Emmerson v Police HC Blenheim CRI-2011-406-000010

[2011] NZHC 1043

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2011-406-000010

BETWEEN  THOMAS WATENE DAVID RANGI EMMERSON

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         20 June 2011

Counsel:         J G Holdaway for Appellant

H J Boyd-Wilson for Respondent

Judgment:      28 June 2011

In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 3.00pm on the 28th day of June 2011.

RESERVED JUDGMENT OF GENDALL J

[1]      The appellant was convicted by two Justices of the Peace, after a defended hearing in the District Court at Blenheim on 20 April 2011 of failing to wear a seatbelt and refusing to give his name and address details to the police.   On the former charge he was fined $150, court costs $132.89 and on the second charge, he was fined $100 and ordered to pay court costs $132.89.

[2]      He   appeals,   it   is   said   in   his   counsel’s   submissions,   against   “those convictions”, although the grounds set out in the notice of appeal relate only to the charge of failing to wear a seatbelt.  However, I apprehend that the basis advanced for the appeal against both convictions is the claim that disclosure was not made to the appellant and his counsel was not given adequate time to prepare a defence, and

as a consequence the appellant was denied a fair hearing.

EMMERSON V NEW ZEALAND POLICE HC BLE CRI-2011-406-000010 28 June 2011

Background

[3]      On 21 December 2010, just after 2.00pm, a police patrol vehicle being driven by  Constable  Barrow,  who  was  attached  to  the  Strategic  Traffic  Unit  of  the New Zealand Police in Blenheim, stopped a motor vehicle in which the appellant was a front seat passenger.  The only other occupant was the driver.  The constable’s evidence was that he had seen that the appellant was not wearing a seatbelt when the vehicle passed him, although when interviewed the appellant had the belt fastened. The officer informed him that he was going to be issued with an infringement notice. That could, and should, have been dealt with under the infringement offence and notice procedures.  But the appellant declined to give his name, address and date of birth, to the officer when invited to do so.  He was belligerent.  He was told that if he refused  he  could  be  arrested,  to  which  he  responded  “arrest  me  then”.    That followed.

[4]      The appellant was taken to the Blenheim police station where he chose to speak a lawyer, Mr J G Holdaway, by telephone.  The solicitor arrived at the police station to speak with the appellant.  The appellant then contended – and still does – that he had at all times been wearing his seatbelt.  But it is not said that the appellant then, or subsequently, formally instructed Mr Holdaway or any other solicitor.

[5]      Because he had been arrested the charges against him proceeded summarily and he appeared in the Blenheim District Court on 10 January 2011, and entered not guilty pleas.  The information is endorsed that he “declines free legal advice”.  On 11

January 2011 he was advised in writing that the informations would be heard on a defended basis on 20 April 2011.   Obviously, he prepared for the hearing as he attended on that day at the District Court together with his defence witness, to defend the summons and to represent himself.

[6]     The prosecution called one witness, namely Constable Barrow.   At the completion  of  his  evidence  in  chief  the  transcript  records  that  Mr  Holdaway

appeared in Court, advising the Justices that:[1]

I do appear for Mr Emmerson.  I was just talking with him a few minutes before this case started, so I’ve missed half of the examination-in-chief but if I may be of assistance to Mr Emmerson?

[1] Police v Emmerson DC Blenheim Notes of Evidence CRI 2010-006-2554, 20 April 2011 at 7.

[7]      Counsel’s submissions state that it was after the hearing commenced that the appellant asked if he could speak to a lawyer but this is not entirely clear, because the transcript indicates the Justices had granted an adjournment to Mr Emmerson at an earlier stage.  Nevertheless that is immaterial.  The record shows that as counsel had not arrived by 10.30am the Court continued with the evidence of the witness, Constable  Barrow.    But  upon  Mr Holdaway’s  intervention  an  adjournment  was granted so that he could take instructions.  It is not explained by the appellant why this had not occurred  at any time over the proceeding four months,  although  I surmise it because the appellant did not wish to have legal representation.   That adjournment was from 10.56am until 11.05am during which time counsel was given the brief of Constable Barrow.  This records in fact what was the evidence that he gave.

[8]      Mr Holdaway then cross-examined the constable.  He clearly had instructions from the appellant because he was able to put to the constable details of what the appellant and the driver of the vehicle would say in evidence.  The police constable was questioned about whether he was driving a vehicle which was a “marked” or “unmarked” police car because counsel put it to him that the appellant and his witness would say that the officer was driving a “marked police car”.   In re- examination, Constable Barrow was adamant that he was driving an “unmarked” car describing the colour, make and registration number of this car, being an unmarked mufti vehicle of the Strategic Traffic Unit.

[9]      The appellant and the driver of the vehicle gave evidence.   The Justices rejected their evidence that the appellant was wearing a seatbelt when the car went past the vehicle in which the constable was stationed.  There was no real dispute that the appellant failed to give his name, address, and particulars to the police officer, that being the reason why he was arrested.

[10]     Submissions advanced in support of the appeal were broadly to the effect that the appellant was denied a fair hearing because:

counsel did not receive full disclosure under the Criminal Disclosure Act

2008;

he was not able to properly represent himself;

counsel   did   not   have   sufficient   time  to   receive   adequate  proper instructions to represent him which, as a consequence, required that the

hearing be adjourned;

counsel  submitted  the  Justices  erred  in  preferring  the  evidence  of Constable Barrow to that of the appellant and his witness and were wrong to find that the charge of failing to wear a seatbelt had been proved

beyond reasonable doubt.

Discussion

[11]     It is clear the appellant sought the assistance of counsel when he was at the police station on 21 December 2010.  It is not said what, if anything, occurred by way of preparation of the defence over the next four months.  It was a simple case. Was Constable Barrow right or wrong;   reliable or mistaken;   in what he said he saw?   Mr Holdaway advised the Court that he had not been instructed during that period and as I have said on the appellant’s first appearance on 10 January 2011, the information is noted “declined free legal advice”.

[12]     There is no doubt that the appellant himself would have prepared, after a fashion, for the defended hearing because he and his witness attended at Court on a day on which he had been told that the hearing would proceed.

[13]     Despite counsel’s assertion in his written submissions that the appellant did not receive “disclosure”, that is not correct.  The police have filed an affidavit from a police sergeant in Blenheim to the effect that he personally served the appellant with “full disclosure” at 0116 hours on 13 February 2011. That is not now disputed.  Why the appellant should initially have claimed that there was “no disclosure” has not been explained, although it may be that this was meant to refer to disclosure to his

counsel.   But of course there had been no counsel earlier engaged.   In any event Mr Holdaway submitted from the bar that the disclosure was not sufficient because of the time it was made to the appellant.  He asserted from the bar that the appellant instructed him that the disclosure documents were lost or not retained by the appellant.

[14]     Given that there was full disclosure made direct to the appellant at a time when he asserts (as does his counsel) that he was unrepresented, there is no merit in the argument that disclosure was not made.  Disclosure is required to be made to the defendant or, if there is representation, to counsel.  I do not accept there is any force in the argument that disclosure was somehow defective or ineffectual because of the hour at which it was completed.  If the appellant had continued to represent himself at  the  defended  hearing  he  could  not  have  argued  that  somehow  he  was disadvantaged through disclosure not having occurred, because in fact it had.

[15]     Upon Mr Holdaway being instructed at the Court he was given the proof of evidence of Constable Barrow and it is not said that there were any other relevant statements made by, or taken from, other witnesses (whether to be called or not) that needed to be disclosed.  Mr Holdaway submitted, however, that Constable Barrow’s notebook entry should have been disclosed.   Challenge has not been made to the respondent’s  affidavit  that  “full”  disclosure,  which  would  have  included  the notebook entries, was made to the appellant.   But what Mr Holdaway complains about, in essence, is that he did not receive a copy of the notebook entries after he was instructed at the time after the hearing had started.  His position therefore is that had he received the notebook entries he would have been able to more effectively cross-examine Constable Barrow.  I will return to this point later but at the moment I do not accept the allegation that there was a breach of the Criminal Disclosure Act because no disclosure had been made to the appellant.

[16]     I also reject the argument that counsel was not given adequate time to prepare a defence.  As I have said, the case was relatively simple and within a narrow ambit, namely whether the prosecution could prove beyond reasonable doubt that the appellant was not wearing a seatbelt when observed by Constable Barrow and whether the Court should reject the evidence of both the appellant and his witness.

The appellant had a period of four months in which to engage counsel and prepare his defence.   Naturally, Mr Holdaway had little time to do so but was granted an adjournment, and took instructions.   Given the simple nature of the case any preparation would not have taken long.   He was able to test the officer in cross- examination  by  putting  the  position  of  the  appellant  and  his  witness,  and  to effectively lead the evidence of those two witnesses on all material aspects of the defence case.   He was also able to direct some questions in re-examination to the appellant.  The Court is not left with any concern from the transcript of the evidence that Mr Holdaway or the appellant were hampered or disadvantaged in the proper presentation of a defence because of inadequate preparation time.

[17]     Mr Holdaway referred to a number of reported decisions, including Allen v Police[2]  in which Giles J allowed an appeal against conviction where a prosecutor had not discharged the duty to comply with a request for disclosure of records relating to maintenance and calibration of evidential breath testing devices.  But that was an entirely different case and understandably the Judge found that there had been an abuse of process through their being a deliberate failure or refusal to supply

material, which existed and which had been requested but the request was not responded to.

[2] Allen v Police [1999] 1 NZLR 356 (HC).

[18]     I do not accept the argument that the Justices were not entitled to come to the view that the charge had been proved beyond reasonable doubt.  Once they reached the conclusion that they preferred the evidence of Constable Barrow and that “his evidence  was  clear  and  unequivocal  and  is  accepted  without  reservation”[3]   and rejected the defence evidence, then it was inevitable that they would find the charge proved as based upon those factual findings they were entitled to do.

[3] New Zealand Police v Emmerson DC Blenheim CRI 2010-006-002554, 20 April 2011 at [13].

[19]     Provided Justices explain reasons for accepting the evidence of one witness and rejecting another, it is rare that credibility findings or findings of fact, which are reasonably open on the evidence would be disturbed on appeal.  It is that fact-finder who is required to be sure and not have a reasonable doubt.  That is, an honest and

reasonable uncertainty about the guilt of an accused after having given careful and

impartial consideration of all the evidence.  In this case the Justices had the obvious advantage of seeing the three witnesses who gave evidence, assessing their consistency, reliability and credibility and they gave detailed reasons for their credibility findings.  An appellate court ought not substitute its own factual findings. So, to this point, the arguments advanced in support of the appeal fail and would be dismissed but for one feature which troubles me.

[20]     That aspect of the case which gives me some concern does not arise from anything the prosecution did or did not do.  Nor from any error on the part of the Justices.  It actually arises as a consequence of the appellant’s own stupidity in not retaining all or any of the material disclosed to him.  Because he did not do so and told Mr Holdaway that he had not had disclosure he was not able to provide that material to counsel.

[21]    This Court has an inherent jurisdiction to ensure as far as possible that something does not go wrong in the course of any proceeding which might possibly affect the ends of justice.   It is not possible to set out in advance the myriad of situations that might arise, through the fault of no one but which might give cause for concern.   In this case the Court has seen the entries in Constable Barrow’s notebook, which largely mirror or parallel his brief of evidence and the evidence that he gave in Court – except in one respect.  The notebook entry records that he was driving a “marked police car”.  His brief of evidence which was made available to Mr Holdaway, and his evidence in chief and cross-examination was that he was using an “unmarked police vehicle, or mufti police car”.   The appellant and his witness’s  evidence  was  that  the  constable  was  driving  a  “marked”  police  car. Mr Holdaway  cross-examined  Constable  Barrow  about  this  and  the  discrepancy between his evidence and that which was said the appellant and his witness would give.  But counsel did not have the notebook entry. And if he had had a copy of it he may have been able to cross-examine the officer more effectively because of a supposed “prior inconsistent statement”.

[22]     As I have said the full disclosure had been made available direct to the appellant many weeks earlier.  He could hardly complain about it not being available to counsel when he finally got round to instructing him. Also if he had looked at the

disclosed material he would surely have known what it contained and no doubt have instructed Mr Holdaway about it.

[23]     But, in the end, the concern comes down to the ability of Mr Holdaway to cross-examine effectively.  It would not matter unless his absence of knowledge of the  notebook  entry  might  not  have  had  any  material  effect.    But  the  Justices, properly, gave careful reasons why they preferred the evidence of Constable Barrow. Amongst those reasons for rejecting the evidence of the appellant and his witness, was  the  specific  reference  to  what  the  Justices  said  were  discrepancies  in  the evidence as to the colour and type of police car driven by the constable, which they themselves led “to a credibility issue”.  Naturally, they gave other reasons to explain their preference for the evidence of the constable.   The issue of prior inconsistent statements is well known to all lawyers and Judges and the possible relevance of them to fact finders.  That is in two respects, namely on the issue of credibility of the witness and secondly, whether the prior statement is in fact evidence of the truth as to what it asserts.  It is impossible to say whether the acceptance of the credibility of the police constable would have been the same, or different, had he been cross- examined as to what appears to be a prior inconsistent statement.  The findings may well have been the same.  Whilst this case may seem to be rather more about the reliability of the constable’s observations than strictly about “credibility” that, however, is how the Justices appear to have approached it.

[24]     As I have said, the appellant has only himself to blame. The manner in which counsel came to be instructed and the information which he had, even in this very straightforward and simple case, might well have impeded him in properly putting before the Justices matters which, provided they had agreed with him, might have been capable of affecting the outcome.  The possibility of a different outcome could not be discounted.

[25]     For those reasons the Justices’ conviction on the charge of failing to wear a seatbelt is set aside, as is the fine and court costs.  However, I propose to exercise this Court’s power under s 131 of the Summary Proceedings Act 1957 to remit the matter to the District Court at Blenheim, with the direction that the information be reheard.   The findings that this Court have made have largely arisen through the

actions  of  the  appellant  himself  in  not  retaining  the  disclosed  material,  nor instructing his counsel as to the contents, and it is proper in all the circumstances that the information be reheard.

[26]     Concerning the conviction for the breach of s 52(1)(c) of refusing to give details to the police, Mr Holdaway had submitted to the Justices that a conviction on this charge was dependent upon the appellant being convicted of the seatbelt charge. I do not accept that that is correct.   The offence is completed upon refusing to comply with a lawful requirement given to the appellant under the Act by the police officer.  Under s 113 a police officer in uniform or in possession of a warrant, for the purpose of enforcement of any provisions of the Land Transport Act 1998 (and other described statutes) may direct a person on a road (whether or not in charge of a vehicle) to give his name, address, date of birth, occupation and telephone number or

such of those particulars as the enforcement officer may specify.[4]   That power must

of course be exercised in good faith and for proper purposes.[5]

[4] Land Transport Act 1998, s 113(2)(a).

[5] See Baker v Ministry of Transport (1988) 3 CRNZ 169 (HC) as an example of this.

[27]     Obviously, with infringement offences, it is essential for the officer to know of the name and address of the alleged offender so as to issue an infringement notice, because without those particulars it cannot be completed.  That is why the refusal, in this case, led to arrest – as it must otherwise an alleged offender can simply walk away.

[28]     This conviction stands on its own and arises from the failure and refusal to provide the information lawfully required.  Counsel has not made any submissions whether in writing, or orally, to dispute those propositions.

[29]     The conviction which was entered and the fine and costs imposed in respect of that matter are confirmed.

J W Gendall J

Solicitors:

Crown Solicitor, Nelson for Respondent