L v Police HC Hamilton CRI.2007-419-49

[2007] NZHC 1830

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI.2007-419-49

L

Appellant

v

POLICE

Respondent

Hearing:         7 June 2007

Counsel:         Appellant in person

C D Bean for Crown

Judgment:      12 June 2007

JUDGMENT OF WILLIAMS J

This judgment was delivered by

Hon. Justice Williams on

12 June 2007 at 3:30pm

pursuant to R 540(4) of the High Court Rules

……………………………..

Registrar/Deputy Registrar

Date: ……………………...

The appeal against conviction on the charge of breaching a protection order is dismissed.

L V POLICE HC HAM CRI.2007-419-49  12 June 2007

TABLE OF CONTENTS
Paragraph
Issue	[1]
Procedural	[3]
Judgment under appeal	[12]
Submissions	[17]
Discussion	[19]
Result	[24]

Issue

[1]      On 14 February 2007, after a defended hearing in the Taumarunui District Court, the appellant, Mr L  , was convicted by Judge Ross on one count of loitering near the residence of his former wife and their children at Tunakotekote Road, Taumarunui, on 20 March 2006.   He was ordered to come up for sentence within the next 12 months if called on, and required to pay costs and witnesses’ expenses.

[2]      He has appealed to this Court against his conviction and this judgment deals with his appeal.

Procedural

[3]      Though Mr L   had retained counsel to act for him in the District Court, he acted for himself on the appeal, filing comprehensive submissions concerning the District Court evidence and seeking a discharge without conviction.

[4]      During  the  course  of  the  appeal  hearing,  the  opportunity  was  taken,  in discussion  between  Mr  L    and  the  Bench,  to  explain  certain  aspects  of

appellate procedure, principally that appeals proceed on the basis of the transcript of evidence  given  in  the  District  Court,  usually  without  additional  evidence  being called, and the disadvantage for appellate courts in proceeding without seeing and hearing the witnesses by contrast with the trial Court where the witnesses give oral evidence.  That, of course, particularly applies to cases such as this where there was a direct conflict in the evidence between prosecution and defence witnesses.

[5]      Certain other aspects of appellate procedure were discussed, principally the obligation on an appellant to show that, in a Judge alone trial such as this, the task of an appellant is to demonstrate that the decision of first instance was incorrect, either as a matter of law – not asserted in this case – or as a matter of fact, or that there was no evidential basis for factual conclusions reached by the trial Judge.

[6]      All of that notwithstanding, Mr L   pursued his appeal, recapitulating the points made in his written notice of points on appeal and elaborating on others, particularly the form of questions asked of him in cross-examination and what he asserted was lack of prior notice as to the direction the cross-examination might take.

Facts

[7]      In view of the circumstances, only limited comment on the facts is necessary. [8]      The protected persons lived at 11 Tunakotekote Road near Taumarunui, a

one-way metal road some distance south of the township.

[9]      On 20 March 2006 at about 5:20am a resident on Tunakotekote Road, a Mr Sherrock, drove along the road on his way to work.  Near the protected persons’ residence he saw a person standing on the side of the road and “I recognised that person immediately as Phillip” because “I’d worked with Phillip before, I’ve seen Phillip, I’ve had dealings with Phillip, not many but it was just instant recognition”. Though acknowledging that it was drizzling and dark at the time, his view of the person at the roadside was brief, and the person held up a hand to shield his eyes from the car lights, Mr Sherrock remained firm in his identification that the person at

the  side  of  the  road  near  the  protected  persons’  residence  was  the  appellant, Mr Philip L  .

[10]     Both when interviewed by the Police and in evidence, Mr L   denied being in Tunakotekote Road on the morning of 20 March 2006.   He said he was roused by his alarm at 5:30am that day, left his house on the northern side of Taumarunui about 6:00am drove north to Otorohanga where he bought petrol at

7:09am – evidenced by a receipt – and drove on to Te Awamutu where he had an appointment with his solicitor at 8:00am, arriving in Te Awamutu between 7:30-

7:45am.

[11]     His version of events was challenged in cross-examination by the prosecuting sergeant, but he maintained his denial of being anywhere near Tunakotekote Road in the early morning of 20 March 2006, saying that he could not have driven to the area of the protected persons’ address, leaving home as and when he did and still been in Otorohanga and Te Awamutu at the times mentioned.

Judgment under appeal

[12]     In  a  detailed  and  comprehensive  oral  judgment,  Judge  Ross  carefully evaluated the  evidence from  both  sides.    After  recording the  concession  of  the currency of the protection order and Mr L  ’s denials of breach, he detailed Mr Sherrock’s identification evidence, particularly stressing the unusual quality of a person being seen on the roadside of this one-way rural road at that hour of the morning.  He noted the “instant recognition” of the appellant by Mr Sherrock and considered the various matters put to the witness in cross-examination in an endeavour to undermine his identification evidence.   The Judge also correctly reminded himself of the caution required by statute in identification cases.

[13]     The Judge then passed to a consideration of Mr L  ’s case including the service station receipt and evidence of the solicitor’s appointment before observing (at [9]):

… the defence argues I should be left in a state of doubt as to his [the appellant’s] presence elsewhere at an earlier time.  Having seen and heard

him give his evidence and answer questions both in evidence-in-chief and cross-examination, I have to say I am not so sure of that.

an observation which he supported by reference to evidence that a journey from Taumarunui to Otorohanga takes about 1h 20m with a further 20 minutes for a journey from Otorohanga to Te Awamutu.  The Judge concluded that the evidence suggested Mr L   would have embarked on the Taumarunui/Otorohanga leg of the trip at about 5:45, 5:50am compared with Mr L  ’s evidence he left home about 6:00am.  That led the Judge to conclude (at para [11]) that there was a “great deal of scope in my view for what has occurred prior to the commencement of the journey from Taumarunui to Otorohanga.”   That was because of the Judge’s assessment of the appellant as a witness and the admitted fact he knew of an association between his former wife and a male friend, something to which the former wife had referred in evidence saying the male friend left at around 5:00am on

20 March 2006.

[14]     A  second  factor  arose  out  of  the  suggestion  to  Mr  L    in  cross- examination that he had gone to Tunakotekote Road to check whether there was a male at the house with his former wife.  The Judge noted the appellant’s demeanour on two occasions when that proposition was put to him in cross-examination.  From his observation of the appellant at that point, the Judge said (at para [12]):  “there was no immediate denial on those two occasions of his presence at Tunakotekote Road on 20 March 2006”, an issue the Judge thought “of some importance and showed me that there was what I call the other agenda”.

[15]     All  those  factors  led  the  Judge  to  say  (at  para  [13])  that  he  was  “not impressed by his [the appellant’s] denial that it was him” and that he could have been at the address and still been at Otorohanga and Te Awamutu at the times mentioned.  The Judge concluded (at para [13]) :

… I have to say that I am not left in any doubt even applying the necessary caution and that that prospect of mistake and the possibility that Mr Sherrock might be mistaken in regard to his identification of that person standing there on the side of the road.  Here even with the rain, the absence of other light but caught in the headlights as he was and putting his hand up to shield his face, not from disclosure or to hide his identity but as Mr Sherrock said to shield his face from the lights of the vehicle as he could see the vehicle so the vehicle and its driver could see him.  I find that in his identification of

the person on the side of the road Mr Sherrock is not wrong and that it was the defendant.

[16]     The Judge then turned to whether the evidence disclosed that the appellant’s actions amounted to “loitering” – but since there is no challenge to the Judge’s finding against the appellant in that regard, it may be put to one side.

Submissions

[17]     In his submissions, Mr L   largely reiterated those made on his behalf in the District Court. He denied that he was in Tunakotekote Road on 20 March 2006. For the same reasons as advanced by counsel in the District Court, he challenged the evidence of identification which the Judge had accepted.  He reiterated that he would have  been  unable  to  purchase  petrol  when  he  did  and  make  his  solicitor’s appointment in time had he travelled from his residence south to Tunakotekote Road before travelling to Otorohanga.  He denied that there were “other agenda” issues.

[18]     For  the  Police,  Mr  Bean  submitted  there  was  a  sufficient  evidential foundation for the District Court Judge’s finding both as to fact and credibility and accordingly it would be wrong for this Court to intervene.

Discussion

[19]     As was carefully explained to Mr L   at the hearing, other than in the unusual cases where appellate courts permit additional evidence to be  given on appeal because it was not available at the time of the first instance hearing, appellate courts are bound by the evidence given in the first instance court and, on factual matters, normally follow the factual findings of the first instance court unless it can be demonstrated there are no evidential foundations for those findings.  That is clear in  criminal  cases  from  decisions  such  as  Reid  v  Police  (HC  Palmerston  North CRI 2004-454-81, 23 September 2004, Gendall J at para [10]) and Walker v Police (HC Auckland CRI 2004-404-362, 17 August 2005, para [16]) and, in the civil arena, Rae v International Insurance Brokers (Nelson Marlborough) Ltd [1998] 3

NZLR 190.

[20]     In essence, the District Court prosecution involved a conventional conflict between evidence from opposing sides.  Mr Sherrock’s identification of the appellant as being the person he saw standing at the side of Tunakotekote Road about 100 metres from the protected persons’ residence was “instant recognition” of the appellant whom he knew and he maintained that view despite cross-examination. Mr L   denied he was anywhere near Tunakotekote Road on 20 March 2006 and produced documentary evidence supporting his view.

[21]    The experienced District Court Judge examined the conflicting evidence punctiliously, reaching the view that it would have been possible for the appellant to have purchased petrol and attended the appointment at the times mentioned as well as having travelled to Tunakotekote Road beforehand after leaving his house.   He formed an adverse view of Mr L  ’s credibility on that crucial issue.

[22]     As the review of the evidence and the judgment shows, there was ample evidential foundation for the Judge to reach those views.

[23]     Accordingly, there is no basis on which this Court should intervene.

[24]     The appeal against conviction is accordingly dismissed.   There will be no order as to costs.

………………………………..

WILLIAMS J

Solicitors:

Crown Solicitor, Hamilton

Copy for:

Mr Phillip John L  , 99 Miro Street, Taumarunui

District Court Judge G M Ross

Phoebe Peters, High Court, Hamilton