The Queen v Carse

[2006] NZCA 230

IN THE COURT OF APPEAL OF NEW ZEALAND

CA211/06

THE QUEEN

v

ANDREW JOHN CARSE

Hearing:21 August 2006

Court:Robertson, Wild and Harrison JJ

Counsel:S G Bourne for Appellant

P K Feltham for Crown

Judgment:25 August 2006 at 11am

JUDGMENT OF THE COURT

Leave to appeal out of time is granted.  The appeal, which is against conviction, is dismissed.

REASONS OF THE COURT

(Given by Wild J)

Introduction

[1]       The appellant claims justice miscarried at his trial, when the Judge admitted inadmissible hearsay and failed adequately to correct the position when summing up to the jury.  On those grounds Mr Carse appeals against his two convictions.  As the appeal was filed 11 days out of time, leave is required.

[2]       The Crown accepts the jury heard inadmissible hearsay, but submits the position was redressed by the Judge’s direction to the jury to disregard that hearsay.  Even if the Judge’s direction was deficient, the Crown argues that the Crown case was very strong, and that the convictions should be saved by the proviso to s 385(1) Crimes Act 1961.  The Crown does not oppose leave to appeal out of time.

[3]       As the appeal was filed only a few days out of time, in the absence of opposition, leave is granted.

Factual background

[4]       The appellant was tried before Judge Dawson and a jury in the Palmerston North District Court on 6 April 2006 on charges of driving with excess breath alcohol and driving while disqualified.  The jury found him guilty of both charges.  This was the appellant’s twelfth conviction for driving whilst disqualified, and his seventh for driving with excess breath alcohol.

[5]       The Crown called two witnesses at the trial.  The first, Mrs Christine Edmonds, said that the appellant had arrived at her home in Palmerston North on 22 January 2005 driving a Subaru stationwagon with two young women passengers, Emma (a friend of Mrs Edmond’s daughter) and Malorie Cate.

[6]       Malorie was feeling sick and went out to sit in the car.  When Emma did not want to leave, the appellant became abusive, demanding that Emma go with him.  Mrs Edmonds made a 111 call to the Police, because she was concerned that “it got a bit out of hand”.

[7]       Mrs Edmonds said the appellant left with Malorie only.  Malorie was sitting in the front passenger seat.  Mrs Edmonds saw the appellant get into the driver’s seat of the Subaru, back the vehicle out of her driveway, and head down Albert Street towards its intersection with Grey Street. She walked out onto the street and watched the appellant as he drove off.  She saw him pulled over by a police car after he had driven about five or six “doors” down the street.

[8]       Crown counsel asked Mrs Edmonds if she was sure that the accused was driving the Subaru when it backed down her drive and drove off.  She said:

Oh I would swear on my children’s and my own life that it was him in the driver’s seat.

[9]       She was not shaken in cross-examination by Mr Bourne.

[10]     The other prosecution witness was Sergeant Geoffrey Lyver of the Levin Police, who had responded to Mrs Edmonds’ 111 call.  He parked his unmarked patrol car outside the Edmonds’ home.  After the Subaru had backed out of the Edmonds’ drive, Sergeant Lyver saw the appellant drive past him.  He also had a clear view of a female passenger in the front seat.  Sergeant Lyver activated his red and blue lights, completed a U-turn and stopped the Subaru a short distance down the road.  He said that he could see the appellant sitting in the driver’s seat and a female in the passenger seat as he came up and stopped behind the Subaru. 

[11]     Sergeant Lyver then saw the passenger slide across toward the driver’s seat and swap places.  Sergeant Lyver went straight to the passenger side of the car and spoke to the appellant, who by then was sitting in the passenger seat.  He administered a breath screening test, which the appellant failed, recording a reading of 545 micrograms of alcohol/litre of breath against the maximum legal limit of 400. 

The defendant’s evidence and the hearsay objected to

[12]     The appellant gave evidence that he had gone with two young women to Mrs Edmonds’ home.  He agreed that Emma had not wanted to leave.  He accepted that he and Malorie had left the house in the Subaru.  The appellant’s evidence was that he was not the driver of the car:  Malorie was driving and he was sitting in the front passenger seat.  The appellant denied that he and Malorie had swapped places in the front seats of the Subaru, as observed by Sergeant Lyver.

[13]     Crown counsel’s cross-examination of the appellant included the following:

Q.Now, this Malorie girl, is she going to come along and give evidence?

A.No.

Q.Why not?

A.I haven’t seen her since the day I got arrested.

Q.Well, you said that you were getting a bit friendly with her on the day, have you not made any attempts to get in contact with her since?

A.Yes, I tried to contact her but she told me no, after what happened with the Police.  I contacted her a few days after on the phone, text her, but she said that ah, ‘cos of the Police, and what happened she didn’t really want to know about it.

Q.I see, did you try and contact her again to be a witness in this trial?

A.Yes.

Q.When did you do that?

A.Probably about two days prior, two days after sorry.

Q.And you haven’t had any contact with her since?

A.No, she wouldn’t answer my texts.

Q.Well have you taken any further steps at all to bring her to Court to corroborate your evidence?

A.No.

Q.Are you aware that you can summons someone to come and give evidence even if they don’t want to?

A.No.

Q.Malorie in fact is a girl called Malorie Cate, isn’t she?

A.I only knew her as Malorie.

Q.Really?

A.Yes.

Q.You didn’t know her last name is Cate.

A.(unanswered)

Q.When did you first meet her?

A.Probably about two weeks before we went out with (inaudible).

Q.So how well did you know her?

A.Not well.

Q.How did you come to be going on this picnic?

A.I asked her if she would like to come along.

Q.Was that the first time you met her, you asked her if she wanted to go on a picnic?

A.No was second time and we left that same day.  She came over, she came over to my sister’s house where my niece was and I asked her if she wanted to come out to the picnic and we left that same day.

Q.Do you know how old she is?

A.I think she was 21.

Q.Are you seriously suggesting you didn’t know her last name.

A.No.

Q.Was there anybody else in the car when you and Malorie were pulled over?

A.No.

Q.As soon as you saw the Police Officer you said to Malorie, you turned to her and said “quick change seats I haven’t got a licence”, didn’t you?

A.No.

Q.Well, would it surprise you to learn that that is what she has told the Police?

OBJECTION:  BOURNE

Adjourned:  12.50 pm

COURT AS CHAMBERS

Resumed:  12.56 pm

XXN – Patterson (continues)

Q.Let’s go back a step to remind us of where we were.  I had put to you that you said to the female in the passenger seat, “quick change seats I haven’t got a licence”, did you say that?

A.No.

Q.And then my last question was “would it surprise you to learn that that person told the Police on the night that that is what was said”? 

A.         I still don’t understand what you are saying you said.

Q.If I told you that at the time you were pulled over, we have heard another Constable was dealing with the female in the driver’s seat, would it surprise you if I told you that then she said that when you were pulled over you said “quick change seats I haven’t got a licence”?

A.Well in terms it probably wouldn’t surprise me at all because she was drinking, she was probably over the limit too, saving her own back.

[14]     The inadmissible hearsay was Crown counsel putting to the appellant that Malorie Cate had told the Police that, after he had been pulled over, the appellant had said to her “quick change seats, I haven’t got a licence”.

[15]     Judge Dawson’s direction to the jury about the hearsay inadmissibly introduced by Crown counsel was this:

The normal rule of evidence is the witness is not allowed to give evidence about what another person said.  That is called hearsay evidence.  There are, however, some exceptions to that rule.  One of those exceptions is that a question may be asked about what another person said on what is described in law as a “good faith” basis.  Such a question was asked of Mr Carse in cross-examination when he was asked about a statement said to have been made by the other person in the car, Mallory Kate, to a Policeman to the effect that Mr Carse said to her, “quick, change seats, I haven’t got a licence”.  That statement was denied by Mr Carse.  No other person gave evidence of the statement having been made, therefore you must disregard the information contained in that question as it is not evidence placed before the Court by a witness that can be questioned or cross-examined.

The argument on appeal

[16]     The appellant argued that the Judge’s direction was equivocal and inadequate, with the result that there was a miscarriage of justice.  In the first part of the direction the Judge told the jury that the evidence was within the “good faith” exception to the hearsay rule.  This left the jury with the impression that the evidence was admissible and that they could take it into account.  In the second part of the direction the Judge partly countered this.  While he directed the jury to “disregard the information contained in that question”, he did not direct the jury that the evidence (strictly, as the Judge said, it was information) was inadmissible. 

[17]     In advancing this argument for the appellant, Mr Bourne stressed that he was not suggesting that Crown counsel had deliberately introduced inadmissible evidence, or acted in bad faith.  But he contended “if the Crown gets away with this it could get away with anything.  It is almost a Bill of Rights issue – a fair trial issue”.

Consideration of appellant’s argument

[18]     The Crown’s concession that Crown counsel introduced inadmissible hearsay is a proper one.  As argued by Mr Bourne, the issue is whether the Judge’s direction to the jury about that hearsay was an adequate one.

[19]     We think the issue is wider than that.  Set out in [13] is a line of questioning by Crown counsel as to whether the defence was calling Ms Cate and (having established it was not) why it was not.  The first question was legitimate:  Crown counsel was entitled to ask the appellant whether he was calling Ms Cate.  Beyond that, the questions were inappropriate.  Defence counsel should have objected.  Even if he did not, the Judge should have intervened and stopped that line of questioning.  Implicit in the questions is that the appellant had some onus, in the circumstances of the case, to call Ms Cate.  He had no such onus and counsel’s questions were out of order.  A judicial intervention which risked conveying to the jury that the defence had not discharged an onus of proof contributed to the quashing of the conviction in R v Karstens CA264/05 27 February 2006. 

[20]     The illegitimate questioning culminated in Crown counsel introducing the inadmissible information attributed to Ms Cate.

[21]     Having let all that in, there was nothing the Judge could do to remedy the resulting illegitimate prejudice to the appellant.  The standard direction the Judge gave as to the onus of proof, and his direction to the jury that the accused did not have to call other people to give evidence on his behalf, did not remedy it.

[22]     Thus, the appeal is made out on the s 385(1)(c) miscarriage of justice ground.

[23]     Does the proviso to s 385(1) save the convictions?  In our view it does.  The Crown case was overwhelmingly strong.  Two witnesses, quite independently of each other, gave evidence that the appellant was the driver of the Subaru.  Sergeant Lyver also saw the appellant swap places with his passenger after he had pulled the Subaru over.

[24]     Neither witness was shaken on this critical evidence.  In the face of a Crown case of that strength, Crown counsel’s illegitimate line of questioning and her introduction of inadmissible information, fades into insignificance.  We do not accept that a substantial miscarriage of justice could or did result.

Result

[25]     The appeal is dismissed.

Solicitors:
Kirkeby & Co, Levin, for Appellant
Crown Law Office, Wellington