H v Police CRI-2009-409-141 HC Christchurch
[2010] NZHC 416
•23 March 2010
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2009-409-141
BETWEEN H
Applicant
ANDNEW ZEALAND POLICE Respondent
Hearing: 19 March 2010 (by telephone) (Heard at Auckland)
Appearances: Andrew Bailey for Applicant
Kathy Bell for Respondent
Judgment: 23 March 2010
JUDGMENT OF HARRISON J
In accordance with R11.5 I direct that the Registrar endorse this judgment with the delivery time of
12.30 pm on 23 March 2010
SOLICITORS
Andrew Bailey (Christchurch) for Applicant
Raymond Donnelly & Co (Christchurch) for Respondent
H V POLICE HC CHCH CRI-2009-409-141 23 March 2010
Introduction
[1] Mr H has applied for an order granting leave to appeal to the
Court of Appeal against a decision delivered by me in the this Court on 13 October
2009, dismissing his appeal against conviction in the District Court on charges of reckless driving and failing to stop.1 The police oppose his application.
[2] It is common ground that leave should not be granted unless, first, the appeal raises a question of law which, second, by reason of its general or public importance ought to be submitted to the Court of Appeal and, third, this Court is of the opinion that it ought to be so submitted: s 144 Summary Proceedings Act 1957.
[3] I record that, with a degree of optimism, Mr H sought to invoke the leapfrog procedure of appealing directly to the Supreme Court, which dismissed his application on 8 December 2009.2
Background
[4] Mr H was convicted on charges of reckless driving and failing to stop. The relevant facts are as follows:
[3] The undisputed facts fall within a brief compass. On 3 May 2009
Constable Clinton Vallender was driving a marked patrol car northbound on State Highway 1 at Waimate. He saw a blue Mitsubishi car with distinctive red wheel rims heading south on the highway behind other vehicles. He noted the driver was a thin faced Caucasian male aged about 35-40 years. He u-turned his vehicle and activated its red and blue lights and siren to stop the Mitsubishi.
[4] The Mitsubishi vehicle accelerated south on State Highway 1 and began overtaking vehicles at excessive speed, sometimes on the inside lane. It overtook other vehicles on blind corners and drove over solid yellow lines while travelling at between 120 and 160 km/h. Several other vehicles were forced off the road to avoid collisions. Constable Vallender abandoned the pursuit for safety reasons. He was unable to obtain a clear registration number.
[5] Constable Vallender then continued south towards Glenavy to make inquiries. He was at a T-intersection in Glenavy when he saw the Mitsubishi
1 H v Police HC Christchurch, CRI-2009-409-141, 13 October 2009.
2 H v Police [2009] NZSC 126.
approach. He viewed the car from a distance of about 15 metres when he turned in front of the officer’s car. He ‘saw the driver clearly and recognised him as [Mr H ]’. The two had previous dealings, once about seven years beforehand and the other about five years earlier. He was satisfied that the person driving the vehicle was the same driver that he had seen in the initial pursuit. He obtained the registration number.
[6] The vehicle again sped south. Constable Vallender again activated the red and blue lights and the siren of his vehicle. The Mitsubishi failed to stop. Instead it accelerated south on the incorrect side of the road and across the Waitaki Bridge at about 140 km/h. Constable Vallender estimated that the driver reached speeds of up to 160 km/h. Again the officer abandoned the pursuit for safety reasons.
[7] Constable Vallender was the only prosecution witness. At the end of the police case Mr Andrew Bailey for Mr H submitted there was no case to answer. Judge Erber dismissed this submission. Mr H elected not to give evidence. The Judge then convicted him in a brief oral decision.
[5] The ratio of Judge Erber's decision, which was the subject of challenge on appeal, was as follows:
[8] I here set out s 45(2). A formal procedure under that subsection does not have to be followed if there was a good reason for not following a formal procedure and the prosecution say there was a good reason. That was there was no point in a formal procedure in relation to the second occasion because Mr H was known to Constable Vallender. As to that identification I note that the identification was based on contact between the two persons at the earliest five years before and at the latest seven years before the events. I have to bear that in mind. I also have to bear in mind the stricture of relating to identification evidence in the Summary Proceedings Act. But I have no doubt whatever that Constable Vallender properly identified Mr H on the second occasion. Consequently the prosecution has proved beyond reasonable doubt that the circumstances in which the identification made has produced a reliable identification.
[6] The two statutory provisions to which the Judge referred were s 45 Evidence Act 2006 and s 67A Summary Proceedings Act 1957 (his reference to s 45(2) was in apparent error; he was plainly discussing s 45(1)). On appeal Mr Andrew Bailey for Mr H argued that the Judge erred in failing to give reasons for concluding beyond reasonable doubt that the identification evidence given by the police officer was reliable and that s 45(2) applied - that is, there was no good reason for not following a formal procedure. He further submitted that the Judge erred in concluding that the circumstances in which the police officer made his identification produced a reliable identification. He identified those as:
[12] … the facts that Constable Vallender had only seen Mr H on two previous occasions, the most recent of which was five years before the pursuit; that the constable must have come into contact with a large number of individuals during the intervening period; that the driver was sitting low in the vehicle and the constable could only see the top of his shoulders and head; that the time available to the constable to observe the driver was limited; that at all times when the constable could see the driver the vehicle was in motion; that the constable’s view of the driver was predominantly side-on; that the constable had received information suggesting that Mr H may be the driver; and, finally, that the driver of the vehicle had changed slightly in appearance from when the officer had last seen him five years previously. Accordingly, Mr Bailey submits, these circumstances do not support a finding that a reliable identification was made to the high level of beyond reasonable doubt.
[7] I dismissed the appeal on two discrete grounds. First, I was satisfied that s 45(2) did not apply and that a formal procedure or identification parade would have been unnecessary because the result would have likely been a foregone conclusion, following R v Edmonds & Keil [2009] NZCA 303 at [62]-[73]: at [15]-[18]. Second, or alternatively, I was satisfied that the circumstances of identification were such as to satisfy the necessary statutory basis: at [13] and [19].
Appeal
[8] Mr Bailey has formulated two questions for consideration by the Court of
Appeal as follows:
(1)Was the High Court correct to find that there was "good reason" for not following a formal identification procedure: s 45(2);
(2)If not, was the High Court correct to find that the circumstances in which the identification was made produced a reliable identification: s 45(2).
[9] Mr Bailey submits that both questions are of public importance as the law relating to the application of s 45 is unclear. He says that the Court of Appeal has issued conflicting judgments on the formal procedure required where a witness identifies a person who he or she purports to have seen previously. In particular he
says there is a conflict between Edmonds at [57] and [65] and R v Peato [2009] NZCA 333 at [17]-[22] and [45].
[10] However, I agree with Ms Katherine Bell for the police that there is no conflict between these decisions on the law relating to admissibility of visual identification evidence. In particular, the statements in Edmonds at [62]-[73], applied in determining Mr H 's appeal, are not in conflict with Peato. And, of course, both authorities were concerned with directions to juries, and not with the approach adopted by a Judge alone, the trier of fact, as in this case.
[11] Additionally, as the Supreme Court pointed out, the Court of Appeal has since confirmed the Edmonds approach in R v Thomson-Wiari delivered after the decision under appeal as follows:3
Section 45 is not truly directed to the case where a witness is well familiar with a suspect and has no difficulty identifying him, whether from photographic montage or in some other way… [G]iven the witness’s recent familiarity with the applicant, we would have considered that fact to be a good reason for not following a formal procedure…
Mr Bailey attempts to distinguish Thomson-Wiari on the factual basis that the witness had recent and extensive familiarity with the appellant. However, that is not the point. The question of whether there was "good reason" for not following a formal identification procedure, as in this case, was one of fact, not of law. Mr Bailey submitted as a fallback position that an appropriate question of law might be reformulated along the lines of identifying the necessary degree of familiarity to constitute "good reason" but that argument attracts the same answer.
[12] In any event, as Ms Bell points out, even if the first question formulated by Mr Bailey might be construed to constitute a question of law, I dismissed the appeal on an alternative ground; that is, if I was wrong in concluding as a matter of fact that there was "good reason" for not following a formal identification procedure, the circumstances in which the identification was made produced a sufficiently reliable identification for the District Court Judge to convict Mr H . That is a question of fact, not of law, and is decisive.
3 R v Thomson-Wiari [2009] NZCA 562 at [26].
Result
[13] Mr H 's application for leave to appeal to the Court of Appeal is dismissed.
Rhys Harrison J
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