McLachlan v Police
[2024] NZHC 3912
•18 December 2024
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 same man who had been depicted in the footage.
[5] On 6 March 2024, Constable Palaone observed the defendant at a local Countdown supermarket. She invited him outside to speak to her, which he refused. He was subsequently arrested. There was a scuffle and the individual fled but was apprehended shortly after.
The trial
[6] At the trial Constable Palaone’s evidence featured prominently. Near the end of her evidence, she was cross-examined in respect of CCTV footage of the arrest. She stated that she had been on maternity leave, the police did have the CCTV footage of what occurred at the supermarket and that she did not know why it had not been disclosed to the defence team. She confirmed that she had viewed it herself as had her colleagues.
The decision
[7] The relevant paragraphs of the Judge’s decision on the failure to stop, resisting police and obstruction charges are reproduced below:6
[9] I can be satisfied beyond reasonable doubt that the defendant is the same person who was driving the car, she saw in the CCTV footage from Mobil and she arrested at Countdown. Her observation time was sufficient to view the driver. That observation was re-enforced by viewing the CCTV footage a short time later and again at Countdown. There was no risk of transference or mistake. She was careful to make the definitive observation, the defendant has a bushy face and has prominent ears which he has.
[10] The police officer observed that the vehicle travelled over the bridge in the same direction as her. It travelled within the recognised speed limit. She lost observation of the vehicle. A short time later she again observed the vehicle, travelling this time across the bridge within the speed limit.
[11] The initial activation of the red and blue lights and siren would not have caused the driver of a vehicle travelling in the opposite direction to consider or suspect that he was a person that the police were trying to stop. The police officer, however, travelled to the end of the bridge which was only a short distance away, went around the roundabout and then back across the bridge. All vehicles between her and the defendant’s vehicle pulled over. She was able to effectively pass them and get up behind the defendant’s vehicle.
6 Above n 1.
[12] The sudden acceleration of speed was in direct contrast to the two earlier observations that the police officer made of the defendant’s vehicle travelling within the speed limit. The Court can infer that the sudden change was reflective of the driver knowing that he was a person of interest. The driver took off and was not caught as the pursuit was abandoned. He failed to stop, that is why he was not apprehended. I am satisfied of that to the required standard and he is convicted.
[13] Two days later there was the incident at Countdown. The defendant was within his legal rights, of course, to be out shopping. He did not have to accompany the police officer outside to talk to her when she requested. Once arrested, however, things changed and he needed to co-operate.
[14] There was a scuffle over the basket. The defendant was holding onto a shopping basket. The police officer took hold of the basket as well and tried to get him to put it down but he refused. The police officer descried the defendant forcing the basket into her and her ending up with three scratches to her arm. The defendant did not punch or try to whack her which he had the ability to do given that they were standing in close proximity and there was a bit of a scuffle going on.
[15] The defendant’s failure to release the basket or at least put it down was an obstruction to the police officer carrying out her duty and as a result of that I determine that the charge of assault will be amended to obstruction of a police officer acting in the execution of her duty. There was also clear resisting of arrest that had been effected by the officer.
Relevant law
[8] The appeal proceeds under s 232(2) of the Criminal Procedure Act 2011, which provides that this Court must allow an appeal if satisfied that:
…
(b)in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(c)in any case, a miscarriage of justice has occurred for any reason.
[9]Section 232(4) in turn provides:
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or effecting the trial that—
(a)has created a real risk for the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[10] Where s 232(4)(a) is relied on, the appellant must be able to demonstrate that there is a reasonable possibility that a more favourable verdict might have been entered had there been no error.7
[11] Where the appeal is under s 232(4)(b) the focus is not on the verdict itself but rather the process in reaching it.8 The error or irregularity must be one which represents such a gross departure from good practice that the verdict cannot be sustained.9 It must be “of sufficient seriousness to warrant the verdict being set aside without further inquiry”.10
[12] In relation to the prosecution’s obligation of disclosure and the consequences of a failure in that respect, the position has been usefully summarised in the recent decision of Peryer v R.11 In that case Churchman J said:
[29] Criminal disclosure by the prosecution is intimately linked to fair trial rights: a person accused of a crime must know the nature and extent of the allegations against them in order to mount an adequate defence. Disclosure therefore engages the rights set out in ss 24(d) and 25(a) of the NZBORA. The fair trial right contained in s 25(a) is absolute and cannot be subject to reasonable limitations under s 5 of the NZBORA.12
[30] Relatedly, criminal disclosure ensures that defendants are not disadvantaged by the imbalance of resources available to them as against the resources of the state.13 That is to say, criminal disclosure also ensures an “equality of arms”.14
[31] Mr Peryer submits that the prosecution breached its duties under the Criminal Disclosure Act, the purpose of which is described in s 3 as:
… to promote fair, effective, and efficient disclosure of relevant information between the prosecution and the defence, and by non-parties, for the purposes of criminal proceedings.
[32] Under the Act, the responsibility for disclosure lies with the “prosecutor”, a term defined in s 6 as “the person who is for the time being in charge of the file or files relating to a criminal proceeding”. The Act envisages
7 Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110].
8 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [39], adopted in Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [50].
9 Wiley v R at [35].
10 Wiley v R at [41].
11 Peryer v R [2024] NZHC 1481
12 King v Attorney-General [2022] NZHC 695.
13 Te Aka Matua o te Ture | Law Commission Criminal Prosecution (NZLC R66, 2000) at [193] [Criminal Prosecution Report].
14 Her Majesty’s Advocate v Murtagh (The High Court of Justiciary Scotland) [2009] UKPC 36, [2011] 1 AC 731 at [10] per Lord Hope.
that prosecuting authorities provide disclosure in three stages: initial disclosure under s 12; full disclosure under s 13; and particularised disclosure requested by the defendant under s 14.
[33] Under s 13, the prosecution must, when engaging in full disclosure, disclose to the defendant “any relevant information”. The term “relevant” is defined in s 8 as information that “tends to support or rebut, or has a material bearing on, the case against the defendant”.
[34] The failure of a prosecutor to comply with the requirements of the Criminal Disclosure Act can give rise to a miscarriage of justice.15 However, not every failure to disclose will reach this threshold: a miscarriage of justice requires “more than an inconsequential or immaterial mistake or irregularity”.16 As was said by the Supreme Court in R v Condon:17
It is important to remember that … the assessment of the fairness of the trial is to be made in relation to the trial overall. A verdict will not be set aside merely because there has been irregularity in one, or even more than one, facet of the trial. It is not every departure from good practice which renders a trial unfair, as Lord Bingham made clear in a passage in Randall, which was referred to with approval in Howse. He said that it is at the point when the departure from good practice is ‘so gross, or so persistent, or so prejudicial, or so irremediable’ that an appellate Court will have no choice but to condemn a trial as unfair and quash the conviction as unsafe.
[35] It follows that for a failure to disclose to amount to a miscarriage of justice there must be a risk that it materially affected the result of the trial.
[13]I can put the position no more concisely or accurately than that.
The submissions
[14] For Mr McLachlan, Mr Weir submits that the failure to provide the supermarket footage resulted in an unfair trial in that there was no equality of arms. The defence did not have the same opportunity as the prosecution to view all relevant information on the crucial issue of how the interaction between the appellant and the arresting officer unfolded at the supermarket.
[15] For the police, Ms Penney refers to the Judge’s finding that there was a scuffle over the defendant’s shopping basket with Constable Palaone attempting to remove the basket from the defendant’s possession and in the process receiving scratches to her arm. Ms Penney refers to the Judge’s finding that the defendant’s failure to release
15 R v Takiari CA273/98, 22 July 1999 at [19]; and see R v Bublitz [2017] NZHC 1059, and R v Lyttle
[2018] NZHC 2689 to a reasonable apprehension of a miscarriage of justice.
16 Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145 at [30].
17 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78] (footnotes omitted).
the basket, or at least put it down was an obstruction to the police officer carrying out her duties and that the actus reus of the charge was therefore established.
[16] Ms Penney says that the Constable’s evidence was compelling, she was present when the offending occurred, gave a clear and unwavering account of relevant events and was not materially challenged about such events in cross-examination.
Discussion
[17] The police acknowledge that the supermarket CCTV footage was in the category of relevant information for the purposes of s 13 of the Criminal Disclosure Act 2008. Clearly it had a material bearing on the case against Mr McLachlan. The omission to disclose arose out of the Constable’s absence on maternity leave. She said that she had “submitted” the relevant file, but somewhere between lip and cup Murphy’s law prevailed.
[18] I attribute the failure to non-deliberate human error albeit more serious for the fact that a specific request was made by the defence for the footage, if available.
[19] Ms Penney is correct that there was evidence before the Judge which could properly support the charge. The Constable’s account of the scuffle over the basket was clear. I accept that a failure to release the basket or at least put it down may constitute an act of obstruction.
[20] However, on an inquiry into miscarriage, and in particular, whether there has been an occurrence or irregularity which has resulted in an unfair trial, the quality of the Constable’s evidence is not necessarily decisive. Clearly the best evidence of whether resisting police or an obstruction occurred was that contained in the CCTV footage. This was viewed by the police but not available to the defence. I accept there was no equality of arms in that respect. It is conceivable that the footage could have disclosed the fact that the shopping basket was not deployed in a manner which constituted an obstruction. It is conceivable also that the footage assisted a mens rea defence based on intention to preserve basket contents rather than resistance or obstruction.
[21] Reasonably slight although these defences might appear,18 I consider it difficult to imagine a disclosure obligation which more materially related to the prosecution. The ability to create a reasonable doubt about some component of the offences, whether through cross-examination or submission cannot be reasonably excluded. To do so, review of the material was essential. It could never be suggested that the footage fell into the “inconsequential” or “immaterial” category. Nor in my view, does the absence of cross-examination of the Constable about the circumstances of the resistance or obstruction preclude the point now raised. Without the footage any such cross-examination would have been significantly handicapped.
[22] As a result, I find an occurrence in the context of the trial which satisfies the test in s 232(4)(b). I accordingly set aside the convictions.19
[23] The issue then arises whether the Court should direct that a judgment of acquittal be entered or direct that a new trial be held.
[24] The conventional position is that where a conviction has been set aside because of some irregularity or occurrence resulting in an unfair trial but where there remains evidence on which a court or jury could convict, a retrial is ordered, leaving it to the Crown to determine whether to proceed further. This approach is said to respect “the important broad constitutional principle that the Crown prosecutes, and the Court adjudicates”.20
[25] In the present case I accept that there is obviously evidence on which a court could convict on a resisting police or an obstruction charge. That points towards an order for retrial. However, the authorities also establish that in assessing whether a retrial is appropriate, a relevant consideration is whether the appellant has served the
18 Possibly even more so in respect of the resisting arrest charge where, independently of what occurred at the checkout, the act of attempting to “flee” may, depending upon how the circumstances precisely unfolded, have constituted an independent act of “resistance”. (See Lightfoot v Police HC Whangarei CRI-2005-485-000006, 22 April 2005). Compare however R v Galvin (No 2) [1961] VR 740 (SC) where it is suggested that the term “resistance” carries with it the idea of opposing by force some course of action which the person who resisted is attempting to pursue.
19 Criminal Procedure Act 2011, s 233(2).
20 M (CA663/08) v R [2010] NZCA 302 at [47].
sentence imposed following conviction, especially when it is unlikely any greater sentence would be imposed at trial.21
[26] In this case, the Judge imposed a three month concurrent sentence on the theft charge (to which Mr McLachlan pleaded guilty), the charge of resisting police and the obstruction charge.22 As indicated, the sentence was imposed on 27 August 2024. It has now been served.
[27] In these circumstances and having regard to the relatively minor nature of the resisting and obstruction charges, it is in my view, difficult to identify any useful purpose in directing that a new trial be held. I note receipt of a memorandum from Ms Penney subsequent to the hearing advising that:
1.5Counsel has spoken with the Crown Solicitor who suggests that if Your Honour is minded to grant the appeal on the basis the prosecution failed to disclose relevant information, the public interest would likely not favour the prosecution continuing.
1.6In those circumstances, the Crown Solicitor anticipates Your Honour would make the order quashing the conviction and not ordering a retrial.
Result
[28] I therefore direct that a judgment of acquittal be entered on the charges of resisting police and obstruction. I note that the charge of obstruction was incorrectly entered on the appellant’s criminal history as one of Assaults Police (Manual).
Muir J
21 R v Accused (CA54/96) (1986) 13 CRNZ 561 (CA); R v Kino (1997) 3 NZLR 24 (CA) at 29.
22 He was convicted and discharged on the failure to stop charge.
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