M v Police HC Auckland CRI 2004-404-404

[2005] NZHC 219

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2004-404-404

M

Applicant

v

NEW ZEALAND POLICE

Respondent

Hearing:         9 November 2005

Appearances: Z Mohamed for Applicant

M Woolford for Respondent

Judgment:      11 November 2005 at 2:10 p.m.

JUDGMENT OF SIMON FRANCE J

Solicitors:

Mr Z Mohamed, Solicitor, PO Box 39119, Howick, Auckland

Meredith Connell, Office of the Crown Solicitor, PO Box 2213, Downtown, Auckland

M  V POLICE HC AK CRI 2004-404-404  11 November 2005

[1]      This is an application by Mr M   for leave, under s 144(1) of the Summary Proceedings Act 1957, to appeal to the Court of Appeal.  Two questions of law are proposed:

1.Having regard to s 2(4) of the Land Transport Act 1988 (which provides the method of identification of the makes and models of the devices but does not provide as to how any particular device could be identified), if a person affixes a plastic tag, supposedly a serial number, on top of the device, does the number on that tag identify the particular device?

2.On an appeal by way of case stated on points of law only, where the finding of the facts are stated in the case as agreed to by the parties and the Judge: (1) are the parties bound by the facts as stated or is the Appellant allowed to refer to the notes of evidence at the hearing of the appeal in the High Court and (2) is it open to the High Court to refer to the notes and make a finding as to the sufficiency of evidence different from that made by the District Court and (3) is it open to overturn the District Court’s decision as to credibility?

[2]      Section 144(2) of the Act requires there to be a question of law of general or public importance.

Background

[3]      Mr M   produced an elevated result when the subject of an evidential breath screening test.   At his prosecution, there was produced a certificate of compliance for a device of the type used.  The certificate related to device 3220.  An issue arose as to whether there was sufficient evidence to prove that the device which was used to test Mr M   was device 3220.

[4]      The two primary items of evidence relied on by the prosecution to prove the link between certificate and device were:

a)       evidence  from  the  testing  officer  that  written  on  the  top  of  the machine on a sticky plastic label was the number 3220.  The testifying officer had not himself written the number on the label;

b)evidence that the machine printout, which set out the breath alcohol reading, recorded at the top of the printout that it was device 3220.

[5]      The District Court held both items of evidence were inadmissible hearsay.

[6]      The Police appealed, disputing that either item was inadmissible hearsay.  In addition the Police relied on the authority of Brown v Police (Hamilton, CRI 491-87-

04, 22 October 2004), a decision of a full Court of the High Court.  Brown had been decided subsequent to the present District Court decision.  It held that where a police officer testifies that the certificate being produced relates to the device used, and where that testimony is not challenged, that is sufficient linking evidence in itself. The appellant contended this had occurred here.  At the appeal, Mr Mohamed, who appeared for Mr M  , disputed this was the effect  of  the testimony but  also challenged the Court’s capacity to consider the notes of evidence on a Case Stated appeal.

[7]      I ruled that the police officer’s evidence concerning the writing on the plastic tag was not hearsay and was admissible.   I also upheld the submission based on Brown.    I did  not  determine  the  issue  concerning the  printout.    I directed  that convictions be entered and that sentencing proceed.

The present application

[8]      As noted, the primary challenge at the original hearing of the charge was as to the sufficiency of the prosecution evidence linking the certificate to the device.

[9]      My judgment determined the appeal on two alternative bases:

a)       the first basis was that the failure at that hearing to challenge the officer’s  testimony  that  the  certificate  he  produced  related  to  the device he used was decisive of the issue.   This ruling followed the authority of Brown (above);

b)the second basis was that the officer’s evidence that 3220 was written on top of the machine was not hearsay and was admissible evidence. Further, when taken with the other findings of the Court as recorded

in the Case Stated, the total evidence was sufficient to  prove the charge beyond reasonable doubt.

[10]     Turning to the proposed questions of law, most of question 2 relates to the “Brown” aspect of my ruling.  In particular the challenge is to my having referred to the notes of evidence in determining that Brown was applicable.  Question 1, which would need rewording if it was to be referred to the Court of Appeal, has as its focus the hearsay point.  To that, however, can be added a submission that emerged at the hearing that I should have determined only admissibility and then referred the matter back to the District Court.  I will accordingly address each of three issues – notes of evidence, hearsay, and “resolution of Case Stated appeal”.

(a)      Notes of evidence

[11]     The issue arising from Brown was  whether the officer, in evidence, had linked the certificate to the device he had used, and whether that evidence had been challenged.  The present Case Stated, on its face, included findings of fact that were adverse to the accused and which would support an outcome consistent with Brown. In particular, paragraph (h) of the Case Stated says:

It  was  proved  that  Constable  Vincent  later  obtained  a  certificate  of compliance for the Seres Ethylometre 679T which he produced as exhibit 4.” (my emphasis)

[12]     In my judgment, I referred to brief extracts from the notes of evidence which supported the finding of fact recorded in the Case Stated.  It was helpful to do this in order to confirm that the officer had indeed made the link and had not been challenged on it.   It was probably unnecessary, but the reality was that when the Case was drafted, Brown was not at the forefront of consideration as it had been decided after the hearing of this prosecution.  Specific reference to the notes seemed preferable.

[13]     At the hearing of this application Mr Mohamed could not identify any use of the notes of evidence that either expanded upon, or contradicted, the findings of fact recorded in the Case Stated.   It is difficult to see, therefore, that reference to the notes of evidence could give rise to an appropriate question of law.   I record for

completeness that Mr Mohamed provided me with a copy of Auckland City Council v Gray [1982] 1 NZLR 200 (CA). That case contains useful guidance on the proper format of a Case Stated. It also recognises, as does Wotherspoon [1990] 1 NZLR 76 (HC), that there is a general exception to the non-use of notes of evidence, namely when sufficiency of evidence is in issue. The formal Case Stated question in the present case specifically requested the Court to consider “the sufficiency” of the evidence. As I noted in my judgment, the situation falls within the established guidelines on when notes of evidence can be used on a Case Stated.

(b)      Hearsay

[14]     Whether evidence is hearsay, and if so whether it is admissible, are questions of  law.     They  can  be  difficult  to  resolve  and  open  to  reasonably  differing conclusions.  Of itself that cannot be enough to meet the requirements of s 144(2) of the Act.

[15]     In  the  present  case  there  is  nothing  to  suggest  that  what  occurred  is  a common issue.  I am not aware of like cases being on hold awaiting my decision, and it did not seem to have arisen previously.   I understand that the situation arose because of how the device is affixed to the wall in “booze buses”.   It is possible therefore that it may be of broader application since presumably the difficulty in reading the number on the back of the machine will be common.

[16]     Unlike the applicant, I do not consider that it analytically changes the nature of the evidence whether the source of identification is the manufacturer’s mark on the back of the machine, or the written tag on the top.  If the tag evidence is hearsay, so is the manufacturer’s number on the back of the machine.  The former would be double hearsay, but both would be hearsay.   However, for reasons set out in the judgment sought to be appealed, in my view neither is hearsay.

[17]     Reasoned  in  this  way,  it  is  arguable  that  a  question  of  law  of  wider importance does arise – particularly if my analysis were correct (that both pieces of evidence are conceptually the same) but my conclusion wrong (that neither is hearsay).  The general importance arises because I understand that the link between

certificate and device is usually provided by the officer recalling the manufacturer’s number on the back of the machine.  I return to this issue at the end, but at this point record that I can see there may be a question that meets the s 144(2) criteria.

(c)      Proper resolution of the case stated

[18]     Mr Mohamed submitted I should have determined only admissibility and then sent the case back to the District Court for resolution.   However, the agreed Case Stated asked me to determine sufficiency.   There were no credibility issues. There was no dispute that the officer saw the numbers he said he saw – the only question was whether he was allowed to give that testimony.   The two bases on which I determined the appeal were independently depositive of the case.   The powers of the High Court on a Case Stated appeal are set out in s 112 of the Act and are very broad, authorising the Court, inter alia, to reverse, confirm or amend the determination.  In my view, no suitable question of law arises from this aspect of the application.

Conclusion

[19]     The  hearsay  point  arguably  involves  an  appropriate  question  of  law. However, an alternative basis exists which is equally determinative of the case.  That renders the hearsay question moot as regards the outcome of the particular case.  In those circumstances I consider the proper course is to decline leave.   Whilst it is always open to the Court of Appeal to hear a point of general importance even though it is moot in terms of the particular case, the choice to do that or not should be left to the Court of Appeal.

[20]     Accordingly, the application for leave to appeal is declined.

Postscript

[21]     The applicant’s proposed “question 1” began with a reference to s 2(4) of the Land Transport Act 1988.   That section was not referred to me during the appeal hearing.  Its potential impact would appear to relate to the question I left open in my

judgment – namely, whether the machine printout could provide proof of identity,

but consideration of that will be for another day.

Simon France J