Johanson v Police - [2012] NZHC 1309

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…

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 1309
Case: [2012] NZHC 1309
Decision Date: 11 June 2012

CaseChat Overview and Summary

The appellant, David Adrian John Johanson, appeals against his conviction for driving with excess breath alcohol, as well as his sentence. He seeks leave to admit fresh evidence in the form of an affidavit sworn in Australia by Paul Parker, who claims he was the driver of the vehicle in question. The central issue is whether this new evidence is sufficiently fresh and credible to warrant its admission. The court has full discretionary power under Section 119(3) of the Summary Proceedings Act 1957 to hear and receive further evidence. However, the admission of fresh evidence is not automatic; it is a matter of discretion under Section 389 of the Crimes Act 1961. An appellant must demonstrate that the new evidence is both sufficiently fresh and sufficiently credible.

The court found that the evidence from Mr Parker was not fresh, as Mr Johanson could have reasonably obtained it prior to the trial. The court was unpersuaded by the argument that Mr Johanson did not know Mr Parker’s address or contact details at the time of the hearing. The court found that Mr Johanson had been in touch with people who knew Mr Parker’s whereabouts and actions before the trial. Furthermore, Mr Parker’s contact details were contained in a letter presented on the morning of the trial, though neither Mr Johanson nor his lawyer attempted to contact him or seek an adjournment. The court also found the evidence from Mr Parker and Mr Johanson neither credible nor cogent. Given that Mr Johanson had previous drink driving convictions, it was natural for him to provide the explanation that Mr Parker was the driver, especially if he were not the driver. The court declined Mr Johanson’s application to admit further evidence on this appeal.

Orders