Strangman v Police

[2014] NZHC 526

IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-425-38 [2014] NZHC 526

BETWEEN

GARY JOHN STRANGMAN

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	4 March 2014
Appearances:	H Cuthill for Appellant M-J Thomas for Respondent
Judgment:	20 March 2014

RESERVED JUDGMENT OF MANDER J

[1]      The appellant was convicted by Judge Macdonald on a charge of dangerous driving following a defended hearing in the Queenstown District Court.   The appellant appeals that conviction.

The dangerous driving

[2]      The charge of dangerous driving arises out of the observations of a number of drivers who on 19 January 2013 witnessed a vehicle being driven in the Kawarau Gorge  which  was  undertaking  dangerous  manoeuvres  including  overtaking  on yellow no passing lines  and in situations where there was insufficient  visibility ahead.

[3]      One witness was so concerned with how the vehicle was being driven that she called the Police from her vehicle.   On the evidence of three independent eyewitnesses  it  was  apparent  that  the  vehicle  was  being  driven  in  a  dangerous manner, and the Judge found accordingly.   No issue arises on the appeal as to whether the driving was dangerous.   The essential question to be determined by

Judge Macdonald was whether the prosecution could prove beyond reasonable doubt

STRANGMAN v NEW ZEALAND POLICE [2014] NZHC 526 [20 March 2014]

that  it  was  the  appellant  who  was  driving  the  vehicle  at  the  time  of  these observations. The appellant denies he was the driver.

[4]      None of the eyewitnesses identified the appellant as the driver, however each of those witnesses did describe only being able to see one person in the vehicle, the driver.   Despite cross-examination of those witnesses relating to their  ability to determine the number of occupants in the vehicle and some inconsistencies as between them in the evidence they gave, their observation of there being only one person in the vehicle remained intact.

The evidence in dispute

[5]      The evidence which is the subject of the appeal was that given by Sergeant Pirovano.   She received a call from Police Communications at about 3.15 pm that resulted from the phone call to Police by a concerned member of the public.  The sergeant was provided with a description of the vehicle and its registration number. At 3.46 pm, Sergeant Pirovano observed this vehicle approaching her.   Using her patrol vehicles flashing lights, she pulled the vehicle over.   The driver was the appellant.  He was the only occupant of the vehicle.  Sergeant Pirovano asked the appellant for his personal details and driver’s licence.   The sergeant completed a breath screening test and asked him about traffic and where he was heading.  She then  put  the  driving  complaint  to  him.    The  sergeant’s  evidence  was  that  the appellant said, “he’d never passed on a yellow line. He has never passed on a single yellow line, doesn’t know where it was or where that is.  He said he knew where the slow passing lane was and did not overtake any vehicles.”  He was described by the sergeant as being adamant in his denials.  Sergeant Pirovano advised the appellant that she would follow the complaint up and be in touch with him in due course.  She then returned to the Queenstown Police Station where she rang and spoke with the informant.   She subsequently arranged for another Police officer to meet the complainant and obtain a statement from that person.   Other witnesses were subsequently spoken to.

[6]      On 2 April, Sergeant Pirovano rang the appellant and asked him if he would like to discuss further his driving behaviour as she now had a third witness that could

corroborate the other complaints.  The appellant stated that he was not driving and to get her timings right.   The appellant advised that he had dropped “a guy at the airport” and had gone for a coffee prior to being stopped by the sergeant.   When asked who the man was, the appellant said it was a guy he had met at a Car Meet in Cromwell.  The sergeant pressed for a name and eventually the appellant advised his name was “Chris” and that was all he knew.  The sergeant asked the appellant why he had not told her this at the time she had stopped him at the roadside.   The appellant stated that when he spoke to her on that occasion he had made it clear he was not driving.  The appellant was asked why the appellant had let a stranger drive his car.  The appellant advised that this man had said to him that “Mitsubishi’s were better”, he then stated that if he dropped the male at the airport the Police would be able to look at CCTV to see that occurring.  By this stage, the sergeant described the appellant as becoming quite angry.  The appellant advised the conversation was over and that the sergeant could talk to his lawyer in future.  The appellant was advised that if there was another person driving the vehicle the appellant needed to supply the Police with those details within 14 days under s 118 of the Land Transport Act

1998.

[7]      On 3 April  2013, to  formalise that  request  the  officer prepared  a notice requesting information as to the identity of the driver of the appellant’s vehicle at the time of the alleged offence.   Subsequently, by letter dated 17 April, the appellant advised that he could not remember the details of the person driving his vehicle and again denied the driving allegations.

[8]      Sergeant Pirovano in her evidence was referred to an event chronology log produced by Police Communications. That document confirmed that the information had been received by Police at 3.15 pm from a member of the public.  The sergeant’s notes record her stopping the appellant at 3.46 pm.

[9]      The appellant’s evidence largely repeated what he had told the sergeant on the phone and subsequently wrote in his letter.  He said he had offered a lift to this person called Chris while attending the Cromwell Classic Car Show.   That this person had driven his vehicle back to Queenstown.   Although he himself did not notice any particular bad driving, he had not been feeling well and that was one of

the reasons why he let this person drive.   They arrived in Queenstown at about

3.30 pm when he dropped Chris off in Frankton, near what the appellant believed was a rental car. The appellant believed this person was flying back to Auckland that day.  Subsequently the appellant, on his account, drove to a local Subway restaurant and was driving down Frankton Road towards Queenstown when he was pulled over by the Police officer.

[10]     In  cross-examination  the  appellant  was  asked  about  what  he  had  told Sergeant Pirovano at the roadside, when he denied conducting any overtaking manoeuvres and made no reference to another driver.  The appellant stated that he had just answered the questions and he was not going to offer any information he was not asked for.  The sergeant’s account of their interaction was not disputed.  The appellant gave some evidence of being fatigued that day as a result of a medical condition he suffered from.   The appellant however accepted that he recalled “reasonably clearly” speaking with Sergeant Pirovano at the roadside.  When pressed why  he  did  not  tell  the  sergeant  what  he  subsequently  told  her  on  the  phone regarding the presence of the other driver, he said that he was not thinking clearly and that he had been “taught not – to give any more evidence than you have to”. The appellant gave no evidence about his conversation with the officer on the phone on 2

April.

The grounds of appeal

[11]     The appeal is brought on three grounds.  Firstly, Ms Cuthill on behalf of the appellant submitted that a miscarriage of justice occurred as a result of the District Court admitting into evidence the two statements the appellant made to Sergeant Pirovano.  Secondly, that his Honour erred in his assessment of that evidence to such an extent that a miscarriage of justice had occurred.  Thirdly, that as a result of trial counsel error in not opposing the admission of the Police Communications event chronology log which had not been disclosed prior to the hearing, a miscarriage of justice had occurred.

The defended hearing

[12]     The admissibility of the statements made by the appellant at the roadside was the subject of argument before Judge Macdonald in the District Court.   Ms Vidal who acted for the appellant in the lower Court argued that when the allegations were put to the appellant he should have been cautioned or advised that he had the right not to make a statement.  Initially, objection was also taken to the later questioning on 2 April when again no caution was provided.  In the course of argument, reliance was placed upon a short newspaper item published on 21 January which was an appeal  by  the  Police  for  witnesses  who  may  have  observed  the  vehicle  in  the Kawarau Gorge to come forward.  That article read:  “Police know who the driver was but needed more information”.  This was relied upon for the submission that the sergeant had already concluded that the man she spoke to at the roadside was the driver in the Kawarau Gorge.

[13]     Sergeant Pirovano was subsequently cross-examined in the course of her evidence about that article.  The sergeant stated that the “advertisement” was for the purpose of getting further descriptive detail about the driving.   The sergeant’s evidence was that at the time she pulled the appellant over she only had what information had been provided by Police Communications and that it was after speaking with the appellant and returning to the Queenstown Police Station that she herself spoke with the informant and arranged for a statement to be taken from that witness.

The District Court Judge’s decision

[14]     Judge Macdonald admitted the statements of the appellant at the roadside, observing that they did not per se constitute an admission of being the driver at the time the vehicle had been driven dangerously.  However absent any mention at that time of another person driving the vehicle, the Judge noted that what the appellant had said was consistent with the evidence of the eyewitnesses that there was only one person in the vehicle.  Ultimately, Judge Macdonald ruled that the discussion at the roadside constituted an “initial enquiry situation” and admitted the evidence.

[15]     In relation to the conversation on 2 April, Judge Macdonald indicated that he would have ruled that exchange inadmissible in the absence of a caution by the attending Police officer, however what the appellant said to the sergeant on that occasion was consistent both with his subsequent letter and the evidence that he would give at the defended hearing.  Perhaps unsurprisingly during the course of the discussion between counsel and the bench the objection to that evidence was not pursued and the evidence was admitted.

[16]     There was also discussion relating to the admission of the event chronology. While the non-disclosure of the document was of some frustration to the appellant’s counsel at the defended hearing, it is apparent from the subsequent recorded discussion in the lower Court that the relevance of the document was only to confirm the time of 3.15 pm when the complaint from the member of the public was received by Police Communications.  Ultimately, its admission was not opposed by Ms Vidal at the defended hearing, and it is difficult, as became apparent before Judge Macdonald, to see how any prejudice arises from the document given the uncontroversial nature of its contents.

Was there a NZBORA detention?

[17]     On appeal, Ms Cuthill for the appellant argues that both statements made by the appellant should not have been admitted as both, it is alleged, were affected by the failure to caution and advise of rights.  It was further submitted that in respect of both statements the evidence was improperly obtained and on balance should have been excluded.

[18]     The  oral  hearing  of  the  appeal  largely  proceeded  on  the  basis  that  the appellant had been detained under an enactment at the time he was spoken to at the roadside and that as a matter of good practice he should have been cautioned in terms of the Chief Justice’s Practice Note.   I have considerable reservations as to whether the appellant was detained for the purposes of the New Zealand Bill of Rights Act (NZBORA) or that the officer was under an obligation pursuant to the Chief Justice’s Practice Note to caution the appellant at the roadside.

[19]     It was not disputed that the appellant was stopped by Sergeant Pirovano pursuant to s 114 of the Land Transport Act 1998.  The effect of that provision was considered in Andresen v Police.1     In that case it was argued that a truck driver pulled over for speeding who was then asked to produce his log book and refused, leading to a subsequent arrest for obstruction and assault, had been detained under an enactment but not given his rights under s 23(1)(b) NZBORA.

[20]     Randerson J held that the appellant was not detained for the purposes of s 23

NZBORA.  While the truck driver’s vehicle was certainly stopped pursuant to s 114 of the Land Transport Act, and the proper inference was that the driver was not free to go until the officer had completed his questioning, that process took only 10 minutes, during which time the driver remained in the cab of his truck while being questioned through an open door.  It was observed that the obligation on the driver, pursuant  to  s 114,  to  remain  stopped  was  not  limited  to  the  period  reasonably necessary for the enforcement officer to obtain the particulars relating to identification.   It  also included the time reasonably necessary for the officer to complete the exercise of any other powers conferred, or duties imposed, on the enforcement officer by the transport legislation.

[21]     The Court in that case reviewed the Court of Appeal jurisprudence that had considered this type of situation.  In Temese v Police,2 the Court of Appeal held that NZBORA is to be applied in a realistic and commonsense way, and that questioning a driver stopped at the roadside did not amount to a detention for the purposes of s 23.  In that case a traffic officer had observed a vehicle being driven erratically and stopped the vehicle.   Suspecting that the driver had consumed alcohol, the officer asked the driver for his details.  The appellant gave details which were different to those of the driver’s licence that he produced and when asked why he had lied,

admitted he was disqualified.  The question for the Court was whether the admission that he was disqualified was admissible, since it was made before he had been

informed of his rights under NZBORA.

1      Andresen v Police HC Auckland CRI-2006-404-31, 23 November 2006.

2      Temese v Police [1992] 9 CRNZ 425 (CA).

[22]     The Court of Appeal held that the questioning of the driver up to the point of his admission did not amount to detention for the purposes of s 23.   Cooke P observed that the merely “transitory and proper questioning” which occurred did not amount to detention.3    Casey J concluded that the constable was entitled to make reasonable enquiries at the roadside about “matters relating to the operation and enforcement of the Transport Act”.4    The distinction between a temporary restraint and more substantial deprivation of liberty was re-emphasised by the majority of the Court  of Appeal  in  Police  v  Smith  and  Herewini.5      Whether  there  has  been  a detention is a question of fact and degree.  The assessment involves a consideration of the nature, purpose, extent and duration of the constraint.

[23]   In the present case, Sergeant Pirovano had been directed by Police Communications to be on the lookout for and to stop a vehicle that was being driven in a dangerous manner, after a member of the public had been sufficiently concerned to phone in a report.  On stopping the vehicle by activating her red and blue flashing lights, the officer obtained the driver’s personal details and inspected his licence. The evidence then discloses a short exchange between the driver and the officer which included relaying the allegations of dangerous driving in the Kawarau Gorge. The sergeant  herself  had  no  personal  knowledge  of the alleged  driving.    Upon obtaining the driver’s response, the officer did not pursue the matter, except to advise the driver that she would be following up the complaint.

[24]     In my view, the type of detention involved in the present case is similar to that in Andresen, and that the type of enquiry made by the officer was in accordance with s 114 of the Land Transport Act in furtherance of the sergeant’s duties imposed upon her as an enforcement officer under the Act.  The sergeant’s enquiries of the driver amounted  to  no more than informing  the appellant  of the allegation  and seeking a response.  That action allowed the officer to assess the situation as it was presented to her at the roadside.  Clearly, the sergeant took the view that it was safe

to allow the driver to  continue on his way and that information relating to the

3      At 427.

4      At 431.

5      Police v Smith and Herewini [1994] 2 NZLR 306 (CA): Richardson J at 316 and McKay J at

328.

episode of erratic driving which had been reported to Police Communications would have to be followed up and be the subject of enquiry.

[25]     The issue as it relates to the triggering of s 23 NZBORA in the context of traffic enforcement and drink-driving legislation has also been considered in the context of whether s 23 is reconcilable with certain powers provided to Police under the land transport legislation.  That type of analysis which involves a consideration of ss 4-6 NZBORA, whereby rights and freedoms may be limited in because they cannot be reconciled with the clear parliamentary intent of some legislation is not required for the purpose of this appeal.  In that regard it is to be noted that Randerson J in Andresen held that if it had been necessary in that case, he would have found the relevant statutory provisions of the transport legislation overrode the requirements of s 23(1)(b) NZBORA or constituted a reasonable limit prescribed by law capable of being demonstrably justified in a free and democratic society for the purposes of s 5

NZBORA.6

[26]     It is sufficient for present purposes, relying on the authority of the cases cited, that the restraint on the driver’s liberty in this situation, which amounted to a matter of minutes, is not one that triggers the right under s 23 to be advised of rights to access a lawyer.

Was the officer required to administer a caution?

[27]     The Chief Justice’s Practice Note provides:

1.A member of the police investigating an offence may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory for the person questioned to answer.

2.Whenever a member of the police has sufficient evidence to charge a person with an offence or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:

(a)      that the person has the right to refrain from making any statement and to remain silent.

6      Andresen v Police, above n 1, at [25].

(b)       that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such  right    may   be    exercised without charge under the Police Detention Legal Assistance Scheme.

(c)       that anything said by the person will be recorded and may be given in evidence.

…

[28]     In my view, Sergeant Pirovano was merely acting on information received at the time that she pulled the appellant over and put to him what she had been told of the way the appellant’s vehicle had been seen driven in the Kawarau Gorge.  Clearly, the appellant, by dint of him being the driver of the vehicle at the time it was pulled over and no doubt his very ownership of the vehicle made him a suspect.  At that stage however the sergeant was making enquiries into the complaint and clearly was entitled to believe that “useful information” could be obtained from the appellant. There is nothing in the evidence to suggest that the sergeant led the appellant to believe it was compulsory for him to answer her enquiries.

[29]     The situation had not on any objective analysis reached the point where the member of  Police had  sufficient  evidence to  charge  the  appellant.   The officer advised  the driver that  she would  be following  up  the complaint.    Clearly,  the sergeant was in no position to charge the appellant or ticket him.  She herself had not spoken with the person that had provided the information to Police Communications, indeed it is not clear whether Police knew any particulars of their telephone informant.   No statement had been obtained from this witness, nor apparently any questioning of the prospective witness about what she could say.  The enquiry, if that is what it could  at that  stage be called, was  at a very preliminary stage.   The obligation to caution a suspect arises when the Police have sufficient evidence which

objectively considered would support a prima facie case against the suspect.7   This is

a reflection of the law as it stood when applying the old Judges’ Rules.   In R v

Rogers8 the Court of Appeal observed:9

7      R v Goodwin [1993] 2 NZLR 153 (CA) at 197, per Casey J.

8      R v Rogers [1979] 1 NZLR 307 (CA).

9      At 314-315.

Bearing in mind that the jurisdiction is discretionary and that the ultimate question is fairness in the particular circumstances of the case, we would not attempt any exhaustive proposition.  But at least it can be said that, whatever the precise state of the police officer’s mind, the prosecution should not normally be allowed to give evidence of admissions obtained by a Police interrogation without a caution and at a stage when the Police already had ample evidence to lay before a jury.

[30]     Emphasis was placed by the appellant, both at the defended hearing and on appeal, on the short newspaper item which was published on 21 January, two days after the appellant had been stopped.  By that time however the informant had been spoken to by another police officer and a statement obtained from her.   It is also apparent that the question of identification was not at that stage a live issue.  The appellant had not denied being the driver when spoken to by the sergeant.  At the roadside, the issue of whether there was sufficient evidence for a prima facie case turned on the issue of the witness’s observations of the driving and whether, when questioned and tested by an interviewing officer, the informant’s account of what she observed the vehicle doing would indeed amount to dangerous driving.

[31]     It therefore follows that in my view the officer at the roadside was under no legal obligation to either provide advice under NZBORA or to caution the appellant pursuant to the Chief Justice’s Practice Note.  I am mindful however that this appeal has largely been argued on the basis that NZBORA applied, that those obligations on the attending officer had been triggered.  I accordingly intend to continue to consider the appeal on that basis.

The balancing exercise

[32]     If the statements  were  improperly obtained  in  terms  of s 30(5)(a) of the Evidence Act or obtained unfairly, the Court is required to determine whether or not the exclusion of the evidence is proportionate to the impropriety.  This is to be done by a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.

[33]     Counsel on the appeal considered each of the matters set out in s 30(3) which the Court may have regard to in undertaking the balancing exercise:

(a)      The importance of the right breached by the impropriety and the seriousness of the intrusion on it

[34]     The appellant submits that the right to be cautioned is fundamental.   The respondent submits that while that is acknowledged, the questioning was undertaken in good faith and that in relation to each of the set of questioning the answers obtained were exculpatory.  Firstly, at the roadside, that the appellant had not driven dangerously, and secondly, during the telephone conversation, that the appellant had not been the driver.

(b)      The  nature  of  the  impropriety,  in  particular,  whether  it  was  deliberate, reckless or done in bad faith

[35]     The appellant submits that it should have been clear to the sergeant that the appellant should be cautioned if she had formed the opinion that the appellant was the driver.   The appellant submits that the appellant was being questioned with a view that charges would be laid and that the questions being asked were outside those specified in s 114 of the Land Transport Act 1998.

[36]     As will be apparent from my discussion of the issue as to whether the Chief Justice’s  Practice  Note  applies,  it  was  not  in  my  view  clear  that  the  attending sergeant was under an obligation to administer a caution.   The evidence does not show that at the time of speaking with the appellant at the roadside, the sergeant had determined that charges would be laid.  To the contrary, further investigations were required.  I should further add that, as previously observed, analysis of the situation needs to be undertaken in terms of what the position was at the time, not what subsequently developed  at  a  later  point.    It  was  reasonable  for  the  sergeant  to presume that the appellant was not denying that he was the driver at the time that she spoke to him at the roadside, nor until when she again spoke to him on the phone.  It was only at that point that it became apparent that the issue of identification was in dispute. There is no basis to allege that the impropriety was deliberate, reckless or in bad faith.

(c)      The nature and quality of the improperly obtained evidence

[37]     The appellant submits that the first statement did not amount to either an admission nor a denial that the appellant was the driver and that therefore it was not of particularly high probative value to the prosecution.   This is recognised by the respondent, but the significance of the appellant’s answers at the roadside comes into relief when it is compared with the stance that he took when speaking with the sergeant on 2 April on the phone.  A comparison of the appellant’s responses on the two  separate  occasions  is  relevant  to  an  assessment  of  the  credibility  of  the appellant’s account which he adopted at trial.  Beyond that and in comparison to the evidence of the eyewitnesses that no second person was observed in the vehicle by any of them, the probative value of the appellant’s statements at the roadside is limited.

(d)      The seriousness of the offence with which the defendant is charged

[38]     A charge of dangerous driving carries a maximum penalty of three months imprisonment.   In terms of the spectrum of criminal offences the charge is not a serious one.  Dangerous driving however invariably involves a risk of safety to the public and this case was no exception.

(e)      Whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used

[39]     This consideration has little application in the present case.   The roadside contact with the appellant in my view represented a responsible response by the attending officer to the information she had received.  There was little other option but to seek to speak with the driver, particularly having regard to the public safety aspect of the situation.  The Police were in receipt of information that a vehicle was currently being driven in a dangerous manner.   It behoved the Police to locate the vehicle, stop it and speak to the driver.

(f)       Whether there are alternative remedies to the exclusion of the evidence which can adequately provide redress to the defendant

[40]     The appellant submits that as an alternative to exclusion, the District Court could have omitted one or both of the statements but taken note of the circumstances in which those statements were made.  That is a fair observation, however the second statement was entirely consistent with the stance taken by the appellant at trial.  In regard to the first statement, Judge Macdonald was cognisant of the fact that it did not contain any explicit admission that he was the driver.

(g)      Whether  the  impropriety  was  necessary  to  avoid  apprehended  physical danger to the Police or others

[41]     This is not applicable.

(h)      Whether  there  was  any  urgency  in  obtaining  the  improperly  obtained evidence

[42]     The appellant submits there was no evidence adduced on this point.   As I have already remarked however, it is apparent that the Police were obliged to follow up on the report from the member of the public of a motor vehicle being driven dangerously.  It was therefore incumbent upon the police sergeant to pull the vehicle over and make enquiries of the driver.  That necessarily would include advising the driver of the reasons for the Police’s interest in his vehicle and the subsequent enquiry of the appellant regarding the information that had been received by Police Communications up until that point.   In my view therefore there was a degree of urgency.    I accept  it  is  moot  as  to  whether that  consideration  impacted  on  the attending sergeant’s ability to provide a caution at the roadside.

The admissibility decision

[43]     Having regard to these various factors, I have concluded that the Judge did not err in failing to exclude the appellant’s statements to the Police.  In relation to the telephone statement, Judge Macdonald expressed the view that Sergeant Pirovano should have cautioned the appellant prior to questioning him.  It is apparent by that stage the Police had completed their enquiries, and were proceeding on the basis that

the appellant was the driver.  They had by that time sufficient evidence for a prima facie case of dangerous driving.

[44]     The difficulty for the appellant on the appeal is that the objection to this second statement was not pursued before Judge Macdonald.  That is unsurprising in the circumstances.  What the appellant said to Sergeant Pirovano on the telephone was consistent with the defence to be presented at the defended hearing.  Ms Cuthill accepted that there was some artificiality in attempting to resurrect the argument in those circumstances.  The difficulty for the appellant arises not out of the admission of the second statement made over the phone, but the comparison of the stance taken by the appellant at that stage with what he previously said or had not said to Sergeant Pirovano at the roadside.   I hasten to add that the negative inference that can be drawn from a comparison of what was said by the appellant on those two occasions is in my view secondary in terms of probative weight to the other evidence available to the prosecution from the eyewitnesses that no second occupant of the vehicle was observed by any one of them.

[45]     As  became  apparent  upon  the  hearing  of  the  appeal,  the  essential  issue regarding the admissibility question relates to the first statement.  I am not satisfied that the District Court Judge erred in admitting that statement.  The manner in which the argument was conducted before Judge Macdonald makes it somewhat difficult to be precise as to the basis upon which the statement was admitted.  I am inclined to the view that the Judge ultimately considered that the sergeant was making preliminary enquiries and that while he was with the defence, in respect of the need to administer a caution in respect of the telephone interview, the obligation had not been triggered at the time the appellant was spoken to at the roadside.   That is consistent with the approach that I have taken to the issue.  It is also apparent that there appears to have been no analysis of the NZBORA issue in the District Court.

[46]     If the matter had turned on a determination of the balancing exercise required by s 30(2)(b), I would conclude that the exclusion of evidence of the appellant’s responses to Sergeant Pirovano’s limited enquiry of him at the roadside, would not have been a proportionate response in the circumstances.  If there was a requirement to advise the appellant pursuant to NZBORA, the breach was minor in nature.

Assessment of evidence

[47]     Ms Cuthill on behalf of the appellant submitted that even if the statements were rightly admitted into evidence, a miscarriage of justice occurred arising out of the District Court Judge’s  assessment of that  evidence.   She submitted that the identification evidence “relied upon by the Police” was not strong.   Ms Cuthill submitted that Judge Macdonald relied upon the admitted statement to find that the identity of the driver had been proved by placing weight on the fact that the appellant did not volunteer information as to who the driver was when he first spoke with the Police.   Ms Cuthill submitted that the appellant had not been asked about that specific issue when spoken to by the sergeant at the roadside and he gave evidence that he was not volunteering any additional information outside of that which was asked by the sergeant.  Judge Macdonald should not have taken into account the fact that there were no denials about being the driver at that stage.

[48]     I cannot accept the appellant’s submission.  As the Crown observes, it is a matter for the decision-maker to assess the evidence and place reliance, so long as it is legitimate to do so, on particular pieces of evidence that weigh with the Judge. The  fact  that  the  appellant  did  not  mention  a  second  driver  when  speaking  to Sergeant Pirovano was  a factor that Judge Macdonald was entitled to take into account in assessing the credibility of the appellant.  The Judge acknowledged that there had been no positive admission by the appellant at the roadside that he was the driver  at  the  relevant  time.    It  was  however  a  reasonable  expectation  that  the appellant  would  have  disabused  the  officer  of  such  an  assumption  when  being spoken to about the alleged way in which his vehicle had been observed driving dangerously a short time before.

[49]     In any case, as the Crown submits, this was only one factor which weighed with the Judge.  There was substantial evidence in support of the proposition that the appellant was the driver of the vehicle.   Three independent witnesses had only described one person in the vehicle, and while attempts were made in the course of the evidence to suggest an observer’s view would be blocked by tinted windows, this need not have prevented the making of accurate observations.  In that regard, Judge Macdonald noted the evidence of one witness who had a downward view through the

passenger’s side front window of the appellant’s vehicle and saw no one in the front passenger seat.  In the absence of any witness seeing two people in the vehicle, the claim by the appellant of another driver being in charge of his vehicle at the time simply lacked creditability.

Admission of event chronology log

[50]     Submissions made on behalf of the appellant did not progress this issue beyond the position reached at the defended hearing.   The appellant is unable to identify how the reference to the chronology log which was ultimately produced prejudiced the appellant.   It is claimed that defence counsel could have cross- examined witnesses as to the timing of the incident, but the content of the document was uncontroversial and it spoke for itself.  It was clearly apparent to trial counsel that the production of the log did not advance the prosecution case and certainly did not detract from the defence being presented by the appellant.   Defence counsel’s decision to allow the undisclosed document to be produced was understandable.  On appeal there is no basis to suggest that the decision by trial counsel to allow that to happen was in error, far less that it had the effect of causing a miscarriage of justice.

Result

[51]     None of the grounds therefore having been made out, the appeal is therefore dismissed.

Solicitors:

Cruickshank Pryde, Invercargill

Preston Russell, Invercargill