Jailane v Police
[2019] NZHC 3123
•28 November 2019
IN THE HIGH COURT OF NEW ZEALAND TIMARU REGISTRY
I TE KŌTI MATUA O AOTEAROA TE TIHI-O-MARU ROHE
CRI-2019-476-26
[2019] NZHC 3123
BETWEEN ALI MOREDY JAILANE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 21 November 2019 Appearances:
T Jackson for the Appellant
H V Bennett for the Respondent
Judgment:
28 November 2019
JUDGMENT OF CULL J
[1] Mr Jailane appeals his conviction of driving with excess blood alcohol following a Judge-alone trial in the District Court.1 He appeals on the ground that he was not the driver.
[2] Mr Jailane says that the District Court erred in its assessment that the evidence proved the charge beyond reasonable doubt when the Judge:
(a)decided the case based solely on the evidence of one prosecution witness;
(b)failed to give reasons for why he concluded the defence witnesses were untruthful; and
1 New Zealand Police v Jailane [2019] NZDC 20834.
JAILANE v NEW ZEALAND POLICE [2019] NZHC 3123 [28 November 2019]
(c)failed to take into account that the prosecution witness may have been mistaken, wrong, inaccurate or otherwise unreliable on the issue of driver identity.
[3] The police submit the trial Judge did have a proper evidential foundation for finding the charge proved beyond reasonable doubt. It is submitted the Judge gave appropriate reasons for matters which he was required to, and he made no other errors which give rise to a miscarriage.
Facts
[4] On 30 June 2018, Sergeant Lucy Horne was dispatched to Hall Street, Timaru where a witness had reported a person drinking and driving. She stopped the vehicle matching the description of a white Mitsubishi Lancer. She found four people in the vehicle. Mr Jailane was seated in the rear passenger seat on the passenger side. She undertook a breath screening test with Mr Jailane which indicated a result of over 400 micrograms of alcohol per litre of breath – it returned a result of 572 micrograms. An analysis of a blood specimen taken from Mr Jailane revealed his blood contained 129 mg of alcohol (plus or minus 6 mg) per 100 ml of blood. It is not in dispute that the drink driving procedures were correctly carried out and that the blood alcohol reading was as found by the ESR analyst.
[5] At the police station photographs were taken of Mr Jailane. The clothing he was wearing included a black hoodie and a grey-green cap.
[6] Mr Jailane disputed that he was the driver of the vehicle. The police relied on one civilian witness to identify Mr Jailane as the driver. The witness was on a wharf at the foreshore at Timaru watching powerboat races. At the relevant time he was sitting in his vehicle, which was parked by the rocks. He saw a vehicle attempt to pull in and the way it was being driven caught his attention because its driver appeared not to have any space perception. He said, “[the driver] almost collected my car”. He then said, “the driver almost fell out of the car”.2
2 New Zealand Police v Jailane, above n 1, at [4].
[7] The witness was about five metres away from the car. He said the driver was a male of African descent, while the front passenger was a female and the two rear passengers were Caucasian males. He observed the driver getting out, being very unstable on his feet and thought he was intoxicated. He said the driver was wearing a cap and hoodie. He described the hoodie as black and the cap was a grey-greenie colour. He then saw the driver reaching inside the car to grab an open Woodstock can and saw him start to drink it. The other passengers were also drinking. He phoned the police and waited for them to arrive.
[8] Mr Jailane’s explanation of this account was that he had been drinking at home on the day and there were a couple of other people drinking with him, including Mr Ahmed. Mr Ahmed is also of African-descent. Mr Ahmed then drove their group in Mr Jailane’s vehicle down to the powerboat races. There were five of them in the car. When they pulled up, Mr Ahmed left in another car and Mr Jailane jumped into the front seat. When the police arrived an hour later, Mr Jailane told police there was another driver. Mr Jailane’s partner, one of the other passengers, also gave evidence of this same account.
Principles on appeal
[9] Section 232 of the Criminal Procedure Act 2011 provides that the High Court may only allow an appeal against conviction if satisfied that the trial judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason.” A miscarriage of justice means any error, irregularity, or occurrence in or in relation to the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial.3
[10] Following Sena v New Zealand Police, appeals are to proceed by way of rehearing, and the appeal court is required to form its own view of the facts and determine the appeal accordingly.4 If an appeal court comes to a different view than the trial Judge on the evidence, the trial Judge will necessarily have erred and the
3 Section 232(4).
4 Sena v New Zealand Police [2019] NZSC 55.
appeal must be allowed.5 However, the appeal is not to be approached de novo: it is for the appellant to show that an error has been made to such an extent that the process has miscarried.6
District Court decision
[11] The sole issue for determination was the driver’s identity.7 The Judge canvassed the prosecution evidence from the independent witness and the police officer who attended the scene.
[12] As Mr Jailane had elected to call evidence, the Judge reminded himself that the onus of proof remained on the prosecution throughout, and the standard of proof was beyond reasonable doubt.8 He traversed Mr Jailane’s evidence and that of his partner. He reminded himself he had to be satisfied beyond reasonable doubt that Mr Jailane was the driver.9
[13] The Judge made a credibility finding in favour of the civilian witness in that he was independent, disinterested in the outcome and unshaken during cross- examination from his account.10 He noted that his description of Mr Jailane’s clothing was corroborated by the photograph booklet. The Judge observed that the vehicle was Mr Jailane’s so logically he would be the one most likely to be driving it. He also noted that the driving was consistent with someone who was intoxicated, which matched Mr Jailane’s blood alcohol reading.
[14] The Judge concluded that Mr Jailane and his partner were not telling the truth.11 He found it would be fanciful that the Crown’s independent witness would miss the fact there was a swap around of drivers and another car pulled up to take Mr Ahmed away.
5 At [38].
6 At [38].
7 New Zealand Police v Jailane, above n 1, at [3]
8 At [13].
9 At [16].
10 At [17]-[19].
11 At [21].
Discussion
[15] The grounds of appeal are whether the Judge erred in deciding the case based on the evidence of one prosecution witness and/or failed to give reasons for why he concluded the defence witnesses were untruthful.
[16] In addressing these grounds of appeal, , Mr Jackson for Mr Jailene attached to his submission an affidavit of Mr Ahmed who had sworn that he was the driver on the day in question. The affidavit was sworn on 29 March 2019, six months before the hearing because he was about to depart for Australia, where he now resides. This affidavit was not filed in the District Court or served on the police and nor was there any application by defence counsel to seek its admission as a hearsay statement or have his evidence taken before trial or remotely.
[17] Mr Jackson referred the Court to the affidavit in support of his submission that it was “very unlikely” that the independent Crown witness did not see a fifth person on that day. In any event, he submitted the fact that the witness may not have seen the fifth person does not exclude the possibility Mr Ahmed does in fact exist, is also Somalian and so may be more easily mistaken for Mr Jailene, and was the driver in question, as his sworn evidence states.
[18] Until this hearing, counsel for the police was unaware of the existence of the affidavit. Mr Jackson accepted responsibility for the oversight, acknowledging that no application was made to have Mr Ahmed’s evidence taken by way of remote participation or that the affidavit be adduced as a hearsay statement.
[19] The hearing proceeded on the two grounds of appeal advanced, with Mr Jackson relying on Sena v New Zealand Police to advance the proposition that the Judge’s failure to provide reasons for why he concluded the defence witnesses were untruthful amounted to a miscarriage of justice, as a reasoned judgment was essential to the fair trial rights of the defendant and the outcome of the trial.12
12 Sena v New Zealand Police, above n 4, at [36]–[37].
[20] Ms Bennett for the police responded by submitting that although the Judge rejected the defence evidence, he went on to consider whether the evidence of the prosecution was sufficient to prove the identity of the driver beyond reasonable doubt. He proceeded on a proper direction and she submits he appropriately discharged his obligations. Further, it is submitted that this Court would be “descending into the arena” of the trial Judge as the assessor of credibility and fact finding if it were to scrutinise the trial Judge’s credibility findings.13
[21] I have not traversed counsel’s submissions in detail because I consider that a miscarriage of justice may have occurred, due to defence counsel’s oversight in not bringing to the Judge’s attention that Mr Ahmed was not fictitious but a real person, who had sworn an affidavit before he departed to Australia that he was the driver on the day. Further, attached to Mr Ahmed’s affidavit was a map marked Exhibit A, with Mr Ahmed’s handwriting stating “This is where I dropped Ali Jailane and friends off. I parked the car here”. The map shows the area with the Timaru Yacht and Power Boat Club designated.
[22] Therefore, under s 232 of the Criminal Procedure Act, I find that a miscarriage of justice may have occurred in this case because of counsel’s oversight causing an irregularity in relation to the trial. This has created a real risk that the outcome of the trial was affected or has resulted in an unfair trial.14
[23] For that reason, I am allowing the appeal, setting aside the conviction and I direct that a new trial be held.15
Result
[24]The appeal is allowed and the appellant’s conviction is set aside.
[25]I direct that a new trial in the District Court be held.
Cull J
13 Kumar v New Zealand Police HC Auckland CRI-2010-404-40 at [25]–[27].
14 Criminal Procedure Act 2011, s 232(4).
15 Criminal Procedure Act 2011, s 233(3)(b).
Solicitors:
Quentin Hix Legal Limited, Timaru
Crown Law Office, Timaru for Respondent
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