Somerville v Police HC Christchurch CRI-2011-409-000109

[2011] NZHC 1834

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2011-409-000109

CAROL TUI SOMERVILLE

v

POLICE

Hearing:         18 November 2011

Appearances: Appellant in person

A Raj for Respondent

Judgment:      22 November 2011

RESERVED JUDGMENT OF HON JUSTICE FRENCH

Introduction

[1]      The police allege that Ms Somerville threw a brick through the window of a residential house property in Christchurch in the early hours of the morning of 19

July last year.  She was charged with wilful damage.

[2]      Following  a  defended  hearing,  a  District  Court  Judge  found  the  charge proved.  He sentenced Ms Somerville to a term of imprisonment of one month, and ordered her to pay reparation to the homeowner.

[3]      Ms Somerville now appeals her conviction and sentence.  I pause here to note that at the hearing it became clear that the appeal is essentially only against the conviction.  Ms Somerville accepted that, if the conviction were to stand, then the

sentence could not be described as manifestly excessive.

SOMERVILLE V POLICE HC CHCH CRI-2011-409-000109 22 November 2011

Factual background

[4]      At the hearing, the written evidence of the homeowner about a brick being thrown was admitted by consent.  The home owner did not see who threw the brick, nor exactly where it had been thrown from.

[5]      The prosecution also called three police officers, one who described the scene at the house, one who dealt with the arrest of Ms Somerville, and the other a dog handler.  The latter gave evidence about the training that his dog had received and the dog‟s general expertise in tracking scents.  The evidence of the dog handler was that he had been told someone had been standing on the footpath, so that when he cast there the dog immediately located “what I could see was a very strong track”. The scent was followed down the road, along another road, down a bank, onto the railway line, along the railway line and then back up another bank.   There, police located Ms Somerville, sitting under a bush beside the railway line.

[6]      At the hearing, Ms Somerville was not legally represented.  She conducted her own defence.   She did not herself  give evidence, or call evidence, but did however cross-examine the police witnesses.   The focus of her cross-examination was on time discrepancies, in particular discrepancies between evidence that police had received the call from the homeowner at 3 o‟clock, and other records showing it was 3.15, also discrepancies about the time of her arrest, where there was some 20 minute difference between some of the evidence and the official records.

The decision of the District Court Judge

[7]      In his decision, the District Court Judge acknowledged the existence of the time discrepancies, but said they were irrelevant.

[8]      The Judge went on to say:

[2]      … But at the end of the day, there is a clear chain of evidence from the house to Ms Somerville.

[3]      The brick was thrown through the window from the street frontage, or very close to it.  A dog handler took his dog to the scene within a very

short time after the window had been broken, cast around for a scent, which the dog quickly located.  This scent was then followed down the road, along another road, down a bank onto the railway line, along the railway line and then back up another bank.   Sitting under a bush, on a bank, beside the railway line, between 3.00 and 4.00 am on 19 July was Ms Somerville.

[4]       She elected not to give evidence, so I have no idea whether or not she had good and innocent cause to be sitting in that position; but she was spoken to by the dog handler, Constable Moore then went to that point and took her from there to h is patrol car, to the police station. There is no doubt, if we work backwards, that she was the person in the police station who had been found on the bank, beside the railway line, and that was the point at which the dog had ended the pursuit of the trace that began outside the window that had been broken by a brick.

[5]       I do not need to know any more.  I do not need to know what time the brick was thrown, what time the dog got to the railway line, what time the dog found Ms Somerville, what time she spoke to Constable Moore in the car or what time she got to the police station.  The fact of the matter is that there is a direct connection between her and the broken window.

[6]       I find beyond all reasonable doubt that she was the person who threw the brick and that therefore this charge is now proved.

Arguments on appeal

[9]      On appeal, Ms Somerville again relies on the time discrepancies.  She points out that in his evidence, the dog handler has said that the first 15 minutes are crucial, and that thereafter the dog has to concentrate harder to identify a scent.   In her submission, the time discrepancies must therefore cast doubt on the reliability of the dog‟s tracking.

[10]     Ms Somerville also points out that the evidence that the dog handler was told someone had been standing on the footpath was inadmissible hearsay.  There is no evidence as to who it was that told him that, and under what circumstances.

[11]     In response, counsel Ms Raj says that the reliability of the tracking is not affected by the time discrepancies.  She drew my attention to evidence that the dog is able to track a scent after an hour and a half ‟s delay, as well as the evidence that in this case it was a very strong scent and would not have evaporated.  Ms Raj further emphasised there was only one track going from the footpath.

[12]     I have carefully considered all the submissions that Ms Somerville and Ms Raj have made today.  I am satisfied that the time discrepancies are not as significant as Ms Somerville considers they are.  However, that said, I also consider that, even if the tracking evidence is to be treated as reliable, there is not sufficient evidence to say that the charge has been proved beyond reasonable doubt.  The most that can be taken from the evidence of the dog‟s tracking is that Ms Somerville passed through that way.   There is no evidence showing any connection between her and the homeowner, or her and that house property, no connection between her and the brick. Her behaviour is highly suspicious, and it is very likely that she probably did throw the brick, but as we so often tell juries, that is not proof beyond reasonable doubt.

[13]     I am fortified in that assessment by reference to the Court of Appeal decision of R v Lindsay and the Court‟s discussion about dog tracking evidence at [5].[1]   It is clear from what the Court of Appeal says that in itself, evidence of a dog‟s conduct does not establish that the person tracked was the offender.  There has to be more. Ms Raj says the „more‟ in this case is the absence of an explanation from Ms Somerville as to why she was in the vicinity and the fact that the dog only found one

track from the footpath.   In my view, however, that still falls short of the high threshold of proof that we require in our criminal jurisdiction.

[1] R v Lindsay [1970] NZLR 1002.

[14]     It follows from all of the above that I allow the appeal.  The conviction, and accordingly the sentences, are quashed.

Solicitors:

Crown Solicitor‟s Office, Christchurch

Copy to Appellant