Pokoina v Police
[2015] NZHC 2558
•19 October 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-306 [2015] NZHC 2558
RICK POKOINA
v
NEW ZEALAND POLICE
Hearing: 19 October 2015 Appearances:
No appearance for the Appellant
Z Hamill for the RespondentJudgment:
19 October 2015
JUDGMENT OF THOMAS J
Solicitors:
Kayes Fletcher Walker Ltd, Manukau.
POKOINA v NEW ZEALAND POLICE [2015] NZHC 2558 [19 October 2015]
Background
[1] The appellant, Mr Rick Pokoina, has been charged with one charge of driving with excess breath alcohol (third or subsequent) pursuant to ss 56(1) and 56(4) of the Land Transport Act 1998 and one charge of wilful damage pursuant to s 11(1)(a) of the Summary Offences Act 1981.1
[2] The appeal is against an admissibility decision of Judge Earwaker at the
Manukau District Court.
[3] A hearing date of 20 October 2015 has been allocated for the substantive hearing. It is a Judge alone trial and four hours have been allocated.
[4] We have no appearance by the appellant, his counsel, Mr Nairn, or any agent today. The Court corresponded with Mr Pokoina’s lawyer on the record as to an appeal date. In his email dated 5 October 2015, Mr Nairn informed the Registry that the date of 19 October 2015 would be preferable for him. The Court advised Mr Nairn that hearing time was available either at 10 am or 2.15 pm and asked which would be suitable. Mr Nairn advised the Registry by email that 2.15 pm would be preferable for him. Later that day, the Registry notified counsel for the appellant and the respondent that the appeal would be heard at 2.15 today,
19 October 2015.
[5] Submissions for both the appellant and the respondent have been filed. At
11.43 am this morning, Mr Nairn emailed the Registry saying:
I apologise for the late notice but am unable to attend the admissibility appeal hearing relating to Rick Pokoina today.
Could I ask that it be removed from the list this afternoon?
Should it not be able to be removed I will attempt to get an agent to attend and advise the Court that the matter would not be able to be argued today.
[6] No reason for Mr Nairn’s unavailability has been provided to the Court.
1 The second charges is a result of Mr Pokoina kicking the back left window of the Police car numerous times with both feet causing the seal around the door window to break loose while he was detained after refusing to undertake a breath screening test.
[7] Immediately at 11.45 am, the Registry emailed Mr Nairn saying:
You will need to instruct an agent as the matter cannot be removed from the list.
[8] When Mr Nairn had not appeared and there was no appearance by the appellant or any agent at 2.15 pm, the Registrar attempted to telephone Mr Nairn. There was no answer.
[9] The alleged offending occurred on 26 October 2014, almost a year ago. The appeal has been listed with some urgency, bearing in mind the Judge alone trial is tomorrow. As I say, four hours have been set aside to deal with the matter.
[10] Driving with excess breath alcohol (3rd or subsequent) is a serious charge raising, as it does, issues concerning public safety. I note the appellant has a bail condition not to consume alcohol but no bail condition that he is not to drive a motor vehicle.
[11] In the circumstances, given that Mr Nairn specifically confirmed that the appeal would be heard today; that the appeal was listed at 2.15 pm for his convenience; that no reason has been given as to why the matter cannot be dealt with today; that I have received Mr Nairn’s submissions, so I am well appraised of the issues of concern on appeal; and that there has not even been the courtesy of any contact or explanation from Mr Nairn, I am going to proceed with the appeal today.
[12] It would be, in my assessment, outrageous not to proceed with the matter which would have the obvious result of tomorrow’s hearing being vacated.
[13] Of some relevance too, is the fact that, pursuant to s 215(2) of the Criminal Procedure Act 2011, the appellant requires leave to appeal the decision on appeal. No application for leave has been made. The respondent confirms that leave would not be opposed, in any event.
Allegation
[14] The allegation is that the appellant on 26 October 2014 was reversing his vehicle at speed when the proportion of alcohol in his breath exceeded the legal limit, in that it was 459 micrograms of alcohol per litre of breath.
[15] Aggravating is the fact that the appellant has at least two relevant prior convictions.
Procedural history
[16] The matter was set down for a Judge alone trial on 5 June 2015. On the same day, the appellant sought a sentence indication and, particularly, applied for special reasons not to be disqualified pursuant to s 81 of the Land Transport Act 1998, which provides:
81 Provisions relating to mandatory disqualification
(1) If any provision of this Act (other than section 63) requires a court to disqualify a person from holding or obtaining a driver licence or transport service licence for a period not less than the specified minimum period, the court must order that the person be disqualified accordingly unless for special reasons relating to the offence it thinks fit to order otherwise.
(2) Nothing in any provision referred to in subsection (1) or in section 65 restricts any other duty or power of the court to disqualify a person from holding or obtaining a driver licence or transport service licence or to impose any other penalty.
(3) This section is subject to section 94 (which relates to community-based sentences).
[17] The special reason was that he was reversing the car to find a safer place to park as it was on double yellow lines. He said he reversed the car backwards because it could not drive forwards.
[18] The application was opposed by the prosecution.
[19] Judge Simpson adjourned the matter for further information to be provided from both sides. The appellant was directed to file written submissions and affidavits in support of the s 81 application by 20 June 2015 and the Police were to
respond by 1 July 2015. The matter was further listed for a sentence indication on
6 July 2015.
[20] On 4 July 2015, the Police filed submissions indicating that the timetabling order, as directed, had not been met by the defence and that, until submissions and affidavits were received, the prosecution could not progress its response. The prosecution did, however, file additional information, being a formal statement of Constable Cornish dated 24 June 2015. His statement is that he was told that the car had broken down and would not drive forwards but, when he moved the vehicle to park it on the side of the road in a safe position, he was able to drive the vehicle
forward in first gear.2
[21] On 6 July 2015, the defence made an application for the evidence of Constable Cornish to be excluded pursuant to s 34 of the Criminal Disclosure Act 2008. The application was declined by Judge Earwaker for these reasons:
(a) The evidence is relevant to the application for special reasons pursuant to s 81. Prior to the application being made, Constable Cornish’s statement was not relevant to an issue in the proceeding.
(b)The information contained in Constable Cornish’s statement was not in a form that was able to be disclosed at an earlier time.
(c) In any event, the matter was able to be remedied by a simple adjournment. There was ample time for the evidence to be considered since remands were granted on 6 July 2015, 20 July 2015 and
10 August 2015.
[22] The s 81 application has since been abandoned but the defence maintains that Constable Cornish’s evidence should be excluded in relation to the appellant’s trial. I note at this point that its relevance is questionable given that I assume the sole issue at the hearing tomorrow is whether, indeed, the appellant drove the motor vehicle on a road with the alleged level of alcohol in his breath.
Submissions
[23] The appellant’s submission is that the Police did not disclose in a timely manner the information contained in Constable Cornish’s statement and that information was relevant from the moment the appellant referred to a mechanical failure. In Mr Nairn’s submission, even if it could not provide a defence to the charge, it would have at least been a mitigating factor or a non-aggravating factor to the alleged offending.
[24] In Mr Nairn’s submission, that Constable Cornish’s statement was not recorded in the Police notebook, job sheet or any other medium reflects the questionable manner in which the statement was filed. He says this raises public policy concerns as it means the Police can avoid disclosure obligations by not committing to writing highly relevant information.
[25] The respondent’s submission is that the appeal should be dismissed. The submission for the prosecution is that the information did not exist prior to
24 June 2015 and Constable Cornish’s proposed evidence was disclosed to the appellant shortly after it came into existence, at a time at which his evidence became relevant to the proceeding. Prior to that point, the appellant was entitled to withhold that information under s 16(1)(n). In any event, it is submitted that the breach was remedied by adjournment on the basis that three remands have been already granted since receipt of the information.
Relevant law
[26] On general appeals, the appellate court has the responsibility of arriving at its own assessment of the merits of the case.3
Analysis
[27] It is not in dispute that Constable Cornish’s evidence was relevant to the s 81 application, however, the essence of the appeal is whether it is of general relevance
to the issues in the case such that it should have been provided to the defence as part of the usual pre-trial disclosure process.4
[28] In my assessment, Constable Cornish’s statement did not need to be disclosed as part of the prosecution’s obligation under s 13 of the Criminal Disclosure Act. The meaning of “relevant” is defined in s 8 as being information that “tends to support or rebut or has a material bearing on the case against the defendant”. In Polounina v Police,5 Duffy J noted that the decisions on common law disclosure remain helpful and that the common law test in R v Price is applicable, which is that the prosecution is required to disclose what, within the reasonable contemplation of the prosecutor, would be of assistance to the defence.6 Duffy J cited the decision of R v Lologa where Baragwanath J stated at paragraph [6] that it can be fairly said the Crown’s practice in criminal cases is now comparable with discovery obligations in civil cases.7
[29] I am satisfied that, initially, it was not within the reasonable contemplation of the prosecutor that the issue of whether or not the vehicle could move forwards was of assistance to the defence.
[30] It does then start to become a little messy because, on 20 November 2014, a Registrar adjourned the hearing, noting that counsel wanted to take further instructions for special reasons. The Registrar noted that a plea was required at the next appearance. On 25 November 2014, the appellant entered a not guilty plea. On
16 February 2015, the need for a Judge alone trial was recorded together with confirmation of the not guilty plea. The issue was described as being “necessity”. On 5 June 2015, the circumstances outlined in paragraph [19] above occurred.
[31] So it can be seen that Mr Pokoina has given varying advice of his approach to the charge: whether there was to be a defence of necessity or whether special reasons
were to be advanced. I accept the respondent’s submission that a defence of
4 Criminal Disclosure Act 2008, s 13.
5 Polounina v Police HC Auckland CRI-2011-404-91, 8 November 2011 at [30].
6 R v Price CA/92, 29 June 1992.
7 R v Lologa HC Auckland CRI-2005-092-7700, 8 December 2006 at [6].
necessity would not necessarily engage Constable Cornish’s evidence as relevant.
Reference to special reasons would, however, do so.
[32] I am not particularly attracted to the proposition that, because the information was not recorded, disclosure obligations are able to be avoided.
[33] Indeed, I am sure that the Police would not seek to avoid their disclosure obligations on the basis that the information which was relevant was nevertheless retained only in an unwritten form. I suspect any such approach would breach the Police’s own conduct requirements.
[34] However, I am not satisfied that the evidence is inadmissible. Clearly, the prosecution was entitled to conclude that it was not relevant for the purposes of the two charges, as laid. There is an issue as to when the prosecution should have realised that the information was relevant and disclosed it.
[35] In saying all of that, however, any prejudice has clearly been remedied by the numerous adjournments with the effect that, a year on, the matter has still not been heard. The remands previously granted allowed the appellant ample time within which to consider the proposed evidence of Constable Cornish and to make an informed decision in defending his case. As indicated, whether the evidence is in fact relevant to the hearing tomorrow is questionable and is an assessment to be made by the Judge hearing the case. The fact that Constable Cornish did not make any notebook entries is a matter which can be explored in his cross-examination if, indeed, he does give evidence and, no doubt, it is a matter on which the defence will make submissions.
[36] In summary, therefore, the evidence could reasonably not be considered relevant at the time the charges were laid. It is clear at some stage, it became relevant and should have been disclosed. It may well be that the prosecution was a little late in disclosure but, in any event, any fault has been remedied by the numerous delays which have been occasioned in these proceedings.
Conclusion
[37] For the reasons given, the appeal is dismissed. The evidence is admissible.
Thomas J
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