R v A HC Rotorua CRI 2006-070-7259

[2008] NZHC 2305

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2006-070-7259

THE QUEEN

v

A
F
T

Hearing:         5 May 2008

Appearances: H Wrigley for the Crown

A Balme and S Whitehead for accused A 
C Horsley for accused F 
W Nabney for accused T 

Judgment:      5 May 2008

(ORAL) RULING [1] OF STEVENS J

Solicitors/Counsel:

Crown Solicitor, PO Box 13 063, Tauranga
A Balme, PO Box 13 079, Tauranga
C Horsley, PO Box 699, Tauranga

W Nabney, PO Box 13 007, Tauranga

R V A AND ORS HC ROT CRI 2006-070-7259  5 May 2008

Introduction

[1]      The three accused Messrs F   and T   and Ms A   are charged

inter alia with three offences contrary to the provisions of s 45 of the Arms Act

1983.   The Crown alleges that the three accused were jointly in possession with Manjit Singh (who has pleaded guilty to the three charges) of three firearms found in a van stopped by the Police in Tauranga on 18 November 2006.

[2]      Mr Nabney for the accused, Mr T  , raised an objection prior to  the Crown calling Detective Constable Curragh.  Mr Nabney challenged a portion of the evidence about to be given.  A voir dire was held to determine the admissibility of the  evidence.    The  Detective  Constable  outlined  the  relevant  portions  of  her proposed evidence.  She was then cross-examined by defence counsel.

[3]      In summary, the Detective Constable’s evidence is that she was carrying out surveillance using the security cameras in the Hotel on Devonport on the evening of

17 November 2006.   During the time when she was carrying out surveillance she saw a vehicle, which appeared to be driven by a male, enter the carpark.  She is able to describe the van and the fact that the four occupants that emerged from the van, one female and three males, all then walked into the hotel.

[4]      The  Detective  Constable  continued  with  her  surveillance  and  observed, through the video footage, that the vehicle left the hotel at 2.11am via The Strand extension.   The crucial portion of evidence then follows, namely, that “the same male person who was driving the vehicle into the hotel drove the vehicle out”.

Submissions for the defence

[5]      The key ground of the objection raised by Mr Nabney was that the evidence was opinion evidence and that it was not sufficient to enable the Crown to invoke the presumption in s 66 of the Arms Act.  This statutory presumption would apply in the circumstances of this case if the Crown were able to prove, beyond reasonable doubt, the identity of the driver of the vehicle at the time it was later stopped.  Mr Nabney

submitted that the challenged evidence did not meet the threshold for relevance under the Evidence Act 2006 (the Act).

[6]      For completeness, the presumption applicable to the drivers of vehicles under s 66 of the Arms Act may assist in proof of the three counts in the indictment of possession of pistols and a firearm contrary to s 45(1) of the Arms Act.  Such items were found inside the van when Police stopped it.

Submissions for the Crown

[7]      Ms  Wrigley  submitted  that  the  Court  should,  where  appropriate,  receive opinion evidence.   All evidence of identification was in part opinion.   The key question for the Court is whether or not the particular piece of evidence concerned was relevant and could properly form part of the pool of evidence which might enable the Crown to endeavour to prove, depending on issues of weight and credit, the identity of the driver.  Ultimately, that factual question of identity will be for the jury to decide.

Voir dire evidence

[8]      In order to assist with the testing of the evidence on this question, I heard evidence during the voir dire from Detective Constable Curragh.   This was appropriate because the Crown intends, in addition to the oral testimony, to produce as exhibit 1 a series of seven still images taken from the video surveillance footage from the Hotel on Devonport on the night in question.

[9]      The Detective Constable was not the person who prepared the photographs. At the time of giving evidence on the voir dire had not previously seen the still images.  However, in the course of the voir dire, she was able to confirm that image

2 showed the van arriving in the carpark area and that the person she saw as the driver in the photograph was, in her opinion, the driver of the van that she had witnessed at the time the vehicle was stopped.

[10]     The Detective Constable was also able to intimate that the person seen in photograph 3 (a later image from the carpark) was similar to the person that she saw driving the vehicle that evening.

[11]     In her evidence on the voir dire, the Detective Constable was able to further confirm that the driver was a male and that he was wearing a plain white T-shirt. She also stated that the same person was driving when the vehicle left the carpark at

2.11am early the next morning.

Discussion

[12]     There  is  a  fundamental  principle  in  the  Act  that  relevant  evidence  is admissible.  Section 7 of the Act provides as follows:

Fundamental principle that relevant evidence admissible

(1)   All relevant evidence is admissible in a proceeding except evidence that is—

(a)   inadmissible under this Act or any other Act; or

(b)   excluded under this Act or any other Act

(2)   Evidence that is not relevant is not admissible in a proceeding

(3)   Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

[13]     The threshold for relevance is set out in s 7(3) of the Act, which in summary states that the test for relevance requires that the evidence have a tendency to prove or disprove anything that is a consequence to the determination of the proceeding.

[14]     This threshold appears to be a relatively low one.  A similar observation was made by the Court of Appeal in R v Smith [2007] NZCA 400 at [16]. There, the Court drew a comparison between the test in s 7 of the Evidence Act, namely, evidence having a tendency to prove or disprove anything with the higher threshold of the “substantially helpful test”, which determines the admissibility of veracity evidence under s 37(1) of the Act. This was seen as creating “a higher threshold than mere relevance” in relation to s 7(3).

[15]     Bearing in mind the nature of the test in s 7 of the Act, I am satisfied that this evidence does have a tendency to prove matters of consequence to the determination of these proceedings.   The evidence of Detective Constable Curragh establishes precisely what she saw via her surveillance of the security cameras when the van arrived in the carpark and when the occupants got out of the van.  She was able to support this by reference to the still images in exhibit 1 and she was able to provide a basic description of the clothing of the male driver, namely, that he was wearing a plain white T-shirt on the night in question.   She was also able to say from her specific observations of the video footage (and not just the still images that have subsequently been captured from the videotapes) that the same person who was driving the vehicle into the hotel subsequently drove the vehicle out of the carpark.

[16]     In my judgment, that evidence is relevant and admissible.   It is part of the evidence that may well be accepted by the jury as proof of the identity of the driver of the van when it was stopped a short time later.  Accordingly, I rule that the Crown is permitted to lead the evidence from Detective Constable Curragh.

Application of the presumption

[17]     Whether or not the presumption in s 66 of the Arms Act should apply in the circumstances of this case is a matter that can be reviewed later in the trial.   The Crown accepts that the presumption cannot apply unless and until the Crown has proved beyond reasonable doubt the identity of the driver.  Whether the Crown can do that will depend not just on the evidence of Detective Constable Curragh, but on all of the other evidence that might impinge on the question of identity.

[18]     In that regard, I accept that it may be open to the Crown to establish that point not just by direct observations of opinion but also by matters of circumstantial evidence  or  other  direct  evidence  tending  to  exclude  the  remaining  individuals making up the group who were in the van when it was stopped on The Strand by the Armed Offenders Squad at that time.

[19]     I reserve leave to Mr Nabney, on behalf of Mr T  , to raise any issue

regarding the applicability of the presumption at a later point in the trial.

Stevens J