Fenton v Police HC New Plymouth CRI 2010-443-9

[2010] NZHC 953

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

CRI-2010-443-000009

MARCUS JOHN FENTON

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 June 2010

Counsel:         P J Mooney for appellant

S T Ellis for respondent

Judgment:      11 June 2010

RESERVED JUDGMENT OF DOBSON J

Solicitors:

P J Mooney, Mooney & Webb, PO Box 999, New Plymouth ([email protected]) S T Ellis, Auld Brewer Mazengarb & McEwen, PO Box 738, New Plymouth (sam[email protected]z)

FENTON V NEW ZEALAND POLICE  HC NWP CRI-2010-443-000009  11 June 2010

[1]      Mr Fenton appeals against his conviction on one charge of burglary.   The charge was the subject of a defended hearing in the District Court at Hawera on

28 April 2010.  Mr Fenton was convicted and fined $500, with Court costs of $130.

[2]      The charge relates to the burglary of a residential property in Fox Street, Opunake.  There were two burglaries in relatively short succession in August 2008, with the only items taken being bottles of liquor from a pantry area, on both occasions.  Constable Taylor investigated complaints after both burglaries and took fingerprints of the area in the pantry near to where the alcohol had been taken from. On the first occasion, no fingerprints were detected, but on the second occasion a clear fingerprint of Mr Fenton’s was identified relatively high up on an internal wall of open pantry shelving.

[3]      There  is  no  issue  that  the  fingerprint  belongs  to  Mr Fenton.    He  gave evidence in which he denied ever having been at the property, and indeed denies knowing where it is.  His explanation for the presence of his fingerprint is that he worked on the construction of the joinery units some five years ago, so that on his analysis the fingerprint must have survived from that time.  He produced a job sheet from his then employer identifying him as the employee responsible for constructing the joinery, and that was not contested by the Police.

[4]      Mr Fenton gave evidence that he had no previous convictions.   From his perspective,  it would be an  extraordinary coincidence for him to choose as the subject of a burglary a property in respect of which he had previously constructed the kitchen joinery.

[5]      Mr Mooney challenged, under two broad headings, the reasons in support of the Judge’s finding on the charge.  First, that the findings were against the weight of evidence in that the Judge made assumptions favourable to the informant when not entitled to in respect of matters on which the onus rested on the prosecution to establish the factual matters beyond reasonable doubt.

[6]      The second ground was that in circumstances where the accused had given evidence and provided a positive explanation in support of his denial of the charge,

then the Judge’s reasoning was required to explicitly acknowledge the basis on which the adverse credibility finding had been made.  Mr Mooney submitted, on the basis of authority, that the reasoning ought to have included an explicit finding on credibility, with reasons why the evidence of the accused had been rejected.

[7]      No  evidence  was  called  from  the  occupants  of  the  burgled  residence. Evidence for  the Police  was  from  the investigating constable,  and  a fingerprint officer employed by the Police.  The investigating constable could not be sure that his dusting for fingerprints after the first burglary, and wiping of surfaces in the pantry area after doing so, extended to the point at which he was able to identify a clear fingerprint, in his investigation after the second burglary.   Accordingly, the Police case could not negative the prospect that the fingerprint found after the second burglary had already been there when the area was dusted and wiped on the first occasion.

[8]      The fingerprint officer accepted that it was not possible to date a fingerprint, and that if a fingerprint had not been interfered with in any way, it might remain in detectable form from the time the joinery was constructed in 2003 until the burglary was reported in 2008.  The fingerprint officer used a range of expressions to describe the likelihood of a clear fingerprint surviving in such circumstances:

...highly unlikely, but nevertheless possible as long as it wasn’t interfered with...

...you would have to have almost perfect conditions and (inaudible) entirely unlikely but not impossible

And in cross-examination:

...I thought it was highly unlikely, but possible.

And in response to the question as to whether it was possible:

...certainly, if it hasn’t been interfered with any way, certainly.

[9]      The essence of the Judge’s reasoning was in the following paragraphs of his notes on sentencing:

[10]     This matter has been put, quite fairly, to Mr Johnston who is the police expert, and it is clear that you cannot date fingerprints.  Given perfect conditions they will last and can be determined as a fingerprint even if they have apparently been in place for some 20 years, but that requires them to be in a perfect situation with no interference in any way whatsoever to the placement of that fingerprint.   So we must accept from that evidence that longevity will not necessarily destroy the fingerprint, provided the circumstances  surrounding its  placement  and positioning are  perfect and there has been no intervening act that would cause difficulties for its preservation.  And that is where I think Mr Fenton may have some problems.

[11]      If his fingerprint in the same pristine condition that was found when lifted is to be his, one must assume that whoever installed those kitchen units did not in any way displace his fingerprint.   If one looks at the actual placement of the fingerprint in relation to the shelf itself, it is clear that the shelf had to be installed on a little bracket, so clearly somebody would have been handling in and around that area.  It assumes also that notwithstanding what would probably be accepted or current practice, the kitchen was not thoroughly wiped clean, brushed down or presented to the new owner in its best possible condition by whoever installed it.  It assumes that the owner never cleaned the areas around the shelves and it also assumes, of course, that this was not an area which was cleaned by the constable at the time that he undertook the original fingerprint investigation.

[12]      A  kitchen  shelf  is  not  an  area  of  perfect  condition,  and  as Mr Johnston said in his evidence, it is possible but unlikely, and that I think is  the  theme  of  where  we’re  at  today.    It  is  possible  but  unlikely  that Mr Fenton’s fingerprint remained.  It is possible but unlikely that Constable Taylor didn’t clean down that area.   It is possible but unlikely that the original installers did not tidy or clean around that area, or indeed leave their own fingerprints or in other ways touch that area so there is no perfect print left, and it is possible but unlikely that for a space of five years that area was never touched, cleaned, scraped, or otherwise dealt with in the usual course of cleaning in and out of pantries.  When one looks at all those possible but unlikely scenarios, it is doubtful that Mr Fenton’s explanation can hold in this particular case.

[13]      I  am  satisfied  to  the  required  standard  that  it  was  Mr Fenton’s fingerprint which of course has been conceded, but I do not accept for one minute the possibility or suggestion that that fingerprint was able to be sustained in the pristine condition that it was found for some five years from the time that he might possibly have touched that area as part of his role as a joiner.

[10]     Mr Mooney criticises this reasoning as effectively making an assumption that some interference with the fingerprint would have occurred, given its location, in the five years between construction of the joinery at another site, and the second fingerprinting.  That is criticised as an assumption in favour of the prosecution when it was  obliged  to  eliminate  all  grounds for  reasonable  doubt  about  an  innocent explanation for the presence of Mr Fenton’s fingerprint.  Mr Mooney attributes to the

Judge’s reasoning an assumption that at some point in the relevant five year period, there would have been sufficient contact with the point at which the fingerprint was located, to obliterate it.   The Judge’s analysis of the range of situations in which contact with the particular point would have to have been avoided, each of them being  treated  as  “possible  but  unlikely”,  was  still  sufficient,  on  Mr Mooney’s analysis, to give rise to a reasonable doubt that the fingerprint had been placed where it was found in innocent circumstances in 2003.

[11]     The conclusion in [13] of the Judge’s sentencing notes reflects the contrary conclusion, namely that there is no reasonable possibility that the fingerprint could remain in pristine condition for five years, given its location and the multiple opportunities for it to be obliterated or contaminated over that time.  Accordingly, I do not accept the first ground of appeal advanced on behalf of Mr Fenton.

[12]     The second ground was advanced in reliance on decisions including Taylor v

Police in which Ronald Young J observed:[1]

Resolution of questions of credibility are at the essence of a resolution of this charge.  It is, therefore, incumbent upon the Judge to give clear reasons for accepting or rejecting evidence.   This is especially important where the evidence being considered is the evidence of an accused person who has denied the crime.  Such reasons must stand up to appellate scrutiny.

[1] Taylor v Police HC Wellington CIV-2004-485-000022, 3 May 2004 at [29].

[13]     Mr Mooney   also   cited   the   decision   in   Police   v   Taiatini   in   which

Winkelmann J observed:[2]

[2] Police v Taiatini HC Rotorua CIV-2005-463-000059, 7 October 2005 at [12] cited by Miller J in

Smith v Police HC Wellington CRI-2007-485-85, 17 October 2007 at [9].

Where credibility is in issue, the presiding Judge should ordinarily give reasons for rejecting the evidence of a witness whose evidence is material to the outcome: Takarei v Police (HC Hamilton AP77/02, 22 November 2002, Randerson J).  The extent of reasoning required will vary between cases, but the reasons given should be “adequate to the occasion”: R v Awatere [1982]

1 NZLR 644, 649 (CA). It must not be overlooked that Judges, in particular District Court Judges operate under time constraints and in circumstances which usually require oral decisions to be given at the conclusion of the evidence: Kapa v Police (1989) 4 CRNZ 306.  Further, there are difficulties in articulating reasons for a credibility finding “which is based principally upon an exercise in judgment borne of experience, knowledge of human behaviour, and the evaluative process”. (Jai Ram Sharma v New Zealand Police, HC Auckland, CRI 2005-404-0235).   Nevertheless, as Randerson J said in Takarei at [14]:

… some brief reasons for rejecting the evidence of a key witness should be given.

[14]     Ms Ellis  argued  that  the  present  situation  is  distinguishable  from  those contemplated in the decisions just cited.  She submitted that the reason for rejecting the appellant’s claimed explanation is very much the other side of the same coin that was analysed by the Judge in rejecting the prospect that Mr Fenton’s fingerprint could remain undisturbed where it was found for a period of five years.   All the contingencies needed for the fingerprint to have survived were simply too remote and that is the reason for rejecting Mr Fenton’s explanation that the fingerprint must have been left in the course of construction of the joinery.

[15]     In Taylor, the only reason given for rejecting the evidence of the accused was the amused look on the accused’s face when he gave his evidence.  That observation in a judgment does not afford the defendant or an appellate court a reasoned basis for testing the grounds for rejection of the evidence.

[16]     In Smith, conflicting versions between complainant and defendant gave rise to the need for a credibility finding between them, and for there to be a reasoned articulation of grounds for preferring one version over the other were reasonably expected.

[17]     Here, Mr Fenton’s denial that he had been at the property was closely linked to, and dependent on, his alternative explanation for the presence of his fingerprint. He has not been believed on the first point because of the Judge’s rejection of the second.

[18]     I endorse the observations of Winkelmann J in Taiatini to the effect that one must have regard to the constraints upon District Court Judges and the circumstances in which oral judgments are effectively required of them.  I agree with Mr Mooney that it would have been preferable for the Judge to separately address reasons why he rejected Mr Fenton’s claim, on oath, that he had never been to the burgled premises. However, the reasons overall do not leave much scope for Mr Fenton to wonder. The answer to that question is that the Judge has rejected the claim that he did not

visit the premises because he does not accept “the possibility or suggestion” that his fingerprint could have remained in pristine condition for five years.

[19]     Accordingly, I am also satisfied that the second ground of this appeal must fail, and that disposes of the appeal.  It is dismissed.

Dobson J