T v Police HC Wellington CRI 2008 485 12
[2008] NZHC 933
•18 June 2008
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2008 485 12
T
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 10 June 2008
Counsel: R J Stevens for appellant
C J Boshier for respondent
Judgment: 18 June 2008
RESERVED JUDGMENT OF DOBSON J
Introduction
[1] The appellant was convicted at a defended hearing of one count of careless use of a motor vehicle pursuant to s 37(1) Land Transport Act 1998, and one count of driving while suspended pursuant to s 32(1)(c) of the same Act. She was sentenced to a $200 fine and $1000 reparation for the first offence, and a $300 fine plus the mandatory six months’ licence disqualification for the second offence. The
appellant appeals to this Court against her conviction.
T V NEW ZEALAND POLICE HC WN CRI 2008 485 12 18 June 2008
Background
[2] On or in the night between 6 and 7 September 2007 the appellant was in, and was allegedly driving, a van at some speed up Ellice Street in Mount Victoria. Ellice Street ends in a dead end, and so the vehicle had to perform a U-turn, which it did, but in such a way that caused it to mount the footpath and become wedged between a tree, lamppost and wall. The passenger in the van exited and attempted to push the van free to no avail, at which point the driver exited the vehicle and hid behind a wall until Police arrived. The appellant told the Police that she had only been a passenger in the vehicle and that the driver had fled the scene, but later admitted that this had been a fabrication.
[3] The version of events placing the appellant as the driver was based upon two eyewitness accounts. John Gilbert lives at the upper end of Ellice Street. As he was crossing the road, the van sped past Mr Gilbert close enough for him to see that the occupants of the van were two women and that the driver was wearing a white top. He went into his house, and watched from his upstairs bedroom window. He states that he saw a woman with a black top get out of the van and attempt to push the van, before a woman in a white top got out of the window on the driver’s side.
[4] Karen Tonks, who lives with Mr Gilbert, also watched the events unfold and corroborated Mr Gilbert’s account. She added that the woman with the white top had dark hair with blonde bleaches and she was the bigger of the two women. She stated that it was the smaller woman who tried to push the car, and after the driver – the woman with the white top – exited the vehicle, she lent through the window and retrieved and put on a black top over the white one.
District Court decision
[5] The appellant was originally charged with unlawfully taking the van, but Judge Thorburn dismissed that charge. The remainder of the case centred on the reliability of the two witnesses: Mr Gilbert and Ms Tonks. His Honour preferred their evidence to that of the appellant. After admitting the story told to Police was a
fabrication, the appellant submitted that it was her friend who was driving the van, not her. She stated that she was only wearing a black undergarment when the car sped up Ellice Street, and that she was only wearing the black top when she, being the passenger, got out the van when it became stuck and attempted to push it free. Only then did she put on her white top and then a second black top, which she is shown wearing in photographs taken shortly after the incident. She alleged her friend was the driver, and states the friend was wearing a white top, which she must have exchanged for a black top at some point.
[6] The appellant also argued that the forensic evidence adduced showed her palms had been on the windscreen of the van, which is consistent with her being the passenger and the one who climbed out and pushed the van.
[7] Inconsistencies in the defendant’s evidence in contrast with the unequivocal versions of the witnesses’ testimony were the key reasons why Judge Thorburn was satisfied beyond reasonable doubt that the appellant was the driver. His Honour acknowledged that the palm prints raised a good point, but that did not create a reasonable doubt that the appellant was not the driver. The palm prints did not necessarily prove that she was the one pushing; the passenger’s prints were not adduced in evidence. There were many other reasons why the appellant’s prints were on the windscreen. Thus, the charges were proved and the appellant was convicted.
Points on appeal
[8] Counsel for the appellant raised three points for appeal. The appellant submitted that Judge Thorburn:
• Failed to consider s 67A Summary Proceedings Act 1957;
• Was in error in finding that the evidence adduced amounted to proof beyond reasonable doubt that the appellant was the driver; and
• Was in error in finding that the palm print evidence adduced did not raise a reasonable doubt as to whether the appellant was the driver.
Appeal procedure
[9] Section 119 of the Summary Proceedings Act 1957 outlines the procedures for such appeals; they are by way of rehearing. This requires the Court to come to an independent conclusion in the proceedings: there is no presumptive level of deference to the inferior court. This principle was affirmed by the Supreme Court in Austin Nichols and Co Inc v Stichting Lodestar [2007] NZSC 103; (2007) 18 PRNZ
768, and although it was a case based in this Court’s civil jurisdiction, its general comments are still relevant.
[10] The general principle will be subject to exceptions, and in most cases, superior courts will recognise the advantage of inferior courts in assessing the credibility of witnesses first hand. As observed by Heath J in Kelly v Police HC WHA AP41/01 23 August 2002:
[21] Anyone who has had any involvement with the trial process recognises that findings of credibility turn as much on the demeanour of witnesses and the impressions made by them as the actual words they utter. Impressions of the evidence are gathered by a Judge during the course of a trial by a process akin to osmosis. The written words contained in the formal Notes of Evidence represent a body into which the atmosphere and human dynamics of the trial process breathe life. This is why findings of credibility, even where extensive Notes of Evidence are available, will rarely be overturned on appeal. […]
Judges who sit on appeal simply do not enjoy the advantages possessed by a trial judge who sees and hears the witnesses. In those circumstances, it is entirely appropriate that appellate judges should defer to a trial judge's findings of credibility.
[11] See also Austin at [5]. It will generally be appropriate to defer to the inferior court, but importantly, deference is not required. As such, I decline to adopt the respondent’s submission that I must afford a presumptive level of deference to the District Court. Judge Thorburn’s conclusions on credibility will be persuasive, but not binding.
Discussion
Section 67A caution
[12] Section 67A of the Summary Proceedings Act states as follows:
67A Identification evidence
Where any evidence of identity is given against the defendant and the defendant disputes that evidence, the Court shall bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, the possibility that the witness may be mistaken.
[13] The appellant criticises the lack of regard for s 67A, suggesting that had the Judge approached the evidence with the appropriate caution, there would have been a reasonable doubt that the appellant was the driver. Luke v Police [2004] DCR 925 is very helpful on the issue of s 67A. In that appeal, Venning J reviewed the authorities on the extent to which a trial Judge must acknowledge s 67A, and concluded:
[22] It follows that nor is it necessary for the Judge to expressly recite the provisions of s 67A.
[23] Where the Judge does not refer to the section or expressly recite the relevant provisions of the section then the Court on appeal will need to be careful to ensure that the Judge has, despite that omission, properly considered the provisions of the section and applied them to the case before him or her. If on appeal the Court can be satisfied that that indeed is the case then there will be no basis to interfere with the lower Court’s decision.
[14] Affirming this conclusion are the recent cases Namana v Masterton District Council HC MAS CRI 2007 435 6 24 October 2007 MacKenzie J and Davis v Police HC HAM CRI 2007 419 55 24 August 2007 Asher J. The question is not whether Judge Thorburn explicitly mentioned s 67A, but whether he has properly considered the issues raised in that section. I believe he did so:
[13] What then do I think of Ms T ’ evidence that these witnesses are mistaken and have got it wrong? First, the impression of the two civilian witnesses who just happened to be people going about their ordinary day-to-day life of an evening at their home is evidence that is, of itself, very credible. Of course, that does not mean to say that they might not be mistaken, but there is no suggestion that these are people who are
perverters of the truth, twisters of the facts or have an agenda for some reason or other to give evidence which is not correct. It is very clear. They are in many ways the best sort of witness that the Court can benefit from in any case, - uninvolved, straight up and down ordinary citizens who are just saying, honestly, what they saw. Their evidence is very, very clear and really quite unchallengeable in that sense. [emphasis added]
[15] This passage shows that the Judge was alert to the dangers of identification evidence, and critically, that he acknowledged the possibility that the witnesses could be mistaken. I consider the quoted passage satisfied the requirements of s 67A even though it did not make explicit mention of this section. Mr Stevens argued that the Judge assessed the witnesses’ credibility, but did not reflect on indications of their potential lack of reliability. That is not justified, given the Judge’s comment on the nature of the view of the relevant event that was enjoyed by the witnesses. Identification evidence arises in varying contexts. It can be far more critical where an accused is only implicated by a fleeting view of him as presumptively the hooded bank robber, or departing mugger in a poorly lit alley. Here, the appellant was apprehended at the scene and the identification evidence goes to the part she played in events that are not disputed. Section 67A does not mandate the diminution of all identity evidence. Judge Thorburn was alert to the dangers of the evidence and nevertheless judged it reliable. Accordingly, this ground of appeal fails.
Sufficiency of the evidence
[16] The second ground of appeal is that Judge Thorburn was in error in holding that the evidence adduced by the respondent was sufficient to amount to proof beyond reasonable doubt that the appellant was the driver of the van.
[17] Judge Thorburn was presented with the strong and corroborative evidence of two witnesses who stated that the driver of the vehicle was wearing a white garment, and from one at least that she was distinguishable as the larger of the two women.
[18] Of the two possible women who could have been the driver, it was readily established beyond reasonable doubt that the appellant was the one who was wearing a white garment when the vehicle was being driven. The Police photographs show that she was wearing such a garment, and the appellant’s rebuttal that she put that
garment, and another, on after she had exited the vehicle seems to be weak. Supporting the finding is that if the appellant was not wearing a white garment, then the other woman must have been wearing the garment. The other woman was wearing a black garment when Police arrived, and the appellant’s explanation – that the other woman changed from a white garment to a black garment outside of the van, so that at one point she was outside in her underwear – is incredible, not least because she could not explain where the white garment went.
[19] The changes in the appellant’s clothing were observed by Ms Tonks, who was not shaken on her evidence in cross-examination. However, even if the appellant is given the benefit of any doubt arising on who was wearing white, Ms Tonks’ evidence was that it was the larger of the two women who was the driver. The appellant was clearly the larger of the two women. This is almost stronger evidence than the clothing issue and clearly points to the appellant as the driver.
[20] On top of all of this, the credibility of the appellant, and the somewhat tenuous nature of her alternative explanations do not raise a reasonable doubt as to the veracity of the evidence of the prosecution witnesses. I consider that Judge Thorburn had good justification and a clear evidential basis for coming to the conclusion that the appellant was the driver and accordingly this ground of appeal fails.
Forensic evidence
[21] The final ground of appeal is that Judge Thorburn should have found that the forensic evidence of the palm prints on the windscreen amounted to a reasonable doubt. The appellant’s argument was that the palm prints were evidence that she pushed the van, which, on the prosecution witnesses’ observation of what occurred, would make her the passenger – not the driver – of the vehicle.
[22] The other woman’s palm prints were either not on the windscreen or they were not adduced as evidence. Nevertheless, even assuming that the other woman’s palm prints were not on the vehicle, Judge Thorburn was justified in finding that the palm prints do not necessarily raise a reasonable doubt that the appellant was the
driver. The appellant’s fingerprints were found on numerous parts of the vehicle, and there are many reasons why the appellant’s prints might be on the windscreen other than her attempting to push the van free. It is unclear what happened to the van prior to it being driven up Ellice Street, but the prospect that the appellant may have touched the windscreen at an earlier point is entirely likely. Regardless, in the face of the very strong eye-witness accounts above, the mere presence of the fingerprints was insufficient to create a reasonable doubt and this ground also fails.
Conclusion
[23] Though Judge Thorburn came to the verdict he did based on eyewitness accounts, he was appropriately cautious in doing so and the accounts were virtually incontrovertible. On that basis he was justified in coming to the conclusion he did, and although there was some evidence that indicated a different conclusion, it was insufficient to dislodge the evidence of those eye-witnesses.
[24] I accordingly hold that the appellant’s conviction was justified and the appeal is dismissed.
Dobson J
Solicitors:
Fanselows, Wellington for appellant
Luke Cunningham & Clere, Wellington for respondent
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