Waters v New Zealand Police HC Auckland CRI 2008-404-000014

[2008] NZHC 2313

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000014

BETWEEN  JOHN LESTER WATERS Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         6 May 2008

Counsel:         ML Wotherspoon for Appellant

EJ Walker for Respondent

Judgment:      12 May 2008 at 11.00 a.m.

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 12 May 2008 at 11.00 a.m., pursuant to Rule 540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Mr ML Wotherspoon, P O Box 3905, Shortland Street, Auckland for Appellant

Meredith Connell, P O Box 2213, Auckland for Respondent

WATERS V POLICE HC AK CRI 2008-404-000014  12 May 2008

[1]      In the evening of 17 February 2007, the premises of Greymouth Power in Papakura were burgled.   A vehicle which left the scene was later located by the police.    Mr  Waters  was  nearby.    Subsequently  he  was  identified  as  the  man appearing on closed-circuit television footage taken at the scene of the burglary.

[2]      After trial before a Judge alone in the District Court at Papakura, Mr Waters was   convicted   on   a   charge   of   burglary   and   sentenced   to   fifteen   months imprisonment.  He appeals against conviction on the grounds that:

a)       The  evidence  of  identity  was  insufficient  to  support  the  Judge’s finding that he was present at the scene of the burglary.

b)The police failed to make full disclosure to the defence, resulting in an abuse of process and/or a miscarriage of justice and/or a breach of the New Zealand Bill of Rights Act 1990.

Identity

[3]      Evidence of identity was given by Constable Lisa Ross.  She was tasked to locate the van seen leaving the scene of the burglary.  It was located at a residential address some two kilometres away.  About forty minutes after the police arrived at the scene, Mr Waters was seen climbing over a fence into the property.   He told Constable Ross that he lived at the house with his partner and was returning from a visit to a neighbouring property.

[4]      Constable Ross noted that Mr Waters had a shaved head and was wearing a light blue hooded sweatshirt and black pants that were rolled up.  He had bare feet.

[5]      Several days later Constable Ross viewed the video surveillance footage that had come from the scene of the burglary.  She recognised the male in the video as the person she had spoken to on the night.   He was wearing the same clothes as Mr Waters and was barefoot.  Unlike Mr Waters, though, the man in the video was wearing a hat.

[6]      Mr  Waters  gave  evidence.    He  denied  having  anything  to  do  with  the burglary.  He confirmed that when he was seen by Constable Ross he was returning from a visit to a neighbour.  He agreed that he was wearing black trousers, rolled up on the night, and a hoodie, although he thought the hoodie was light grey in colour.

[7]      In his decision, the Judge said that the case hinged on identification of the person seen on the video footage.   He reminded himself of the need for extreme caution when dealing with evidence of identification.  He said that, having watched the video footage on at least three occasions during the course of the hearing and considering it in the context of Constable Ross’ observations when she spoke to Mr Waters, he was satisfied beyond reasonable doubt that Mr Waters was the man in the video.  He said:

The descriptions match, the clothing matches, and the build of the person matches. ...

Further, in which (sic) you were found at 12.07 a.m. jumping over a fence with a stolen vehicle on property occupied by your ex-partner.

[8]      Mr Wotherspoon submitted that, as there was no admissible evidence to show that the van was involved in any way in the burglary – even evidence that it was stolen was hearsay – the evidence of identification was insufficient to prove beyond reasonable doubt that Mr Waters was involved in the burglary.  He also pointed to the absence of fingerprint evidence connecting Mr Waters to the vehicle and of evidence from a dog handler who was called to the scene and who might have been able to establish (or exclude) a link between Mr Waters and the van.

[9]      Although Ms Walker valiantly sought to argue otherwise, I am satisfied that the evidence of identification is inadequate to found a conviction.  The absence of evidence to link the van to the burglary was a crucial omission.  The person who saw the vehicle leave the address was not called and the Judge ruled inadmissible a report recording police communications at the time which might have been admissible to establish the link.

[10]     In the absence of evidence linking the van with the burglary, the evidence against Mr Waters, reduced to its essentials, is that he was seen two kilometres away

from the scene of the burglary wearing clothes similar in appearance to those worn by a man who was at the scene and captured on closed-circuit television.  While this may make it likely that Mr Waters and the man on the video were one and the same, in my respectful view, it falls short of establishing guilt beyond reasonable doubt. There  was  nothing  distinctive  or  unusual  about  the  clothes.    The  reasonable possibility of coincidence cannot be excluded.

Disclosure

[11]     Mr Wotherspoon complained that the police had failed to disclose to the defence:

a)       Documentation relating to a light coloured hooded sweatshirt being worn by Mr Waters and seized by the police when he was arrested some two months after the burglary.

b)Notebook entries and other records of the dog handler who went to the address where the van was found.

c)       Notebook entries, job sheets and other documentation relating to the arrest and subsequent prosecution of a man named Phillip Rameka who was found at the residential address (apparently wearing a hoodie garment)  and  was  subsequently  charged  with  the  burglary  and unlawful use of the van.

d)The police communications report (ultimately ruled inadmissible by the Judge) or an Event Chronology that had apparently been prepared by the police.

[12]     Mr  Wotherspoon  submitted  that  disclosure  of  these  items  could  have provided material assistance to the defence in the following way:

•Mr Waters’ case was that he was wearing the grey coloured hoodie on the night and Constable Ross was mistaken in describing it as light blue.   It would have assisted his defence if he had been able to produce it in evidence.

•The evidence of the police dog handler could have assisted the defence by excluding any link between Mr Waters and the van.

•The evidence relating to Mr Rameka (who was prosecuted separately) might have enabled the defence to show that he was the man captured on video.

•The communications report and/or Event Chronology may have disclosed the identity of the witness who saw the van leave the scene.  That witness may have been able to give evidence that excluded the involvement of Mr Waters.

[13]    Ms Walker tendered an affidavit by the officer in charge of the police investigation, Constable Amber Stobie, to explain why the material referred to by the defence had not been disclosed.  Constable Stobie said:

•The grey hooded sweatshirt was seized as evidence relating to a subsequent burglary and was not seen as relevant to the present charge.

•The role of the police dog handler in the investigation was limited; he arrived at the scene to see if everything was alright and then left.  That is why he was not called as a witness.

•Mr Rameka’s file was allocated to another case officer and she was not aware of what happened to him.

•The communications report was not disclosed because it is an internal police document incorporating the Event Chronology which it is usual practice not to disclose.   In any event, Constable Stobie said she could not trace the original informant who saw the vehicle leave the scene of the burglary as he or she had used a cellphone.

[14]     Ms Walker referred me to the judgment of Randerson J in Attorney-General v District Court at Hamilton [2004] 3 NZLR 777 in which the approach to be taken to a complaint regarding disclosure is summarised as follows at [57]:

... Care must be taken to tailor the approach to the circumstances of the case. The court’s approach must always be discretionary in nature and requires the exercise of judgment rather than the application of inflexible rules.  Relevant considerations include:

a)Whether the failure to disclose is due to inadvertence, inefficiency or to deliberate conduct;

b)        Whether the police or prosecuting agency has acted in good faith;

c)Whether the failure to disclose is relevant in the sense that the non- disclosure of the  material  could damage  the  prosecution  case  or advance that of the defence;

d)The extent of any prejudice to the accused in the conduct of his or her defence as a result of the non-disclosure;

e)Whether the accused can nevertheless receive a fair trial without undue delay;

f)         Whether remedies short of stay or dismissal could achieve a fair trial (such as an adjournment, the exclusion of evidence, the right to call rebuttal evidence, or a limited stay until relevant material is produced.)

[15]     Ms Walker submitted that the police had acted at all times in good faith and that any failure to disclose did not prejudice Mr Waters’ right to a fair trial.

[16]     I do not think the police can be criticised for failing to disclose the sweatshirt. If the defence had wished to rely on it, a specific request could and should have been made before the hearing.   On the assumption that the police dog handler did not prepare a job sheet or other record of his attendance, I would not have expected any form of disclosure relating to his evidence and the decision not to call him as a witness was clearly justified.   Again, if the defence had wished to enquire into or rely on his evidence, a specific request should have been made.   Disclosure in relation to the action taken against Mr Rameka is in the same category.   If the investigation against him proceeded independently, disclosure could be reasonably expected only in response to a specific request.  All of these were matters within the knowledge of the defence which, for good reason, were not the subject of initial disclosure.

[17]     The communications report is in a different category.   Although it may be regarded as an internal police document and not generally susceptible to disclosure, it was clearly relevant in the circumstances of this case.   Indeed, that is why the prosecution endeavoured (unsuccessfully) to introduce it in evidence.  It could have assisted the defence by the means suggested by Mr Wotherspoon.    In  the  end, however, the failure to disclose it worked to the advantage of the defence.  It led to the Judge’s decision to rule the report inadmissible.  With that ruling went the last hope of proving that the van was involved in the burglary.

[18]     I accept that the police acted in good faith throughout and that the decision not to disclose the communications report was made in the belief that it would not assist the defence.   Clearly, the police did not appreciate the importance of establishing by admissible evidence that the van was seen leaving the scene of the burglary.  The omission is accordingly academic; Mr Waters has his remedy.

Result

[19]     The appeal is allowed.  Mr Waters’ conviction is quashed.