R v R HC Wanganui Cri-2008-483-32

[2009] NZHC 130

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WANGANUI REGISTRY

CRI-2008-483-000032

THE QUEEN

Applicant

v

R

Respondent

Hearing:         9 February 2009 (Heard at Wellington)

Counsel:         L C Rowe for applicant

D M Goodlet for respondent

Judgment:      13 February 2009

RESERVED JUDGMENT OF DOBSON J

[1]      This was an application on behalf of the Police for consent to present an indictment under s 345(3) of the Crimes Act 1961 in respect of an offence alleged against Mr R 

[2]      Mr R   was charged in the District Court at Taihape with intentionally and without claim of right damaging by fire a motor vehicle, contrary to s 267(1)(b) of the Crimes Act 1961.   The vehicle was a 1997 Subaru owned by Ms Kerri-Jo Te Huia,  the  partner  of  one  Mark  Bowsher.    Following  a  preliminary  hearing,

Justices of the Peace discharged Mr R  .

R V R HC WANG CRI-2008-483-000032  13 February 2009

[3]      The background to the alleged offending is that Mr R   was involved in a fight  in  a  Taihape  bar  on  the  evening  of  12  April  2008,  when  Mr  Bowsher intervened and broke the fight up.  Mr Bowsher’s intervention led to a confrontation between  the  two  that  continued  outside  the  bar,  and  then  Mr  Bowsher  and Ms Te Huia returned to their home in Swan Street, Taihape.

[4]      Shortly before 7am on the following morning, 13 April 2008, Mr Bowsher and Ms Te Huia became aware that Ms Te Huia’s vehicle, which was parked outside their residence, had been set alight.   Mr Bowsher observed a person leaving the vicinity, who was walking away from him in a hooded garment with the hood up. The person got into a black station wagon vehicle.  Mr Bowsher’s recollection was that the vehicle was most likely a Subaru, or alternatively a Mitsubishi Legnum.

[5]      There was also evidence at the preliminary hearing from a street cleaner, Ms Larsen, who gave evidence as to two sightings of Mr R   on the morning in question.   First, at about 5.30am when she was clearing rubbish bins in the main street of Taihape, a black station wagon passed her two or three times.  On one of the occasions she identified Mr R   as the driver, he being a person known to her since he was a child.

[6]      Secondly, at about 7am Ms Larsen heard a vehicle travelling at speed and saw the same vehicle as she had seen earlier fishtail out of the road connecting Swan Street with the main thoroughfare through Taihape.  Again she was able to positively identify Mr R    as  the  driver.    At  one  point  when  the  vehicle  slowed,  as Ms Larsen described it, she looked at the driver and he looked back at her.

[7]      Other evidence at the hearing included the Police finding the remnants of fish and chips near the burning vehicle, when the staff at the only outlet that was serving fish and chips the previous evening had not seen Mr R   purchasing fish and chips.  It also appeared that Police suspicions had initially focused on Mr R   because of their awareness that his brother owned a black Subaru station wagon. However, it subsequently transpired that that vehicle was impounded by the Police at the relevant time.

[8]      The material part of the oral judgment of the Justices is extremely brief:

[2]       We are of the opinion that the evidence given in this Court today is not sufficient to put you, Mr R  , on trial.  Having heard evidence from five   witnesses   and   the   resulting   cross-examinations,   the   identity   of Mr R   who has been alleged to have set fire to the car has not been established.

[9]      This  reasoning  might  be  susceptible  to  criticism  on  the  ground  that  the Justices mistook the appropriate test, namely whether there was sufficient evidence on which a jury, properly directed, could be satisfied that the requisite elements of the offence were proven beyond reasonable doubt by the Crown.  It might be implied that the Justices have instead put themselves in the shoes of the jury and, as if the ultimate fact-finders, decided that the elements of the case had not been made out.

[10]     That criticism was not at the forefront of the arguments in support of the application.  Nonetheless, this Court’s consideration cannot be a second opportunity for the same evaluation.  As observed by Anderson J for the Court of Appeal in R v Dixon and Wright [1997] 1 NZLR 54 at 57:

Where there has been a committal process resulting in a discharge, an informant must show why the determination of the committal Court should be superseded.  Of course, s 345(3) does not envisage a reviewing, still less an appellate, jurisdiction to be invoked by a dissatisfied informant, but it is nevertheless relevant to the matter of consent that another Court which has had the advantage of seeing and hearing the witnesses and of assessing the evidence for sufficiency in a live rather than a narrated context, and which has had the initial responsibility of deciding the committal issue, has made its decision.

[11]     The  substantive  analysis  is  whether,  on  a  preliminary  review,  there  is evidence  upon  which  a  jury  could  properly  convict  (Wallace  v  Abbott  (2002)

19 CRNZ 585 at [2]).

[12]     Mr Rowe  characterised  the  Police  case  as  similar  to  a  wide  variety  of prosecutions which depend on purely circumstantial evidence.   Such cases are regularly left to juries, on the basis that the necessary elements are sufficiently established when the jury evaluates inferences responsibly drawn from the circumstantial evidence placing the accused in the position of the alleged offender. Here, it would be open to a jury to find that Mr Bowsher’s identification of the

person walking away from the burning vehicle was of the person who lit the fire to burn it, that that person got into the driver’s seat of a black Japanese-made station wagon, and that at a time consistent with that vehicle fleeing the scene, Mr R   was seen driving a black Japanese-made station wagon erratically and at speed away from the scene of the crime.

[13]     I  accept  Mr Rowe’s  submission  that  the  absence  of  evidence  linking Mr R    to  the  purchase  of  fish  and  chips  the  previous  evening,  and  the misapprehension by the Police that the vehicle involved may have been that belonging to Mr R  ’s brother, are not directly relevant to an evaluation of the evidence available to the Police on which a jury could properly convict.

[14]     Ms Goodlet was inclined to emphasise the initial misapprehension by the Police that the vehicle being driven might have been that of Mr R  ’s brother, but I do not accept that that misapprehension adversely counts against the prospect of a properly directed jury finding the relevant elements of the charge proven.

[15]     Ms Goodlet also emphasised that the preliminary hearing took the better part of a day in Taihape and that the Justices obviously listened carefully.  She submitted that there was no error justifying supplanting their decision, which reflected their unease that the necessary link between the person observed by the street cleaner and the person observed by Mr Bowsher could not reasonably be made out.

[16]     She also argued that without fuller reasoning, it was not possible to attribute to the Justices the adoption of the wrong legal test.  I accept that error on the face of their reasoning is difficult to make out because of its brevity, but I do not accept that it cannot be analysed for the potential error in the legal approach adopted merely because of that brevity.  In the circumstances of this case, I consider the appropriate approach to be an assessment of the adequacy of all the evidence that might be relied upon by a properly directed jury, and whether that could make out the requisite elements  of  the  charge.    Respecting  that  the  Justices  heard  and  observed  the witnesses when I have only the transcript of that evidence, I nonetheless treat the elements   of   the   circumstantial   case   advanced   by   the   Police   as   depending substantially less on credibility than might often be the case.  The confidence with

which Ms Larsen identified Mr R   as the driver of the black station wagon appears to be relatively compelling.  It is then a matter of inference whether a jury would be satisfied that the vehicle she saw him in is the same one observed at the scene by Mr Bowsher.

[17]     Weighing all the evidence, I am forced to the contrary conclusion to that reached by the Justices.  I am bound to conclude that they must have put themselves in the shoes of the jury, rather than measuring what a properly directed jury could decide.   This is a case that would be, and could only ever be, presented as one depending on inferences arising from circumstantial evidence.   I consider that circumstantial evidence is such that, if accepted by a jury, could responsibly be relied on by such a jury to be satisfied beyond reasonable doubt of the requisite elements of the charge.

[18]     I accordingly consent to the filing of an indictment.  I direct that that occur in the District Court at Taihape.

Dobson J

Solicitors:

Crown Solicitor, Wanganui for applicant

D M Goodlet, Wanganui for respondent