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McLachlan v Police

McLachlan v Police

Case [2024] NZHC 3912 18 December 2024

Appeal

Miscarriage of Justice

Breach of Contract

Fiduciary Duty

Admissibility of Evidence

Criminal Law

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IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI-2024-419-107

[2024] NZHC 3912

PETER KAWITI MCLACHLAN

v

NEW ZEALAND POLICE

Hearing: 16 December 2024

Appearances:

R Weir for Appellant

A Penney for Respondent

Judgment:

18 December 2024

JUDGMENT OF MUIR J

Appeal against conviction

This judgment was delivered by me on 18 December 2024 at 4 pm, Pursuant to Rule 11.5 of the High Court rules.

Registrar/Deputy Registrar Date: ……………………………

Solicitors: Hamilton Legal

MCLACHLAN v NEW ZEALAND POLICE [2024] NZHC 3912 [18 December 2024]

Introduction

[1] Peter McLachlan was convicted for failure to stop, resisting police and obstructing police following a Judge-alone trial before Judge L M Bidois on 27 August 2024.1 Mr McLachlan entered a guilty plea to an additional charge of theft. On the same day he was sentenced to three months’ imprisonment2 and ordered to pay
$250 reparation.3

[2] Mr McLachlan now appeals his conviction in respect of the charges of resisting police and obstruction.4 He does so on the basis of a failure by the police to provide full disclosure which he says resulted in a miscarriage of justice. He focuses on a failure by the police to disclose CCTV footage from the supermarket where the alleged resisting and obstruction took place. He says that because of the non-disclosure the defence did not have the same opportunity as the prosecution to view all relevant information in respect of an issue critical to the trial.

The offending

[3] On 4 March 2024, Constable Krisieta Palaone saw a person of interest driving a vehicle over the Tainui Bridge. She had a five second clear view of the driver and described him as having “a bushy face and prominent ears”.5 She activated her red and blue lights and siren and turned at a roundabout at the end of the bridge to pursue the vehicle. She eventually positioned her vehicle behind that of the defendant, but instead of stopping, he accelerated away. The pursuit was abandoned shortly afterwards.

[4] Constable Palaone made inquiries, which included observation of CCTV footage at a local Mobil service station. From this she was able to identify that the

1      Police v McLachlan [2024] NZDC 22428.
2      Mr McLachlan’s criminal history records that he was sentenced to three months’ imprisonment on the charges of obstructing police, resisting police, and theft. He was convicted and discharged on the failure to stop charge.
3      Police v McLachlan [2024] NZDC 22425.
4      At the hearing Mr Walsh abandoned the appeal from the failure to stop charge, accepting that although CCTV footage taken at the Mobil petrol station was not disclosed, still photographs from the footage were, and that since the footage and stills went to identification only (no offending having been committed at the station) a miscarriage could not be established in the face of disclosure of the stills.
5      Police v McLachlan, above n 1, at [6].

individual in the vehicle who had failed to stop was the…

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 McLachlan v Police

Details

AGLC: McLachlan v Police [2024] NZHC 3912
Case: [2024] NZHC 3912
Decision Date: 18 December 2024

CaseChat Overview and Summary

In McLachlan v Police, Peter McLachlan appealed against his convictions for resisting police and obstructing police, arguing that a miscarriage of justice occurred due to the police's failure to disclose relevant CCTV footage from the scene of the alleged offending. The court had to determine whether the non-disclosure of this crucial evidence constituted an irregularity severe enough to warrant setting aside the convictions under the Criminal Procedure Act 2011. The appeal hinged on whether the lack of equality of arms between the prosecution and the defence led to an unfair trial.

The court found that the CCTV footage was indeed relevant information under the Criminal Disclosure Act 2008 and had a material bearing on the case. The failure to disclose arose from human error, specifically the police officer's absence on maternity leave. Although the police officer's testimony was compelling, the court concluded that the best evidence of the alleged resisting and obstructing conduct was contained in the CCTV footage, which was viewed by the police but not made available to the defence. This non-disclosure resulted in an unfair trial, as it meant the defence could not effectively challenge the prosecution's account or explore potential defences such as lack of mens rea. The court found that the failure to disclose was significant enough to satisfy the miscarriage of justice criteria under s 232(4)(b) of the Criminal Procedure Act 2011, leading to the setting aside of the convictions.

Given that McLachlan had already served his sentence and the relatively minor nature of the charges, the court opted not to order a retrial. Instead, it directed that a judgment of acquittal be entered on the charges of resisting police and obstructing police. This decision was also influenced by the Crown's indication that it would likely not proceed with a prosecution in light of the appeal outcome.

Orders