Ramsay v Police

[2017] NZHC 2151

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2017-441-22

[2017] NZHC 2151

BETWEEN

ALBERT MARK RAMSAY

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing:	4 September 2017
Counsel:	P F Chambers for Appellant M Mitchell for Respondent
Judgment:	7 September 2017

JUDGMENT OF ELLIS J

[1]        Mr Ramsay faces the following charges, set down for Judge-alone trial in the Napier District Court on 2 October 2017:

(a)breach of a protection order x 3;

(b)intentional damage x 2.

[2]        A statement made by the complainant’s father before his recent death was ruled admissible by Judge Adeane on 10 July 2017.1 Mr Ramsay now appeals that decision.

1      Police v Ramsay [2017] NZDC 15055.

RAMSAY v POLICE [2017] NZHC 2151 [7 September 2017]

Facts

[3]        The complainant and Mr Ramsay were previously in a relationship and she has a protection order against him.

[4]        The relevant allegations are that Mr Ramsay threw rocks from his car at the complainant’s van on two occasions when they passed each other on the road (in November and December 2016) and acted in an abusive manner towards her on a further occasion in January 2017.

[5]        The complainant’s  father was  in  the passenger  seat  of her van when the  16 December 2016 incident occurred. A statement was taken from him by Police on 23 December 2016. In it, he said:

(a)he was a front seat passenger in his daughter’s van at around 5 pm on

16 December 2016;

(b)he saw a dark-coloured double-cab ute travelling towards him (and wrote down the number plate);

(c)he then heard “a hell of a crash”, “a hell of a bang” which “echoed heaps”;

(d)he was “pretty sure” the driver was Mr Ramsay; and

(e)they pulled over, and on inspection of the van he observed a small piece of what looked like shale rock embedded in the roof.

[6]        The complainant’s father died in April 2017. The Police gave notice that they wished to have his statement admitted as hearsay evidence at Mr Ramsay’s upcoming (Judge-alone) trial.

Relevant law

[7]        The admissibility of a hearsay statement is governed, generally, by s 18 of the Evidence Act 2006 (the EA) which relevantly provides:

(1)A hearsay statement is admissible in any proceeding if—

(a)the   circumstances   relating   to   the   statement   provide reasonable assurance that the statement is reliable; and

(b)either—

(i)         the maker of the statement is unavailable as a witness; or

(ii)the Judge considers that undue expense or delay would be caused if the maker of the statement were required to be a witness.

District Court decision

[8]        The Judge began by noting that the witness is, by definition, unavailable.  The only issue was whether the circumstances relating to the statement provide reasonable assurance that it is reliable. He noted the following matters:

(a)the statement was taken by an experienced Police officer. Although the reliability of some of the officer’s “other materials” had been called into question, there was no logical reason to doubt he had accurately recorded what the witness said;

(b)the witness’s note of the registration number of the vehicle was remarkably close to the number of a vehicle registered to Mr Ramsay; and

(c)the complainant was in the vehicle with her father and would confirm his account in material respects.

[9]        Accordingly, the Judge was satisfied that there was a reasonable assurance of reliability. He noted that the standard is not whether the evidence is to be believed beyond reasonable doubt, but a lower threshold. Matters of weight are for the finder of fact.

[10]Lastly, the Judge noted the suggestion that aspects of the witness’s

background and character, including medical conditions, may bear on the reliability

of the evidence. He expressed no conclusion on that, as the material was not before the Court. He ruled the statement admissible.

The appeal

[11]Mr Chambers advanced essentially four grounds of appeal:

(a)the Judge failed properly to take into account the Police’s failure to disclose the witness’s criminal history.  In the admissibility  application the Police sought to support his reliability by reference to the fact that he had no criminal convictions of any kind, when in fact he had four convictions (from 1981 and 1987) for cultivation and possession of cannabis;

(b)the Judge failed properly to weigh the probative value of the evidence against its unfairly prejudicial effect under s 8 of the EA. More particularly, he submitted, the probative effect was diminished by the fact that the witness had criminal convictions and his inability to identify the car or the defendant accurately or fully. The unfair prejudice arose from the fact that he would not be able to be cross-examined about his relationship with the complainant and his motive for giving evidence;

(c)the Judge failed to give proper weight to the Police’s refusal to obtain and disclose information which is said potentially to affect the reliability of the witness’s evidence. The information sought related  to polling information in relation to the complainant’s and her father’s cellphones at the time of the alleged offending, and medical evidence about his eyesight and use of methadone.2  Judge Adeane noted that  he could not compel Police to provide the information sought and suggested that the defence make third party applications; and

2      Police have declined to make the enquiries requested.

(d)relatedly, Mr Chambers said that the Judge failed to give weight to  Mr Ramsay’s offer to consent to the admission of the statement if the disclosure sought from Police was provided, and misinterpreted the powers of the Court to direct such disclosure.

[12]      Lastly, Mr Ramsay sought leave to adduce further evidence which is said to support his position on the witness’s cannabis use and poor eyesight. He has filed an affidavit to which he annexed photographs of the witness looking at some cannabis plants and wearing glasses. The photographs are said to be recent. Mr Ramsay deposed that he did not obtain them until after the admissibility determination was made.

Discussion

[13]I am unable to discern any error in Judge Adeane’s approach or in his

conclusion.

[14]      As the Judge noted, the “reasonable assurance” of reliability threshold is a comparatively low one.  Issues of credibility and weight are reserved for the finder  of fact. In my view the threshold is met here because:

(a)the statement was taken and recorded in writing by an experienced detective, and accompanied by the witness’s signed declaration that its contents were true and correct;

(b)the statement was taken just a week after the incident. The Officer who took the statement deposed that he was “lucid and of healthy disposition” at the time, and not under the influence of any drugs or alcohol;

(c)the contents of the statement are supported by other evidence, including:

(i)the vehicle’s registration plate (which the witness recorded

accurately apart from one number);

(ii)the external appearance of Mr Ramsay’s car;

(iii)Police photographs of the damage to the roof of the

complainant’s car, and

(iv)the complainant’s own statement; and

(d)the fact that the witness was Mr Ramsay’s former father in law, and therefore familiar with his appearance, rendered his identification of Mr Ramsay as the driver more likely to be reliable.

[15]In terms of factors that are said to be countervailing:

(a)the witness’s 30 year old cannabis convictions were disclosed prior to the District Court hearing. They were not dishonesty convictions and could have no obvious bearing on his veracity or reliability, even had they been entered more recently;

(b)there is no foundation for the submission that the witness’s eyesight was materially impaired. The incident occurred during daylight hours when the two vehicles were travelling directly towards each other. He was in the front seat and would have had a clear view of the oncoming traffic. Indeed the fact that it seems he noted the registration plate more or less accurately suggests he could see clearly;

(c)the information sought by the defence from the Police is, at best, of marginal relevance. Very soon after the events in question the complainant told the Police when and where they occurred. Polling data subsequently placed Mr Ramsay in the vicinity at that time. Obtaining polling data from the complainant’s or her father’s phones would add very little to that. And as I have said there is no basis for the suggestion that the witness could not see clearly, although no doubt a question about his eyesight could (if accepted as relevant) be

put to the complainant. Similarly, her father’s drug use (if accepted as relevant) could be put to her.

(d)in any event, s 15 of the Criminal Disclosure Act 2008 provides that a prosecutor is not required to disclose information if, at the time the request is made, the prosecutor is not in possession or control of the information, or does not hold the information in recorded form. There can be no obligation on the Police to conduct a fishing expedition on behalf of the defence.

[16]      As far as the fresh  evidence  is  concerned,  the  photographs  attached  to  Mr Ramsay’s affidavit are undated, of unknown provenance. There is nothing that necessarily suggests that the cannabis plants belonged to him. They could not reasonably support an argument that the witness might have been under the influence of cannabis at the time of the 16 December incident. And without more, the fact that he is wearing glasses in the photograph gets nowhere.

[17]      Any prejudice arising from the defence’s inability to cross-examine the witness can be met by the Judge bearing in mind the need for caution, pursuant to     s 122(5) of the EA. The fact that Mr Ramsay’s trial will be by Judge-alone gives further assurance that any potential unreliability will be borne in mind.

[18]Accordingly:

(a)the application for leave to adduce further evidence in the appeal is dismissed;

(b)the appeal is dismissed.

Rebecca Ellis J