Watson v Police

[2013] NZHC 1212

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000093 [2013] NZHC 1212

BETWEEN  DOUGLAS JAMES WATSON Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   20 May 2013

Appearances:           Appellant in Person

J B Hamlin for Respondent

Judgment:                28 May 2013

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Tuesday, 28 May 2013 at 11:30 am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

WATSON v NZ POLICE [2013] NZHC 1212 [28 May 2013]

[1]      Following a defended hearing in the Auckland District Court on 12 March

2013, Mr Watson was found guilty of driving a motor vehicle on Karangahape Road on  23  March  2012  while the proportion  of alcohol  in  his  breath  exceeded  400 micrograms of alcohol  per litre of breath.   Mr Watson had 623 micrograms of alcohol per litre of breath.   He was convicted and fined $650 with Court costs of

$132.89 and was disqualified from driving for six months.

[2]      He  now  appeals  against  conviction  and  sentence.    As  to  conviction,  he submits that the Police failed to prove beyond reasonable doubt that he was the driver.   As to sentence, he submits that if he has properly been found guilty, he should have been discharged without conviction because of difficulties he may have travelling overseas.

District Court decision

[3]      At the outset, Judge Perkins noted that the only evidence he heard in the case was from Constable Keating.  The defence elected not to call any evidence at the close of the Police case.

[4]      Constable Keating gave evidence that on 23 March 2012 he was on patrol in a traffic alcohol group in Karangahape Road in Auckland. At approximately 4.20 am he saw a BMW motor vehicle parked on dotted yellow lines on the side of Karangahape Road.  The vehicle was parked at an angle of 15 to 20 degrees, that is, the front was proximate to the kerb, with the rear of the vehicle facing out into the road.

[5]      Constable Keating got out of his vehicle.  As he approached the BMW, he noticed a passenger get out of the front passenger seat and walk away.  The appellant was seated in the driver’s seat, and the rear brake lights were activated.  Constable Keating then spoke to the appellant and asked him to undergo a passive screening test.   That test showed the presence of alcohol, and in accordance with the usual procedures he assembled the same device so that he could undertake a breath screening test.   He asked the appellant to undergo the breath screening test.  That showed the alcohol level on the appellant’s breath exceeded 400 micrograms of

alcohol per litre of breath.  He showed the results to the appellant and then required him to accompany him to what is colloquially referred to as the “booze bus” for an evidential breath test.

[6]      The appellant got out of his vehicle, and gave Constable Keating the keys. He then got into the Police vehicle to be transported to the booze bus, where further procedures were undertaken.   There was no issue with any of the subsequent procedures.

[7]      Judge Perkins noted that the sole issue in the case was the identity of the person who drove the BMW motor vehicle to where it was parked on Karangahape Road.  Judge Perkins referred to the case of Police v Graham,1  which was cited to him by counsel for the appellant.  He reviewed the facts of that case and stated:

[18]  That is not the situation here.  The facts that are presented to me are that the vehicle was parked at an angle in what was clearly a no parking zone on Karangahape Road.  The defendant was seated in the driver’s seat.  The brake lights of the vehicle were activated.  The key was in the ignition.  A person  was  alighting  from the  vehicle  as  the  police  officer  approached. There is no suggestion that the defendant was unconscious at the wheel of the vehicle, and indeed identity is not in dispute.

[19]   The defendant has not given evidence, which was not the case that applied in Graham, where obviously Judge Hubble would have been faced with the circumstances upon which, based on the prosecution evidence, he would  have  been  entitled  to  draw  an  inference  in  the  absence  of  any evidence from the defendant.

[20]   That is the position that I am faced with.   In my view a reasonable inference could be drawn from the facts which have been presented in this particular case and in a situation where the defendant has chosen not to give evidence which might then enabled the Court to have further facts upon which to decide whether an inference should be drawn.

[8]      Judge Perkins concluded that on the facts presented to him it was reasonable for him to draw an inference that the appellant had been driving the vehicle to the point where he was observed by the Police officer with the passenger alighting.  The Judge drew the inference that the appellant had driven the vehicle in Karangahape Road up to that point.   On that basis, with all the other evidence not subject to

criticism, Judge Perkins found the charge proved.

1      Police v Graham [2002] DCR 922 (DC).

Appellant’s submissions

[9]      The appellant presented his own submissions, which were clearly focussed and well presented.   He submitted that the Police had failed to prove beyond reasonable doubt that he was driving a motor vehicle on Karangahape Road on the night in question.  He referred to the following points in the evidence:

(a)       Constable Keating did not see him driving along Karangahape Road or driving the vehicle at any time that night.

(b)The  BMW motor  vehicle  was  stationary when  Constable  Keating approached it.

(c)       Constable Keating did not ask him if he had been driving.

(d)      Constable Keating did not ask him if he intended to drive that night.

(e)       Constable Keating did not talk to the passenger who got out of the vehicle when he approached it.

(f)       Constable Keating did not talk to other witnesses on the footpath. (g) Constable Keating did not see the key in the ignition.

[10]     The  appellant  submitted  that  there  was  a  clear  error  in  Judge  Perkins’ judgment in that he said the key was in the ignition.  The appellant submitted that this error vitiated his decision.  The appellant also submitted that the Police case was built on inference only.  Where there was an equal inference available that he was not driving the motor vehicle, the Police had failed to prove that he was the driver beyond reasonable doubt.

[11]     In that regard, the appellant referred me to the comments of Judge Fraser in the Auckland District Court on 8 November 2012 in the course of a status hearing. These comments seemed to indicate to the appellant that the Judge would have dismissed the charge if he had been dealing with the matter as a defended hearing.  I

explained to the appellant that there is no record of any such comment on the Court file.  Even if there had been, it was a not a matter that I could take into account as Judge Fraser was not the Judge who heard and determined the charge.

[12]     The  appellant  also  submitted  that  had  Constable  Keating  spoken  to  the passenger he would have found out who had driven the car to Karangahape Road. The appellant said he made exhaustive attempts to find that woman, who he had only met that night, to appear as a witness, but to no avail.  Again, I explained to the appellant that I had to determine the appeal on the basis of the evidence led in the District Court.  I could not take into account his submissions on that point.

[13]     Finally, the appellant submitted that the consequences of a conviction far outweighed the seriousness of the offending.   He submitted that, in any event, he should have been discharged without conviction under s 106 of the Sentencing Act. He stated that he and his business partner were launching a 100 per cent natural skin care range into Asia, South America, North America, India and Japan in the third quarter of this year.   They had been working on this since May 2012.   As chief executive officer he would be required to travel to those countries to forge relations with suppliers, wholesalers, distributors and customers.   He submitted that a conviction would prohibit the anticipated extensive unimpeded international travel to make the business a success.  He submitted that this business opportunity was his financial security for the future.  He had recently suffered a loss of wealth through a divorce and a property deal that turned sour.

Discussion

[14]     The sole error of fact to which the appellant points is a comment made by Judge Perkins in his oral decision that the key was in the ignition.   The evidence from Constable Keating was that the brake lights on the appellant’s vehicle were showing as he approached the vehicle.  In cross-examination, Constable Keating was asked the question by counsel for the appellant whether he was familiar with the fact that the brake lights on a BMW would activate if the key was in the accessory position.  Constable Keating was, however, not able to confirm that to be the case. From both the fact that the brake lights were showing and from counsel’s question,

Judge Perkins has therefore drawn the inference that the keys were in the ignition. The appellant advised me today that in fact the brake lights can be activated when the key is not in the ignition but there was no evidence of that before the District Court Judge. While the inference that the key was in the ignition was clearly open to the District Court Judge, as a matter of fairness to the appellant, who has represented himself, I will put that finding of fact to one side.  I will now consider whether the District Court Judge was still able to draw an inference that the appellant had driven the motor vehicle to where it was parked in Karangahape Road that night.

[15]     It is well established that a Court may infer facts from the existence of other facts. As the Court of Appeal said in R v Puttick:2

Inference is simply one of the mental processes which may be used by a jury in carrying out its primary task of assessing the evidence and deciding whether or not it establishes the guilt of the accused beyond reasonable doubt.

[16]     The Court went on to note that there is no distinction either in law or logic between facts established by direct evidence and those established by inference.

[17]     Furthermore, a major factor in this case is that the appellant chose not to give evidence to say he was not driving the motor vehicle on the night in question.  It is clear that in those circumstances, a Court is entitled to take a defendant’s election not to provide an explanation into account when the circumstances were such as to call

for an explanation.3

[18]     Having carefully reviewed the notes of evidence and counsel’s submissions, I am of the view that there was ample evidence from which the District Court, and this Court on appeal, could infer that the appellant was driving:

(a)      The BMW motor vehicle is owned by the appellant;

(b)      It was found at 4.20 am parked on dotted yellow lines in Karangahape

Road at an angle of about 15 to 20 degrees from the kerb;

2      R v Puttick (1985) 1 CRNZ 644 (CA) at 647.

3      Trompert v Police [1985] 1 NZLR 357 (CA).

(c)      It is unlikely that a BMW motor vehicle would be parked on dotted yellow lines in Karangahape Road for any length of time as it would place the vehicle at risk of theft, damage, being ticketed or towed by the relevant authorities.  An inference is available that it must have been driven there relatively recently;

(d)      The appellant was seated in the driver’s seat;

(e)      The passenger was a woman who the appellant had met for the first time that evening.   It is unlikely that he would have permitted a woman he did not know, and had just met, to drive his BMW motor vehicle;

(f)      The brake lights of the vehicle were showing as Constable Keating approached the vehicle, which suggests that the appellant had his foot on the brakes;

(g)The appellant  gave the  keys  of the vehicle to  Constable Keating, probably upon the request of Constable Keating (he could not remember if he made a specific request for the keys); and

(h)At no stage during the procedure did the appellant say “You’ve got the wrong person.  I am not the driver”.

[19]     On the principles set forth in Trompert, a Court is also able to take into account the fact that a defendant did not give evidence in circumstances where an explanation was called for.  This is notwithstanding that the burden of proof remains on the prosecution throughout the case.

[20]     Each case, of course, depends on its own unique facts.   I agree with Judge Perkins however that the case of Police v Graham4  was distinguishable from the present case because of the state of inebriation of the defendant in Graham.   The defendant in Graham gave evidence to say that when he got into his vehicle he

realised he was so drunk that he just lay down to sleep it off as he did not want to leave the vehicle unattended when it was in danger of being damaged.

[21]     This case has more similarity with Sanger v Police5  where Mr Sanger was found sitting in the driver’s seat of his car with the keys in the ignition in the McDonald’s carpark at 12.40 am.  Mr Sanger did not give evidence, but argued that the prosecution had not proven he was the driver.

[22]     In dismissing the appeal, Rodney Hansen J stated:

[9]  The question is whether the circumstances in which the appellant was located gave rise to such a prima facie case.  In my view, they did.  Plainly the car the appellant was sitting in did not reach the McDonald’s carpark on its own.  Normally a person who has not driven or does not intend to drive a car does not sit in the driver’s seat with the keys in the ignition.   It was accepted in evidence that at the time he was apprehended the appellant was consuming a McDonald’s Big Mac Combo, plainly supporting an inference of recent arrival and purchase.  A further matter not referred to by the Judge but relied on by Mr Harborow is evidence that the appellant reacted to failing the breath screening test with the expletive “bugger”.

[10]  In my view, the matters supported an inference that the appellant had driven the car to the location at which it was found and were sufficient to establish a prima facie case.   If that inference was open to rebuttal, an innocent explanation could readily have been provided by the appellant for his presence behind the wheel of the car.   His failure to provide such an explanation at the time or in evidence was properly to be taken into account by the Judge in determining the weight to be given to the evidence of the police officer.   That evidence, in my view, was sufficient to support the Judge’s finding that the appellant had indeed been driving the car.

[23]     In these circumstances, the appeal against the Judge’s finding that the charge

was proved beyond reasonable doubt, is dismissed.

[24]     As to the submission that a discharge without conviction should have been granted, I enquired of the appellant whether he was able to provide me with more information  regarding  the  consequences  of  a  conviction  for  drink  driving.    He advised me that his new business was in the process of testing formulations and finalising branding.  He had a partner in the business enterprise who had significant experience in the skin care business in New Zealand and submitted that a conviction would make it more difficult for him to freely travel overseas.

[25]     I am of the view however, that to establish a proper basis for a discharge without conviction it is necessary for a sentencing Court or an appellate Court to have sufficient material to support such an application.  It seems that an application for a discharge without conviction was not made in the District Court.  There is also insufficient material produced in support of the application in the High Court.   In fact, there is no material at all.

[26]     With respect to the appellant, it seems to me that a conviction for drink driving is in a different category altogether from serious violent offences or even offending involving dishonesty.  It is unlikely to be viewed by overseas authorities as seriously as violent or dishonest offences.

[27]     I am of the view that there is therefore insufficient material for me to review the sentence imposed. The appeal against sentence is also dismissed.

……………………………….

Woolford J