O v Police HC Napier CRI 2005-441-38

[2005] NZHC 162

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2005-441-38

O

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         1 November 2005

Counsel:         Sheryl Manning for the appellant

Daniel Kerr for the respondent

Judgment:      1 November 2005

ORAL JUDGMENT OF WILLIAMS J

Solicitors:

Crown Solicitor, Napier
Laugeson Howden, P O Box 506 Hastings

Copy for:

Judge R L Watson, District Court Hastings.

O V NEW ZEALAND POLICE HC NAP CRI 2005-441-38 1 November 2005

[1]      On 20 July 2005 the appellant Mr O    defended a charge brought against him summarily, brought under the Land Transport Act 1998, s 36A(1)(c), alleging that he operated a Holden utility motor vehicle on Alexandra Street in Hastings in a manner that caused it to undergo sustained loss of traction contrary to s 22A(3) of the Act.  In an oral decision delivered that day Judge Watson convicted Mr O   . This appeal is against that conviction.

[2]      Since there was no doubt that the utility vehicle that evening did undergo sustained loss of traction, the only issue in the District Court was whether the Police could prove to the required standard that it was Mr O    who was driving the vehicle on the occasion in question or whether it was a third party, a Mr Sutton.

[3]      In that regard it is first to be observed that Courts dealing with matters in an appellate way are severely hampered in their reconsideration of the facts of a case where the matter has been defended at first instance and the Judge has had the opportunity of seeing and hearing the witnesses give their evidence, including under cross-examination.   Although it dealt with civil proceedings the observations of Thomas  J  in  Rae  v  International  Insurance  Brokers  (Nelson  Marlborough)  Ltd [1998] 3 NZLR 190, 199 repays re-reading. The standard of proof with which the Judge was there dealing was of course the civil standard, but even substituting the criminal standard for the civil, the passage (lines 5-49) are instructive. It is unnecessary to repeat those observations in this judgment save to note the passages (line 16) that :

The Judge perceives first hand the probabilities inherent in the circumstances traversed in the evidence and can obtain a superior impression of those probabilities as a result.

And (line 23) :

Exceptional caution in departing from the trial Judge’s findings of fact are therefore regarded as imperative.

[4]      The Judge also cites from the decision of the Court of Appeal in Hutton v

Palmer [1990] 2 NZLR 260, 268 where Somers J said :

An appellate Court will not interfere unless it can be shown that the trial Judge has failed to use or has palpably misused his advantage [in seeing and hearing the witnesses]; it ought not to reverse the conclusions at which he has arrived merely from its own comparison and criticisms of the witnesses and its own view of the probabilities of the case.

[5]      Counsel  and  parties  often  overlook  the  significant  advantages  that  trial Judges, having seen and heard the witnesses, have over appellate Judges dealing with the matter solely on the transcript.

[6]      Returning to the facts of this case, as mentioned there was no doubt that Mr O    was one of those in the Holden utility on the evening in question and that a Mr Watkins was also a passenger in the vehicle.  There is also no doubt that the vehicle did undergo sustained loss of traction.  The only question, therefore, is whether a third person, variously named and said to be a Mr Sutton, was in the vehicle and was in fact driving it when it sustained the loss of traction.

[7]      The matter was extensively canvassed in evidence and when the Judge came to consider it he recorded the vehicle’s travel and lack of traction and the fact that it was pursued by the Police through part of Hastings until they lost immediate sight of it.   The vehicle was located shortly afterwards in premises with Mr O    and Mr Watkins standing nearby.  Constable Stewart who had been driving the pursuit vehicle was told, according to the Judge, that the vehicle driver, somebody known as “Doug, has scarpered, jumped over a fence” in the direction that Mr O    told him.  A Police dog handler and his dog were summonsed but were unable to find any track in the direction indicated by Mr O   .  The vehicle was then impounded.

[8]      The Judge recorded Mr Watkins’ evidence for the Police that there were the three people in the vehicle with Mr Watkins at all times in the middle.  Mr Watkins said that Mr Sutton wanted to drive and Mr O    permitted him to do so and it was Mr Sutton who, once the vehicle had stopped, took the keys from the ignition, leapt the fence and disappeared.

[9]      The Judge also recorded Mr O   ’s evidence to much the same end and summarised what Mr O    had said about Mr Sutton.   He also mentioned the

evidence of Mr O   ’s father who said that when the vehicle left his premises, up to an hour and a half earlier, Mr Sutton was amongst the three occupants.

[10]     The Judge then considered the conflicting evidence before him under six headings.

[11]     The first of those was to consider the contrasting differences in the evidence as to how many occupants were in the vehicles.   Constable Stewart, he says, was clear in his evidence.   He only saw two heads at a time in the evening when the lighting was still good.  Of course Messrs Watkins and O    had given contrary evidence and the Judge then discussed the probability that three people would have been  in  the  vehicle,  had  that  been  the  case,  and  been  visible  to  the  pursuing Constable.

[12]     He reached the view (p 5) that because of the small space in the front of the vehicle for the three suggested occupants, as the Judge said :

It’s  difficult  to  imagine  how  somebody  could  have  driven  the  vehicle through those particular intersections in the manner that they did and during all that period his head was able to be kept out of view.

[13]     He then turned to the second matter which was that Mr O    told the Police Officer at the scene that “Doug” was driving, that being a pseudonym for Mr Sutton, but that he was unaware of Doug’s surname or his address or the point where he  was  picked  up.    That  the  Judge  considered  contrasted  with  Mr  O   ’s evidence about that summary in the Constable’s evidence.   Mr O    said the summary was wrong and the officer had mixed up the statement about the point at which the drivers were changed. The Judge said (pp 5 and 6) :

That obviously goes to the credibility of Constable Stewart and I have no doubt from having listened to the evidence that he gave that he is an absolutely reliable witness who had a very good recall of the detail of the events as they unfolded that particular night, just what happened and how that situation developed.   ..   I certainly accept the evidence of Constable Stewart and put to one side the evidence of Mr O    as being quite unreliable and indeed quite mischievous.

[14]     He accepted Mr O    senior’s evidence but drew little from it given the time lapse between the departure of the utility from Mr O    senior’s property and the incident giving rise to the charge.

[15]     The Judge turned to what he described as the third matter, which was the statement Mr Watkins gave to the Police at the scene that the vehicle had only two occupants  by  contrast  with  his  evidence  in  Court  that  there  were  three,  and concluded (p 6) :

It  just  seems  to  me  coincidental  perhaps  that  two  very  senior  police constables  who  gave  very  clear  and  straightforward  evidence  about  the events as they unfolded that evening should both make such important mistakes in areas which were quite vital to this particular case.  The first as to where Doug was picked up and the second as to the number of people in the vehicle.

[16]     The Judge subdivided the fourth matter which concerns Mr O    telling Constable Stewart as to the direction in which Mr Sutton was said to have gone when he left the vehicle.   He concluded that Mr O    deliberately misled the Constable as to the direction taken by the fleeing Mr Sutton which the Judge described as a “fib”, perhaps resulting from concern that the vehicle might be impounded.  He regarded that as a fib and a wrong direction because the Constable was unable to see anything when he made an inquiry in the direction indicated and the Police dog handler was unable to find any scent.

[17]     The next aspect of that matter was that the point where Mr Sutton was said to have vaulted the fence was its highest point where there was loose barbed wire.  The Judge obviously took the view as mentioned that a fib had been told to the Constable as to the direction taken by the fleeing suggested driver.

[18]     And the final matter which he reviewed was the lack of any evidence from Mr Sutton.  The Judge carefully directed himself to the fact that there is no onus on an accused person in any criminal trial to give or call evidence, but said (p 7) :

One would have thought that Mr Sutton would have wanted to come to Court and tell us that he was the driver because that is what he apparently has already told the police ..

[19]     As  a  result  of  his  evaluation  of  those  issues  in  the  evidence  the  Judge concluded,

When I look at the evidence that has been presented in this case I accept the circumstantial nature of the evidence, I accept many of the facts which are before me require me to use inferences to come to conclusions which I am entitled to draw, but I have no doubts at all that Shaun Sutton is a figment of people’s imagination as being the driver of this vehicle.  There is certainly no suggestion and never has been a suggestion that Darren Watkins was the driver.  So, almost by elimination, we end up with Mr O    as being the only person  that could  have  been  the  driver  at that  particular  time  that particular evening.

I am aware of course of section 67(a) of the Summary Proceedings Act and the need for special caution where issues of identity are put to proof such as is the case here.  But, as I have said, when I look carefully at the situation that has been presented to me I have no difficulties at all in being able to conclude, notwithstanding the particular strictures of that section 67(a), that Mr O    must have been the driver of the vehicle, that the prosecution has properly proven the case and he will accordingly be convicted.

[20]     As mentioned earlier, the Judge of course had the advantage of seeing and hearing those witnesses.  The question therefore on appeal is whether he is shown to be wrong in the sense that there was no evidential foundation for the conclusions which he reached.

[21]     In fact when the 40 plus pages of evidence is carefully read there was ample justification for the Judge reaching the conclusions he did.  He of course did not have the advantage of the typewritten transcript at the time and was doubtless relying on his notes, but there were additional aspects of the evidence on which the Judge might also have relied to support his views.  For instance Constable Stewart said he was told by Mr O    when he approached,

I approached the defendant and asked him what was going on.  He said that it wasn’t him who was driving and then said “fuck, my old man will kill me”.  I asked him who was driving and he made a vague reply and said it was a mate

who took the keys out of the ignition.  In cross-examination he confirmed that he had been told that it was a ‘mate’ who was driving.   Nonetheless, the concern that Mr O    senior might well have had about the impounding was reflected both in Mr Watkins’ evidence  and  more  particularly in  Mr  O   ’s  evidence and  the

evidence of Mr O    senior.   It seems the utility vehicle was probably only purchased by Mr O    senior a few days before 10 March 2005.

[22]     An  additional  matter  to  which  the  Judge  might  have  referred  in  his assessment as to whether there was space for three people in the vehicle, was Constable Astridge’s evidence that there was almost no room in the middle of the passengers compartment of the vehicle - which had bucket seats - for a third person and were no seatbelts for a third.   Mr Watkins also said in his evidence that they were going for a drive just to test out his dad’s new ute and was contradictory in his evidence as to when the suggested swapping of drivers took place.   Mr O    himself, although saying that all three were passengers in the vehicle, said that it was “because Dad had a new car and the boys wanted to go for a cruise” and he allowed Mr Sutton to drive because “I owed him a drive”.  He also referred in his evidence (p 37) to his concern that the vehicle might be impounded if he let his mate drive it because “my old man is a bit of a hard man”.  He spoke of his efforts to dissuade the Police from impounding the vehicle.

[23]     In submissions in support of the appeal Ms Manning went carefully through each of the six matters which had commended themselves to the District Court Judge and suggested that either alone or in combination they meant the conviction was unsound.   She submitted it was contrary to the weight of the evidence that undue reliance was placed on the fact that Mr Sutton was not called to give evidence; that the Judge drew wrong conclusions from the evidence and generally the proof did not reach the required standard.  She particularly relied on the decision of the Court of Appeal in R v Toia [1982] 1 NZLR 555, 559 as to the caution which must be exercised in treating lies given in Court by contrast with lies given by witnesses, or particularly by an accused out of Court. Again it is unnecessary to recount the well known passage in Toia in which that reference is made but it is significant that lies, as the Court of Appeal said in that case, usually bear on the question of credibility rather than adding to the prosecution proof.

[24]     For the Police, Mr Kerr, submitted the judgment should be upheld, and was merely a proper evaluation of the evidence, although he accepted that before the Police questioned Mr Watkins in the latter part of the his evidence-in-chief they

should perhaps have obtained the Judge’s leave to cross-examine under the Evidence

Act 1908, s 10.

[25]     In assessing all those issues this is a conventional case where widely differing evidence was given on the critical issue as to who was driving the vehicle when it sustained the loss of traction.   The judgment carefully evaluated the contrasting viewpoints  given  on  a  number  of  significant  issues,  particularly the  differences between statements said to have been made to the Police by Messrs O    and Watkins at the scene and those which they gave in evidence.  The Judge was entitled to review evidence of that sort in deciding whether the standard of proof had been satisfied.     This  was  largely  a  case  of  circumstantial  evidence  where  it  is commonplace for Judges, or for that matter for juries, to weigh and sift all the contrasting evidence and all the circumstances in order to reach conclusions on various aspects of the contrasts and to draw from that inferences which may, or in some cases may not, assist it in deciding that guilt has been proved.

[26]     This was a careful review of the contradictions and contrasts in the evidence. The Judge correctly noted the six major areas of conflict.  He reviewed the evidence in those areas and he reached various findings on credibility.  Indeed his findings on credibility in relation to the Police evidence were strong and quite plainly he was unattracted by the evidence given in Court by Mr O    and Mr Watkins, even though Mr Watkins was a prosecution witness.   In all those circumstances it is impossible to reach the view that the criticisms of the judgment are made out.  The Judge evaluated the evidence in reaching his view.  As a result of that and having had the advantage of presiding over the defended hearing, he reached the conclusion that the charge had been proved beyond reasonable doubt and that Mr O    was the driver of the vehicle on the occasion in question.

[27]     No basis has been made out for disagreeing with that conclusion or holding that it was unsupported by evidence. The appeal is therefore dismissed.

………………………………..

1 November 2005  WILLIAMS J