The Queen v Macleod

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA 61/02

THE QUEEN

ROBERT JAMES MACLEOD

Hearing:	20 May 2002
Coram:	Blanchard J Hammond J Salmon J
Appearances:	W M Johnson for Appellant M R Heron for Respondent
Judgment:	20 May 2002

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Mr MacLeod was charged with driving a motor vehicle with a blood alcohol level that was substantially above the legal limit, having been convicted of two previous offences of that kind. This meant that, if convicted, Mr MacLeod faced a maximum term of two years imprisonment, rather than the maximum period of three months which would obtain if he had not had these prior convictions. The charge was laid under s56(1) and s56(4) of the Land Transport Act 1998 (the Act).
Since s56(4) of the Act was enacted, an accused has been able to elect a jury trial when charges are laid in this manner. This gave rise to two distinct kinds of problems for the conduct of such trials.
The first was to determine which of the elements of the offence under s56(1) were for the Judge, and which for the jury. Those questions were settled by this court in R v Livingston [2001] 1 NZLR 167.
The second kind of problem was that it would patently be prejudicial to an accused if, when trying the questions of fact on the substantive offence, the jury were made aware of the circumstances of the prior offences for the purpose of the s56(4) charge. This dilemma has been overcome in practice by the use of two separate indictments. The first relates to the driving with excess blood alcohol. The second relates to that driving, but with the additional allegation of the prior convictions. The second indictment is not placed before a jury until the first indictment has been determined. If the accused is found not guilty on the first indictment, the second is not proceeded on. See ss329(1) and 341 Crimes Act 1961.
If this second indictment does come into play, the prosecution must prove the requisite prior convictions. It can do so in one of two ways: by the production of certified copies of those convictions under s71 of the Summary Proceedings Act 1957; or by any other admissible evidence. The former method is that which is routinely employed in practice.
In this case, Mr MacLeod had relevant convictions for breath alcohol offences on 24 August 1990, and 12 June 1999. There is, in this case, no issue as to the correctness and form of the certificate relating to the 1999 conviction.
Due to administrative errors, there are two certificates for the August 1990 conviction at Lower Hutt. The first was prepared at the Porirua District Court because the Lower Hutt District Court does not have room to store all its records. It is common ground that this first certificate is defective, in that Mr MacLeod’s address and date of birth are not recorded on the certificate; and it does not comply with s21 or form 22 of the Summary Proceedings Regulations 1957. A second certificate, correct in all respects, was prepared and sealed by Mr Jeremy Smith, a Deputy Registrar of the District Court at Lower Hutt.
Mr MacLeod was committed for trial, over an objection taken by Mr Johnson that there were in fact two certificates for the August 1990 offence. Mr Johnson said one of them could not possibly be correct. He said those circumstances must necessarily have created a reasonable doubt, and that therefore his client should not be committed to trial. That submission was rejected by Bisphan DCJ on 12 October 2001.
Following this committal, Mr Johnson filed an application seeking to have Mr MacLeod discharged under s347 of the Crimes Act 1961; and the Crown made a cross-application under s344A of the Crimes Act 1961, seeking leave to “lead further evidence at trial”. Apparently what was contemplated was that Jeremy Smith would give evidence.
These cross-applications were determined by Erber DCJ on 22 February 2002 in the District Court at Christchurch. The judgment is concise, and it may be as well to cite verbatim the critical passages from it:
·     It is clear from the depositions that for this purpose of proof, two certificates were created – one is materially defective and does not confirm with s71(3). The other does so conform. I observe at this point of course that the Crown is not obliged to prove previous convictions by certificates and may call direct evidence from [sic] the hearing itself should it desire to do so. There are other ways in which the evidence can be placed before the Court.
·     The defence argues that because there are two certificates – one defective and both different (because the description of the Court where the conviction was entered is different in each case), therefore the Crown cannot prove an ingredient of the offence beyond reasonable doubt and Mr MacLeod should be discharged. Further, the defence says that the Crown cannot now proffer a witness to correct any defects in the proof of previous convictions because that would be unfair.
·     Both of these submissions are, in my judgment, mistaken. The offence is driving with excess breath alcohol. A conviction for a third or subsequent offence is not an ingredient of the offence with which Mr MacLeod is charged. It is an aggravating feature which if proved makes Mr MacLeod liable to an increased penalty.
·     In my judgment, as proof, the Crown may call who it likes provided notice is given and a brief supplied. There was no additional brief supplied in this case principally because the Crown was under the impression from Mr Johnson’s submissions that the issue here was to be determined on the question of whether the two different certificates were capable of creating a reasonable doubt. Moreover, it should not be forgotten that under s347 I must have regard to the depositions and “to such other evidence and other matters as are submitted” for my consideration. In this case the Crown submits that it is able to provide a relevant certificate and if this is the case then it will, before the jury, prove the offence as charged. As I have said, if it cannot prove the subsequent convictions, or any of them, it seems to me that Mr MacLeod, if he is convicted, will be convicted only on a three month maximum imprisonment offence.
·     The upshot is this, the application under s347 is dismissed. The application of the Crown is granted in these terms - The Crown may call evidence of previous convictions and brief whereof shall be lodged on the Court file and supplied to the accused’s counsel within 14 working days.
Before us, Mr Heron said that the Crown would introduce the two correct certificates either under s71 of the Summary Proceedings Act 1957, or s27 of the Evidence Amendment Act (No.2) 1980. Subsequent to the disposition of the s344A application, the Crown has also exchanged a brief of evidence from Mr Jeremy Smith, although the brief had not been prepared at the time of the District Court hearing. Mr Heron supported the Judges reasoning.
Mr Johnson readvanced in this court the points he had made to Erber DCJ. Those were that there were two certificates, one of which could not be correct. And, he argued, it is not possible to “amend” a defective certificate (Smeele v Ministry of Transport (1984) 1 CRNZ 322).
It is convenient to begin by setting out s71 of the Summary Proceedings Act 1957:
(1)       The Registrar of each Court appointed for the exercise of criminal jurisdiction shall keep Criminal Records in the prescribed form, in which shall be entered a minute or memorandum of all proceedings in the Court under its criminal jurisdiction. Every such minute or memorandum shall be signed by the District Court Judge or Justice or Justices or Community Magistrate or Community Magistrates presiding over the Court.
(1A)     A statement of the way in which the requirements of section 10 of the Criminal Justice Act 1985 have been satisfied shall be entered in the Criminal Records of each Court in respect of all proceedings under its criminal jurisdiction to which that section applies.
(2)       If an information is heard at any place other than a Courthouse, a minute or memorandum of the decision shall be endorsed on the information, and the minute or memorandum shall be signed by the District Court Judge or Justice or Justices or Community Magistrate or Community Magistrates presiding over the Court. The information shall be forwarded to the nearest Courthouse there to be kept, and the Registrar shall make and sign an appropriate entry in respect of the case in the Criminal Records kept by him.
(3)       Any entry in the Criminal Records or a copy thereof or extract therefrom, sealed with the Seal of the Court and purporting to be signed and certified by the Registrar as a true copy or correct extract, shall at all times without further proof be admitted in all Courts and places whatsoever as evidence of the entry and proceeding referred to thereby and of the regularity of that proceeding.
(4)       Any such copy of any entry in the Criminal Records or any such extract therefrom may be given to any person who the Registrar is satisfied has a genuine and proper interest in obtaining the copy or extract. In any case of doubt or difficulty the Registrar may refer the matter to a District Court Judge, whose decision shall be final.
(5)       Every reference to a Criminal Record Book in this Act or in any other Act or in any regulation, rule, bylaw, order, or other enactment or in any deed, instrument, notice, or other document whatsoever, shall, unless the context otherwise requires, be read as a reference to the Criminal Records kept pursuant to this section.
If it is necessary to formally prove a conviction, in the circumstances of this case, it can be done in one of two ways. First, the court record itself could be produced. The opening words of s71(3) are disjunctive, and in that respect the subsection confirms what was always the common law rule (see R v Bourdon (1847) 2 Car and K 366; 175 ER 151). Such a procedure is disruptive to other courts, inefficient, and it means that court records may have to be taken in as exhibits.
Those sort of considerations led to the enactment of the second alternative: the certificate procedure established by s71(3). The police procure and produce the relevant certificate, thereby leaving the original court records intact and in situ. A certificate is admissible evidence of the proceeding, the entry of the conviction and the regularity of the proceeding (s71(3)).
In this case, the Police apparently intend to have Mr Smith produce the two correct certificates, and explain the circumstances in which that relating to the 1990 conviction came about. Of course Mr Johnson can cross-examine on that point, and put the defective certificate to Mr Smith, should he wish to do so. It is difficult, to say the least, to see where that would get the defence, given the statutory provisions to which we have already referred. Alternatively, the Crown could have the actual criminal records which are required to be maintained in the District Court (under s71(1)) produced by Mr Smith. In short, both these alternatives give rise to evidence which is admissible in law.
In the result, the Judge was not in error in allowing the police to proceed to advance the evidence in the manner contemplated by the application to the District Court.
Leave to appeal is therefore refused, and the appeal is dismissed.

Solicitors:

Crown Solicitor, Auckland

[2002] NZCA 106

20 May 2002