Flavell v Police

[2013] NZHC 1965

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2012-488-72 [2013] NZHC 1965

BETWEEN  PATRICK WARREN FLAVELL Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   6 August 2013

Appearances:           K G Johnson for Appellant

M Jarman-Taylor for Respondent

Judgment:                6 August 2013

JUDGMENT OF ELLIS J

[on appeal against conviction and sentence]

This judgment was delivered by me on 6 August 2013 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:

Crown Solicitor, Whangarei

Counsel:

K G Johnson, Whangarei

FLAVELL v NZ POLICE [2013] NZHC 1965 [6 August 2013]

[1]      Mr Flavell appeals his conviction and sentence for one charge of driving with excess breath alcohol (third or subsequent) under s 56(1) and (4) of the Land Transport Act 1998 (“the Act”).  The appeal is grounded on an attack on the finding of the learned District Court Judge that it was Mr Flavell, rather than his girlfriend who was driving at the relevant time.  Mr Flavell’s girlfriend was also breath tested on the evening in question but was under the legal limit.

Facts and evidence

[2]      Shortly after midnight on 30 September 2011, a car carrying Mr Flavell and his girlfriend, Ms Marshall, was driving down Broadway in Kaikohe.  The car was owned by Ms Marshall.  Constable Williams was nearby in a police car (it is unclear from the evidence whether he was driving or parked on the side of the road at the time).  He gave pursuit with his lights flashing.  He said at that point he could see that there were two people in the car but could not make out who was driving.

[3]      The car in which Mr Flavell was an occupant came to a stop in a car-park in nearby Dickeson Street.   Both its occupants said they had not seen the police car initially, but had stopped because Ms Marshall needed to use the public rest rooms nearby.   Mr Flavell’s evidence was that both occupants got out of the car and Ms Marshall came round to the passenger side to lock it, because the central locking system was not working.

[4]      By contrast, Constable Williams gave evidence that he saw Mr Flavell exiting from the driver’s side door and Ms Marshall from the passenger side door.  There was also conflicting evidence about whether it was Constable Williams who then approached Mr Flavell or whether Mr Flavell approached the Constable.

[5]      Be that as it may, Constable Williams formed the view that Mr Flavell was intoxicated and instigated breath testing procedures, with which Mr Flavell co- operated.     Mr  Flavell  yielded  a  positive  evidential  breath  test  result  of  676 micrograms of alcohol per litre of breath and he was then charged.  At that point he

became agitated and said that he had not been the driver of the car.    Ms Marshall was then also breath tested, in order (Constable Williams said) to see whether she was legally fit to drive the car from the scene.  She was under the legal limit and was permitted to drive the car away.

The judgment under appeal

[6]      The terms of the oral judgment make it plain that the Judge considered that the issue of Mr Flavell’s guilt turned on the respective credibility of Mr Flavell and his girlfriend, on the one hand, and of the arresting officer, Constable Williams, on the other.  In this respect the Judge recorded that there was little difference between the three witnesses in terms of their demeanour or the way in which they responded to questions.  He did not refer to any internal inconsistencies in the evidence of Mr Flavell and Ms Marshall or to any other objective indicators of their (or of Constable Williams’) credibility.  Thus the learned Judge’s final conclusion was clearly a finely balanced one.  In the end it turned solely on his view that Constable Williams had no

motive to lie whereas the appellant and Ms Marshall did.[1]   I record that those matters

had been directly put to Mr Flavell in cross-examination by the police.

[1] Ms Jarman-Taylor accepted that this finding formed the critical foundation for the Judge’s decision.

[7]      After finding Mr Flavell guilty of the driving with excess breath alcohol charge, Judge Davis sentenced him to 80 hours community work, one year’s supervision and disqualified him from holding or obtaining a driver’s licence for a period of one year and a day.[2]

The appeal

[2] Police v Flavell DC Kaikohe CRI-2011-027-002010, 29 October 2012.

[8]      It is trite that credibility findings are difficult to overturn on appeal.  There are obvious advantages in seeing and hearing the evidence, although, as I have said in the present case, the Judge said there was little difference between the three witnesses.

[9]      Although not directly raised as a ground of appeal on Mr Flavell’s behalf, there is one aspect of the learned District Court Judge’s decision that is problematic.

As the Court of Appeal said in Stewart v R (to which my attention was drawn very helpfully and properly by Ms Jarman-Taylor):[3]

[3] Stewart v R [2009] 3 NZLR 425

[26] A witness should not be accused of having a motive to lie without there being an appropriate evidential foundation for the accusation. A generalised allegation that an accused person has a motive to lie simply to avoid conviction is particularly serious because  it subverts  the  presumption  of innocence. Only if the accused were presumed guilty could there be any basis for the suggested motive.

[27]  The  Court  of  Appeal  rightly  said  in  R  v  E, in  commenting  on  a submission of the prosecutor that the accused “has every reason to tell untruths  about  what  occurred  because  he  has  the  reason  for  avoiding  a finding of guilt in this case”:

It has been held that it is never legitimate for a judge to make such a suggestion and it is just as unacceptable (if not more so) for a prosecutor to do so. Making such a submission has the effect of suggesting that the evidence of an accused should be scrutinised more carefully than that of a complainant or other Crown witness simply because he or she is the accused. This is wrong and unfair – see Robinson v R (No 2), R v Bentley and R vLeef.  The situation may have been saved by a very strong direction by the Judge but none was given.

[28] There was no evidential foundation for the submission of the prosecutor that Mr Stewart and his witnesses were motivated to lie in an attempt to secure his acquittal. The submission should therefore not have been made.

[citations omitted]

[10]     It is unarguable that the position is the same whether the trial is before a judge and jury or before a judge sitting alone.

In the present case, Ms Jarman-Taylor accepted that there was no evidential foundation for contending or concluding that either Mr Flavell or Ms Marshall had a motive to lie.   I agree.   It follows therefore that the learned District Court Judge wrongly reversed the presumption of innocence. Once that point is reached, and on the basis of the Judge’s other finding (that there was nothing to distinguish between the police and defence witnesses in terms of their respective credibility[4]) then it is difficult to see how the burden of proof had been discharged in this case; Mr Flavell

should have been acquitted.[5]

[4] It might be suggested that the fact that Mr Flavell’s evidence and Ms Marshall’s evidence was

generally consistent swings the balance further in Mr Flavell’s favour.

[5] Such a finding does not necessarily impugn Constable Williams’ honesty or integrity; given the time of night and his distance from Ms Marshall’s car, he may simply have been mistaken in

what he saw.

[11]     I allow the appeal against the conviction and sentence accordingly.

Rebecca Ellis J