P v Police HC Palmerston North CRI 2009-054-6

[2009] NZHC 1540

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2009-054-06

P

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         10 March 2009

Counsel:         B G Gore for Appellant

P Murray for Respondent

Judgment:      10 March 2009

ORAL JUDGMENT OF RONALD YOUNG J (Appeal against conviction and sentence)

Introduction

[1]      Mr P   was convicted by two Justices of the Peace of peeping into a house at Foxton Beach by night without reasonable excuse.   The Justices’ fined him $450. Mr P   appeals against his conviction and sentence.

[2]      As to conviction, as I understand it, the grounds of appeal are:

a)        firstly, the facts did not justify a conviction;

P V NEW ZEALAND POLICE HC PMN CRI 2009-054-06 10 March 2009

b)secondly, the Justices gave themselves no direction as to burden and standard of proof;

c)        thirdly, the Justices gave themselves no identification direction.

[3]      I have raised with counsel a fourth matter relating to the Court’s decision. Mr P    gave  evidence  at  trial  denying  the  charges.    No  mention  was  made whatsoever of that fact by the Court.  There is no analysis of his evidence nor any reason given for the apparent rejection of his evidence.  I will return to that aspect later in this judgment.

Facts

[4]      The facts are relatively straightforward.  On the evening of 5 August 2008 at about  10:40  p.m.  Mr Street,  who  lives  on  Andrew  Street,  looked  across  to  his neighbours house at 39 Andrew Street and saw a man entering the property.  He saw the man on the property for about 8 to 10 minutes as the walked around the property and looked in a number of windows.  Mr Street rang the Police.  As he waited for the Police he watched the man leave the property and walk down Andrew Street where he was stopped by the Police.  Mr Street said that the man had been wearing black clothing with a black hat.  Mr P   was wearing similar clothing when stopped by the Police.

[5]      Mr P   gave evidence.   He denied that he had been on the Andrew Street property and said he had been walking back to a friend’s place to pick up a jacket when he was stopped and spoken to by the Police.  He said just before he had seen a person run across the road behind him.  He accepted that there had apparently been an incident between him and the woman resident at that address many years in the past.

Discussion

[6]      It is fundamental for the criminal process that where in a summary trial a defendant gives evidence denying the offending the Court must acknowledge that evidence and if proposing to reject it as untrue give reasons why it is being rejected.

[7]      In this case if there was a reasonable possibility that the defendant was telling the truth in his evidence then he was entitled to have been acquitted.  This could be consistent with the view that the main identification witness was  a truthful  but mistaken witness in  the circumstances.    If the Court  concluded  the defendant’s evidence on the crucial point was untruthful then the defendant was entitled to know why he was being disbelieved.  There was no such reason given in this judgment at all.     The  judgment  essentially  focussed  on  only  the  evidence  given  by  the prosecution.    On  this  ground  alone,  therefore,  I  allow  the  appeal,  quash  the conviction and send the matter back to the District Court.

[8]      I acknowledge the pressure of work in the District Court and, therefore, the attractiveness in having Justices deal with these matters, which are within their jurisdiction.  However I do invite, if at all possible, a District Court Judge to hear this matter.  It is, of course, a matter of great importance to Mr P  .

[9]      I mention briefly for the sake of completeness the three grounds of appeal raised by counsel for the appellant.

[10]     Firstly as to no evidence to support the conviction.   If the evidence of the eyewitness, Mr Street, was accepted and the evidence of the defendant rejected then there was ample evidence to convict the defendant.  Mr Street saw a person enter the neighbour’s property at night and surreptitiously peep into a number of windows. While Mr Street may not have had this person constantly in his sight throughout the time when he was on the property he clearly saw him enter, he saw him leave and he saw him for some time while he was on the property.  Mr Street said he then watched this person leave the property, walk down the road and ultimately saw him stop and speak  to  the  Police.    The  Police  Officer  said  the  person  he  spoke  to  was  the

appellant.  I am, therefore, satisfied as I have said there was ample evidence upon which a conviction could have been entered.

[11]     As to identification strictly speaking this was not an identification case.  The witness did not purport to identify the appellant.   However any Court considering this case will need to be satisfied beyond reasonable doubt that the person on the premises was the same person stopped by the Police Officer.  By itself though the failure by the Justices to give themselves an identification warning would not have been fatal to their decision.

[12]     Finally although preferable in all criminal cases it is not essential that the burden and standard of proof be recounted by an adjudicator.  As I have said it is preferable but not, in my view, fatal to the conduct of a criminal case.

[13]     I also record that it is unfortunate the Justices of the Peace thought the case was  completed  upon  hearing the  prosecution  evidence.    However  there  was  no prejudice in the circumstances to the appellant because his evidence was in fact heard.  It is equally unfortunate that the Justices proceeded to sentence the appellant without hearing from him or indeed the prosecution.   The proper course would of course have been to abandon the sentence they imposed, hear from both sides and then reconsider the matter.   Regretfully that was not done.   In the circumstances, however, that is not significant given I have quashed the conviction.

[14]     In summary, therefore, the appeal is allowed.  The conviction is quashed and the matter sent back to the District Court for rehearing.

Ronald Young J

Solicitors:

B J Gore, Barrister, Levin, email: bria[email protected]

P Murray, Ben Vanderkolk & Associates, PO Box 31, Palmerston North email:  [email protected]