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…

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 Johanson v Police

Details

AGLC: Johanson v Police [2012] NZHC 2084
Case: [2012] NZHC 2084
Decision Date: 16 August 2012

CaseChat Overview and Summary

In Johanson v Police, the appellant, David Adrian John Johanson, contested his conviction for driving with excess breath alcohol. Johanson admitted to having previous convictions of a similar nature but defended the charge, asserting that he was not the driver of the vehicle involved in the incident. Instead, he claimed that the driver was Paul David Parker, who was working in Australia at the time of the trial and did not provide evidence. Johanson's counsel attempted to introduce a written statement from Parker, which seemed to indicate that Parker was the driver, but Judge Behrens deemed it unreliable and inadmissible as hearsay. The judge relied on the evidence of a Burger King employee who identified Johanson as the driver and a police officer who spoke to Johanson at the scene, where Johanson admitted to being the driver.

The primary legal issue before the court was whether the trial judge erred in excluding Parker's written statement and whether Johanson was entitled to an adjournment to obtain Parker's viva voce testimony. Johanson argued that he should have been given the opportunity to obtain reliable evidence from Parker to establish reasonable doubt about his identity as the driver. The Crown countered that this amounted to an argument of counsel incompetence and highlighted that Johanson's counsel had relied solely on the hearsay statement without seeking an adjournment to secure Parker's testimony. The court examined whether Parker's evidence would have had a material beneficial impact, as required by Sungsuwan v R. Given Clifford J's finding that Parker's proposed new evidence was neither credible nor cogent, the court concluded that Parker's testimony would not have favoured Johanson.

The court dismissed Johanson's appeal against conviction, finding that the independent evidence supporting Johanson's identification as the driver was overwhelming. The court noted that it was improbable for a supposedly sober Parker to have walked to Paraparaumu for assistance when a nearby Burger King was open. Therefore, the decision of the District Court was upheld, and the appeal was dismissed.

Orders