Guckert v Police - [2018] NZHC 3284

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2018-442-12

[2018] NZHC 3284

BETWEEN
SHELDON JAMES GUCKERT

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing: 12 December 2018

Appearances:

S J Zindel and A R Goodison for the Appellant S J Revell for the Respondent

Judgment:

13 December 2018

JUDGMENT OF COOKE J

[1] Mr Guckert has been charged with driving while disqualified.1 His Judge- alone trial commenced in the District Court at Nelson on 13 September 2018 before Judge Ruth. Prior to the trial the defendant indicated that he would challenge the identification evidence relied upon by the Police. At the close of the prosecution case, Judge Ruth determined that the contested evidence was admissible.2 Before the commencement of the defence case, Ms Goodison indicated that Mr Guckert would be appealing that ruling. Judge Ruth then adjourned the trial part-heard pending the outcome of this appeal. Mr Guckert now seeks leave to appeal against the decision under s 215 of the Criminal Procedure Act 2011.

1 Land Transport Act 1998, s 32(1)(a) and (4); maximum penalty two years’ imprisonment.
2 Police v Guckert [2018] NZDC 19435.

GUCKERT v NEW ZEALAND POLICE [2018] NZHC 3284 [13 December 2018]

Factual findings

[2] The facts as found are set out in the Judge’s decision. Mr Guckert was known to the witness who gave evidence identifying him, Senior Constable Peterson. She lives in the same neighbourhood as Mr Guckert. In September 2017, she had seen Mr Guckert driving around the suburb where they live, and on State Highway 6. She later found out that he was disqualified from driving at the time. A conviction resulted from this offending. Senior Constable Peterson also encountered Mr Guckert one other time in the community, and had seen his photograph at least two other times in the course of her work.

[3] At about 6.40 pm on 12 February 2018, Senior Constable Peterson was off- duty and driving home along State Highway 6, near Nelson. The speed limit along that stretch of road is 100 km/h. Senior Constable Peterson saw a white station wagon driving in the opposite direction. She did not obtain the make, model or registration number of the vehicle and it was a different vehicle from that in which she had previously seen the defendant. She gave evidence that Mr Guckert was the driver, however. She described seeing the driver both from the front, through the window screen of the station wagon, and from the side as the two vehicles passed. She said that the driver’s window was partially down, and the driver was holding a cigarette.

[4] After seeing the station wagon, Senior Constable Peterson pulled over to look up Mr Guckert in the Police National Intelligence App on her phone. This revealed that he was still disqualified from driving. It also brought up a photograph of Mr Guckert. Senior Constable Peterson notified Police of the alleged offending the following day. A summons was subsequently…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Guckert v Police

Details

AGLC: Guckert v Police [2018] NZHC 3284
Case: [2018] NZHC 3284
Decision Date: 13 December 2018

CaseChat Overview and Summary

The appellant, Sheldon James Guckert, sought leave to appeal against the decision of the District Court in relation to the admissibility of identification evidence. The respondent, the New Zealand Police, opposed the appeal. The central issue in the case was whether the District Court had jurisdiction to entertain the appeal at that stage of the proceedings, and if so, whether the identification evidence was admissible under the Evidence Act 2006. The Court held that there was no jurisdiction to entertain the appeal at that stage, as the admissibility challenge should have been dealt with pre-trial or post-trial. Additionally, the Court found that the District Court had not properly applied the provisions of s 45 of the Evidence Act 2006, and the correct section to have been applied was s 45(1) instead of s 45(2). The Court dismissed the application for leave to appeal for want of jurisdiction, allowing the trial to proceed in the District Court.

The final order of the Court was the dismissal of the application for special leave due to the lack of jurisdiction. The Court emphasized that the errors identified in the application of s 45 did not mean that the admissibility ruling of the District Court was set aside, nor had they resulted in the evidence being wrongly admitted. The ultimate issue of identification was still to be satisfied beyond reasonable doubt based on all evidence at trial, including any evidence called by the defence. Any further consideration of this issue by the Court, including the s 45 admissibility point, would only take place if there was an appeal against any conviction that was entered.

Orders