mind, particularly, these points. Mr Daniels was intoxicated, whereas Mr Fry was not. Mr Fry’s evidence was independent and unaffected by interest. Mr Daniels’ evidence about the telephone call to Mr Fry was equivocal at trial (as to whether, when the police approached him, he was speaking to Mr Daniels
or simply had dialled him).6 The Judge accepted that the “sleep” explanation had in
fact been given to Constable Christianson. And that the cellphone explanation had
5 Banks v R [2014] NZCA 575 at [28].
6 See [6] above.
not. Mr Daniels had past convictions for excess breath alcohol. Regardless of his state of intoxication, he must have appreciated the predicament he was in. That was evident from his conversation with Mr Fry, on the account given by each of them in evidence. In those circumstances, and if Mr Daniels’ account of his actions was correct, the only credible course would have been to explain to Constable Christianson (1) the fact that he was in the car with the engine running solely in order to be able to make a telephone call (and not to sleep, let alone drive), (2) that he was in the midst of making that very call when approached by the constable, and (3) (probably) that he was on the line to a fellow police officer, who could corroborate his account. This Mr Daniels did not do.
[22] The cellphone records, absent explanation, are simply neutral. The explanation offered, when set alongside the evidence of Mr Fry and Mr Daniel’s earlier averals, is not credible. For these reasons I find the new evidence neither fresh, nor credible, nor cogent. It is not admitted.
Conclusion
[23] It was not seriously submitted by Mr Lucas that the conviction appeal might be allowed absent the new evidence.
[24] The conviction appeal must be dismissed.
Sentence appeal
[25] I heard no oral submissions on the appeal against sentence. But it is addressed in written submissions.
[26] The focus of the sentence appeal is on the imposition of the disqualification period of one year and one day. That accords with the requirement of s 56(4) of the Land Transport Act 1998. But s 81(1) of the Act permits the Court not to impose the mandatory disqualification if special reasons exist.
[27] In this case Mr Lucas submits special reasons do exist. The appellant had not in fact moved the vehicle. Had he done so, the distance driven home would have been short only.
[28] I agree, however, with Ms Pointer that special reasons against disqualifications rarely exist in breath alcohol cases.7
[29] In Ministry of Transport v Jeffs8 the respondent was a passenger in a car left parked on a dotted yellow line outside a restaurant. When another car moved out of a parking space 12 or so metres away, he went out to shift his friend’s car into that safer, legal location. The District Court Judge held special reasons existed not to disqualify. He bore in mind the respondent’s public-spirited intent, short distance involved, and lack of real risk. On appeal by the Ministry, Hardie Boys J refused to alter that decision.
[30] On the other hand, in Coombs v Kehoe,9 the defendant moved his truck some
200 metres in order to park it. In the course of that manoeuvre he collided. The Queen’s Bench Division there found he was a potential danger to other road users. No special reasons existed not to disqualify, and in that case the informant’s appeal was allowed.
[31] This part of the appeal proceeds on the basis that Mr Daniels, contrary to his declared evidence, intended to drive home. That was a distance of about
1 kilometre. He had two prior excess breath alcohol convictions (the last in 2011). The power of the Court under s 81 to dispense with the minimum disqualification is a discretionary one. I do not find Judge O’Driscoll erred in his exercise of discretion by considering irrelevant matters, failing to consider relevant matters, or reaching a decision that is plainly wrong.
[32] The sentence appeal must be dismissed.
7 Lower Hutt City Council v McAlpine [1972] NZLR 168; Mawkes v Otahuhu Borough Council
[1987] 1 NZLR 284.
8 Ministry of Transport v Jeffs HC Dunedin AP 50/87, 1 September 1987. The English case James v Hall [1972] 2 All ER 59 (QBD) was similar.
9 Coombs v Kehoe [1971] 1 WLR 797 (QBD).
Result
[33] Conviction and sentence appeals dismissed.
Stephen Kós J
Solicitors:
Public Defence Service, Christchurch for Appellant
Crown Solicitor, Christchurch for Respondent