K v Police CRI 2010-404-40 HC Auckland

[2010] NZHC 341

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2010-404-40

BETWEEN  K

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         22 March 2010

Appearances: Appellant in Person

S Singh for Respondent

Judgment:      22 March 2010

[ORAL] JUDGMENT OF WILLIAMS J

The appeal against conviction is dismissed.

Introduction

[1]      On 23 November 2009  Judge Recordon sitting in the Waitakere District Court convicted  the  appellant  Mr  K    on  one  charge  of  operating  a  vehicle carelessly on Rata Street New Lynn, Auckland on 30 May 2008 and at the same time driving a motor vehicle whilst the proportion of alcohol in his blood exceeded 80 milligrams per 100 millilitres of blood.  The reading was in fact 227 milligrams of alcohol per 100 millilitres of blood.  Mr K   had at least twice previously been convicted of blood alcohol offences.

Procedural Issues

K V NEW ZEALAND POLICE HC AK CRI 2010-404-40  22 March 2010

[2]      There are a number of procedural issues that need to be cleared away before the nub of the appeal can be fully addressed.

[3]      The case had a somewhat unsatisfactory and unconventional history.  After

30 May 2008 Mr K   was out of the country on a number of occasions for periods associated with an international soccer tournament in the organisation of which he was involved, so the prosecution did not come on for hearing initially until July

2009.  However, for some reason what is described as Mr K  ’s “alibi” defence had not been previously notified by the solicitor then acting for him.   That alibi defence in essence was that Mr K   was not the driver of the vehicle which was stopped by the Police on 30 May 2008.  Details of that defence were advised in July

2009 and as a result Police Constable Turner interviewed a Mr Gardner, the man then said by Mr K   to have been the driver of the van on the night in question. He took a statement from him.   Two other witnesses, a Mr Chand and another Mr K   were also said to have been able to provide supportive evidence.

[4]      The Police required an opportunity, as is usual, to check the matters advanced by the defence and the hearing of the charges therefore had to be adjourned.  They came on for hearing on 23 November 2009 and Judge Recordon disposed of them on that day by entering the convictions abovementioned.

[5]      The next procedural matter to be noted is that Mr K   in his submissions presented  in person  on  appeal  (in  the  preparation of  which  his former  solicitor participated) asserted that Judge Recordon may have been guilty of bias by predetermination because during Mr K  ’s evidence the sitting was interrupted by industrial  action  at  the  Waitakere  Court  and  the  Judge  suggested  Mr  Singh, Mr K  ’s counsel, explain the meaning of perjury to his client.  Mr K   infers from that exchange that the Judge had predetermined the issues against him and was biased  in  his  approach  to  an  evaluation  of  those  issues.    As  was  explained  to Mr K   during exchanges between Bench and Bar on appeal, what the Judge said, in the advice he gave to Mr K  ’s then solicitor, was no more than the conventional  and  commonplace  advice  given  by  Judges  to  witnesses  when  the factual versions of events put in evidence is in stark contrast as they were on this occasion.  This is to ensure that witnesses cannot later say - if the factual decision

goes against them - that they were not warned of the consequences if it turns out to be the case they were found not to have been giving a truthful version of events to the Court.

[6]      The  next  procedural  matter  is  that  at  earlier  stages  of  this  prosecution Constable Turner told the defence there were three Police Officers involved in the facts of the matter.  In evidence at the hearing, however, Constable Turner said he was the only constable in the Police car which stopped the van in which Mr K   was, and that the other two constables were secreted some distance away in a Police car positioned so as to be able to chase persons who sought to evade the checkpoint and thus escape possible prosecution.  Since the episode occurred at about 1:00am it is understandable the other constables could give no evidence of assistance in the prosecution.  That fact was included in Constable Turner’s evidence.  Strictly it may have been preferable in light of the earlier advice to have called the two constables so they could have said for themselves they could give no evidence of relevance, but in the circumstances of a summary prosecution of this nature it would have been pointless to require the officers to be called out having regard to their inconvenience and the fact they would have been able to give no evidence to help the Court.

[7]      The final procedural matter is that the hearing itself on 23 November 2009 followed a slightly unusual course.  Constable Turner was the sole witness for the Police and gave evidence but a number of what later were regarded as significant issues were not put to him in cross-examination.  As a result Constable Turner was recalled to give that evidence and be further cross-examined at a point halfway through Mr K  ’s evidence because the version of events Mr K   had given was so radically different from that in Constable Turner’s original evidence.  So as a matter of fairness he had to be given an opportunity to answer those new matters before Mr K  ’s evidence was completed.

The evidence

[8]      The case presented two starkly different versions of the events of 30 May

2008 to the Court.   As mentioned Constable Turner was the pursuit driver at the checkpoint at Rata Street on this occasion.  He said he saw a white Mazda van do a

U turn across the grassy centre median strip just before the checkpoint on Rata Street and attempt to drive off in the opposite direction, that is to say the van had been heading approximately south east along Rata Street when it approached the checkpoint and did a 180 degree turn across the median.  Constable Turner said he was standing next to his vehicle, an unmarked Police car.  He got into the car and, keeping his eye on the van, it was brought to a halt “just on the bridge” at the Rata Street/Ash Street junction.  He got out of his car, relying on his previous experience in his approach to the van to ensure he could see the driver’s compartment at all times and he said “I went to the driver’s door and spoke to Mr K   who was seated in the driver’s seat with his seat belt on”.  He then administered the breath test procedure which failed and asked Mr K   to return to the “booze bus” on what was then the opposite side of the road near the intersection of Binstead Street for an evidential breath test.  The constable said Mr K   was the sole occupant of the vehicle, there was nobody else in it and he was able to see the vehicle at all times and keep the driver’s compartment in sight.

[9]      The evidence from Mr K   and his witnesses, however, was, broadly put, that Mr K   had a deal to drink at social functions during the day and because of that and medication he was taking at the time his friend Mr Gardner offered to drive the van from function at Papatoetoe.  Evidence was called from Mr Chand and the other Mr K   that they saw the appellant get into the passenger’s seat in the van when it was driven away.  They were challenged as to the possibility that in the hour or so between the van’s departure from Mr Chand’s address in Papatoetoe and his apprehension by the Police in Rata Street there could have been a change of driver. They of course were unable to comment on that.

[10]     So in the credibility contest which was the essential question for the Judge to decide, the evidence of Messrs Chand and K  , whilst helpful to the appellant in relation to commencement of the journey, was of less assistance in deciding the essential question as to who was the driver of the van on Rata Street.

[11]     Mr Gardner gave evidence that he was the driver of the van throughout.  He said when they left Papatoetoe he drove the van along the motorway to the Rosebank Road/Pataki Road turnoff and drove up Rosebank Road past Mr K  ’s place of

business to check, as was often done, that the appellant’s premises had suffered no break in or anything of the sort that night.

[12]     Mr Gardner said as he drove the van towards the checkpoint he realised what lay ahead and did a hand brake 180 degree turn over the median strip to get away. This is because he was an unlicensed driver and he too had been drinking and had a number of previous convictions.  He alighted and ran across the bridge and said he hid in some bushes in a cul-de-sac immediately to the north west of the bridge abutment.  That is not precisely how he described it in evidence but that is the effect. He did not see Mr K   and Constable Turner and was unable to see what took place during the breath testing procedures.  He said that it was later that he decided to “man up” for his mistake and told Mr K   that he would accept responsibility for being the driver on the night in question.

[13]     It is of pertinence to note that there was no challenge of substance to the administration of the breath and blood testing procedures which followed.   Some salient points, however, do warrant note.   The first is that Mr K   telephoned Mr Singh, his solicitor, as he was entitled to do and when invited by the Police so to do.  There is no suggestion from Mr Singh that Mr K   told him he was not the driver of the van that night.   Mr K   said the reason for this was that he was concerned to test the legality of the breath and blood testing procedures which had occurred or which followed.

[14]     Next, and following on from there, Constable Turner on the breath and blood alcohol procedure sheet made some notes of discussions he and Mr K   had with Mr Singh and something about the facts of the matter.   The notes contained no suggestion  Mr  K    was  not  the  driver  of  the  van  on  the  night  in  question. Mr K  , however, says he repeatedly told the constable he was not driving and was a passenger being driven by a friend.  But he said that the fact he did not sign the forms at the Police Station arose because the constable refused to record Mr K  ’s assertion on the form that he was not the driver.

[15]     The stark position as it turned out is that Judge Recordon had the evidence from Constable Turner alone on behalf of the prosecution, that when he approached

the van Mr K   was “seated in the driver’s seat with his seat belt on”, whereas Mr K   gave evidence that he had been a passenger in the van and only got out of it because the door was open with possible obstruction to traffic and the engine was running.  He went up to the driver’s door to turn the engine off and close the door.

[16]     There was further conflict in the evidence.  Mr K   asserted that Constable Turner asked him (Mr K  ) to drive the van from where it had stopped to the checkpoint in order that the required procedures, including telephoning the solicitor, could be undertaken.  When that was put to Constable Turner he said that was quite the opposite of what occurs when a person has failed a breath test - and Mr K   failed 26 times to provide an evidential breath test – and the Police would never invite a drink-driving suspect to drive at all, still less around the median strip to the checkpoint.   Constable Turner said that manoeuvre was carried out by one of the constables who were secreted nearby to chase fleeing drivers.

[17]     There were certain other more minor conflicts in the evidence, but what has been said rounds the matter out.

Judgment under Appeal

[18]     Judge Recordon commenced his judgment by summarising the charges and the way in which the matter had developed in Court.   He correctly summarised Constable Turner’s evidence and then turned to the defence evidence.   The Judge noted at [8] that Constable Turner’s evidence was there was no mention either from Mr K   or from Mr Singh when the constable spoke to him that Mr K   was asserting he was not the driver.  As the Judge put it, “the fact is that today Mr K   is not really disputing the fact that he was about three times over the legal limit for driving”.   The question was therefore was whether he had been proved to be the driver as it approached the Rata Street checkpoint.  The Judge then summarised the defence evidence accurately including the evidence of Mr Gardner that he, not Mr K  , was the driver.

[19] In carrying out the balancing assessment of the credibility of the respective versions of events, the Judge made the point that Mr K was “really drunk” and the result of his evidence was that “he asked me to accept what he said about the difference in evidence from what a sober Police Officer said” at [24]. The Judge regarded as of significance that he said nothing to his lawyer when he spoke to him on the telephone about him not being the driver (at [25]) and he recorded the difference again as to whether Mr K said anything about not driving when they were back at the Police Station.

[20]     The Judge took the view that the careless driving charge was proved from Constable Turner’s evidence – which he accepted - that it arose through driving over the median strip.  As far as the excess blood alcohol charge is concerned the Judge said at [29]:

I find beyond reasonable doubt that Mr K  , Mr Gardner, the other Mr K   and Mr Chand had concocted a story which is designed to give Mr K   some sort of alibi.   I accept Constable Turner’s evidence.   He has followed the car, having it in his sight until and after it stopped.  Mr K   was the sole occupant.  He was strapped into the driver’s seat.

[21]     And later he said:

The story is concocted in my view beyond any doubt at all.

Submissions, Discussion and Decision

[22]     As Ms Singh for the Police made clear and as is well understood, the conflict in evidence demonstrated by the Judge’s notes raises the familiar situation where there is a head-on and diametric difference in evidence and a Judge is required to make an assessment as to which is to be believed or, to put it in more formal terms, whether the prosecution have proved the charges against Mr K   beyond reasonable doubt.

[23]     The test set out by the Court of Appeal in Rae v International Insurance

Brokers (Nelson Marlborough) Ltd1 has been altered to some extent by the decision

of the Supreme Court in Austin Nichols & Co Ltd v Stichting Lodestar2where the following appears:

Those exercising general rights of appeal are entitled to judgment in accordance with the opinion of the appellate court, even where that opinion is an assessment of fact and degree and entails a value judgment.   If the appellate court’s opinion is different from the conclusion of the tribunal appealed from, then the decision under appeal is wrong in the only sense that matters, even if it was a conclusion on which minds might reasonably differ. In such circumstances, it is an error for the High court to defer to the lower Court’s assessment of the acceptability and weight to be accorded to the evidence, rather than forming its own opinion.

[24]     That passage has been applied in many cases both civil and in relation to summary prosecution.   So the critical aspect on appeal is whether Mr K   can demonstrate the Judge was in error in his assessment of the evidence, or more particularly  in  his  factual  findings  and  whether  as  a  result  this  Court  should intervene.

[25]     It is trite law though law not often recognised by litigants in person that first instance Judges seeing and hearing witnesses, watching their demeanour in the witness  box,  listening  to  all  the  evidence,  weighing  the  issues  as  between  one witness and another, has an unparalleled opportunity and advantage in  reaching decisions on issues of credibility by contrast with Judges on appeal.  All that Judges on appeal have is, of course, the transcript of the evidence given live before the Judge at first instance.

[26]     Here the contest is between the evidence of the solitary witness Constable Turner  and  the  evidence  given  by  the  appellant  and  three  other  witnesses, particularly that of Mr Gardner.  The Judge was faced with diametrically opposing testimony.  He weighed the testimony.  He reached his decision.  Not only did he accept Constable Turner’s evidence as to precisely what occurred in Rata Street just before the checkpoint as to the driver of the van, he buttressed that evidence by a number  of  other  factors  earlier  reviewed,  particularly  the  lack  of  objection  by Mr K   to the assertion he was the driver of the van that night, or at least the lack of recorded objection either from Mr K   or from his lawyer.

[27]     It was open therefore for the Judge to prefer the prosecution evidence, albeit it  only  came  from  one  witness,  to  the  defence  evidence  principally  from  two witnesses of which he obviously formed an adverse view.  It could not be said that the  Judge’s  conclusions  were  unsupported  by  an  evidential  foundation.    Even judging  the  issue  from  the  transcript  notes  of  evidence  by  contrast  with  the advantage the first instance Judge has in seeing and hearing the witnesses, it could not be said that the Judge’s assessment of credibility and thus his conclusions were in error.  There is no basis to intervene in the conclusions of the District Court.

[28]     The appeal is accordingly dismissed.

ADDENDUM:  (Not part of judgment)

The  file  did  not  appear  to  disclose  the  position  concerning  the  Appellant’s disqualification and it was accordingly not dealt with on appeal.

.................................................................

HUGH WILLIAMS J.

Solicitors:         Crown Solicitor, P O Box 2213, Auckland 1140

Copy to:            R J K  , 8A Fruitvale Road, New Lynn, Auckland

Judge Recordon

Case Officer:       Raj[email protected]