Johanson v Police

[2012] NZHC 2084

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2012-485-36 [2012] NZHC 2084

BETWEEN  DAVID ADRIAN JOHN JOHANSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 August 2012

Counsel:         Appellant in Person

A A McCubbin-Howell for Respondent

Judgment:      16 August 2012

JUDGMENT OF THE HON JUSTICE KÓS (Appeal against conviction)

[1]      Late on the evening of Wednesday 30 September 2011 a car mounted the kerb outside the Paraparaumu Burger King, hit a power pole and came to a stop.

[2]      Mr Johanson was convicted on 23 February 2012 by Judge Behrens on a charge of driving that vehicle with excess breath alcohol.  He has, as he admits, a number of such convictions.  He defended the charge and gave evidence that he was not the driver.  The driver supposedly was a Mr Paul David Parker.  Mr Parker, at the time of trial, was working as a truck driver in Australia.   Mr Parker did not give evidence.   Mr Johanson had legal counsel.   His counsel sought to admit a written statement  from  Mr  Parker.    Judge  Behrens  quotes  the  opening  words  of  that statement, which are somewhat lyrical:

I am writing this letter in the Blue Island Seafoods Takeaway in Moera, Seaview, and the time has just gone 10 to 6.

The Judge does not cite what the statement said about who was responsible for driving.  But one can take it that Mr Parker confessed it was him.

JOHANSON v NEW ZEALAND POLICE HC WN CRI 2012-485-36 [16 August 2012]

[3]      Judge Behrens decided that the statement was not sufficiently reliable to be admissible as a hearsay statement under s 18 of the Evidence Act 2006.  He preferred the evidence of a worker at the Burger King outlet who had seen the accident.  He identified Mr Johanson as the sole occupant and driver of the vehicle.   He also accepted the evidence of a police officer who spoke to Mr Johanson at the scene. Mr Johanson supposedly said “he was stuffed, that he thought he was a suspended driver, that he had been drinking, that he had had four beers, and that he was the driver.”

[4]      Subsequently a different Judge, Judge Walker, sentenced Mr Johanson to nine

months’ home detention and disqualified him from driving for 18 months.

[5]      Mr Johanson’s appeal is brought on the basis that there is reasonable doubt as to whether he was the driver of the vehicle.   For that purpose he sought leave to adduce new evidence from Mr Parker.   That application was determined as a preliminary matter by Clifford J on 11 June 2012.  Clifford J found that the affidavit evidence of Messrs Parker and Johanson was neither credible nor cogent.   The application for leave to admit further evidence was therefore dismissed.

[6]      The substantive appeal was scheduled for hearing before me today.   There had been some prior indication that the appeal would be abandoned.  However, that was not what occurred.

Application for adjournment

[7]      When the appeal was called in the Criminal Appeals List, Mr Johanson (who appeared for himself) applied to adjourn.   He wished to do this for two reasons. First, because he was presently applying for legal aid.   Secondly, because he recognises the very substantial difficulty lying in his way in succeeding in the appeal without admission of the evidence of Mr Parker.   For that purpose it would be necessary to appeal the decision of Clifford J to the Court of Appeal.

[8]      Adjournment was opposed by the Crown.

[9]      Having   heard   competing   submissions   I   refused   the   application   for adjournment.   The appeal had been scheduled for hearing, and no application for adjournment had been made in adequate time.  The reality was that Mr Johanson’s appeal faced great difficulties without the evidence of Mr Parker being received, and that depends on a challenge to Clifford J’s decision.  Rather than deal with matters serially, it was more sensible that the appeal be resolved in this Court now, and Mr Johanson advance, if he is able to, a composite appeal to the Court of Appeal.

Appeal against conviction

[10]     Mr Johanson was admirably frank in his submissions as to the difficulties faced by him in advancing the present appeal without the evidence of Mr Parker. His  real  remaining  point  on  appeal  was  that  he  should  have  been  given  an opportunity to obtain reliable viva voce evidence from Mr Parker at trial.   His counsel should have sought an adjournment for that purpose.

[11]     I accept, however, the submission made for the Crown that this is really advancing a counsel incompetence argument.  It appears that Mr Johanson’s counsel at trial put all his eggs in the basket of the hearsay statement, and did not apply for an adjournment to adduce viva voce evidence from Mr Parker.  It is not for me to say today whether he was right or wrong to do so.

[12]   An argument based on counsel incompetence must however meet the requirement of Sungsuwan v R:[1]  the ultimate question here is not whether counsel was incompetent but whether a miscarriage of justice occurred.   That depends on whether the evidence of Mr Parker would have had a material beneficial impact. Clifford J found the proposed new evidence was neither cogent nor credible.   It follows that the evidence of Mr Parker, had it been obtained, would not have had an impact on trial favourable to Mr Johanson.

[1] Sungsuwan v R [2005] NZSC 57; [2006] 1 NZLR 730.

[13]     The independent evidence in this case that Mr Johanson was the driver of the vehicle  was  overwhelming.    As  Clifford  J  noted,  it  was  corroborated  by  the

improbability of a supposedly sober Mr Parker having left the accident scene to walk

to Paraparaumu for assistance when there was a nearby and open Burger King shop

(whence the independent witness came).

Result

[14]     Mr Johanson has not persuaded me that the decision of the District Court was in error.

[15]     The appeal is dismissed.

Stephen Kós J

Solicitors:

Crown Solicitor, Wellington for Respondent

And to:

D A J Johanson, 83 Rawhiti Road, Pukerua Bay, Porirua City 5026