Johanson v Police
[2012] NZHC 1309
•11 June 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2012-485-36 [2012] NZHC 1309
DAVID ADRIAN JOHN JOHANSON
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 5 June 2012
Appearances: T D Lancaster for the appellant
S A Bishop for the respondent
Judgment: 11 June 2012
JUDGMENT OF CLIFFORD J
Introduction
[1] Mr Johanson was, following a summary trial before Judge Behrens in the
District Court at Wellington, convicted of driving a motor vehicle on 30 September
2011 with excess breath alcohol. He was sentenced to nine months’ home detention and disqualified from driving for 18 months. Mr Johanson has filed an appeal against his conviction. Mr Johanson now seeks leave to admit fresh evidence in his appeal. The fresh evidence Mr Johanson wishes to admit is recorded in an affidavit sworn in Australia by a Mr Paul Parker, who says he was the driver of the vehicle on the evening in question. Mr Johanson himself has filed an affidavit in which he
states he did not know Mr Parker’s address or contact details at the time of the
JOHANSON v POLICE HC WN CRI-2012-485-36 [11 June 2012]
defended hearing. If leave is given, arrangements would have to be made for Mr
Parker to give evidence. He says he would only do this from Australia.
Legal principles
[2] Section 119(3) of the Summary Proceedings Act 1957 gives this Court “full discretionary power to hear and receive further evidence”. The key principles on the admission of fresh evidence on appeal under that section can be summarised as follows:
(a) Fresh evidence is not admitted as of right, its admission is a matter of discretion under s 389 of the Crimes Act 1961.[1]
[1] Austin, Nichols & Co Inc v Stitching Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
(b)An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is (i) sufficiently fresh, and (ii) sufficiently credible.[2]
[2] R v Bain [2004] 1 NZLR 638 (CA) at [22]-[24].
(c) Ordinarily, if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh.[3] But the overriding criterion is always what will best serve the interests of justice.[4]
[3] McCabe v Police HC Hamilton AP26/95, 26 June 1996 at 6.
[4] R v Bain [2004] 1 NZLR 638 (CA) at [22]-[24] confirmed in Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
(d)Thus, the stronger the additional evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.[5]
[5] At [22]-[24].
(e) When determining whether evidence is sufficiently credible, both inherent and contextual credibility will need consideration.[6]
(f) If the new evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. But if it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates that there has been a real risk that a miscarriage of justice has occurred on account of the new
evidence not being before the Court which convicted the appellant.[7]
[6] At [22]-[24].
[7] At [22]-[24].
[3] Fairburn v R expressly affirms the principles set out in Bain at [25] but appears to modify Bain by suggesting that evidence must be cogent to be admissible (previously freshness and credibility determined admissibility, whereas cogency went to whether there was a risk of a miscarriage of justice).[8]
[8] Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63.
[4] Notwithstanding that clear authority, Mr Lancaster proceeded on the basis that all he had to establish was the “freshness” of the evidence from Mr Parker. It was his submission that he did not at this point need to consider issues of credibility and cogency. That is clearly wrong. I will, however, not decide this application simply on the basis that a necessary element of the test was not addressed by Mr Lancaster. Rather, I will consider both limbs of the test in terms of the proposed evidence.
Mr Parker’s evidence
[5] In his affidavit, Mr Parker – who is a truck driver – states that in September
2011 he was living in the Wellington region, but was generally sleeping in his vehicle. On 30 September 2011 he says he attended a fundraising event at the Waikanae Hotel with Mr Johanson, an old friend. They left that event at about
11.00pm and drove south. Mr Parker says he was the driver and Mr Johanson was the front seat passenger. There was nobody else in the vehicle. At Mr Johanson’s request he turned into the Burger King driveway on State Highway One south of Paraparaumu and “halfway down the drive a cat appeared. I swerved to miss it. The car veered to the right and drove up the gutter verge. The car hit a post and jammed.
I could not move it”. Mr Parker says he then got out of the car and left to see if he
could get a tow truck to assist. He walked up to the centre of the town (Paraparaumu) without entering Burger King, where he asked a person where he could get a tow truck. He was told there was “a car wrecking yard up by the bridge, past the lights, on the main road”. He walked there but found it closed. He then returned to the Burger King driveway, walking no doubt. There was nobody there. He then walked back to the Paraparaumu train station. As trains were no longer running he hitched a ride to Porirua and “slept in my own car which was parked there”. He says he saw Mr Johanson the next morning “but we did not discuss the events of the night before other than his explaining what had happened after I left the Burger King driveway, and where to get the vehicle repaired”.
[6] Mr Parker says that Mr Johanson telephoned him after Mr Johanson had received his summons to ask him to tell the police what happened on 30 September. He was reluctant to do so because, if he was charged with something, his passport might be removed, impinging on his travel plans to Australia. “Instead I hand-wrote a statement and left this with the owner of vehicle ELY 541 and faxed it to my former lawyer”. Mr Parker says he left New Zealand in late October or early November and had not provided Mr Johanson with any ongoing contact details before he left.
Mr Johanson’s explanation
[7] In his affidavit Mr Johanson says that Mr Parker visited him the morning after his arrest. Mr Johanson asked Mr Parker to contact the police to sort matters out. He heard from Mr Parker again in November 2011 by telephone. After he had received his summons he asked him again to contact the police. Mr Parker advised him that he was about to leave for Australia but that he would leave an affidavit with his lawyer, Mr Bott. After Mr Lancaster had been assigned by Legal Aid, Mr Johanson had advised him of this. He understood that when Mr Lancaster contacted Mr Bott, Mr Bott had no knowledge of any affidavit.
[8] Mr Johanson says that up until his hearing he had been unable to obtain contact details for Mr Parker. Friends and family he contacted could not, or possibly would not, tell him. Somewhat vaguely, he says he had been making inquiries about
the whereabouts of the “affidavit” Mr Parker said he had provided to his lawyer and that led him to obtaining a letter written by Mr Parker. He gave that letter, still sealed in an envelope, to Mr Lancaster on the morning of his summary trial. Mr Lancaster, at the hearing, endeavoured to persuade the Judge that the letter should be admitted notwithstanding the hearsay rule. Understandably, the Judge declined to admit the letter as evidence. Mr Lancaster does not challenge that decision. My understanding is that, in that letter, Mr Parker made similar statements to those now found in his affidavit.
[9] Subsequently, after Mr Johanson had started serving his sentence of home detention, he says he was contacted by a family member of Mr Parker who told him Mr Parker was going to be in New Zealand for a few days. Mr Johanson asked for a message to be passed to Mr Parker asking him to contact his lawyer, Mr Lancaster. In his written submissions, Mr Lancaster confirmed that he had been contacted by phone by Mr Parker, and had been given contact details in Australia. I understand that it was, in that way, that Mr Lancaster was subsequently able to obtain the signed affidavit from Mr Parker that was before me.
Is the new evidence fresh?
[10] Both Mr Parker and Mr Johanson acknowledge that they are old friends. Mr Johanson’s evidence is that they grew up together in Porirua, and had been friends for at least 30 years. They knew each other well enough to meet and go to a party at Waikanae, and then to drive back together, they say, on the evening of
30 September. It is difficult to see how they could have made those arrangements without them having some idea of how to contact each other. Mr Parker visited Mr Johanson the next day. Given those facts, I am not persuaded that, with reasonable diligence, Mr Johanson could not have procured evidence from Mr Parker. At least, Mr Johanson could have advised the police that it was Mr Parker who had been driving on the night in question, rather than him. At no point, either on the evening in question or subsequently, and indeed right up until his trial, was that allegation made.
[11] Moreover, Mr Johanson has not explained satisfactorily how and in what circumstances he came into possession of the written statement from Mr Parker that Mr Lancaster sought to introduce as evidence at his trial. He simply stated in evidence that it “had been brought to his notice” that there was a statement of sorts from Mr Parker inside the envelope and that he had given it to the owner of the vehicle before he left the country. The clear inference is that Mr Johanson was in touch with people who knew of Mr Parker’s whereabouts and of actions he was taking before Mr Johanson’s summary trial. This also leads me to conclude that with reasonable ease Mr Johanson could have procured Mr Parker’s evidence in time for his trial.
[12] Finally, and as Ms Bishop submitted, on the morning of the trial Mr Parker’s contact details, a mobile phone number, were contained in that letter. The letter apparently stated he could be contacted on that number. Although I do not place great weight on this particular consideration, I note that neither Mr Johanson nor Mr Lancaster attempted to do so, or raise with the Judge the question of a possible adjournment of the hearing to enable contact to be made.
[13] I therefore conclude that the new evidence was not fresh.
Is the new evidence credible and cogent?
[14] At Mr Johanson’s trial, evidence for the prosecution was given by a Mr Singh, who was working in the Burger King south of Paraparaumu on State Highway One had observed a car being driven into the driveway, crashing into an electricity pole and stopping. He observed the driver getting out of the vehicle. He then observed the driver get back into the car and try to reverse the car but, his evidence was, the car was stuck. Mr Singh’s evidence was that there was no delay before the people had come out of the Burger King shop. Mr Singh stood outside until the police arrived. Mr Singh had gone outside straight away when he had heard the noise of the car crashing into the pole, he had seen the car collide with the pole and had had a clear view. Under cross-examination, Mr Singh maintained it was a single person in the car and that he had observed that in the manner noted in his evidence-in-chief. Likewise, Mr Singh was challenged extensively in cross-
examination as to whether or not his view of the car was obstructed, but he maintained that he had a clear view.
[15] The police officer who attended, a Constable Dredge, also gave evidence. His evidence was that when he arrived Mr Johanson was leaning against a wall near where the vehicle had crashed. Mr Johanson gave him his name and the police constable recorded in his notebook “He states he is stuffed”. The constable also said that Mr Johanson had admitted to being a suspended driver, that he had been drinking and that he had drunk four beers prior to driving and that he was the driver. The constable took a breath test from Mr Johanson which returned a positive result. Mr Johanson was required to accompany the police constable to the Kapiti police station. Thereafter the evidence was not disputed.
[16] The police constable also gave evidence that at the time Mr Johanson made no mention of there being any other person in the car with him or that another person had been the driver.
[17] When he gave evidence, Mr Johanson said that he had been with Paul Parker that evening, that it was Mr Parker who had been driving the vehicle and that he had accidentally put the vehicle up onto the raised kerb and in doing so hit the light post. Having inspected the vehicle Mr Parker decided they needed a tow truck. He had walked back towards Paraparaumu. At that point two people had come out from Burger King. Mr Johanson denied that the constable asked him if he had been driving. Mr Johanson’s evidence was that the constable had said normally a driver would take off, and that he, Mr Johanson, had replied “But I had no reason to take off”. At that point he had been asked to take a breathalyser test which he had willingly done.
[18] Mr Johanson admitted never telling the police that Mr Parker was the driver, he says because he was never asked a direct question. He took it that the police assumed he was the driver, because of his past history (he has previous drink driving convictions) and he just co-operated with the officer.
[19] I find the relevant evidence of Mr Parker and Mr Johanson neither credible nor cogent. The simple point is that, if indeed Mr Johanson had not been the driver on the evening in question and that – as is implied – a sober Mr Parker had left the scene to walk to Paraparaumu (itself a somewhat surprising action given the proximity of the open Burger King shop) to try and obtain help, then there would simply be no reason for Mr Johanson not to give that information to the police. Moreover, he had previous drink driving convictions which mean that was an even more natural thing to do. There is no reason, therefore, for Mr Johanson not to proffer that explanation on the evening in question. I am simply not persuaded that the evidence subsequently offered can be considered, as I have already said, cogent or credible.
[20] Mr Johanson’s application to admit further evidence on this appeal is therefore declined. Mr Lancaster did not make it clear whether, if that was the outcome of the application, Mr Johanson would withdraw his appeal. I can only assume that is likely to be the case. However, that is a matter Mr Lancaster should
confirm, or otherwise, to the Court.
Clifford J
Solicitors:
T Lancaster, Wellington for the appellant ([email protected]) Crown Solicitor, Wellington for the respondent ([email protected])
Solicitors:
0
2
0