Greendrake v McConnochie
[2022] NZHC 1369
•10 June 2022
IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY
I TE KŌTI MATUA O AOTEAROA WAIHŌPAI ROHE
CRI-2021-425-22
[2022] NZHC 1369
UNDER the Criminal Procedure Act 2011 IN THE MATTER
an application for leave to appeal on questions of law
BETWEEN
EUGENE ANTHONY GREENDRAKE
Appellant
AND
WAYNE ALEXANDER McCONNOCHIE
Respondent
Appearances: E A Greendrake (Appellant) in person M R Walker for Respondent Judgment:
10 June 2022
(Determined on the papers)
JUDGMENT OF OSBORNE J
This judgment was delivered by me on 10 June 2022 at 3.00 pm pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
GREENDRAKE v McCONNOCHIE [2022] NZHC 1369 [10 June 2022]
Introduction
[1] The applicant, Eugene Greendrake, a self-represented private prosecutor, seeks leave to appeal the decision of Judge Walker dated 29 September 2021 made following a judge-alone trial conducted in the Invercargill District Court, by which charges brought against the respondent, Wayne McConnochie, under s 57(2) of the Dog Control Act 1996 and s 28A of the Animal Welfare Act 1999 were found not proven (the Judgment).1 Mr Greendrake submits the Judge made errors of law that have resulted in a miscarriage of justice.
[2] Mr McConnochie opposes the application for leave on the basis that the proposed appeal has no merit. He says the charges were not proven beyond reasonable doubt, no errors of law were made by the Judge, and a miscarriage of justice has not occurred.
The dismissed charges
[3] Mr Greendrake and Mr McConnochie had neighbouring rural properties in Leithen Street, Nightcaps, Southland.
[4] Mr Greendrake filed two charging documents. The first charged that on 18 August 2018 at the entrance to 22 Leithen Street, Nightcaps, Mr McConnochie: “[made] his dog attack two domestic (Peking) ducks”2 (the “Dog Control charge”).
[5] The second charge was that on the same date, Mr McConnochie was responsible for:3
[R]eckless ill-treatment of two domestic ducks, Drakie (male) and Duckie (female), by letting his dog to attack them. Drakie’s undertail was torn to pieces with internal organs let out, from which he died. Duckie was severely bitten in the neck and distressed. She lost her lifemate and eggs she was about to lay, spent 12 days at veterinary centre and is still recovering.
(the “Animal Welfare charge”)
1 Greendrake v McConnochie [2021] NZDC 19459 [the Judgment].
2 Contrary to s 57(2) Dog Control Act 1996.
3 Contrary to s 28A Animal Welfare Act 1999.
District Court decision
[6] Following a one-day trial on 29 September 2021, Judge Walker found the elements of both charges not made out. He found there was significant doubt whether Mr McConnochie was in fact the owner or possessor of the dog in question. Accordingly, he found the charges not proved beyond reasonable doubt.
[7] The Judge began his decision by outlining the elements of the charges required to be proved by the prosecutor beyond reasonable doubt.
[8] In order to establish the Dog Control charge, one of strict liability, the Judge noted the prosecutor must first prove Mr McConnochie’s identity as the owner of the dog. He identified that “owner” in relation to any dog under s 57 Dog Control Act means every person who either owns a dog or has the dog in his or her possession. Further, the Judge observed the prosecutor must prove that the dog attacked poultry or a domestic animal.
[9] In order to establish the Animal Welfare charge, the Judge noted the prosecutor had to prove Mr McConnochie recklessly ill-treated an animal, which involves establishing the mens rea element of recklessness. Further he noted the prosecutor had to prove the animal was permanently disabled, died, or was seriously injured or impaired.
The prosecution evidence
[10] Judge Walker summarised the evidence given in court by four witnesses called by Mr Greendrake, and Mr Greendrake himself.
[11] First, Beverley Renton, a resident of Nightcaps. She saw the person she described as “the farmer” open the gate and drive a truck into a paddock, stopping to let the dogs out. She said a black dog went straight at the ducks by the flax on the property. She said the man drove around the paddock before returning. He then grabbed one duck and put it in the ditch beside the gate and did the same with the second duck before driving away. She was unable to describe the dog in any detail, other than that it was black. She had never seen it before, did not identify the farmer
and could not recall the vehicle’s colour. The Judge described Mrs Renton as being “understandably hazy on some of the details” given the time that had passed and the approximately 100 metre distance from which she observed the events. In cross- examination, the Judge recorded that Mrs Renton was unable to elaborate on the breed of dog she saw but said the other two dogs present appeared to be darkish coloured collies. It was put to Ms Renton that she had changed her evidence from when she identified the attacking dog as a black Labrador in a previous statement. She said that from where she was observing it looked as though the black dog was biting the duck.
[12] The second witness called was Colin Groube, another Nightcaps resident. Mr Groube was familiar with the two ducks. On the day in question, he said he heard a noise outside his property and voices. He went outside, where he saw Mr McConnochie putting what he described as a big grey sheepdog in a crate on the back of a truck. He said he went back inside but later returned and saw Mr McConnochie getting into his ute. He went inside again and soon re-emerged to see Mr McConnochie in the driveway to his property. Mr Groube said he went to the property and saw two ducks in the creek or drain and thought both were dead. He returned to his house to obtain a rifle to kill what he perceived to be the badly injured duck but, upon his return to the property, the surviving duck had disappeared. The Judge considered it was clear from Mr Groube’s evidence that he did not see an actual attack on the ducks. Mr Groube also described an exchange or confrontation he had with Mr McConnochie a few days later, which he said related to the fact he had given Mr McConnochie’s phone number to others. In cross-examination, Mr Groube denied seeing a black Labrador in the area. The Judge observed that it was clear during the course of cross-examination that Mr Groube “had little time for Mr McConnochie”.
[13] Another resident of Nightcaps, Peter Franklin, also gave evidence. Mr Franklin also knew the ducks well. The Judge considered it was clear he did not see the ducks being attacked but witnessed the aftermath of the alleged attack.
[14] Lisa Stuart, a veterinarian practising in Invercargill with some 25 years’ experience, also gave evidence for the prosecution. She treated Duckie (also known as Missy). She described Duckie as having a large wound around her neck. Duckie remained at the clinic for approximately 10 days. The Judge found it was clear from
the evidence that Duckie would have died but for veterinary intervention. Ms Stuart stated the wound fitted with the history with which she was provided, namely that Duckie had been bitten by a dog.
[15] Mr Greendrake also gave evidence. Drakie and Duckie lived on his Nightcaps property. He said that in the days before the incident the two ducks walked around as usual but tended to gravitate towards Mr McConnochie’s property. He said he was not living at his address in Nightcaps at the time but visited most days. On the day in question, he noted Mr McConnochie’s land was empty and there were no sheep on it before or after the incident. Mr Greendrake gave evidence Mr Groube came to his gate and told him Mr McConnochie had made his dog kill the ducks. He said Mr Groube then took him to the place where they observed Duckie in the drain and showed him the blood and guts on the driveway. Mr Greendrake then took photographs of the scene. He said they left Drakie lying in the ditch because it had been suggested to Mr Greendrake that they should contact the authorities before moving him. He called the SPCA.
[16] The next morning, Mr Greendrake said he discussed what happened with Messrs Groube and Franklin. The SPCA returned his call. He said both he and Mr Groube talked to the SPCA officer. (The Judge noted Mr Groube could not recall this conversation.) Mr Greendrake said Mr Franklin then looked for Duckie and returned quickly when he located her. Mr Greendrake stated he went to where Duckie had been seen and was able to retrieve her and take her to the vet.
Application for dismissal of charges
[17] Mr Walker (for the defendant) made an application under s 147 Criminal Procedure Act 2011 (CPA) for dismissal of the charges on the basis there was no case to answer. The Judge declined the application.
Application to amend the Animal Welfare charge
[18] Mr Greendrake, at the conclusion of his evidence, made an application to amend the Animal Welfare charge to an allegation of wilful ill-treatment under s 28 (involving a higher mens rea element). The Judge reserved his decision on that. In an
addendum to the judgment, the Judge recorded, because he had concluded the existing charges were not proved beyond reasonable doubt, it was unnecessary to deal with this application.
The defence evidence
[19]Mr McConnochie elected to give evidence in his defence.
[20] He described himself as a self-employed builder. He said dog attacks on his stock were a regular problem. He said he went to the property to check on stock, having lost three ewes and five lambs within days of the alleged incident, and many more in the previous years. He described taking with him his two huntaway dogs (a ginger dog and a grey dog). He said on the day in question he intended at the paddock to shoot a black Labrador that a Mr Andy McDonald (now deceased) had told him had been worrying the sheep on Mr McConnochie’s farm. Mr McConnochie stated that, when he arrived at the paddock, the dog trap on the property had been sprung but there was no dog in the trap. He formed the view any dog caught in the trap had been removed.
[21] Mr McConnochie confirmed that, according to dog registration records, he owned three huntaway dogs at the time of the incident. He was adamant he had never owned a Labrador because he had no use for one. However, he said Mr McDonald had told him it was a black Labrador that had been on his property and worrying his stock. Mr McConnochie accepted he had an exchange with Mr Groube about Mr Groube’s giving his cell phone number to others. He said he challenged Mr Groube over the fact Mr Groube had not paid for firewood allegedly provided to him previously. Mr McConnochie also said there had been problems with people dumping rubbish on his property.
[22] When Mr McConnochie was specifically questioned whether he or his dogs were involved in this incident, his response was “definitely not”. He stated he did not allow his dogs to chase ducks. Mr McConnochie said salmonella was spread by ducks as a result of them being on a nearby sewage pond — as a result he would never allow his dogs to have anything to do with ducks.
[23] The Judge observed that he did not get any impression from Mr McConnochie’s evidence that he was being anything other than truthful in his denial of any involvement in the incident.
The Judge’s assessment of the evidence
[24] The Judge explained the case relied heavily on Mrs Renton’s evidence, as she was the only purported eyewitness to what occurred. No one else saw a dog attacking the ducks. The Judge noted Mrs Renton’s property was approximately 140 metres away from what she said she observed. Her view of the incident from where she was in her property was obstructed by trees. The Judge noted she could not be specific about what she saw.
[25]The Judge then evaluated Ms Renton’s evidence:
[45] During her evidence today, she talked about a black dog, as opposed to a black Labrador that had been identified previously by her other statement made much closer to the time. She did not identify Mr McConnochie directly. She had difficulty in describing what she said she saw in terms of what the dog was doing in relation to the ducks, and then gave evidence that she saw the man putting both ducks in the drain independently, from what was a considerable distance. She was short on detail and could not, for example, recall the colour of the vehicle she said was present.
[46] I consider that while there was no suggestion that she was a dishonest witness, or that she was not doing her best to try and recall events of more than three years ago, given her age and infirmity and the health issues that were evident to me in the course of her giving her evidence, her evidence was not such that I could rely on it, particularly given Mr McConnochie’s denial of involvement.
[26] On this basis, the Judge found the elements of both charges were not made out and considered there was significant doubt that Mr McConnochie was in fact the owner or possessor of the dog in question. Accordingly, he found the charges were not proved beyond reasonable doubt.
Approach on appeal
[27] Because Mr Greendrake was the prosecutor and Mr McConnochie was acquitted, Mr Greendrake has no general right of appeal – otherwise, acquitted defendants would have the threat of renewed proceedings hanging over them while
the prosecutor exhausts appeal avenues.4 The basis on which Mr Greendrake may appeal is by obtaining the leave of this Court to appeal on a question of law under s 296 CPA.5 That section provides:
296 Right of appeal
(1)This section applies if a person has been charged with an offence.
(2)The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3)The question of law in a first appeal under this subpart must arise—
(a)in proceedings that relate to or follow the determination of the charge; or
(b)in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section 147, or a stay of prosecution).
(4)The question of law must not be one that—
(a)arises from a jury verdict; or
(b)arose before the trial and has already been decided under subpart 2.
[28] It is clear that Mr Greendrake’s proposed questions of law in this appeal arose in the determination of the charge, that is, in the course of the Judge’s verdict finding Mr McConnochie not guilty of the charges. In dispute is whether Mr Greendrake’s grounds of appeal amount to questions of law.
[29]A question of law arises for the purposes of s 296 when there is:6
(a)a misdirection of law apparent in the decision;
(b)oversight of a relevant matter or consideration of an irrelevant matter; or
4 Nottingham v District Court at Auckland [2018] NZCA 345, [2018] NZAR 1308 at [22].
5 Nottingham v District Court at Auckland, above n 4, at [8] and [22].
6 B v Police [2021] NZCA 16 at [25], citing R v Taulapapa [2018] NZCA 414 at [17]; R v Smyth
[2017] NZCA 530 at [8]; Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].
(c)a factual finding unsupported by any evidence or an omission to draw an inference of fact which is the only reasonably possible one on the evidence.
[30] An error of law may also arise when a decision is plainly wrong, which has been recognised as synonymous with the error described in [29(c)] above.7
[31] Section 298 of the CPA requires a notice of application for leave to appeal to be made within 20 working days of the relevant decision.
[32] Section 300 then describes the ways in which a first appeal court may determine an appeal:
300 First appeal court to determine appeal
(1)A first appeal court must determine a first appeal under this subpart by—
(a)confirming the ruling appealed against; or
(b)doing any of the following if the court considers the ruling is erroneous and, in the case of the person’s conviction or acquittal or of a direction by a court to stay the prosecution or to dismiss the charge under section 147, also resulted in a miscarriage of justice:
(i)setting aside the conviction and entering an acquittal, if the person has been convicted; or
(ii)directing a new trial, in any case; or
…
(d)remitting the matter to the trial court in accordance with the opinion of the appeal court; or
(e)making any other order that the court considers justice requires.
…
7 R v Cleaver [2020] NZCA 397 at [12]–[13], citing R v Taulapapa, above n 6, at [17]; and R v Malu
[2017] NZCA 546 at [10(c)].
[33] The Court of Appeal has found that s 300 plainly refers to determinations of actual appeals and not to leave decisions, meaning the section is engaged only when the requirements for leave have been met and a first appeal is underway.8
[34] Section 296 of the CPA does not specify the criteria applicable to a grant of leave. No test has yet emerged from case law, except that there must, at a minimum, be a properly identified and arguable question of law.9
[35] Therefore, for a new trial to be ordered, Mr Greendrake needs first to be granted leave to appeal and then to establish there was an erroneous ruling on a question of law that led to a miscarriage of justice. Guidance on the meaning of “miscarriage of justice” is taken from s 232(4) which provides:
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial that was a nullity.
The alleged errors of law
[36] Mr Greendrake identified the following as errors of law that, separately or cumulatively resulted in a miscarriage of justice, in particular that the Judge:
(a)refused to allow dock identification by Mrs Renton of Mr McConnochie under s 45 of the Evidence Act 2006 (the Evidence Act);
(b)refused to allow certain lines of questioning by Mr Greendrake in re- examination of Mrs Renton, contrary to s 97 Evidence Act;
(c)found a part of Mrs Renton’s formal written statement naming Mr McConnochie was inadmissible and/or did not take it into account;
8 Nottingham v District Court at Auckland, above n 4, at [17].
9 Nottingham v District Court at Auckland [2017] NZHC 1715 at [21], citing Police v Moheed [2017] NZHC 83 at [17]; Clarke v Ministry of Social Development [2014] NZHC 1830 at [5]; and Police v Paki [2014] NZHC 3112 at [17].
(d)found the reliability of Mrs Renton’s evidence was diminished on account of her age and state of health;
(e)gave weight to Mrs Renton’s inability to recall the colour of the vehicle the “farmer” was driving;
(f)failed to draw inferences from the evidence that the two ducks were dropped in the drain by Mr McConnochie, and that Mrs Renton and Mr Groube saw the same person;
(g)failed to take into account consistency between the evidence of Mrs Renton and Mr Groube; and
(h)failed to take into account various discrepancies in Mr McConnochie’s evidence.
Dock identification evidence
Mr Greendrake’s submissions
[37] Mr Greendrake submitted an error of law arose through the Judge’s refusal to allow Mr Greendrake to ask Mrs Renton during her examination-in-chief to identify Mr McConnochie in the courtroom. While Mr Greendrake accepted his attempt at courtroom identification did not follow a formal procedure so as to be admissible under s 45 Evidence Act, he submitted there was a good reason for that procedure not being followed. First, he emphasised Mrs Renton had lived across the street from Mr McConnochie’s paddock for 34 years, which he had owned since 1993 and farmed for at least 15 years, and Mrs Renton could not have done other than learn to recognise him. Second, Mr Greendale submitted Mrs Renton had directly identified the person she saw who let their dogs attack his ducks when he previously interviewed her and this amounted to an identification to an officer of an enforcement agency under s 45(4)(e) Evidence Act.
[38] Mr Greendrake submitted this error had serious consequences given the Judge found Mrs Renton had failed to directly identify Mr McConnochie as the person who committed the alleged offending.
Mr McConnochie’s submissions
[39] Mr Walker submitted the circumstances did not warrant a departure from the formal procedure under s 45 Evidence Act.
Discussion
[40] The notes of evidence record the discussion as to dock identification evidence as follows:
EXAMINATION CONTINUES: MR GREENDRAKE
A. He opened his gate, drove the truck into the paddock a wee way.
Q. Is that farmer – he is in the courtroom?
A. I wouldn’t know.
Q. Can you not see him?
MR WALKER ADDRESS THE COURT – ADMISSIBILITY OF DOCK ID
Your Honour, I think the prosecutor’s trying to attempt to do an ID which is something that is not permissible these days.
THE COURT TO MR GREENDRAKE:
Yes. No, you’ll need to move on from that. Thank you.
[41] A “dock identification”, where a witness is asked to confirm that the defendant is the person sitting in the dock, was often allowed at common law, but “in the absence of a more robust procedure such evidence is of negligible probative value and has the potential for significant prejudicial effect”.10
[42] Mr Greendrake’s questioning clearly amounted to an attempt to adduce visual identification evidence in terms of s 4(1) Evidence Act.
10 Mathew Downs (ed) Cross on Evidence (online ed, LexisNexis) at [EVA45.3].
[43] Thus, the evidence may be admitted only through the gateway of s 45 Evidence Act. Section 45 provides that, if a formal procedure is followed by officers of an enforcement agency or there was a good reason for not having a formal procedure, then the visual identification evidence is admissible unless the defendant proves on the balance of probabilities the evidence is unreliable.11 If a formal procedure was not undertaken and there is no good reason for not doing so, then the evidence is presumptively inadmissible unless the prosecution can prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.12
[44] It is common ground that a formal procedure was not used here. Mr Greendrake claims there was a “good reason” not to do so. The “good reason” contended for in s 45(4)(e) (an identification made to an officer of an enforcement agency soon after the offence occurred and in the course of the officer’s initial investigation) does not apply. This is because, at the time of the interview, Mr Greendrake was not a private prosecutor as proceedings had not commenced. Even if he were a prosecutor at the time, I would not have found he was an officer of an “enforcement agency”. “Enforcement agency” is defined in s 4 of the Evidence Act as meaning “the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment”. Mr Greendrake had no such statutory responsibility.
[45] There can also be “good reason” not to conduct a formal procedure where the defendant is already known to the witness.13 Whether this provides a good reason with dispensing with the procedure depends on the extent of familiarity between the parties and whether a formal procedure would nonetheless serve a “useful purpose”.14 A formal procedure can also be detrimental in cases where the defendant is already known to the witness, as it can falsely bolster the reliability of the identification,15 for
11 Evidence Act 2006, s 45(1).
12 Section 45(2).
13 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [17] and [26], citing R v Edmonds
[2009] NZCA 303, [2010] 1 NZLR 762 at [65].
14 Harney v Police, above n 13, at [27]–[30].
15 At [17].
example where a witness picks out a familiar face in a photo montage because they recognise the person, not because they remember them committing the crime.16
[46] I consider here that Mrs Renton knew her neighbour well enough to dispense with the need for a formal procedure. Mrs Renton had lived across from Mr McConnochie’s land for 34 years. Mr McConnochie had owned the property since 1993 and farmed it for at least 15 years. It is a reasonable inference that Mrs Renton would be able to recognise Mr McConnochie, and would identify him in a photo montage, making the photo montage of no useful purpose. Therefore, there was a good reason not to undertake a formal procedure in this case.
[47] However, it does not follow that the dock identification was admissible evidence. Section 8 of the Evidence Act requires a judge to exclude evidence if its probative value is outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding.
[48] In R v Young, the Court of Appeal considered that, although the witness had identified the defendant before trial, the “dock identification” that occurred at trial should not have been permitted due to its “obvious prejudice”.17 The Court adopted the finding of the Privy Council that it is only in the most exceptional circumstances that any form of dock identification is permissible and that, even if it was not the first identification, if admitted, a judge should direct a jury to give it little or no weight.18
[49] In R v Peato, the Court of Appeal reached a similar conclusion, although it recognised that where there has been a previously reliable identification by a witness, there is less objection to the witness merely confirming the identification in court.19
16 As was the case in Higgins v R [2017] NZCA 486 at [15].
17 R v Young [2009] NZCA 453.
18 At [29], citing Edwards v R [2006] UKPC 23 at [22].
19 R v Peato [2009] NZCA 333, [2010] 1 NZLR 788 at [64].
[50] While Young was decided under the applicable common law rather than under the provisions in the Evidence Act relating to visual identification evidence, it was approved in Harney v Police. There, the Supreme Court confirmed in a footnote that:20
The definition [of “visual identification evidence”] would also encompass a dock identification but, as Lord Hoffmann said in Goldson (at [13]) with reference to a jury trial, if an identifying witness has not made a previous identification of an accused, a dock identification is unsatisfactory and ought not to be allowed. Indeed, only in the most exceptional circumstances should any form of dock identification be permitted: Constance v The State [1999] UKPC 56, [2000] 4 LRC 118 at [13]–[14] and R v Young [2009] NZCA 453
at [29].
[51] The approach in Young was also endorsed more recently in Ake v R.21 There the Court of Appeal observed:
[9] This Court has in the past clearly signalled that the Courts should be wary of accepting dock identifications. In R v Young the Court noted that dock identifications will have limited value both where it is the first identification and where there has been a previous formal procedure. …
(footnote omitted)
[52] In his submissions in reply, Mr Greendrake submitted that the Supreme Court in Harney approved the “exceptional circumstances” test in Young only to the limited extent that the witness “has not made a previous identification” (not where a witness has made such a previous identification). In any event, the Court in Harney clearly referred to “any form of dock identification” as requiring the most exceptional circumstances in order to be permitted.22 Mr Greendrake also argued Peato has no application to this case as, unlike in that case, here there were good reasons for not following a formal procedure in the first place.
[53] The asserted error of law lies in the Judge’s refusal to allow a dock identification. It was implicit in the Judge’s refusal to allow such an identification that he considered the potential identification would carry little or no weight, in accordance with authority. There was nothing in the circumstances of the prosecution to cut across
20 Harney v Police, above n 13, at [20], footnote 20, citing Goldson v R [2000] UKPC 9, [2000] 4 LRC 460 at [13]. See also R v Peato, above n 19, at [65]: “We think it will usually be the case that identifications in court for the first time should be ruled inadmissible under ss 45 and 8(1) Evidence Act”.
21 Ake v R [2015] NZCA 334.
22 Harney, above n 13, at [20], footnote 20.
that approach to the weight that would be attached. If the prosecutor wished to rely on Mrs Renton’s prior knowledge of Mr McConnochie, her evidence of that knowledge could have been given without a dock identification. The difficulty facing the prosecutor was that Mrs Renton identified the person who drove into the paddock simply as “the farmer”. Instead of asking Mrs Renton whether she knew who the farmer was, Mr Greendrake elected to pursue a dock identification. It was not for the Judge to suggest to the prosecutor an alternative way of dealing with the issue of identification. The Judge’s approach to the proposed dock identification did not involve an error of law.
The refusal to permit re-examination on one matter
[54] The subject of Mr Greendrake’s proposed re-examination was Mrs Renton’s view of what she said she observed. Mr Greendrake led no evidence from Mrs Renton as to the clarity of her view. In her evidence-in-chief she simply described what she saw. In an earlier statement Mrs Renton had referred to the second duck being “further over by the trees”.
[55] In cross-examination, Mr Walker showed Mrs Renton a map of the location from Google Maps and asked her to identify on it where the trees in question were. She did so. And she was asked the height of the trees to which she replied “very high” (agreeing they were “10 metres plus”).
[56] Mr Greendrake in re-examination set out to examine Mrs Renton in relation to the map, as recorded in the notes of evidence:
RE-EXAMINATION : MR GREENDRAKE
Q: Mrs Renton, on the map that you were using, can you point where the ducks were when defendant opened the gate and the dogs rushed on the ducks, where were the ducks?
A: They were over by the flax bushes. Q: Can you point on the map?
[57] Upon Mr Walker’s objection, the Judge overruled the last question upon the basis that it did not arise from Mr Walker’s questions in cross-examination. Implicitly, the Judge’s point was that, although Mr Walker had asked Mrs Renton as to the
location of the trees where the second duck was, he had not asked her about the location of the flax bushes.
[58] Mr Greendrake, on this appeal, says he was attempting to clarify “whether [and] to what extent the tree and the window had actually affected Mrs Renton’s view of the action”.
[59] Mr Greendrake’s submission in relation to this area of overruled questioning misses the point that his question was focused on Mrs Renton’s view of the dogs when she said they first “rushed on the ducks” (in the vicinity of the flax bushes). Mr Walker’s cross-examination at this point had been narrowly limited to where the “trees” were, being the location where Mrs Renton said she observed the second duck.
[60]The Judge was entitled to overrule Mr Greendrake’s question on that basis.
[61]Section 97(1)(a) Evidence Act 2006 provides:
97. Re-examination
(1)On re-examination, a witness—
(a)may be questioned about matters arising out of evidence given by the witness in cross-examination, including any qualification in cross-examination of evidence given by the witness in examination in chief; but
(b)may not be questioned about any other matter, except with the permission of the Judge.
(2)If permission is given by the Judge under subsection (1), the Judge—
(a)must allow other parties to cross-examine the witness on the additional evidence given; and
(b)may allow further re-examination on matters arising out of that cross-examination.
[62]The Court of Appeal explained in R v E:23
The primary purpose of re-examination is to allow counsel to clarify or explain areas of ambiguity or uncertainty which have emerged in answers in cross- examination … It is not meant to provide the Crown with an opportunity to restate its case or to plug holes opened in cross-examination.
23 R v E (CA308/06) [2007] NZCA 404, [2008] 3 NZLR 145 at [72].
[63] Applying these tests, the Judge was correct to overrule the re-examination in question.
[64] Mr Greendrake then turned to a different topic (the possibility that a black Labrador was the attacking dog), before turning to the matter of the trees:
Q. So in terms of the trees, you marked trees on the map?
A. Mhm.
Q. Were they obstructing your view of the dogs ripping the ducks?
A. No.
Q. Were they obstructing your view of the defendant opening the gate?
A. Yes.
Q.So how could you see the defendant opening the gate if the trees were obstructing the view?
OBJECTION: MR WALKER - LINE OF QUESTIONING NOT IN CROSS- EXAMINATION
[65] Although the notes of evidence do not expressly record that the Judge overruled the question Mr Walker objected to, Mr Greendrake appears to have taken it that the question was overruled as he turned to another topic.
[66] As it is, there were two bases on which the Judge could have overruled the re- examination question. Mr Walker’s cross-examination had not been in relation to trees obstructing Mrs Renton’s view of the gate. The cross-examination was in relation to her view of the second duck. The objection was therefore valid on that basis alone. As it happens, the objection might equally have been made on the basis that the prosecutor was attempting to cross-examine his own witness. Immediately following Mrs Renton having agreed (unhelpfully to the prosecutor’s case) that the trees were obstructing her view of the defendant opening the gate, Mr Greendrake was attempting to undermine that agreement by referring her back to her evidence that she had seen the defendant opening the gate. The question could have been disallowed also on this second basis.
[67] Even had these questions been overruled incorrectly (which I do not find), there was nothing in the rulings that led to a miscarriage of justice. Mr Walker’s cross- examination of Mrs Renton in relation to the general reliability of her evidence as to the events from the time of the “farmer’s” arrival at the gate focused on the distance of observation (over 100 metres), inconsistencies between her earlier statement (such as a description of a black Labrador dog) and her evidence at trial (omitting reference to “Labrador”), and indications that aspects of what happened were difficult to remember. The content of Mrs Renton’s answers clearly led the Judge to conclude that her evidence was not reliable, especially when weighed against the evidence of Mr McConnochie who denied any involvement, and did so in a way the Judge found was truthful. The prosecution case, in the assessment of the Judge who had the benefit of hearing the witnesses, therefore failed at the most fundamental level, namely that Mrs Renton was generally unreliable in terms of detail, rather than that her view of the incident generally was hindered by trees.
Direct identification evidence not admitted nor considered
[68] Mr Greendrake submitted the Judge erred in not having regard to the fact that Mrs Renton, in the earlier statement she provided to Mr Greendrake, had identified Mr McConnochie as the man with the dogs who was involved in the incident.
[69] Mr Greendrake on this appeal accepted that it was his oversight in forgetting to ask Mrs Renton to simply state the name of the man. He submitted that the statement would have been admissible as a previous statement which was not hearsay (because Mrs Renton was a witness) and was not a previous consistent statement required to be excluded under s 35 Evidence Act (because Mrs Renton was not asked to and did not state the man’s name during the trial at all).
[70] Mr Greendrake further submitted that in the circumstances it would have been appropriate for the Judge to ask Mrs Renton the name of the “farmer” she was talking about, in the exercise of the judicial discretion under s 100(1) Evidence Act.
[71] This ground of appeal fails both at a detailed level and because there could have been no miscarriage of justice flowing from it in any event.
[72]The more detailed reasons on which this ground of appeal fails are:
(a)Mr Greendrake did not seek to have Mrs Renton’s previous statement put in evidence;
(b)the statement is in any event properly viewed as a previous consistent statement — the fact that Mr Greendrake did not lead evidence on a particular point does not render the statement inconsistent;
(c)the Judge’s not asking Mrs Renton to name the “farmer” did not constitute an erroneous failure to exercise his discretion under s 100 Evidence Act, as it was in line with the adversarial nature of the proceeding — the Judge was not required to effectively patch up an omission in the prosecution case in relation to the key matter of identification specifically put in issue by Mr Greendrake; and
(d)to the extent Mr Greendrake may have anticipated the Judge would have regard to the statement being in evidence at an earlier Court hearing, his anticipation does not accord with the law of evidence — the Judge had to determine the case on the evidence adduced at trial.
Reliability of elderly witness’s evidence
[73] Mr Greendrake submitted the Judge erred in attaching diminished reliability to Mrs Renton’s evidence by reason of her age and state of her health. He submitted that the Judgment lacks any analysis as to whether and to what extent such matters had actually affected the reliability of her evidence. Mr Greendrake referred to an academic article which considered issues relating to the reliability of the evidence of older witnesses.24
[74] Mr Greendrake referred in particular to the Judge’s concluding paragraph in his assessment of Mrs Renton’s evidence. The Judge there stated:
24 Helene Love “Aging Witnesses” (2015) 19 E&P 2010 at 219–220.
[46] I consider that while there was no suggestion that she was a dishonest witness, or that she was not doing her best to try and recall events of more than three years ago, given her age and infirmity and the health issues that were evident to me in the course of her giving her evidence, her evidence was not such that I could rely on it, particularly given Mr McConnochie’s denial of involvement.
[75] Mr Greendrake submitted the Judge had made an “outright prejudicial declaration” that Mrs Renton’s evidence was unreliable when there are proper methods to evaluate the reliability of evidence given by elder witnesses. Mr Greendrake offered his own perspective of Mrs Renton’s evidence. He accepted that she appeared to be a woman of advanced age and had “certain medical conditions”. However, he said she “did not demonstrate any signs of actual impact of her age (or health) on her evidence”, except for some minor details of which she was no longer sure after the passage of three years.
[76] Mr Greendrake submitted that the Judge’s failure to give reasons as to why her age or state of health diminished her reliability amounted to an error of law.
[77] This ground of appeal fails. The Judge did not reach his conclusion as to Mrs Renton’s unreliability by reason of an impression of her age or infirmity alone, or even predominantly. In the preceding paragraphs ([44]–[45]) the Judge referred specifically to Mrs Renton’s lack of specific evidence in relation to what she saw, the difficulties she had in describing what she saw and the inconsistency between her evidence as to the black dog given at trial and her earlier identification of a “Labrador”. In the discussion at [46] of the judgment, the Judge was essentially summarising his conclusion, namely that although Mrs Renton gave her evidence honestly, his review of the detail of her evidence indicated that it was unreliable, a conclusion he related to her age and infirmity.
[78] Those were conclusions arrived at not only by the Judge’s review of the detailed evidence but also formed with the benefit of seeing and hearing Mrs Renton’s evidence.
[79]No error of law has been established in that regard.
Weight attached to the colour of the “farmer’s” vehicle
[80] One of the detailed aspects of the evidence considered by the Judge was in relation to the colour of the vehicle by the “farmer”. The Judge included the following observation in his discussion of Mrs Renton’s evidence:25 “She was short on detail and could not, for example, recall the colour of the vehicle she said was present.”
[81] Unsurprisingly, given that Mr McConnochie denied that he was the farmer with the dogs in question, Mr Walker cross-examined Mrs Renton in relation to the colour of the vehicle she saw. She indicated that she could not remember the colour of the truck.
[82] Mr Greendrake submitted that the Judge should not have attached any appreciable weight to Mrs Renton’s inability to recall the colour of the truck. He argued such a detail would not have seemed significant to her when she was recognising the “farmer” visiting his own paddock. There was also the fact that three years had passed since the incident.
[83] There was no error of law in the Judge’s treatment of this particular detail. It was not identified by the Judge as a determinative detail but rather one example of a particular witness’s inability to provide specific details to the level the Judge felt able to rely on her evidence.
Failure to recognise Mr Groube’s corroborating evidence
[84] Mr Greendrake identifies two particular aspects of the evidence of Mr Groube from which the Judge failed to draw inferences.
[85] First, there was Mr Groube’s evidence of seeing Mr McConnochie putting a dog up into the crate on his ute followed soon after by Mr Groube going to the property and seeing two ducks lying, seemingly dead, in the drain, only to then see one move. (This surviving duck had disappeared when he subsequently returned with his rifle).
25 Judgment, above n 1, at [45].
[86] Mr Greendrake submitted that the overwhelming inference was that the “farmer” whom Mrs Renton saw putting two ducks in the ditch, where Mr Groube found them, and whom she saw driving away, must have been the same person Mr Groube saw.
[87] Mr Greendrake referred to the observation of the Supreme Court in Roigard v R that independent corroboration of evidence is the “best check on reliability”.26 That observation, as Mr Walker submitted, has most relevance where the reliability of the content of a confession (especially one given by a prison informant) is under consideration.
[88] The assessment of reliability where it is the reliability of a witness called to give evidence has different considerations. The Judge assessed the witnesses both in examination and cross-examination in a way a confession cannot be assessed.
[89] In this case it is clear that the Judge reviewed and considered all the evidence adduced, both for the prosecution and for the defendant, before concluding that the prosecution had failed to establish beyond reasonable doubt the elements of both charges.
[90]No error of law has been demonstrated in this regard.
Failure to consider discrepancies in Mr McConnochie’s evidence
[91] As a final ground of appeal, Mr Greendrake referred to Mr McConnochie’s evidence about stock in the paddock which he needed to shift. Mr Greendrake noted that both Mrs Renton and he had given evidence there were not stock in the paddock on the day of the incident.
[92] In his written submissions, Mr Greendrake referred to two further areas of evidence where he submitted there was a discrepancy between Mr McConnochie’s evidence and that of prosecution witnesses.
26 Roigard v R [2020] NZSC 94, [2020] 1 NZLR 338 at [138].
[93] Mr Greendrake first referred to whether there were dogs roaming on Leithen Street and on the paddock. Mr Greendrake identified that Mr McConnochie said there were dogs roaming in this way “all the time” whereas he (Mr Greendrake) said that there were not, Mr Groube said dogs were not roaming in and around the incident as “they usually had people with them”, and Mrs Renton said dogs had been roaming “off and on” on the street only.
[94] Secondly, Mr Greendrake referred to whether white ducks had been wandering around the neighbourhood. Mr McConnochie said in evidence that there were not whereas the prosecution witnesses said there were.
[95] The evidence in relation to whether dogs were roaming on Leithen Street and on the paddock illustrates the difficulty of assessing reliability by reference to a particular issue which is not central and the subject of only brief examination and cross-examination. On the “roaming dogs” issue, the difference between the prosecution witnesses themselves, who are at some levels inconsistent, illustrates a fundamental flaw in Mr Greendrake’s submissions.
[96] The Judge reached his assessment of the witnesses’ evidence with the benefit of seeing and hearing both central protagonists, together with the other prosecution witnesses. The Judge dealt with the primary issues of identification, which turned on the evidence of Mrs Renton and Mr McConnochie in particular. He also referred to the more detailed aspects of Mrs Renton’s evidence as they affected the reliability of her identification evidence as to the farmer and the black dog. It was those matters which drove the Judge’s fundamental conclusions.
[97] In these circumstances, it was not an error of law for the Judge to not go on to specifically consider in his Judgment the detail of less central or even peripheral matters (such as whether there were white ducks wandering around the neighbourhood).
Outcome
[98] I have dealt with the specific grounds of Mr Greendrake’s intended appeal in considerably more detail than I would have had Mr Greendrake been represented. I
have done so on account of the very fact that he has been self-represented in the prosecution and on this appeal.
[99] Ultimately it is my finding that the proposed grounds of appeal have no merit. In essence, Mr Greendrake’s complaints combine to the central proposition that the Judge reached an incorrect factual conclusion when determining that Mr Greendrake had not established it was Mr McConnochie who was in charge of the (black) dog that attacked Mr Greendrake’s ducks. That was a conclusion clearly open to the Judge on the basis of the evidence presented.
Orders
[100] Mr Greendrake’s application for leave to appeal against the District Court judgment is dismissed.
Costs
[101]Costs are reserved.
Osborne J
Solicitors:
Preston Russell Law, Invercargill Copy to: E A Greendrake
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