F v Police HC New Plymouth Cri-2010-443-9

[2010] NZHC 1331

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2010-443-009

F

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         21 July 2010 (by telephone) Counsel:   P J Mooney for applicant

S T Ellis for respondent

Judgment:      28 July 2010

RESERVED JUDGMENT OF DOBSON J

[1]      After a defended hearing in the District Court at Hawera, Mr F   was convicted on one charge of burglary.  I dismissed his appeal.  It is unnecessary to summarise my reasons for doing so, as the relevant aspects are sufficiently traversed in explaining the grounds now advanced on behalf of Mr F   for leave to appeal under s 144 of the Summary Proceedings Act 1957.

[2]      The burgled property was a residence in Opunake.  On two occasions in short succession, liquor had been taken from a pantry area in the kitchen at the property. On each occasion, Police officers attended the scene and  fingerprinted the area

adjoining the area from which items had been taken.   No identifiable fingerprints

F V NEW ZEALAND POLICE HC NWP CRI-2010-443-009  28 July 2010

were  lifted  after  the  first  burglary,  but  Mr F  ’s  fingerprint  was  located  in identifiable form after the second burglary.

[3]      The fingerprint was the only evidence linking Mr F   to the property. None of the occupants gave evidence, but he did.  He denied ever having been to the property, and stated that he was even unsure of its precise location.  He explained the presence of his fingerprint as occurring in the course of his work on manufacture of the relevant joinery some five years previously.  He produced a job sheet from his employer’s records that was accepted as confirming his work on the relevant joinery.

[4]      The Police fingerprint expert who gave evidence acknowledged a possibility, although unlikely, that a print in identifiable form could have survived in the location that  Mr F  ’s  fingerprint  was  found,  throughout  the  five  years  since  he contributed to the manufacture of the joinery.

[5]      The District Court Judge rejected the prospect that the fingerprint could have survived in identifiable form from the time Mr F   worked on the joinery at his employer’s premises, through its installation and subsequent use for five years.   I upheld the adequacy of the Judge’s reasoning.

[6]      On behalf of Mr F  , Mr Mooney has formulated the following questions which he characterises as questions of law justifying leave for a second appeal:

a)       Was the finding of fact made by the District Court Judge (that the fingerprint was left at the time of the burglary) based on an inference which was not open to the District Court as it was not the only reasonably possible inference?

b)When there is a single evidential fact supporting a conviction (a fingerprint) and the District Court Judge found that that evidence, by itself,  would  support  a  conviction,  can  the  Judge  rely  upon  that finding to reject any alternative explanation by the appellant without the Judge considering evidence of the appellant independent of that single evidential fact?

[7]      I had reservations that both questions could extend to argument that raises questions of fact.  The first question, as one of law, depends on the standing of the proposition that the fingerprint had survived from Mr F  ’s work on the joinery during its construction as a “reasonably possible inference”.   The essence of the District Court Judge’s reasoning involved the rejection of that notion.   However, Mr Mooney foreshadowed a scope of argument that did not extend to the relative tenability of the competing inference that the fingerprint had been placed during manufacture of the joinery, and had survived since then.  Rather, he committed to confining any argument to the lawfulness of the reasoning process involved, by which the Judge rejected that possible explanation for the presence of the fingerprint, on his way to being satisfied that the prosecution had established that the fingerprint was left in the course of the burglary.  That does give rise to a question of law as to the entitlement of the Court to find the elements of a criminal charge established on the basis of an inference, notwithstanding the presence of a possible inconsistent inference.

[8]      To the extent that the real issue lying behind this question is the correctness of the Judge’s rejection of the prospect that Mr F  ’s fingerprint was placed on the joinery, other than in the course of committing a burglary, my judgment at [8] reviewed the evidence of the expert acknowledging that possibility.  It introduces the prospect of an argument on the basis of authorities such as Edwards v Bairstow that a factual finding that was not open on the evidence, or was contrary to all the

evidence, amounts to an error of law.[1]     In New Zealand, the Supreme Court has

cautioned against affording any broad standing to this possible category of questions of law,  at least in the  context of defining questions of law that are potentially appealable from decisions of the Employment Court.[2]   However, it retains at its core, in one of the formulations from Edwards v Bairstow, that questions of law for the purposes of an appeal include a state of affairs “...in which the evidence is inconsistent with and contradictory of the determination”.[3]

[1] Edwards (Inspector of Taxes) v Bairstow [1956] AC 14.

[2] Bryson v Three Foot Six Ltd [2005] 3 NZLR 721 (SC) at [26]-[27].

[3] As cited, Bryson at [26].

[9]      The  second  question  does  raise  a  genuine  issue  as  to  the  standard  of reasoning required to support an adverse credibility finding in circumstances of a summary trial where a defendant gives evidence that is, at least in part, uncontradicted.   Before me, Mr Mooney cited the decisions in Taylor v Police[4], Police v Taiatini[5] and Smith v Police[6] on the scope of this obligation.  In essence, he seeks to argue that I have wrongly applied the standard as contemplated in those

cases,  in  circumstances  where  the  District  Court  Judge  did  not  articulate  any reasoning for rejecting all of Mr F  ’s evidence, apart from the rejection of it implicit  in  the  rejection  of  Mr F  ’s  explanation  for  the  presence  of  the fingerprint.  Such an argument also risks straying into factual matters, in evaluating relatively how inter-related the various aspects of Mr F  ’s evidence were.  Was his uncontested evidence to the effect that he had never been to the property distinct from his explanation for the presence of his fingerprint on kitchen joinery there? Alternatively,  was  the  District  Court  Judge’s  rejection  of  the  latter  evidence sufficient to dispense with the need for a credibility finding in respect of his evidence including the former proposition?

[4] Taylor v Police HC Wellington CIV-2004-485-00002, 3 May 2004.

[5] Police v Taiatini HC Rotorua CIV-2005-463-000059, 7 October 2005.

[6] Smith v Police HC Wellington CRI-2007-485-85, 17 October 2007.

[10]     On  this  question  I  am  also  prepared  to  rely  on  the  form  of  argument Mr Mooney foreshadowed, as confining the point to a question of law, going to the standard reasonably expected of Judges in summary criminal trials, when required to deal with issues of credibility of key witnesses on matters going directly to the elements of a charge.

[11]     On the scope of the arguments on each of these questions foreshadowed by Mr Mooney, it would be possible to run an appeal in the Court of Appeal almost exclusively on the terms of my own judgment.  My acceptance of the District Court Judge’s  reasoning  process  gives  rise  to  the  two  questions  formulated  and  the arguable prospect that the law requires different standards than those that I applied. Certainly, Mr Mooney eschewed any need to go into the facts in any detailed way. He pointed out that both issues depend primarily on two undisputed facts - the first

that it was Mr F  ’s fingerprint on the joinery, and the second that he had been involved in its manufacture five years before.

[12]     I  am  accordingly  satisfied  that  both  questions  proposed  are  capable  of argument as questions of law.  They both raise matters of some general importance, as to the standards required in assessing evidence in summary criminal trials, and the scope of the obligation to articulate reasons for such findings.

[13]     Notwithstanding  that  the  questions  arise  in  a  relatively  unusual  factual context, it is by no means unique.  I am satisfied that the issues have the requisite general or public importance to warrant a second appeal.  As to the first question, the process for finding, and then relying upon, inferences in summary trials is important. As to the second, the standards required in dealing with issues of credibility, even if confined to circumstances in which a defendant gives evidence, are important to the summary trial process.  I note that the three relatively recent decisions referred to in [9] above are all at High Court level.

[14]     Accordingly, I grant leave on the two questions posed, as set out in [6] above.

Dobson J

Solicitors:

Mooney Webb, New Plymouth for applicant

Crown Solicitor, New Plymouth for respondent