Moore v Police HC Auckland CRI-2011-404-000283

[2011] NZHC 1905

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000283

CLARE ELLEN MOORE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         31 October 2011

Counsel:         C R Thornton for Appellant

K Francis for Respondent

Judgment:      17 November 2011 at 12:30 PM

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Thursday, 17 November 2011 at 12:30 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Public Defence Service, PO Box 90243, Auckland Mail Centre 1142. Email:  [email protected]

Crown Solicitor, DX CP24063, Auckland 1140. Email:  [email protected]

MOORE V NEW ZEALAND POLICE HC AK CRI-2011-404-000283 17 November 2011

[1]      The appellant was convicted of driving a motor vehicle on Queens Road, Auckland, while the proportion of alcohol in her breath exceed 400 micrograms of alcohol per litre of breath, she having been convicted at least twice previously of similar offences.  She had initially been charged with two other offences – careless driving and wilful damage – which were said to have occurred shortly thereafter but she was acquitted by the District Court Judge of these later two offences on the basis that  the  Crown  had  failed  to  prove  beyond  reasonable  doubt  that  she  was  the offender.

[2]      The appellant now appeals on the basis that her acquittal on the charges of careless driving and wilful damage was inconsistent with her conviction for driving with excess breath alcohol.   As the witnesses gave evidence that it was the same person who was alleged to have committed all three offences, the appellant submits that the Judge’s findings cannot be supported by the evidence.

Factual background

[3]      On 14 May 2010 Police were called to an incident in the carpark of a pub in Panmure.  It was alleged that there had been a confrontation between the appellant and the complainant about a carpark.  After words were exchanged, the complainant walked into the pub where a short time later she was advised by other patrons that someone had deliberately driven into her car and also scratched the car with a key. These actions formed the basis of the two offences of careless driving and wilful damage.   She returned to the carpark and Police were called.   The appellant was arrested and underwent a breath testing procedure.

[4]      The complainant gave evidence.  She was unable to identify the appellant as the person with whom she had the confrontation.  She described that person as “a tall, quite tall, thin lady with long blond hair”.  In any event, she did not witness her car being driven into nor being scratched with a key.

[5]      A second civilian witness gave evidence.  He was in a van in the carpark.  He had not been drinking.  He was also unable to make a positive identification of the person who had the confrontation with the complainant and who later drove into and scratched the complainant’s car.  He described her as “between 30 and 40, black hair, not bad looking yeah”.

[6]      The first witness described the offender as having blond hair while the second witness described her as having black hair.  The appellant is also 52 years of age, not between 30 and 40 as described by the second witness.

[7]      The third witness for the informant was the police officer who arrested the appellant.  Initially, the police officer asked the appellant which car was hers.  The appellant told him that she was the driver of a jeep but claimed not to know its registration.  She appears not to have been asked about driving into and scratching the complainant’s car.

[8]      The police officer then recorded the appellant saying “I was parking here to pick up my daughter from the dairy”.  The police officer then asked her the question: “So you admit to driving into the carpark this evening?” to which she replied: “No, my friend drove me here”.  The police officer then asked her: “Where is your friend now?”  The appellant’s answer was “She left”.  When the police officer asked the appellant for the name of her friend she said she had nothing to say.

[9]      At trial, the appellant gave evidence on her own behalf.  She told the Court that she was driven to the pub not by a friend but by her daughter and said that any conflict in the statement that she may have made to the police officer was to protect her daughter.   She said it was her daughter who had words with the complainant. Her daughter had some errands to run in Panmure and that was the only place they could find a carpark.  Her daughter parked the vehicle, gave her the keys to lock it up and went to do her errands.  The appellant went into the pub to use the ladies room and was struck in the head which led to the commotion in the pub.  The appellant’s daughter did not give evidence.

[10]     In a careful decision, Judge G Davis clearly recognised that identity was the major issue in the case.  Neither of the two civilian witnesses was able to identify the appellant.  He said that the evidence which came closest to identifying the appellant was the witness in the van in the carpark saying that the lady who had damaged the complainant’s vehicle by driving into it and scratching it with a key was surrounded by patrons and when the Police arrived he left because he thought matters were under control. An inference could be drawn that the lady that the Police arrested was the lady the witness saw.   The witness did not, however, see the appellant being arrested.

[11]     The complainant did not see who drove into her car or scratched it.  In those circumstances the Court determined that identity had not been proved beyond reasonable doubt in respect of the charges of careless driving and wilful damage.

[12]     The Judge then noted that the evidence in respect of the charge of driving with excess breath alcohol was slightly different in that the appellant had been asked questions by the arresting officer about driving her car whereas she had not been asked questions about the careless driving and wilful damage incidents.  The Judge also formed the view that the witness in the van in the carpark was a very credible witness.   He had given evidence that he saw only one person in the appellant’s vehicle, although he could not identify who that was. The appellant, in contrast, said that although she was in the vehicle it was either driven by her friend or by her daughter.

[13]     The  Judge  rejected  the  appellant’s  evidence  on  this  issue,  preferring  the evidence of the independent witness.  The appellant had admitted driving the vehicle in her initial statement to the Police, although she had retracted that when asked directly.  Having rejected the appellant’s evidence given at trial, he found that she had in fact driven her vehicle to the carpark of the pub in Panmure.  He then went on to find that the breath testing procedures had been correctly carried out and found the charge of driving with excess breath alcohol proved.

[14]     The legal principles regarding appeals on the basis of inconsistent findings are not in dispute. The Court will intervene only where there is no rational or logical explanation for different verdicts.[1]

[1] Nevin v R [2008] NZSC 40 at [2].

[15]     The relevant principles were set out in detail by the Court of Appeal in

R v Shipton:[2]

[2] R v Shipton [2007] 2 NZLR 218 (CA) at [75]–[77].

[75]      The general principle has long been that a conviction is unsafe if no reasonable jury, properly instructed, could have arrived at the conclusion which was in fact reached.  (R v Wharton [1955] Crim LR 120 per Devlin J). The burden is on the accused to demonstrate that the only explanation for the inconsistency must be that the jury was confused or adopted the wrong approach, thus making the verdict unsafe.   Only this can warrant the intervention of an appellate Court, and generally there ought to be a curial reluctance to interfere with a jury verdict.  (R v H [2000] 2 NZLR 581 at p

589 per Keith J).

[76]     A prima facie inconsistency is never enough to set aside a verdict. Once  a  prima  facie inconsistency is  established, the  Court  must  inquire whether there is any rational or logical explanation for the inconsistent verdict...

[77]      Time after time in appeals to this Court it is argued, as counsel argued here, that because the jury must have “disbelieved” a witness to acquit on one count, it is inconsistent to rely on the witness to convict on another count.  The argument is utterly fallacious; ... there is no reason why credibility must be static. ... It is not necessarily illogical for a jury to be convinced as to the credibility of some aspects of one person’s story, but not as to others, a fortiori where it is convinced, but not beyond a reasonable doubt.

[16]     The question on appeal is therefore whether there was a rational or logical explanation for the different verdicts.  In my view there was.

[17]     In her initial statement to the Police the appellant said she was the driver of a Jeep and that she was parking there to pick up her daughter from the dairy, even though she later recanted from these statements.   Secondly, the appellant was in possession of the keys to the motor vehicle.  Thirdly, the witness in the van in the

carpark confirmed under cross-examination that only one person was in the car that

pulled up in the carpark of the pub.  While he admitted that he did not get a good look at the driver’s face and could not therefore positively identify the appellant, there was no suggestion that he was unable to identify the number of occupants of the car.

[18]     Accordingly, it is my view that the identification evidence in relation to the charge of driving with excess breath alcohol was somewhat different to the evidence relied upon by the informant in relation to the other charges.  The Judge carefully considered the appellant’s various explanations and did not find them credible.  The crucial difference between the evidence on the careless driving and wilful damage charges and the evidence on the drink driving charge were the statements made by the appellant to the police officer at the scene together with evidence confirmatory of those  statements,  namely,  the  number  of  persons  in  the  car  as  noted  by  an independent witness and the possession of the car keys by the appellant.   In those circumstances, the Judge was entitled to find the charge of driving with excess breath alcohol proven on the basis that the appellant was in fact the driver of the motor vehicle.

[19]     The appeal is accordingly dismissed.

……………………………..

Woolford J