The Queen v Dadzie

[2009] NZCA 261

IN THE COURT OF APPEAL OF NEW ZEALAND

CA121/2009
[2009] NZCA 261

THE  QUEEN

v

KOBINA BERTUM DADZIE

Hearing:17 June 2009

Court:Chambers, MacKenzie and Simon France JJ

Counsel:Appellant in Person (Mr P Korboe interpreter)

M D Downs for Respondent

Judgment:23 June 2009 at 2 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1]       Mr Dadzie appeals his convictions, following a jury trial, on charges of:

a)refusing to permit a blood specimen to be taken;

b)driving a motor vehicle while disqualified.

[2]       The trial proceeded against the background of formal admissions by Mr Dadzie that he had at least two previous convictions for each offence.  The ground of appeal is essentially that the Crown case was unreliable.

The trial

[3]       The Crown alleged that Mr Dadzie drove to a garage to complain about the length of time being taken to repair a van he owned.  The process of complaining led to the police being called.  That, in turn, led to the two charges that are the subject of the appeal.

[4]       The first witness was Mr Nigel Craft who testified that he was at the relevant time working at the garage as a mechanic.  Mr Craft said that he was standing outside the workshop and saw Mr Dadzie drive up in a green Toyota Camira station wagon.  The car rolled slowly down the driveway which leads to the garage.  It  stopped, and Mr Dadzie got out of the car.  Mr Dadzie asked Mr Craft about the van, but Mr Craft referred him on to the garage owner.  Mr Dadzie talked to the owner, then walked off out of sight.  However, five or ten minutes later he returned, got back into the car and fell asleep.

[5]       The second witness was Inspector Kluessien.  The officer had been visiting the Otahuhu Police Station, and as he left in a marked police car he heard a job being dispatched to what was the garage in question.  The inspector went to the scene.  He walked down the driveway, and saw a Camry car parked there.  A person was asleep in the driver’s seat.  In court Inspector Kluessien identified the person as Mr Dadzie.  As it happens Inspector Kluessien had had previous dealings with Mr Dadzie.  The inspector did not initially disturb Mr Dadzie, but instead went inside to talk to the garage owner.  He then returned to the car, and woke Mr Dadzie up.  The officer testified that Mr Dadzie at that point admitted driving to the garage.  Another officer then arrived, and the inspector directed that officer to deal with Mr Dadzie as a drunk driver, that status being obvious to the inspector.

[6]       The police officer who was directed to look after Mr Dadzie was Constable Jason Quin Shun Poh.  Constable Poh testified as to his efforts to have Mr Dadzie co‑operate with the breath testing procedures, and Mr Dadzie’s refusal.

[7]       Mr Dadzie testified.  He said he walked to the garage.  The car in which he was found belonged to a friend who had independently driven to the garage, arriving there shortly after Mr Dadzie.  When Mr Dadzie realised the police were coming, he decided he might as well wait for them, so he got into the passenger’s side of the car and fell asleep.

[8]       The defence also called Mr Shingi Rayi Ngarirangwe.  He testified that it was he who drove the car to the garage.  Both Mr Dadzie and Mr Ngarirangwe were cross‑examined on their evidence.

The appeal

[9]       Mr Dadzie advances three propositions:

a)Mr Craft (the civilian witness) did not work at the garage at the time, so could not have seen anyone.  Mr Dadzie says he realised this at the trial when Mr Craft was called to testify.  He mentioned it to his lawyer who ignored him.  This response was the reason why this challenge was neither put to Mr Craft, nor mentioned by Mr Dadzie when he testified;

b)Inspector Kluessien also was never at the scene;

c)Constable Poh was at the garage.  However, when at the scene he was operating under a different name, namely Constable Jason Quin Shun (i.e. Constable Poh’s name with the surname omitted).  It is accepted by Mr Dadzie that the officer who attended the scene and attempted to obtain a blood sample, and the officer who testified in Court under the name Constable Poh are one and the same; it is the false name that is complained about.

[10]     In reply Mr Downs noted:

a)there was no evidence filed to support what were claims of either fresh evidence or incompetent counsel;

b)it could not be supposed any such evidence, if able to be produced, could meet the test of cogency;

c)the trial tactic was mistaken identity by Mr Craft and this was squarely put.  No other defence could have been advanced;

d)the failure of Mr Dadzie to make any of these points when he testified and was cross‑examined tells against any weight being given to the arguments when now advanced on appeal.

Decision

[11]     We agree with Mr Downs.  The case was run on the basis that Mr Craft was mistaken in his identification.  An alternative driver, who presumably physically could have been mistaken for Mr Dadzie, was proffered.  The trial challenge to Inspector Kluessien was that he had not at the time made any notes of Mr Dadzie’s alleged admission.  The defence failed but it is not open to the appellant to now simply assert a different defence.

[12]     The alternative defence lacks any evidential foundation.  Further, it was always open to Mr Dadzie to say that Mr Craft was not there, but when presented with an opportunity at trial he did not do so.  The same proposition could have been put to Inspector Kluessien, although its lack of credibility hardly needs commenting upon.  The alleged error concerning Constable Poh, even if supported by evidence, would not undermine the officer’s trial evidence.

[13]     The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington