Hastie v Police HC Christchurch CRI-2010-409-000222
[2011] NZHC 1122
•9 September 2011
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
CRI-2010-409-000222
BRADLEY KEITH HASTIE
Appellant
v
POLICE
Respondent
Hearing: 20 April 2011
25 May 2011 (by telephone)
Appearances: R W Maze for Appellant
K Basire for Crown
Judgment: 9 September 2011
RESERVED DECISION OF HON JUSTICE FRENCH
Introduction
[1] At approximately 4 a.m. on 28 November 2009 a Subaru motor vehicle was travelling on Clyde Road in suburban Christchurch when the driver lost control and collided with a power pole.
[2] Approximately 25 minutes after the accident, police located the appellant, Mr Bradley Hastie, in an intoxicated state some two kilometres from the scene.
[3] Police alleged that Mr Hastie was the driver, and charged him with careless use and driving with an excess blood alcohol level of 188 milligrams per 100
millilitres of blood. The legal limit is 80 milligrams.
HASTIE V POLICE HC CHCH CRI-2010-409-000222 9 September 2011
[4] Following a defended hearing, a District Court Judge found the charges proved. The Judge fined Mr Hastie $900. He also disqualified him from driving for eight months and ordered him to pay reparation of $297.
[5] Mr Hastie now appeals his convictions.
[6] The sole issue raised by the appeal is whether there was sufficient evidence to support the Judge‘s finding that Mr Hastie was the driver of the Subaru, and in particular whether the Judge was entitled to rely on hearsay evidence regarding the identity of the registered owner of the vehicle.
The hearing in the District Court
[7] At the hearing, the prosecution called four witnesses: two police officers, and two residents of Clyde Road, a Ms Thornton and a Mr MacAllister.
[8] Ms Thornton testified that within seconds of hearing the noise of the accident she rushed out onto Clyde Road. There she saw a youngish man with light-coloured, shoulder-length hair, wearing darkish jeans and a white T-shirt, standing very close to the car. The driver‘s door was open and there was no-one else in the vicinity. In evidence, Ms Thornton said she was confident there would not have been sufficient time for someone else to have left the scene without her noticing them.
[9] Ms Thornton spoke to the young man. She said that during the course of the conversation he stated at one point that he had ―stuffed up his life‖ and at another point that his mate was driving.
[10] She called for her husband to ring the police, and told the young man to stay. The young man, however, moved away and stood for a while at a nearby corner.
[11] Ms Thornton‘s husband, Mr MacAllister, also gave evidence. He described the young man talking to his wife as having long, but tidily-cut, hair.
[12] Mr MacAllister further stated that he found a set of car keys on the corner where his wife had seen the young man standing. The keys belonged to the Subaru.
[13] A third prosecution witness was Constable Morris. He testified that at approximately 4.25 a.m. he found Mr Hastie in an intoxicated state two kilometres from the scene of the accident.
[14] The constable described Mr Hastie as wearing light blue jeans but no T-shirt, with a ―surfie‖ sort of haircut, quite blonde and messy, possibly just touching his collar.
[15] The constable also testified that Mr Hastie told him he had been at Northlands Mall and was walking home. Later, Mr Hastie stated in response to a question about who was driving that ―Greg was driving, I was riding shotgun‖. According to the constable, Mr Hastie was unable to supply any information about
―Greg‖ other than his first name.
[16] When asked in examination-in-chief whether he had made any inquiries as to the identity of the registered owner of the Subaru, Constable Morris testified that once back at the police station he checked the police computer system and ascertained that it said the registered owner was Nigel Hastie. The notes of evidence read:
Q. And did you make any enquiries as to who the registered owner is? A. Ah, yes on the police computer system, um, it said a Nigel Hastie.
Q. And did you make any contact, have you made any contact with that, with the registered owner?
OBJECTION: MR MAZE (12:16:11) THE COURT:
Q. You made contact with the registered owner? A. That‘s correct, I phoned.
Q. Phoned Nigel Hastie? A. Phoned, yes.
Q. Whakatane?
A. Yes, that‘s correct.
EXAMINATION CONTINUES: SERGEANT SCOTT
Q. Are you aware of the relationship between the registered owner and the defendant?
A. Ah, yes. THE COURT:
Q. That is perfectly legitimate, it is his old man‘s car, is it not?
A. (No audible answer 12:16:35)
[17] At the police station, Mr Hastie was initially unco-operative, but according to the constable‘s evidence ―… after I‘d spoken to his father on the phone and, um, I believe put the defendant on the phone to his father he decided to co-operate.‖1 A blood specimen was taken at 5.35 a.m., and test results established a blood alcohol level of 188 milligrams per 100 millilitres of blood.
[18] Constable Morris and the two Clyde Road residents gave dock identifications of the appellant as being the young man each of them had seen on the day in question.
[19] The fourth prosecution witness, another police officer, gave non-contentious evidence about the scene of the accident.
[20] At the conclusion of the police case, defence counsel Mr Maze sought a ruling on the admissibility of the dock identifications.
[21] The Judge ruled they were inadmissible.
[22] Following that ruling, Mr Maze submitted there was no case to answer due to the absence of proof of identity. He contended that without the dock identifications, all the informant had left was the fact that Mr Hastie was found two kilometres from someone else‘s car.
[23] The Judge, however, held there was a case to answer.
1 R v Hastie CRI-2009-009-019977 (28 October 2010) notes of evidence, page 6, line 3.
[24] The appellant then elected not to call evidence, and the Judge delivered his judgment.2
[25] In his decision, the Judge identified the issue as being whether the prosecution had proved that Bradley Hastie was the driver of the motor vehicle. Accordingly it was, the Judge said, an identification case, and involved elements of inference subject to proof of certain matters.
[26] Having traversed the relevant evidence, the Judge reminded himself of the dangers associated with identification evidence in terms of s 126 of the Evidence Act
2006. The Judge went on to say that he found the following facts proved:3
The person who was the driver had, at the time, longish fair hair.
The person apprehended by Constable Morris had that kind of hair.
The person apprehended by Constable Morris told him that he had come from Northlands Mall, and that was a lie.
Constable Morris asked the defendant who was driving the motor vehicle and the defendant had said it was Greg – a person he did not otherwise
appear to know.
The defendant was driving in a motor vehicle that was registered to a
person who had the same surname as himself, which was significant.
The defendant did say to Ms Thornton that somebody else had been
driving the car.
The defendant is therefore closely associated with the driving by
connecting all of these pieces of evidence together.
No other person was observed at the scene or leaving the scene, even
2 Police v Hastie DC Christchurch CRI-2009-009-019977, 28 October 2010.
3 At [22].
though Ms Thornton was on the scene a very short period of time after the collision.
[27] The Judge concluded by saying:
[23] In summary I am satisfied that the person apprehended by Mr Morris has connected himself closely with the scene and the car. I am satisfied that the connection is such that the only reasonable inference to draw is that the defendant was the driver of the motor vehicle at the time in question.
[24] Leaving aside, as I do, the dock identifications the persons described by Mrs Thornton and Mr MacAllister, even in such brief descriptions as they have given, are consistent with the person apprehended by Constable Morris and that person is the defendant.
[25] He will accordingly be convicted on each of the charges.
Grounds of appeal
[28] On appeal, Mr Maze contended that the Judge had erred in his analysis of the evidence in that the Judge:
(i)relied on inadmissible hearsay evidence as to the identity of the registered owner;
(ii)overlooked discrepancies in the descriptions given by the various witnesses;
(iii)wrongly relied on the appellant‘s statement about coming from Northlands Mall as being a lie probative of guilt, when it was more probable, given the time of day (4 a.m.) the appellant was simply stating he had come from the location of the mall;
(iv)wrongly drew adverse inferences from the appellant‘s failure to provide more details about Greg without taking account of context and the level of intoxication;
(v)employed circular reasoning in that the Judge wrongly used his finding that the young man at the scene was the driver to support a conclusion that the appellant was the driver.
[29] In Mr Maze‘s submission, there was an insufficient link between Mr Bradley Hastie and the young man seen on Clyde Road. It was a gap, he said, that could not be bolstered by the inadmissible hearsay about the ownership of the motor vehicle.
[30] As a fallback position, Mr Maze also argued that even if the hearsay evidence about the identity of the registered owner was admissible, it would still not cross the threshold. All it would mean was that the appellant and the registered owner of the car shared the same surname. In the absence of any admissible evidence as to there being a familial connection between the two, it did not amount to proof beyond reasonable doubt.
Discussion
[31] As the Judge noted, in considering circumstantial evidence it is important to consider the combined effect of the evidence rather than each piece of evidence in isolation.
[32] In my view, there was sufficient evidence to establish that the young man on
Clyde Road was the driver of the crashed vehicle. This evidence included:
What the young man said about stuffing up his life.
The fact the young man was found in such close proximity to the car which had only the driver‘s door open.
The fact no one else was in the vicinity.
The keys to the Subaru being found in the very place where the young man had been standing.
His decamping the scene when he heard the police were being called,
indicating a consciousness of guilt.
[33] The key issue, of course, is whether Bradley Hastie was that young man.
[34] Mr Maze emphasised that Bradley Hastie was uninjured, which he submitted was evidence tending to suggest he could not have been the driver, having regard to the damage done to the car and the power pole. However, the young man was also uninjured, so I am not persuaded the absence of injury really takes the matter any further.
[35] Nor do I accept that the Judge erred in treating the comment about Northlands Mall as a probative lie.4 A stupid lie is nevertheless a lie, and the Judge was clearly cognizant of the relevant principles regarding the use of lies.5
[36] The Judge was also entitled in my view to rely on evidence of Mr Hastie‘s statements about ―Greg‖. The significance of that evidence is two-fold. When Bradley Hastie made those statements, he did so knowing he was being questioned about the Clyde Road accident. The comment that he was riding shotgun is thus clearly capable of being treated as an admission that he was in the Subaru at the time. Secondly, his inability to provide any details whatsoever about Greg is significant because it tends to suggest Greg was a fictional character invented out of consciousness of guilt. The appellant‘s level of intoxication would not of itself necessarily preclude that inference from being drawn.
[37] Another argument raised by Mr Maze was that the Judge could only have found Mr Hastie‘ statements were lies on the basis that Mr Hastie was the driver of the Subaru. I agree that if that had been the Judge‘s approach then it would be faulty, circular reasoning. However, the Northlands Mall statement is clearly capable of being regarded as a lie for reasons quite independent of the identity of the driver of the Subaru. The reason it is capable of being regarded as a lie is because Northlands Mall is closed at 4 a.m. Similarly, the falsity of the statements about the existence of Greg. It is inherently implausible that a person could be a passenger in a car driven by another and be completely unable to provide any information (which must
include a description) about that person, other than their first name.
4 The Judge accepted evidence that the Constable‘s reference to ―Northlands‖ in his notebook was a shorthand expression for Northlands Mall. On appeal I see no reason to disturb that finding.
5 The Judge directed himself in terms of s 124(3)(c) of the Evidence Act 2006.
[38] As regards the cogency of the identification evidence, I accept there are discrepancies in the identification evidence as between the Clyde Road residents and Constable Morris. These include the shade of the jeans, the wearing of a T-shirt, the length of hair and whether the hair was messy or tidy, although the latter discrepancy may be explicable by reference to the fact it had been raining and unlike Constable Morris, when Ms Thornton first saw the young man he would only just have got out of the car.
[39] The similarities between the physical appearance of the young man and Bradley Hastie are thus limited to his age, the fact he was wearing jeans and had fair hair.
[40] Ms Basire, for the police, acknowledged the limitations of the identification evidence and conceded that even when combined with Mr Hastie‘s presence in the general area in the early hours of the morning and his false statements about Greg and coming from Northlands Mall, it was probably not sufficient to constitute proof of identity beyond reasonable doubt. However, she submitted that what made the difference was the evidence that the Subaru was registered in the same surname as the appellant.
[41] I agree that without that evidence, the conviction is not sustainable.
[42] I also agree that the evidence of the registered owner was hearsay as defined by s 4 of the Evidence Act. The statement that Nigel Hastie was the registered owner was what Constable Morris saw on the police computer system. The statement was being tendered for the truth of its contents and it had been made by someone (the input data operator) who was not a witness.
[43] The issue then becomes whether, despite its hearsay nature, the evidence was admissible, an issue that unfortunately was never raised or considered in the District Court.
[44] Ms Basire suggested the evidence could have been admissible as a hearsay statement contained in a business record under s 19.
[45] The term ‗business record‘ is defined by s 16(1) of the Evidence Act:
business—
(a) means any business, profession, trade, manufacture, occupation, or calling of any kind; and
(b) includes the activities of any department of State, local authority, public body, body corporate, organisation, or society
business record means a document—
(a) that is made—
(i) to comply with a duty; or
(ii) in the course of a business, and as a record or part of a record of that business; and
(b) that is made from information supplied directly or indirectly by a person who had, or may reasonably be supposed by the court to have had, personal knowledge of the matters dealt with in the information he or she supplied
[46] It was common ground that the activities of the police qualify as a business and that data stored in the police computer system must be a document for the purposes of s 16(1). What was disputed was whether the document was made to comply with a duty or in the course of a business.
[47] In written submissions, Ms Basire explained that the information held on the police computer system regarding vehicle ownership is derived from a national register of all motor vehicles.6 The register is maintained by the New Zealand Transport Agency. The NZTA has a duty to maintain the register, while Parliament has specifically authorised the police to be able to access it in order to discharge their duty of law enforcement.7 In those circumstances, contrary to a submission made by Mr Maze, I see no difficulty in finding that the information stored on the police computer system has been made to comply with a duty.
[48] In order to qualify as a business record, the document must also be made from information supplied directly or indirectly by a person who had or may
6 Mr Maze points out there was no evidence at the District Court hearing to this effect. However, for the purposes of this discussion, I accept it as correct.
7 Privacy Act 1993, s 111, Schedule 5. As for the functions of the police, see the Policing Act
2008, s 9.
reasonably be supposed to have had personal knowledge of the matters dealt with in the information supplied. In this case, the person who supplied the information is of course the vehicle owner. For the purposes of s 16(1)(b), the vehicle owner must in my view be a person who has, or who may reasonably be supposed to have had, personal knowledge the information is correct. Admittedly, the vehicle owner has not supplied the information directly to the police. However, s 16 expressly says the supply may be direct or indirect. Thus, even where the document at issue is the police computer system records (as distinct from the NZTA records), the requirements of s 16(1)(b) are satisfied. The fact a business record involves multiple
hearsay is not in itself an obstacle to admissibility.8
[49] My conclusion therefore is that the hearsay statement at issue was contained in a business record. However, that does not of itself mean the evidence was admissible under s 19. Section 19 imposes the following conditions of admissibility:
(a) if the person who supplied the information used for the composition of the record is unavailable as a witness; or
(b)if the Judge considers no useful purpose would be served by requiring that person to be a witness as that person cannot reasonably be expected (having regard to the time that has elapsed since he or she supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he or she supplied; or
(c) if the Judge considers that undue expense or delay would be caused if that person were required to be a witness.
[50] Ms Basire submitted that the person who supplied the information was
NZTA, and therefore they could not be expected to recall the information.
[51] However, that interpretation involves the supplier of the information being the car owner for one purpose (to meet the s 16(1) definition of ‗business record‘)
8 Bruce Robertson (ed) Adams on Criminal Law: Evidence (looseleaf ed, Brookers) at [EA16.01].
and NZTA for another purpose (to satisfy s 19). That cannot have been Parliament‘s
intention.
[52] In my view, the supplier of the information for both provisions must be the car owner. There is nothing to suggest he was unavailable and it is likely he would have personal recall. He does, however, live in the North Island and accordingly Ms Basire argues that if the Judge had been alerted to s 19, he would have been able to admit the statement on the grounds of undue expense under s19(1)(c).
[53] The application of s 19 in this case is in any event problematic for two other reasons. First, it is highly arguable that s 19 requires the actual document itself to be produced. The section refers to a hearsay statement contained in a business record. Constable Morris did not produce the computer printout. He only testified as to what he saw on the screen.
[54] In the decision of Osborn,9 Panckhurst J appears to have accepted that oral evidence of the contents of the business record would suffice, but not when combined with the failure to serve a s 22 pre-trial hearsay notice.10 Section 22 states that in a criminal proceeding, no hearsay statement may be offered in evidence unless the party proposing to offer the statement has served the other party with a written notice of its intentions. Under s 22, the Judge has a residual discretion to dispense with the requirement of a notice.
[55] In this case, like Osborn, no pre-trial hearsay notice was ever served and the document itself was never produced. The Judge never had occasion to consider his residual discretion under s 22 because hearsay was not an issue.
[56] Where, then, does that leave this case?
[57] As Ms Basire submitted, common sense dictates that the identity of the registered owner of a motor vehicle should be able to be admitted without requiring
the police every time to call the owner of the vehicle.
9 Osborn v Community Probation Service HC Christchurch CRI-2010-409-000090, 2 September
2010.
10 Section 19 is expressly subject to s 22.
[58] I agree with that submission and consider that although s 19 may not apply there are two other possible avenues.
[59] The first is the general admissibility of hearsay provision, s 18 of the
Evidence Act.
[60] Section 18(1) provides:
(1) A hearsay statement is admissible in any proceeding if—
(a) the circumstances relating to the statement provide reasonable assurance that the statement is reliable; and
(b) either—
(i) the maker of the statement is unavailable as a witness; or
(ii) the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.
[61] The key differences between s 18 and s 19 is that s 18 is not limited to business records and it requires that the circumstances relating to the statement provide reasonable assurance that the statement is reliable.
[62] In my view, the maker of the statement for the purposes of s 18 is the NZTA composer of the record. Although there is an element of multiple hearsay, the circumstances relating to the statement provide reasonable assurance the statement is reliable. It was a statement made in a formal setting, the maker of it aware that he or she would be compiling an official record and that the need for accuracy was paramount. It is most unlikely that the means of police access to the national register would cause a risk of error.
[63] Judicial notice can be taken of the fact that the NZTA composer of the record is almost certain to have no personal recall, and accordingly the expense of requiring that person to attend as a witness would be undue. I am further satisfied under s 8 of the Evidence Act that the probative value of the evidence is not outweighed by the risk that the evidence will have an unfairly prejudicial effect on the proceeding. The identity of a registered owner is a matter that is objectively and easily verifiable.
[64] All of that said, s 18 however, like s 19, is subject to the requirement to give a pre-trial hearsay notice.
[65] The second and far more straightforward way in which ownership of the vehicle could have been proved was by the provision of a certificate under s 18 of the Transport (Vehicle and Driver Registration and Licensing) Act 1986. Section 18, which was in force at the time of the hearing, states:11
18 Registers of motor vehicles
(1) The Registrar shall keep a general register of all motor vehicles, registration plates, and licences for motor vehicles and such other registers as may be prescribed or as the Registrar considers necessary.
(2) Any of the contents of any such register may in any proceedings (whether under this Act or any other Act) be proved by the production of a certificate as to those contents purporting to be signed by the Registrar or any person purporting to act under any delegation from the Registrar and to be impressed with the person's official stamp.
[66] While both s 18 of the Evidence Act and s 18 of the Transport (Vehicle and Driver Registration and Licensing) Act were potentially available, the problem for the police in this case is that no certificate was provided and no pre-trial hearsay notice was given.
[67] Like Panckhurst J in Osborn, I might have been willing to assume that the
District Court Judge would probably have dispensed with the need for the requisite notice had the document itself been produced at the hearing. But it was not.
11 As from 1 May 2011, s 18 of the Transport (Vehicle and Driver Registration and Licensing) Act
1986 has been replaced by s 234 of the Land Transport Act 1998. Section 234 is to similar effect, and states:
(1) The Registrar must continue and maintain the register of all motor vehicles for which registration plates are issued.
(2) In any proceedings, the contents of the register are proved by the production of a certificate indicating its contents if signed by the Registrar or a person acting under a delegation from—
(a) the Registrar; or
(b) an enforcement authority.
[68] After careful consideration I have decided it is not possible on appeal for me to overlook these deficiencies, and accordingly I accept Mr Maze‘s submission that there was no admissible evidence establishing the identity of the registered owner.
[69] For completeness, I should address the issue of the relationship between Nigel Hastie and Bradley Hastie. It is unclear from Constable Morris‘ evidence exactly how he came to the belief that the relationship was one of father and son. If it was because of what the appellant told him, then that would be admissible as an admission. If, however, it was based on what Nigel Hastie told him during their telephone conversation then that would be hearsay. However, a finding that there was some connection between Nigel Hastie and Bradley Hastie would have been available to the Judge without relying on hearsay. That is because the constable also testified that after speaking to Nigel Hastie he put Bradley Hastie on the phone and the two spoke, following which Bradley was more co-operative. Arguably, evidence of the fact of the two talking and a change in Bradley‘s attitude is in the nature of an implied assertion as to the existence of some connection.
[70] The relevance of there being some connection between the two people talking is of course wholly dependent on one of the speakers being the registered owner of the Subaru involved in the accident, which brings us back to the key hearsay objection.
Should there be a rehearing?
[71] My ruling that the evidence of ownership was inadmissible hearsay means that the convictions and sentence must be quashed.
[72] However, that is not necessarily the end of the matter. Ms Basire submitted that if I were to rule the evidence inadmissible, the appropriate course of action was for there to be a rehearing in the District Court.
[73] Mr Maze strongly opposed this. He advanced the following arguments:
(i)Like Botting,12 this was a situation of the prosecution failing to call evidence that was fundamental to its case, and accordingly it was wrong in principle to allow the prosecution a second bite of the cherry. On its own, the public interest in convicting an offender is not enough.
(ii)The failure of the informant‘s case was due to its ―wholesale failure‖ to comply with its obligations under the Criminal Disclosure Act 2008 and the Evidence Act.
(iii)An order authorising a rehearing would have the appearance of being influenced by inadmissible evidence, notably the dock identifications and the identity of the registered owner.
(iv)Having regard to the length of time since the incident (well past the limitation period) and the effects of the 22 February earthquake on the Court‘s ability to schedule a rehearing, the delay caused by a rehearing would be inordinate.
[74] I have carefully considered all of Mr Maze‘s submissions. However, my view, after taking into account all the circumstances, is that there should be a rehearing.
[75] The power to order a rehearing is derived from s 131 of the Summary Proceedings Act 1957. On the face of it, the discretion is an unfettered one, and as Mr Maze acknowledged, the Court of Appeal has not attempted to define the circumstances where it may be appropriate to allow the prosecution a second chance
to prove its case.
12 Botting v Ministry of Transport HC Dunedin 151/82, 30 May 1983.
[76] It is well established that it is an appropriate exercise of the discretion to order a rehearing in circumstances where the proof against a defendant has been defective due to a technical or formal omission.13
[77] I accept that in this case the identity of the registered owner was a pivotal piece of circumstantial evidence, and so in that sense was not merely formal or technical evidence. On the other hand, it is a matter that is objectively verifiable and the need for it had not been overlooked. The failure was to observe the correct procedural formalities. It took place in a busy summary Court where the prosecution was being conducted by a person who was not a qualified barrister. It was not a situation of the prosecution failing to turn their mind to the need to put the evidence before the Court.
[78] Nor do I accept as claimed at one point that there has been a wholesale failure to comply with the police‘s disclosure obligations.14 Ms Basire states that there was pre-trial disclosure of the jobsheet which recorded Nigel Hastie‘s phone number. The jobsheet stated ―0456 called Nigel Hastie, father of Bradley, on 07 308 9191.
0512 phone call ended.‖
[79] If anyone was taken by surprise in this case, my assessment is that it was the police.
[80] I am also mindful of the fact that this was a relatively serious charge involving aspects of public safety. There was an accident and a real risk of serious injury.
[81] In coming to the conclusion that a rehearing is necessary in the interests of justice, I have not overlooked Mr Maze‘s arguments about delay and the Christchurch earthquake. However, in my assessment these are outweighed by the
other considerations which I have mentioned.
13 Morgan v Ministry of Transport [1980] 1 NZLR 432.
14 In subsequent submissions, Mr Maze resiled from this claim.
Outcome
[82] The appeal is allowed. The convictions are quashed and the matter remitted to the District Court for rehearing of the informations.
[83] The appellant is accordingly ordered to appear in the District Court (Nga Hau e Wha Marae, Pages Road) on Thursday 15 September at 10 a.m. for a fixture date to be allocated. I request the District Court to afford the matter some priority.
Solicitors:
R W Maze, Christchurch
Crown Solicitor‘s Office, Christchurch
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