M v Police HC Rotorua CRI-2008-463-39

[2009] NZHC 281

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2008-463-39

M

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 March 2009

Appearances: Mr R O Gowing for Appellant

Ms C Harold for Respondent

Judgment:      9 March 2009 at 10.30 am

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 9 March 2009 at 10.30 am, pursuant to Rule

11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Gowing & Co, Whakatane

Crown Solicitor, Tauranga

M V NEW ZEALAND POLICE HC ROT CRI-2008-463-39 9 March 2009

[1]      Mr M   was charged in the District Court with dangerous driving, failing to stop at the request of an enforcement officer and resisting a constable acting in the execution of his duty.   After a defended hearing on 1 December 2008

His Honour Judge Watson convicted Mr M   on each of the charges.    He sentenced him to 60 hours community work and disqualified him from holding or obtaining a driver’s licence for a period of six months.

[2]      Mr M   now appeals to this Court against conviction.    He contends that the Judge erred in several respects in reaching his decision, and that each of the convictions should be quashed.   In particular, he argues that the Judge was wrong to accept the evidence of a police constable who purported to identify Mr M   as the perpetrator of the offences with which he was charged.

[3]      Before considering the discrete issues that the appeal raises, it is necessary to summarise the cases advanced by the prosecution and the defence in the District Court.

The prosecution case

[4]      The charges of dangerous driving and failing to stop were laid as a result of events that occurred in downtown Whakatane late on the evening of 30 August 2008 and in the early hours of the following morning.

[5]      In  order  to  prove  these  charges  the  prosecution  relied  solely  upon  the evidence of one witness, namely Constable McCarthy.

[6]      Constable McCarthy gave evidence that on the evening of 30 August 2008 he was on uniformed foot patrol in the central business district of Whakatane.   He said that, whilst walking along The Strand at about 11.30 pm, he observed Mr M   and an associate, Mr Thomas Manahi, in the vicinity of the ATM machine outside the ANZ Bank in The Strand.   The Constable said that both men appeared to be very intoxicated.   He said that he knew both men.    He had had prior dealings with Mr M    in  the  course  of  his  previous  employment  with  the  Department  for Courts, and also during the eight-year period that he has been employed as a police

officer.     He thought that his most recent dealing with Mr M   occurred approximately 12 months earlier, when he had dealt with Mr M   in relation to a driving matter.

[7]      A short time later Constable McCarthy saw Mr M   and Mr Manahi outside a bar called The Boiler Room, which is situated on George Street, a street leading off The Strand.   The constable believed that they were being refused entry to the bar at that time.

[8]      Constable McCarthy remained on foot patrol  into  the  early hours  of  the following morning.   He said that at approximately 2.30 am he was standing outside a travel agency on The Strand.    He then noticed a black four-wheel drive vehicle parked a short distance away in the vicinity of a kebab shop.   The constable noted that one of the headlights on the vehicle was not working, and he also noted that Mr M   was the driver of the vehicle.   He had previously seen Mr M   in a similar vehicle to that which he saw in The Strand on this occasion.

[9]      The constable said that he then saw Mr Manahi get into the passenger side of the vehicle.     Thereafter the vehicle moved off, initially doing a U-turn on The Strand and then driving away from the constable towards George Street.     The vehicle then turned right into George Street.

[10]     At that point the constable walked through a reserve area to Canning Place, a road running parallel to The Strand.   When he arrived in Canning Place he saw the black four-wheel drive vehicle coming towards him.   He went out into the centre of the road and signalled the driver of the vehicle to stop using both his torch and hand signals.

[11]     The constable said that at this point the vehicle appeared to be slowing down. He then stepped forward with his hand out, and motioned for the driver of the vehicle to pull over to the side of the road.    Constable McCarthy said that by this stage the vehicle was approximately five metres away from him, and he was shining his torch directly through the window at the driver of the vehicle.    Again he was able to identify Mr M   as the driver.

[12]     Shortly thereafter the vehicle accelerated away and drove past Constable McCarthy.   He had to step back out of the way in order to avoid being struck by the vehicle as it went past.    He estimated that he would have been less than a metre away from the driver of the vehicle at the point at which the vehicle passed him.

[13]     The vehicle then continued its journey down Canning Place, before turning into Commerce Street and disappearing.    The constable observed that during this part of the journey the vehicle veered onto the wrong side of the road and narrowly avoided colliding with another vehicle.

[14]     The charge of resisting a constable in the execution of his duty followed a separate incident that occurred at approximately 10 am the same morning.

[15]     On that morning two police constables, Constables Creed and Macey, went to Mr Manahi’s residential address at 1A Barry Avenue in Whakatane.     Constable Macey observed a male person, whom he immediately recognised as Mr M  , standing on the grass verge outside the address.

[16]     Constable Macey said that he immediately approached Mr M   and told him that he was under arrest for dangerous driving.   He said that he asked Mr M   to place his hands behind his back so that he could apply handcuffs.  He said that Mr M   ignored this request and instead moved towards a vehicle that was parked on the side of the road.   He opened the front passenger door of the vehicle and appeared to be putting some items inside the vehicle.    The constable said that Mr M   then closed the door of the vehicle and threw his keys quite some distance down the road.

[17]     He said that at this point he approached Mr M  , grabbed hold of his arm and tried to place it behind his back so that he could apply the handcuffs.   The constable said that Mr M   resisted this by holding his arm tensely to the front of his body.    As a result, the constables were obliged to use their combined force to pull Mr M   to the ground and handcuff him.   Constable Macey said that Mr M   resisted their efforts both to pull him to the ground and to handcuff him once he was on the ground.     The various forms of resistance that

Constable Macey described were the basis of the charge of resisting a constable acting in the execution of his duty.

The defence case

[18]     The  defence  called  evidence  from  four  witnesses.       They  were  Mr M  , Mr Manahi, Mr M  ’s partner Ms Te Nahu and Mr Manahi’s mother, Ms Beverley Manahi.

[19]     The evidence of both Mr M   and Mr Manahi was to the effect that they began drinking at Mr Manahi’s house during the late afternoon or early evening of 30 August 2008.   Mr M   said that he had walked to the address because he had earlier loaned his black four-wheel drive vehicle to a friend by the name of Zac Miller.   Mr M   said that he and Mr Manahi had been drinking both beer and bourbon at Mr Manahi’s house.   Mr Manahi confirmed this fact, and estimated that they consumed approximately a box or a box and a half of beer at the address.

[20]     They said that at around 10.30 pm Mr Miller turned up at the address and gave them a lift into town.    Once in town they went to the ATM machine at the ANZ Bank in order to withdraw some cash.   From there they accept that they went to the Boiler Room as described by Constable McCarthy.   They said that, contrary to Constable McCarthy’s belief, they were not turned away at the door of the bar and that they entered it.   At some stage thereafter, Mr M   left Mr Manahi at the Boiler Room and walked back to his partner’s address, where he went to bed.

[21]     Mr Manahi said that he remained at the bar until it closed at approximately

2.30 am.    At that point he walked into town to get something to eat at the kebab shop.    As he was leaving the kebab shop, Mr Miller drove up in Mr M  ’s vehicle and gave him a lift home.    Mr Manahi said that he noticed a light as they drove down Canning Place, but he did not take any notice of it as there were no police cars around.

[22]     Mr Manahi said that when they arrived back at his address in Barry Avenue, Zac stayed until approximately 4 or 5 am before walking home to his house in Beech

Street.    Zac left Mr M  ’s truck in the driveway of Mr Manahi’s address. Mr M   said that he was at the address to collect the vehicle when the police arrived at about 10am.   The vehicle was still sitting in Mr Manahi’s driveway at that time.

[23]     Mr M  ’s partner, Ms Te Nahu, confirmed that she was at her address when Mr M   arrived home in the early hours of 31 August.    She said that she was extremely annoyed with him that evening because she had been attempting to contact him during the day without success.   She had expected him to pick her up when she finished work that day, and she also believed that they would be going out together during the evening.   She said that when he arrived home she checked the time on her mobile phone and found that it was between 12 and 12.30 am.   She said that Mr M    was grossly intoxicated  when  he arrived,  and  that  he went straight to sleep.

[24]     Mr Manahi’s mother gave evidence in relation to the charge of resisting the constable in the execution of his duty.   She said that when the police arrived he had his back to them and was speaking on his cellphone.    She said that he gave the police his name when they asked for it, and that they then told him that he was under arrest.   Her evidence was to the effect that the constables then pounced upon Mr M   and tried to push his face into the mud.   She did not see any actions on the part of Mr M   that could be described as resisting the officers in the execution of their duty.

The approach to be taken on appeal

[25]     A general appeal against conviction proceeds by way of re-hearing: s 119(1) Summary Proceedings Act 1957.     The re-hearing is, however, conducted on the basis of the evidence given and exhibits produced in the Court below.

[26]     The fact that the appeal is by way of re-hearing means that the appellate Court has the ability in appropriate cases to substitute its own view of the facts to that taken by the court below.   In cases such as the present, however, where issues of credibility loom large, the appellate court will be reluctant to disturb findings of

fact.    This is because the finder of fact in the court below will usually enjoy the distinct advantage of having seen and heard the witnesses, whereas the appellate court has not.

[27]     These principles were most recently and authoritatively summarised by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 where the Court said:

[5]       The appeal court may or may not find the reasoning of the tribunal persuasive in its own terms.     The tribunal may have had a particular advantage (such as technical expertise or the opportunity to assess the credibility of witnesses, where such assessment is important).    In such a case the appeal court may rightly hesitate to conclude that findings of fact or fact and degree are wrong.    It may take the view that it has no basis for rejecting the reasoning of the tribunal appealed from and that its decision should stand.   But the extent of the consideration an appeal court exercising a general power of appeal gives to the decision appealed from is a matter for its judgment.   An appeal court makes no error in approach simply because it pays little explicit attention to the reasons of the court or tribunal appealed from, if it comes to a different reasoned result.     On general appeal, the appeal court has the responsibility of arriving at its own assessment of the merits of the case.

[28]     The Court had earlier noted (at [4]) that the appellant in a general appeal bears the onus of satisfying the appeal court that it should differ from the decision under appeal.    The appellate court will only be justified in disturbing the original decision if it is satisfied that that decision is wrong.

[29]     Because they relate to two separate and discrete incidents, I propose to deal separately with the appeals against conviction on the charges of dangerous driving and  failing  to  stop  on  the  one  hand,  and  that  of  resisting  the  constable  in  the execution of his duty on the other.

A.      The convictions for dangerous driving and failing to stop

[30]   In his written submissions counsel for Mr M   submitted that a combination of errors in the Judge’s decision meant that these convictions were unsafe.    In particular, he submitted that the Judge had erred in failing to exercise caution before convicting Mr M   in reliance on the correctness of Constable McCarthy’s identification.   Counsel argued that the Judge gave no consideration to

the possibility that the constable may have been mistaken when he identified Mr

M   as the driver of the vehicle in Canning Place.

[31]     In addition, counsel for Mr M   argued that the Judge had made errors in the chain of reasoning that led to him rejecting the evidence of Mr M   and Mr Manahi on the basis that it was unreliable.

[32]     He also  submitted  that  the Judge had  no  rational  basis  for  rejecting  the evidence of Ms Te Nahu.   If correct, her evidence provided a complete defence for Mr M  .   At the very least, counsel submitted that her evidence gave rise to a reasonable doubt as to whether Mr M   could have been the driver of the vehicle that Constable McCarthy attempted to stop in Canning Place.

[33]     I propose to address these submissions under the following broad headings:

1.      Did the Judge recognise the need to exercise caution?

2.      Was the Judge entitled to reject the evidence of Mr M   and Mr

Manahi?

3.Was the Judge’s decision to accept Constable McCarthy’s evidence wrong?

1.       Did the Judge recognise the need to exercise caution?

[34]     There can be no doubt that, in part at least, the charges required the Judge to make an assessment of disputed identification evidence.   Without the identification evidence given by Constable McCarthy the prosecution could not succeed.    This meant that the provisions of s 67A of the Summary Proceedings Act 1957 came into play.   It provides as follows:

67A     Identification evidence

Where any evidence of identity is given against the defendant and the defendant disputes that evidence, the Court shall bear in mind the need for caution before convicting the defendant in reliance on the correctness of any

such identification and, in particular, the possibility that the witness may be mistaken.

[35]     Counsel for Mr M   noted that, although the Judge referred to s 67A in his decision, he did not expressly remind himself that an honest witness can be a mistaken witness and that a mistaken witness can be a convincing witness.   He also contended, in effect, that the Judge had only paid lip service to the provisions of the section.

[36]     Reading the Judge’s decision as a whole, however, I have no doubt that the Judge recognised that he needed to exercise caution before entering convictions in reliance on the correctness of Constable McCarthy’s identification of Mr M   as the driver of the vehicle at the relevant time.

[37]     The Judge expressly referred to s 67A at the beginning of his decision when he said:

[4]       This case really boils down to one of identification.   In that regard I would  recite  immediately  that  I  am  conscious  of  s  67(a)  [sic]  of  the Summary  Proceedings  Act  and  the  need  for  caution  in  respect  to  a conviction of a defendant where identity has been so squarely placed in issue, as it has in this case.

[38]     Having expressly referred to the need for caution one would naturally assume that the Judge would exercise it.   This is particularly so given the fact that the Judge in question has vast experience in both the summary and indictable jurisdictions. He has no doubt been required to apply, and to direct juries on, the provisions of s

67A on numerous occasions.    The fact that he adverted to the section at the very beginning of his decision also demonstrates the importance that the Judge attached to it.

[39]     The structure of the Judge’s decision also supports this conclusion.   He did not say at the outset that he accepted the evidence of Constable McCarthy.   Rather, he analysed the evidence of all of the witnesses, and in particular the defence witnesses, before reaching his ultimate conclusion that he would accept Constable McCarthy’s  evidence.      His  reasoning  process  therefore  showed  that  he  was

conscious of the need to consider the effect of the defence evidence before turning to make an overall assessment of the constable’s identification evidence.

[40]     I am therefore satisfied that the Judge recognised the need to exercise caution before accepting the identification evidence given by Constable McCarthy, and that he put the requirements of the section into practice.

2.        Was the Judge entitled to reject the evidence of Mr M   and Mr

Manahi as being unreliable?

[41]     The Judge did not make an express finding regarding the weight to be given to Mr M  ’s evidence.   It is implicit from his ultimate conclusion, however, that he must have been satisfied that it was unreliable and should be put to one side. The closest that the Judge came to commenting on the reliability of Mr M  ’s evidence is in the following passage, in which he contrasted the evidence given by Mr M   with that given by Mr Manahi in relation to the events that occurred after the two men arrived at the Boiler Room:

[11]      He and Mr M   say that they got separated in the Boiler Room but if we listen to Mr Manahi’s evidence there was only a few patrons there.   Mr M   says that he actually had walked home from there.   I thought his evidence was that they had stopped and had a few beers together but Mr Manahi said he lost his good friend, they got (inaudible) obviously in the hotel with a few people and he did not see him again.   Mr M  ’s evidence really is that he then walked home, up around the corner to where his girlfriend and he had a residence, getting home he thought about 12.30.

[42]     Although the Judge did not develop this aspect of the matter further, the tone of the passage suggests that he had some doubts about Mr M  ’s evidence in relation to the circumstances in which he came to leave the bar.   I will return to that topic shortly.

[43]     The Judge did, however, expressly reject the evidence of Mr Manahi as being unreliable.   His reason for doing so is contained in the following passage:

[23]     Mr Manahi was an interesting witness.     It appears that he quite unwittingly had talked to  the  Police  about  his  movements  that  night  in relation to another charge.    He accepts that he is facing, and is on bail, in relation to a charge of assault on a Police Officer with an axe; I think he referred it to the axe charge, but in the course of a video interview that he

gave to the Police questions were asked of him about where he was on that particular night and who he was with.    That statement on the video would seem to contradict what he was telling the Court in evidence today but it must be accepted that this evidence was on oath, a video statement is not, but he has given conflicting accounts as to who he was with, when he was with them and possibly who was driving on that night.   At best it could be said that Mr Manahi’s evidence is unreliable and I would simply prefer to put it to one side.

[44]     The Judge’s comments about the statements that Mr Manahi had made to the police about his movements on the night in question flow from propositions that the prosecutor had put to Mr Manahi during cross-examination.   It is evident from these questions that Mr Manahi had been interviewed on videotape by the police about another incident that occurred on the same night as the incidents that gave rise to the charges that Mr M   faced.    That other incident has apparently led to Mr Manahi facing a charge of assaulting a police officer with an axe.    The prosecutor obviously intended the questions that he put to Mr Manahi to demonstrate that Mr Manahi had made a previous inconsistent statement regarding his movements, and those of Mr M  , on the night of 30 August 2008.

[45]     The passage set out above reveals that the prosecutor achieved his object, because the Judge concluded that Mr M   had in fact made an earlier inconsistent statement about those issues.     The  difficulty with  that  conclusion, however, is that Mr Manahi denied  and did not adopt those passages from the interview that the prosecutor put to him.   Faced with these denials the prosecutor did not follow the procedure set out in s 96 of the Evidence Act 2006 to render the earlier statement admissible.   He simply moved to another topic.    As a result, the questions alone could not amount to admissible evidence in the proceeding.

[46]     In those circumstances, counsel for the respondent accepted that the Judge could not conclude that Mr Manahi’s evidence was unreliable solely on the basis that Mr Manahi had made inconsistent statements on a previous occasion.

[47]     Viewing the matter afresh, however, I reach the same conclusion as the Judge regarding the evidence of both Mr M   and Mr Manahi.   I do so principally on the basis of what I perceive to be a significant discrepancy in their respective accounts of what happened after they arrived at the Boiler Room.

[48]     Up until this point the accounts that Mr M   and Mr Manahi gave regarding their movements on the evening of 30 August were consistent not only with each other, but also with the evidence given by Constable McCarthy.    One would also have expected a degree of consistency in the accounts that Mr Manahi and Mr M   gave as to what happened after they arrived at the bar.

[49]     Mr M  ’s evidence was to the effect that he and Mr Manahi arrived at the Boiler Room and remained drinking there for one and a half to two hours before Mr M   left the bar and walked home alone.

[50]     Mr Manahi’s evidence, however, was as follows:

Q.       Did you go into the Boiler Room? A.       Yep.

Q.       How populated was the Boiler Room by the time you got there?

A.        Ah, the time we got, by the time I got, walked in there there was a few people in there.

Q.       When you were in there did you see Mr M  ?

A.        No.   I actually went up to the bar and get a few, me and my mates a beer, and then I turned around and he wasn’t there.   so I went back out to the main entrance and –

Q.       Did you see him there?

A.He wasn’t there.   And I asked the fellas on the door, and they said no he's walked off down the road.

Q.Did you see him again that night or hook up with him again that night?

A.       No.

[51]     And later in cross-examination the following exchanges occurred:

Q.       So you went down to the Boiler Room? A. Yep.

Q.        And is your evidence that you went up to the bar and the defendant disappeared?

A.       Yeah.

Q.       And you didn’t see him again? A. (No audible answer).

Q.       The defendant gave evidence that you and he were in the Boiler

Room together for quite some time. A.     Well I didn’t see him in there.

Q.       You weren’t drinking with him?

A.        Nah.    ‘Cos I turned around to go and look for him and I couldn’t find him.

Q.        He says that he lost you in the Boiler Room somewhere.    You’re saying you were never together in there?

A.        Well I, he was behind me when I walked in, so I assumed he was inside the Boiler Room or outside, so I went looking for him, but then I couldn’t find him.

[52]     The  overall  tenor  of  Mr  Manahi’s  evidence  was  to  the  effect  that  Mr M   disappeared virtually immediately after they arrived at the Boiler Room. He also said that he was told by the people at the door that Mr M   had left the premises at that time.    This is completely inconsistent with Mr M  ’s evidence to the effect that he remained in the bar for one and a half to two hours before walking home.

[53]     I accept that Mr M   did not expressly say that he was in the company of Mr Manahi the whole time that he was  in  the bar,  but  that  is  certainly the impression that his evidence creates.   There is certainly nothing in Mr M  ’s evidence to suggest that he left the bar very soon after he arrived there.   And, if he did leave the bar immediately, that evidence does not tally with Ms Te Nahu’s evidence that he got home between 12 and 12.30 pm.

[54]     I consider that the inconsistency between the two versions of events (on a reasonably material topic) is sufficient to render the evidence  of both Mr M   and Mr Manahi unreliable.

[55]     Mr Manahi’s evidence is further tarnished, in my view, by his account (or lack of account) of the incident that occurred when Constable McCarthy tried to flag the vehicle down in Canning Place.     Mr Manahi was able to give a reasonably

detailed description of most of the events of that night.   His lack of recall about the constable flagging the vehicle down, which must have been a reasonably significant event for the occupants of the vehicle, is incomprehensible.   It appears to me that Mr Manahi has deliberately downplayed that aspect of the evening’s events.

[56]     For these reasons, which I acknowledge are different to some extent to those relied on by the Judge, I do not consider that the Judge was wrong to categorise the evidence of Mr M   and Mr Manahi as being unreliable.

3.        Was the Judge’s decision to accept the identification evidence given by

Constable McCarthy wrong?

[57]     Counsel for Mr M   raised several issues under this head.   First, he submitted that the Judge wrongly placed weight on the fact that Mr Miller had not given evidence for the defence at the hearing.     This submission arose from the following passage in the Judge’s decision:

[27]     Interestingly, we do not have the evidence of probably the most important witness; that is Zac Miller.    From being a friend to whom one could lend a car and expect it to be dropped back at some time the next day he has disappeared off into the ether, not able to be found or located and unfortunately not able to assist the Court with what he might have been doing that particular evening.     That is unfortunate and probably a little surprising because we do know that Mr M   was arrested in relation to this charge on 31 August.    We do know that he spoke after that to Mr Miller, because that is what he told us.   He said he did not know much about the charge for which he was charged but I simply do not believe that because Mr M   would appear to be no stranger to the criminal justice system. He certainly was not prepared to make a statement.   He would have known what this was all about and one is perhaps a little surprised that Mr Miller is not able to be located to assist, particularly his good friend, today.   But he is not here and we must do without his evidence.     It cannot be taken any further.

[58]     Counsel for the respondent accepted that it was probably inappropriate for the Judge to have dwelt to the extent that he did upon the fact that Mr Miller had not given evidence for the defence.    The Judge’s comments left room for the concern that he considered that the defence case had been undermined as a result of the fact that Mr Miller was not called as a witness.   That, in turn, gives rise to the risk that the Judge, perhaps unconsciously, had reversed the onus of proof.   It also suggests that the Judge suspected that Mr M   and Mr Manahi had made up their

evidence about Mr Miller’s involvement in the events of 30 and 31 August 2008 and that he was a fictitious person.

[59]     I consider, however, that these concerns are ameliorated to some extent by the last two sentences in the paragraph cited above.    These suggest that the Judge put the issue of Mr Miller’s absence to one side when he considered the issue of identification.

[60]     The Judge was also prepared to accept that it was reasonably possible that Mr Miller was a real person and that he had had the use of the vehicle at some stage during the  evening of 30 August 2008.     I take  this  from  his  comment  in  the paragraph of his decision that follows the passage cited above.   He there said:

… It may well be that Zac Miller did take the vehicle at some time during the course of the day.    I am not saying that he is a complete figment of everyone’s imagination …

[61]     This passage makes it clear that the Judge had not concluded that Mr Miller was a fictitious person, or that he had completely rejected the notion that Mr Miller may have been in the vehicle at some stage on the evening in question.     I am therefore satisfied that, although the Judge’s comments were probably unwise, they did not materially affect the outcome of the proceeding.

[62]     Counsel for Mr M   submitted also that the Judge had failed to give sufficient weight to concerns about the circumstances in which Constable McCarthy identified Mr M   as the driver of the black four wheel drive vehicle that picked up Mr Manahi outside the kebab shop at 2.30  am.     He submitted that Constable McCarthy had omitted to say anything in his evidence in chief about an important detail, namely the location and orientation of the vehicle when it was in the vicinity of the kebab shop.

[63]     In his evidence in chief, Constable McCarthy said only that he had seen the vehicle outside the kebab shop.     During cross-examination, counsel for Mr M   asked the constable some questions designed to elicit the fact that the area where the vehicle had stopped contained angle parking.   The relevance of the questions lay in the fact that, if the vehicle was parked in an angle park, the constable

would have been looking at the side windows of the vehicle.   This would mean that the constable had a restricted view of the driver, because Mr M  ’s vehicle has tinted side windows.   On the other hand, if the car had been parked parallel to the kerb, the constable would have had a view of the driver through the windscreen. In that event his view of the driver would not have been restricted by tinted glass. The orientation of the vehicle was therefore an issue that was directly relevant to the ability of the constable to make an accurate identification of the driver of the vehicle.

[64]     At this point, and apparently for the first time, the constable said that the vehicle was not angle parked but instead was parked “parallel to the kerb”, and facing directly towards him.   He had not recorded that fact in either his notebook or in his brief of evidence.    The way in which this revelation came to light is also worthy of note.  The constable said:

Q.        And can you confirm for His Honour that in The Strand, in that section of The Strand, all the parking is angular?

A.       Yes.  That’s correct.

Q.        And the side of the vehicle closest to where you were standing would be the driver’s side?

A.        Sorry, before you go any further, the vehicle was at right angles to the ah, oh sorry, it was parallel with the kerb.    It wasn’t in one of the angle parks, it was parallel with the kerb.

Q.       Something you forgot to mention. A.       Sorry, yep.

Q.        Have a look at this photograph, constable.   If I might approach the witness, sir.

THE COURT:

Q.        Sorry.   Can I just, not being familiar, do I take it what your saying is that the road markings on the road are for angle parking?

A.       Yes sir.

Q.        But the reality, in this case, the vehicle was parked parallel to the kerb?

A.       Yes sir.

…

Q.        And just telling His Honour now that this vehicle is not parked at an angle but parallel –

A.        Parallel, yes.

Q.        That’s not something that, evidence that you’ve given after you saw these photographs sitting on my desk here, before this case started?

A.        Ah, that’s where the vehicle was.    It’s just something that didn’t strike me as being an issue.

Q.        Well, you are aware that the issue of identity is the key to this case, isn’t it?

A.        Yes.

Q.        And what I put to you, constable, is this vehicle was parked on an angle and you had no prospect of seeing who was actually in the vehicle at the time of two thirty in the morning?

A.        No.   The vehicle was angle par – ah parked at right angles with the kerb.

[65]     Counsel for Mr M   submitted that the manner in which the constable gave  evidence  on  this  point  should  have  caused  the  Judge  real  concern  when assessing the weight to be given to his evidence of having identified Mr M   as the driver of the vehicle outside the kebab shop.   The Judge, however, dealt with the issue in the following way:

[15]     Having  been  picked  up,  he  says  by  Zac  Miller,  but  who  con McCarthy said b the defendant, and he was able to observe this because he noted the unusual way in which the car was parked; it was parallel to the curb when in fact it is angle parking.   Coincidentally, which was of concern to Mr Gowing, this gave the Constable a very good view through the front windscreen which would not have been so easily obtained if the car had been at an angle because it has somewhat darkened side windows.    There was some suggestion that this is something the Constable has made up, simply because he knew the issue of identity was a matter of concern.    I do not believe that to be the case at all.    The Constable seemed quite open in his response to what he had seen and it is simply a matter of oversight and was not of significance or moment at the time and it is only of course that it assists in so far as identification is concerned.

[66]     I agree that it is difficult to reconcile the constable’s apparently firm evidence in the first passage to the effect that the vehicle was parked parallel to the kerb with his later statement that it was parked at right angles to the kerb.    The two would appear to be mutually exclusive.     The fact that the constable began to say “the

vehicle was at right angles” in the first passage and “the vehicle was angle par…” in the second is also noteworthy.

[67]     In the end, however, the Judge in the District Court was far better placed than this Court on appeal to determine the significance that should be given to this aspect of the evidence.    An assessment of the constable’s demeanour when he gave the evidence would probably be a decisive factor in reaching a conclusion as to whether his linguistic difficulties were no more than a slip of the tongue or whether they had more significant connotations.     The Judge was uniquely placed to make that assessment.   I am not.   I therefore cannot say that he was wrong in the way in which he dealt with it.

[68]     Counsel next argued that the Judge gave no, or insufficient, consideration to the   possibility   that   Constable   McCarthy   may   have   been   mistaken   in   his identification.     In his written submissions counsel particularised his concerns by contending that the Judge had committed the following errors:

a)       The  inability  of  the  constable  to  give  any  description  of  Mr M   on the night of 30 August 2008 such as clothing he was wearing, body shape, ski colour, facial hair and the like.

b)The lack of an identifying feature that linked the person the constable had seen at the ATM and Boiler Room with the person seen sitting in the driver’s seat outside the Kebab shop.

c)       The likelihood of Mr M   driving his vehicle in town after having been dropped off in town earlier in the evening and his home being within a very short walking distance from the centre of town.

d)The evidence that Zac Miller had been given Mr M  ’s vehicle early in the day and that he dropped him and Mr Manahi off in town. The  possibility that  Zac  Miller  was  still  driving  Mr  M  ’s vehicle at 2.30am should have been considered.

e)	The similar look of Mr M   and Zac Miller given that the only distinctive feature that the constable could recall of Mr M
was the same distinctive feature that a person might use to identify Mr
Miller, namely his dreadlock hair.
f)	The risk that the constable’s belief that the person he saw in the
driver’s  seat  of  the  vehicle  outside  the  Kebab  shop  was  Mr M   because of his sighting of Mr Manahi getting into that
vehicle, both of whom he had seen in each others company on two separate occasions earlier in the evening.
[69]	Some	of   these    submissions    were    based    on    Constable   McCarthy’s

acknowledgement that he was unable to describe the clothing that Mr M   was wearing on the evening of 30 August 2008.   This was despite the fact that the constable had obviously seen Mr M   on at least two occasions prior to midnight on 30 August 2008.    In addition, Mr M   has dreadlocks and Mr Miller is said to have a similar hairstyle.   Counsel for Mr M   submitted that these factors meant that, in the absence of the constable being able to identify the driver of the vehicle by means of some other identifying characteristic, the Judge should have been left in doubt regarding the accuracy of the identification.

[70]     In my view the force of this submission is significantly weakened by the undisputed fact that Mr M   was well known to the constable.    In addition, the defence accepted that the constable correctly identified Mr M   (and Mr Manahi) when he saw them in the vicinity of both the ATM machine and the Boiler Room earlier in the evening.    These factors go a long way towards removing any concern regarding the inability of the constable to give a description of Mr M  ’s clothing.     I also consider that they mitigate the lack of any other identifying feature linking the person the constable had seen at the ATM and the Boiler Room with the person seen in the driver’s seat of the vehicle outside the kebab shop.

[71]     The remaining matters that counsel advanced depend significantly for their force upon the versions of events given by Mr M   and Mr Manahi.    They

alone spoke of Mr Miller’s involvement in the events that occurred on the evening in question.    There was no independent evidence to confirm that he had dropped the two men off in town, or that he was in possession (or still in possession) of the vehicle at 2.30 am.  Once the evidence of Mr M   and Mr Manahi was put to one side, the basis for this aspect of the defence case was very much weakened.

[72]     Moreover, the Judge did accept the possibility that Mr Miller may have had the use of the vehicle on the night of 30 August.   His ultimate conclusion, however, was  that,  regardless  of  what  might  have  happened  earlier  in  the  evening,  the constable correctly identified Mr M   as the driver of the vehicle that left the kebab shop and then subsequently drove along Canning Place.

[73]     Perhaps the strongest argument that counsel advanced in this context relates to the weight to be given to the evidence of Ms Te Nahu.   She obviously impressed the Judge as a witness because he had this to say about her evidence:

[25]     It is difficult to look at that scenario and completely put aside Ms Hapuku-Te Nahu’s evidence because she seemed a sincere witness but it must be accepted that as a partner of Mr M   she may feel some obligation.     Certainly Mr Manahi did when we look at his evidence in relation to what he might have said about events earlier that night in relation to a completely different matter.   It simply could be that she was genuinely mistaken as to what time he got back and indeed if we accept the evidence of Constable McCarthy she must be mistaken.

[74]     It is apparent from the passage cited above that the Judge did not reach a firm conclusion regarding the veracity or reliability of Ms Te Nahu’s evidence.   He left open the possibility that she might feel some obligation to give evidence on behalf of Mr M  .   This suggests that he had not dismissed the possibility that she was lying when she said that he arrived home between 12 and 12.30 pm.    He also left open the possibility that she might be genuinely mistaken as to the time that he got back.

[75]     In  the  end,  the  Judge  left  those  possibilities  open  because  they  were effectively resolved by the final issue that he determined in relation to the charges of dangerous driving and failing to stop.   This was an analysis and assessment of the evidence of Constable McCarthy.    His reasoning in relation to this issue was as follows:

[28]      To my mind I do not have any problem in accepting the evidence of Constable McCarthy.   He is clear about what he saw.     He was quite straightforward about the identifications that he made.   It is quite clear as to where he was.    It is quite clear that the evidence of who was driving on Canning Place was one which he was able to make, given the use of his torch, and in fact that that occurred so soon after having seen that vehicle driven by the same person that he saw do the U-turn.    It may well be that Zac Miller did take the vehicle at some time during the course of the day.   I am not saying that he is a compete figment of everyone’s imagination, but at this point in time, at this point in the evening, I am satisfied that Mr M   was the driver as identified by Constable McCarthy.

[76]     If the Judge was entitled to accept the evidence of Constable McCarthy, it follows that Ms Te Nahu was either genuinely mistaken as to the time that Mr M   returned to her house or she was not telling the truth in relation to that issue.    The critical issue is therefore whether the Judge was entitled to accept the constable’s evidence.

[77]     I accept that it would have been open to the Judge to conclude that the matters that counsel for Mr M   raised, and in particular the possible involvement of Mr Miller, left room for reasonable doubt.    It was also, however, open to him to accept the constable’s evidence notwithstanding the need to exercise caution before doing so.

[78]     This was not a fleeting identification of a person hitherto unknown to the identifier.    The constable knew Mr M   and had dealt with him on several occasions  in the  past.     He  had  also  correctly identified  Mr  M    in  the company of Mr Manahi on the two earlier occasions the same evening.   The defence accepted that the vehicle outside the kebab shop was Mr M  ’s vehicle.   The identification in Canning Place also took place in circumstances where the driver of the vehicle was but a short distance away from the constable, and the constable had his torch shining directly onto the driver’s face at the time that he made the identification.    The same vehicle was found the next day at Mr Manahi’s address with Mr M   also present at the address.   All of these were matters that could be taken into account.

[79]     Although many of the points that counsel has raised are well made, I have not been brought to the point where I can say that the Judge’s decision was wrong.

[80]     The appeal against conviction on the charges of dangerous driving and failing to stop must therefore be dismissed.

B.       The charge of resisting arrest

[81]     Constable Macey’s evidence in relation to this charge was as follows:

… As I arrived at the address Constable Creed also arrived in a separate vehicle.      I  observed  a  male  I  immediately  recognised  as  Matthew M   standing on the grass verge outside the address.   I now identify Matthew M   as the defendant present before the Court today.     I immediately approached the defendant and advised him that he was under arrest for dangerous driving.    I advised him to place his hands behind his back so I could apply handcuffs.     He ignored me and moved towards a vehicle which was parked on the side of the road, on the same side of the road as 1A Barry Ave.   He opened the front passenger’s door of the vehicle and appeared to be putting some possessions inside.    He then closed the door and threw his keys quite some distance down the road.   I grabbed hold of the defendant’s arm and tried to place it behind his back so I could apply the handcuffs, but the defendant resisted this by holding his arm tensely to the front of his body.   Constable Creed and I then tried to pull the defendant to the ground.   He resisted this also, but we eventually managed to take him to the ground.  We then eventually managed to handcuff him, but he resisted this also.   I then placed the defendant in the rear of my patrol car, sat next to him, and we returned directly to the Whakatane police station….

[82]     Mr M  , on the other hand, said that the officers had tackled him and wrestled him to the ground immediately after they had asked him his name and told him that he was under arrest.   He denied resisting arrest in any way, and said that he was putting his possessions in the car so that he could put his hands behind his back and be handcuffed.     His evidence was supported to some extent by that of Mr Manahi’s mother.   She said that she saw the police officers drag Mr M   to the ground immediately after they had told him that he was under arrest.

[83]     The Judge determined the charge of resisting arrest in the following way:

[32]      I think the Court has always got to be very careful about making these sorts of judgments as to whether the officers have reacted too quickly or otherwise.    We are not on the scene, we are not on the spot, we are looking at it in the calm environment of the Courtroom and often that is quite different than if you were out there on the front line dealing with people from time to time who can react in quite different ways and often quite unexpected ways.   I do not see anything wrong with the actions of the Constables.   The arrest was properly undertaken.    Mr M   resisted and he accordingly will be convicted.

[84]     Critical to this charge were the allegations that Mr M   had tried to resist the handcuffs being applied and also resisted the officers’ attempts to bring him to the ground.   They made up the acts that the prosecution relied upon to show resistance to arrest.

[85]    Counsel for Mr M   cross-examined Constable Macey vigorously regarding this issue.    He suggested, but the constable denied, that the police had overreacted by immediately tackling Mr M   and forcing him to the ground as soon as he had been  arrested.     By way of  contrast, the prosecutor did not challenge Mr M   at all regarding his evidence in relation to the resisting charge.     He did challenge Mr Manahi’s mother, but he did not put to her the proposition that she must have seen Mr M   resisting the handcuffs being applied and resisting being forced to the ground.   The Judge did not advert to either of these points when deciding this charge.

[86]     I am not surprised that the police acted quickly to restrain Mr M   when they found him at Mr Manahi’s address.   After all, they believed that he had deliberately refused to stop for Constable McCarthy earlier in the day.  They may also have believed that Mr M   had come close to running the constable over during that incident.    Finally, the evidence suggests that the police had their own reasons for believing that Mr M   would not submit quietly.   I take this from the following response by Constable Macey when counsel for Mr M   suggested to him that the police may have overreacted:

A.No we didn’t overreact.   Matthew M   is well known to us and we have good reason to - …

[87]     The   constables   would   also   no   doubt   have  reacted   adversely  to   Mr M  ’s actions in appearing to ignore their advice that he was under arrest. When he began walking to his vehicle and putting things inside it, they probably thought that they needed to act quickly and decisively.

[88]     I accept without reservation the Judge’s comment that it is easy to take a different view of matters from the calm and detached atmosphere of the courtroom. The police in the front line undoubtedly have a very difficult job to do and they place

themselves at risk of physical harm regularly.    In the present case, however, the evidence suggests that events moved very quickly, and that Mr M   was taken to the ground within a very short time after being told that he was under arrest. The actions of the police are entirely understandable given the background to the incident.   I do not, however, think that it is possible to exclude the defence theory as a reasonable possibility in relation to the events that occurred immediately after the police told Mr M   that he was under arrest.

[89]     For these reasons I allow the appeal against conviction in relation to the charge of resisting arrest.  That conviction is quashed.

[90]     Mr M   was sentenced to 60 hours community work on the charge of resisting arrest and also on another charge of driving whilst disqualified.    I do not know any of the details of the latter charge, because it did not form part of the appeal before me.    I am therefore uncertain whether the sentence of community work is now excessive having regard to the fact that Mr M   has succeeded in his appeal against conviction on the resisting charge.

[91]     If he wishes to make submissions on this point Counsel for Mr M   is to file and serve a memorandum within 7 days.   Counsel for the respondent is to file a memorandum in response within 7 days thereafter.   I will then deal with the issue of sentence when I am next in Rotorua during the week commencing 23 March

2009.

Lang J