Sharpe v Police - [2019] NZHC 823

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE

CRI 2018-419-54

[2019] NZHC 823

BETWEEN
MATTHEW DAVID SHARPE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 26 February & 11 April 2019

Counsel:

T Sutcliffe for Appellant B Vaili for Respondent

Judgment:

11 April 2019

Reasons:

15 April 2019

JUDGMENT OF DUFFY J

This reasons judgment was delivered by me on 15 April 2019 at 11.30 am pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors/Counsel:
T Sutcliffe, Barrister, Hamilton Crown Solicitor, Hamilton

SHARPE v NEW ZEALAND POLICE [2019] NZHC 823 [11 April 2019]

[1] Matthew Sharpe appealed against conviction of one charge of operating a vehicle causing a sustained loss of traction contrary to s 36A(1)(c) Land Transport Act 1998.1 I allowed the appeal. My reasons for doing so now follow.

[2] In the District Court the Judge did not address the admissibility of the Sergeant Banfield’s evidence in terms of s 45 of the Evidence Act 2006. Mr Sharpe appealed on the grounds the Judge had misdirected himself on evidential issues and failed to properly address the issue of identification, giving rise to a miscarriage of justice.

[3] The appeal first came before this Court on the 26 February 2019, but it was adjourned for further submissions to allow counsel to address the effect of s 45(2) of the Evidence Act.

[4] When the appeal resumed before the Court on 11 April 2019 it was common ground that the admissibility of Sergeant Banfield’s evidence would be determined by s 45(2) of the Evidence Act. Accordingly, the respondent was required to prove beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification.

Factual background

[5] On the 17 December 2017, Sergeant Banfield was driving his private motor vehicle on MacFarlane Street in Hamilton. It was a Sunday afternoon. He witnessed another vehicle performing certain manoeuvres on McFarlane Street. The manoeuvres in question were twice spinning around and causing smoke to come from the tyres (performing a ‘donut’) and accelerating in a straight line at speed and leaving tyre marks on the road while ‘fishtailing’ (having the rear of the car sway from side to side).

[6] Before Sergeant Banfield reached the other vehicle, it had turned around and reversed into a driveway off Macfarlane Street. It parked temporarily, facing the road. Sergeant Banfield drove past the driveway at approximately 20 kilometres per hour, committing the number plate of the vehicle and a description of the driver to memory.

1 Maximum penalty 3 months’ imprisonment or a $4500 fine, and mandatory disqualification from holding or obtaining a driver’s licence for 6 months or more.

[7] The next day Sergeant Banfield went to the address where he encountered and spoke with Mr Sharpe. Sergeant Banfield immediately identified Mr Sharpe as the person seen driving the vehicle the previous day. During their discussion Mr Sharpe stated at one time that he was not sure whether…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Sharpe v Police

Details

AGLC: Sharpe v Police [2019] NZHC 823
Case: [2019] NZHC 823
Decision Date: 11 April 2019

CaseChat Overview and Summary

In Sharpe v Police, Matthew David Sharpe appealed against his conviction of operating a vehicle causing a sustained loss of traction, contrary to s 36A(1)(c) of the Land Transport Act 1998. The central issue in the appeal was whether the District Court erred in accepting the identification evidence of Sergeant Banfield, who identified Sharpe as the driver of the vehicle in question. The appeal hinged on the admissibility of visual identification evidence under s 45(2) of the Evidence Act 2006, which requires the prosecution to prove beyond reasonable doubt that the circumstances of the identification produced a reliable identification. The court had to determine whether Sergeant Banfield’s identification met this high standard.

The court found that Sergeant Banfield’s identification of Sharpe did not meet the required standard of proof. The identification was made under circumstances that were not conducive to a reliable identification, such as a fleeting glance from a moving vehicle at 20 kilometres per hour, and the description given by Sergeant Banfield did not match Sharpe’s appearance. Additionally, Sergeant Banfield’s high degree of confidence in his identification, while relevant, was not sufficient to satisfy the burden of proof. The court concluded that the identification evidence was unreliable and should not have been admitted. As the prosecution had no case against Sharpe without this identification evidence, the conviction was quashed, and the appeal was allowed.

In conclusion, the High Court set aside Sharpe's conviction and allowed his appeal, finding that the identification evidence was inadmissible under s 45(2) of the Evidence Act 2006.

Orders