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Harney v R

Harney v R

Case [2010] NZCA 264 1 July 2010

Admissibility of Evidence

Identification Evidence

Reliability of Evidence

Confidence of Witness

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NOTE: THIS JUDGMENT HAS BEEN REISSUED TO CORRECT AN ERROR IN [35].
IN THE COURT OF APPEAL OF NEW ZEALAND
CA194/2010
[2010] NZCA 264
BETWEENJUSTIN LEIGH HARNEY

Appellant

ANDTHE QUEEN

Respondent

Hearing:17 May 2010

Court:William Young P, Chisholm and Keane JJ
Counsel:A J Bailey for Appellant

C L Mander for Respondent

Judgment:1 July 2010 at 11.00 am
Reissued:9 July 2010
Effective date of judgment: 1 July 2010

JUDGMENT OF THE COURT

ALeave to appeal is granted.
BThe appeal is dismissed.

REASONS
Chisholm and Keane JJ  [1]
William Young P  [40]
CHISHOLM AND KEANE JJ
(Given by Chisholm J)
[1]        Having been found guilty in the District Court at Christchurch of reckless driving and failing to stop on the strength of visual identification evidence,[1] the appellant unsuccessfully appealed against his conviction to the High Court.[2] Then he sought leave from the Supreme Court to appeal directly to that Court against the judgment of the High Court.
[1]     Police v Harney DC Christchurch CRI-2009-009-8289, 31 August 2009.
[2]     Harney v Police HC Christchurch CRI-2009-409-141, 13 October 2009.
[2]        When dismissing the application for leave to appeal the Supreme Court accepted that issues of general and public importance concerning the interpretation of s 45 of the Evidence Act 2006 could arise. However, before considering those issues the Supreme Court wanted to have the benefit of the views of this Court.[3] Following that decision the appellant unsuccessfully sought leave of the High Court to appeal to this Court. He now seeks special leave from this Court pursuant to s 144(3) of the Summary Proceedings Act 1957.
Background
[3]     Harney v Police [2009] NZSC 126.
[3]        While driving a patrol car near Waimate at about 4.04pm on 3 May 2009 Constable Vallender observed a distinctive vehicle travelling in the opposite direction. According to the officer the driver was a “thin faced white male aged about 35 to 40 years”. The officer performed a U turn behind the vehicle and activated his red and blue lights and a siren. But the vehicle sped away and began overtaking other vehicles at an excessive speed. Eventually the officer abandoned the chase.
[4]        About 20 minutes after originally sighting the vehicle the officer saw the same vehicle drive past him at an intersection in Glenavy. The other vehicle was about 15 metres away. At that stage the officer “saw the driver clearly and
recognised him as Justin Leigh HARNEY whom I have dealt with before”, and also considered him to have been the driver involved in the previous incident. Once again the officer activated his red and blue lights and a siren, but the vehicle sped away at excessive speeds with the officer ultimately having to abandon the pursuit.
[5]        On 2 June 2009 the appellant was charged with failing to stop on both occasions, and also with reckless driving on both occasions (four charges).
[6]        Admissibility of the officer’s evidence concerning his visual identification of the appellant was a pivotal issue at the summary trial before Judge…

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 Harney v R

Details

AGLC: Harney v R [2010] NZCA 264
Case: [2010] NZCA 264
Decision Date: 1 July 2010

CaseChat Overview and Summary

Justin Leigh Harney sought leave to appeal against his conviction for reckless driving and failing to stop, which was based on the visual identification evidence of a police officer. The Supreme Court had previously declined to grant leave to appeal, but suggested that the Court of Appeal should consider the appeal. The Court of Appeal granted leave to appeal and subsequently dismissed the appeal. The appellant had been found guilty in the District Court of Christchurch of reckless driving and failing to stop on the strength of visual identification evidence. The appellant had unsuccessfully appealed against his conviction to the High Court. The Supreme Court declined to grant leave to appeal directly to that court against the judgment of the High Court. The Court of Appeal considered two issues: whether there was a "good reason" for not following a formal identification procedure and whether the circumstances in which the identification was made produced a reliable identification. The Court of Appeal found that there was good reason for not following a formal identification procedure, as it was unlikely that a formal procedure would have served any useful purpose. The Court also found that the circumstances in which the identification was made produced a reliable identification, and that the Judge was entitled to take into account his or her assessment of the identification witness. The Court of Appeal dismissed the appeal.

Orders