H v Police HC Auckland CRI 2008-404-172
[2008] NZHC 1493
•23 September 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2008-404-000172
H
v
NEW ZEALAND POLICE
Hearing: 23 September 2008
Appearances: Appellant in person
E R Harrison for Crown
Judgment: 23 September 2008
JUDGMENT OF KEANE J
Solicitors:
Crown Solicitor, Auckland
Copy to
D M H , 13 Limeburners Street, Whangarei
H V POLICE HC AK CRI 2008-404-000172 23 September 2008
[1] On 15 May 2008, at the District Court, Waitakere, Donald H was convicted of two offences on 28 January 2007: driving under the influence of drink to such an extent as to be incapable, and transporting a female dog in a manner that caused her unnecessary distress. As to both, he was convicted and ordered to come up for sentence if called upon within 12 months. As to the first, he was disqualified for six months.
[2] Mr H , who now represents himself, but was represented at the hearing, contends in his notice of appeal that the Judge ought to have allowed him an adjournment to enable defence witnesses from Whangarei to verify their written statements by telephone or video link. The Judge’s unwillingness to adjourn meant also, he contends, that he could not instruct his counsel sufficiently as to that issue.
[3] Mr H has since set a more complete analysis in two memoranda, one of which has just been received today. In the first he raises issues of law and then fact. In the second he makes a detailed critique of the Judge’s findings. In the latter also he says he is presently suffering from a shingles virus infection. He is in no physical and mental state to appear on this appeal. He requests that it be resolved in his absence.
[4] I consider that course is open in principle. Mr H has set out his position very completely. It is unlikely that he would be able to enlarge it, were he to appear. Counsel for the Crown has had the opportunity to consider both memoranda and to respond. The appeal can be resolved, I consider, fairly on the papers. The alternative, in his absence, would be to adjourn the appeal or dismiss it. Neither I think is called for.
Decision under appeal
[5] Relying on the evidence of four witnesses, the supervisor at the Caltex service station, Huapai, on 28 January 2007, Mr Fuller, two police constables and an SPCA inspector, Mr Plowright, and having heard evidence from Mr H himself the Judge found the two offences proved.
[6] The offending came to light, the Judge said, at the Huapai service station at
1.50 pm on 28 January 2007 when Mr H was buying petrol for his car. He had with him a passenger and a dog. Mr Fuller became concerned when Mr H attempted to put the dog into the boot. It was 26 degrees centigrade. This he thought was not merely cruel. He feared for the safety of the dog. Despite that, Mr H was unpersuaded. He and his passenger left with the dog in the boot. Mr Fuller telephoned the police.
[7] At 2:15 pm, Constable Stanko, joined shortly after by Senior Constable Westeneng, located Mr H ’ car parked in the Westgate area. Mr H , he said, got out of the car and came towards them, staggering and very unsteady. Constable Stanko asked about the dog and, as he did so, smelt alcohol on Mr H ’ breath. He also noted that Mr H ’ eyes were glazed and his speech slurred.
[8] Mr H opened the boot. It was very cramped. The constable also was impressed by how hot the day was. He thought it in the late 20s. He attended immediately to the dog. It was, he said, extremely frightened and was panting profusely. The two officers, as the Judge found, took the dog’s wellbeing as their first priority. They took the dog and also Mr H , as a result of his apparent condition, with them to the Helensville police station.
[9] There they attended to the dog, giving it copious quantities of water and leaving it to rest in the shade for an hour. They dealt independently with Mr H , ultimately charging him with the two offences that the Judge found proved; the subject of this appeal.
Discretion on appeal
[10] On this appeal I am obliged, on the basis of the record, to assess for myself the Judge’s findings of fact, as well as any of law. It has not been usual on an appeal, even though it is by way of rehearing under s 121 of the Summary Proceedings Act
1957, to differ from a Judge’s findings of fact. But recently in Austin Nichols & Co
Ltd v Stichting Lodestar [2007] NZSC 103 the Supreme Court has said that even in
such a case this Court should not abdicate its function. That said, the Court added, where findings of fact depend on credibility the advantage of the Court at first instance is not to be ignored. This Court must be careful in substituting its own opinion.
First ground – evidence critique
[11] Mr H ’ first ground of appeal, in order of priority, though advanced in his most recent memorandum, rests on his wide ranging critique of fact. He mounts a variety of challenges to the Judge’s findings as to every facet. He argues, in short, that the convictions the Judge imposed are unsupported by the evidence and unsupportable.
[12] I have reviewed those challenges against the evidence on which the Judge relied and which she scrupulously set out at some length in her decision.
Maltreatment offence
[13] As to the maltreatment offence, the Judge relied on the evidence of the two officers and of Mr Fuller that I have already outlined. She relied also on the evidence of Mr Plowright, the SPCA inspector, but only in a more general sense. By the time he saw the dog, he said, it was not stressed. He would not have expected it to be. It had taken him in excess of an hour to get from Mangere to Helensville. There would have been ample time for the dog to cool down. He did confirm that it was a particularly hot day.
[14] The Judge took into account Mr Hedge’s own evidence, that he and the dog had been swimming earlier in the day and that afterwards he had hosed the dog down. She took into account also that, according to Mr H , earlier in the day the dog had been in the car but had jumped out the window. She accepted that Mr H might have been concerned about his passenger’s mental state and the effect of the dog remaining in the car. She accepted that this was the reason why he elected to put the dog in the boot.
[15] Mr H did not, the Judge noted, explain why he elected not to leave the dog in the back of the car with the windows up. She set against that his concern about his passenger. However, as she noted also, Mr H disclosed that the dog had been put in the boot before the Huapai service station and had only got out because the catch had come free. Otherwise it would have remained in the boot.
[16] The Judge accepted that Mr H was an animal lover. But she held that on that day he had exercised bad judgment. Whatever his intent might have been, on the plain evidence the dog was, and predictably, in a state of distress as a result of being constrained within the boot. The day was especially hot. That constituted the offence.
Driving offence
[17] As to the offence of driving while under the influence of drink to such an extent as to be incapable, the Judge noted immediately that neither Constable Stanko nor Senior Constable Westeneng, though they considered Mr H intoxicated, had thought to have him undergo a passive breath test or, if he failed that, the successive tests that would have established any excess breath or blood alcohol level. She accepted that the reason why neither did that was because of their concern about the safety of the dog.
[18] The Judge accepted also that Senior Constable Westeneng in particular, whose decision it appears to have been, was entitled to prefer the charge that he did, relying on his own direct evidence and that of Constable Stanko. At the roadside both smelled alcohol on Mr H ’ breath. That smell was very offensively evident in the patrol car, he said, all the way back to the Helensville police station. The senior constable understood Mr H to have conceded he had consumed alcohol before driving, though not what kind or how much. He had to be assisted into the charge room. He was placed in a cell to sober up.
[19] It was put to the senior constable, the Judge recorded, that the smell of alcohol might have resulted from medical or mental conditions from which Mr H suffered. It was also put that he had not conceded drinking alcohol before
driving, he had only conceded drinking. The Judge noted that the senior constable and Constable Stanko remained unshaken.
[20] Mr H , when he gave evidence, the Judge noted, conceded only to having consumed a milk shake, not anything alcoholic. He denied drinking alcohol for many years. He was not allowed to, he said, because of his medication. The officers, he said, were mistaken as to the smell. Mr H , the Judge noted also, said that he suffers from manifold medical problems, that he has been hospitalised, that he gets tired and stressed. Also that the afternoon is his downtime and that he was not very alert. Also that he had to be helped into the police station because he suffers vertigo and was on strong medication.
[21] In that conflict of evidence again, however, the Judge preferred that of the two constables. She did not accept the evidence of Mr H . The charge, she held, had been appropriately laid and she saw no reason to withhold imposing a conviction.
Conclusion
[22] Each of the Judge’s findings, I am satisfied, was within her province to make. There is no point that has been raised in Mr H ’ extensive critique that erodes the cogency of her conclusions. I do not see any basis for revisiting any of her findings on this appeal.
Second ground – offence inappropriate
[23] Mr H challenges next the appropriateness of the driving charge: driving while under the influence of alcohol to such an extent as to be incapable. That charge, he contends, is abstract and subjective and is unsupported, as it ought to be, by the successive tests provided by the Land Transport Act 1998. To that, however, there is this immediate answer.
[24] There is a clear dichotomy in the 1998 Act between the offence with which Mr H was charged, the traditional offence, and the offences resulting from the introduction of the breath/blood alcohol regime: McAuley v Police (HC HAM AP9/97, 11 July 1997), Penlington J. The issue is always why the traditional offence is relied on, and in this case the Judge identified that immediately. It lay in the officers’ concern about the wellbeing of the dog.
[25] In concluding that the reason why the charge was preferred was legitimate, and in concluding also that it was founded on sufficient direct evidence independent of any test, the Judge had a sufficient basis in the evidence. Neither conclusion can be assailed on this appeal.
Third ground – scope of evidence
[26] Mr H contends finally that the scope of inquiry the police made was insufficient. It should have included an interview of his passenger. This, he contends, and his inability to rely on medical evidence in his defence, because the Judge denied him that opportunity, also make his convictions infirm.
[27] If the police had interviewed his passenger, Mr H says, they could have verified what had happened before he and his passenger arrived at the service station, what happened there, and what happened after. Had they done so they would have also seen that the person of whom Mr Fuller first complained, a stockily built bald headed man some 50 years of age, was not him. To compound that, what happened at the service station cannot be set against the video record. That was never obtained and is seemingly lost.
[28] The result is, Mr H contends, that the Judge was wrong to accept the unvarnished evidence of the police officers in preference to his own as to the condition of the dog and wrong equally to accept their evidence, without anything as to the way in which he actually drove, as to his ability to drive. By the time they saw him his condition was attributable to his state of health and later to their heavy handling.
[29] I consider, on a review of the evidence as a whole, however, that this does not assist Mr H . The evidence the Judge accepted from the officers and from Mr Fuller was direct evidence, well capable of being accepted as sufficient.
[30] Also the passenger, whose mental state Mr H was concerned about and who decamped from the Westgate area in Mr H ’ car after he was taken away, was somebody whom Mr H himself could have called. Whether the passenger could have contributed anything, if he were mentally unwell, is open to question. But no complaint on that account can be made about the adequacy of the police case.
[31] Secondly, Mr H contends, the Judge was wrong to deny his counsel the opportunity to put in a letter from a doctor dated 16 October 2007, indeed two letters, going to his medical condition and medication.
[32] The Judge should not have adopted, he contends, the police response that the letter and offending were not contemporaneous; that the offending took place in January 2007 and the letters were written ten months later. Nor, if the Judge considered that the doctor should have been called because any inferences were critical, should she have refused his request at the hearing for the doctor’s evidence to be taken by videolink.
[33] A feature of this case, as counsel for the Crown points out, however, is that it was adjourned numerous times, once because Mr H did not appear. As she says, the letter was produced without notice. There was no opportunity for the police to respond. It was all too little too late. Moreover, the police did not contest that Mr H suffered from vertigo. To that extent he suffered no prejudice.
[34] Also evidence by videolink in summary cases may not be unknown but it would be extremely unusual. If that possibility were to be raised, it would have to be canvassed well before the hearing. There was ample time to do so. Again, in the absence of direct evidence that Mr H himself could have called, the effect of his medication remained a matter for speculation. That could not disturb the plain evidence of the officers as to what they saw.
Conclusion
[35] The appeal against conviction is dismissed. As to the appeal against sentence, it will be enough to say this. Both offences could have attracted a greater penalty, especially having regard to Mr H ’ previous convictions. I agree with the submission of counsel for the Crown that the sentence imposed was the least within the Judge’s discretion.
[36] Mr H has, from the first, protested that his dog should never have been taken away from him but that is not an issue I can revisit on this appeal. It was not as a result of any order on sentence that his dog was removed from him. He is, I understand, pursuing his civil remedy. The appeal against sentence will also be
dismissed.
P.J. Keane J
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