Yoganathan v Police
[2015] NZHC 2320
•24 September 2015
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2015-404-000200 [2015] NZHC 2320
IN THE MATTER OF an appeal against conviction BETWEEN
RAGULAN YOGANATHAN Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 16 September 2015 Counsel:
A J Haskett for the Appellant
M K Regan for the RespondentJudgment:
24 September 2015
JUDGMENT OF EDWARDS J
This judgment was delivered by Justice Edwards on 24 September 2015 at 4.30 pm, pursuant to
r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
Solicitors: Legal Defence Service Ltd, Auckland
Kayes Fletcher Walker Ltd, Auckland
YOGANATHAN v POLICE [2015] NZHC 2320 [24 September 2015]
[1] Mr Yoganathan appeals his conviction1 for driving a motor vehicle on a road while under the influence of drink to such an extent as to be incapable of having proper control of a vehicle.2
[2] Counsel for Mr Yoganathan, Mr Haskett, submits that Judge Russell erred in his assessment of the evidence:
(a) by failing to give adequate weight to adverse credibility findings when weighing other aspects of the evidence necessary to establish the charge;
(b) that Mr Yoganathan was incapable of having “proper control” of the
vehicle; and
(c) that any excess alcohol level equates to an individual being incapable of having proper control.
[3] The respondent submits that there has been no miscarriage of justice. Judge Russell was well placed to evaluate the credibility of each witness, and he was entitled to reach the findings on the evidence that he did.
Background
[4] Mr Yoganathan’s conviction follows events on the evening of 25 July 2015. Mr Yoganathan was driving along Reagan Road in Manukau. Mr Prakash was in the passenger seat. There was a checkpoint on Reagan Road. Constable Morgan and another constable were parked in a patrol car on Albert Street, a side street off Reagan Road.
[5] Mr Yoganathan turned into Albert Street and parked on the side of the road.
Constable Morgan’s evidence was that he saw Mr Yoganathan drive into
1 NZ Police v Yoganathan [2015] NZDC 14062 (Decision).
2 Land Transport Act 1998, s 58.
Albert Street. Constable Morgan approached the car and asked Mr Yoganathan to undergo a passive breath screening test (the first test) which showed a failed reading. Constable Morgan then says he proceeded to administer the roadside evidential test with a Drager 9510 (the second test). That second test revealed a level of alcohol over 400 micrograms. Mr Yoganathan denies that the second test was administered. Constable Morgan says that he read Mr Yoganathan his rights under the New Zealand Bill of Rights Act 1990 and asked him to accompany him back to the Manukau Police Station for further testing.
[6] Mr Yoganathan was not cooperative. He was forcibly removed from his car, handcuffed and taken by two police constables back to the patrol car. In the course of being moved from his car to the patrol car, Mr Yoganathan suffered a broken collarbone and three fractured ribs.
[7] At the Manukau Police Station, Mr Yoganathan was asked to undergo further breath testing procedures. The District Court decision records that those procedures could not be completed because Mr Yoganathan refused to do any test at all. A medical practitioner, Dr Parbhu, was called to the station to examine Mr Yoganathan. Dr Parbhu gave evidence at the hearing to the effect that Mr Yoganathan admitted to drinking alcohol but refused to cooperate with the testing procedures. Dr Parbhu’s evidence was that Mr Yoganathan was walking on his knees, behaving strangely at the station, smelt of alcohol and had red eyes. He concluded that Mr Yoganathan was under the influence of alcohol, but was not able to establish whether there were any drugs or other substances which had been taken. Dr Parbhu’s opinion was that Mr Yoganathan was not capable of controlling a motor vehicle.
[8] A hospital report from an examination of Mr Yoganathan the following day confirmed the three broken ribs and the broken collarbone.
District Court decision
[9] The Judge recorded that the defended hearing before him lasted most of the day.3 He recalled the evidence from the four witnesses: Dr Parbhu,
3 Decision at [1].
[10] In relation to the disputed evidence surrounding the administration of the second test, the Judge found as follows:4
What Constable Morgan said occurred was that he asked Mr Yoganathan for his name and address which Mr Yoganathan accepts he supplied. He was asked to and underwent a passive breath-screening test which showed a failed reading. Constable Morgan said he then proceeded to administer the roadside evidential breath test with a Drager 9510, after advising Mr Yoganathan that he required him to undertake this test without delay. Mr Yoganathan does not accept that this second test was administered. I accept Constable Morgan’s evidence that he did administer the two tests as he described. I consider Mr Yoganathan’s recall and judgment was affected by the alcohol that he had consumed.
[11] The Judge also noted a dispute about whether advice under the New Zealand Bill of Rights Act had been administered and accepted that it had been administered on two separate occasions.5
[12] The Judge recorded the withdrawal of a separate charge for failing to supply a blood specimen. This followed concerns expressed by the Judge about the limited time that Mr Yoganathan had to consider whether to supply a blood specimen and his arrest for refusing to supply it in all the circumstances.6
[13] The Judge considered the burden of proof, setting out three possibilities in circumstances where the defence gives evidence:7
(a) If I accept the defence evidence, then on the face of it I must acquit Mr Yoganathan because it would mean I could not be sure about the prosecution case.
(b) If I am not sure about whether to accept the defence evidence the same follows because I would have a reasonable doubt about the prosecution case being proved.
(c) Finally if I reject the defence evidence it does not mean that Mr Yoganathan has to be convicted. I need to stand back and look at all the evidence that I do accept and decide whether I am satisfied the charge is proved beyond a reasonable doubt.
4 At [4].
5 At [9].
6 At [14]-[16].
7 At [18].
[14] The Judge found that there was no doubt that Mr Yoganathan was driving on both Reagan Road and Albert Street. He was seen driving by Constable Morgan and admitted as such.8
[15] In respect of the second element that had to be proved, the Judge took into account a number of different factors as follows:9
In this case the evidence of him being under the influence of drink is firstly Mr Yoganathan’s admissions that he had been consuming alcohol. Alcohol was smelt on his breath by Constable Morgan, Dr Parbhu and Mr Prakash. Constable Morgan’s evidence was Mr Yoganathan’s speech was slurred when he was first seen in his vehicle, before his injuries were sustained. I accept Constable Morgan’s evidence in this regard. Constable Morgan noted at the time of his request for the breath testing procedures to be undertaken that Mr Yoganathan’s eyes were glazed and his eyes were bloodshot. His ability to observe exactly what went on in the vehicle on the road needs to be put in context that it was at night and the street lighting was limited. I accept Constable Morgan’s evidence that he administered the passive test which indicated a “fail” result and he has administered the breath screening test with the Drager 6510 which has shown a level of alcohol in Mr Yoganathan’s system in excess of 400 micrograms. Dr Parbhu noticed that Mr Yoganathan’s were red, something which he associated with the consumption of alcohol. From his observations he has concluded Mr Yoganathan was not fit to drive. I accept his evidence.
[16] The Judge then reviewed the factors recorded in Hedges v P,10 noting that many of the same factors were present in Mr Yoganathan’s case, namely, the admission of consumption of alcohol, slurred speech, redness of the eyes, and the level of alcohol confirmed by the second test to be more than 400 micrograms. The Judge specifically found that none of these observations could be attributed to the injuries that Mr Yoganathan had sustained, namely the broken ribs and the
collarbone.11
[17] The Judge also rejected counsel for Mr Yoganathan’s submissions that the
Police actions when requiring Mr Yoganathan to accompany them to the Manukau
8 At [19].
9 At [21].
10 Hedges v New Zealand Police HC Auckland CRI-2008-404-000172, 23 September 2008.
11 Decision at [23].
Police Station were such as to render subsequent evidence inadmissible. Using the balancing exercise required by s 30 of the Evidence Act 2006, the Judge found that he would admit the subsequent evidence in any event. He did not consider there had been an unlawful arrest as was submitted.12
[18] The Judge concluded that the Police had proved the two elements of the charge beyond reasonable doubt.13
Approach on appeal
[19] Pursuant to s 232 of the Criminal Procedure Act 2011, this Court may only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that a “miscarriage of justice has occurred for any reason”.
[20] Not every error or irregularity causes a miscarriage of justice. The error or irregularity must lead to either of the consequences listed in s 232(4)(a) or (b). That is, that any error or irregularity has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial, or a trial that was a nullity.
[21] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.14 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility that the verdict would be unsafe.15
[22] The appeal court should pay appropriate deference to findings made by a judge who had the advantage of hearing the witnesses on questions of credibility, but it must nevertheless, review the evidential basis for factual findings carefully. It is
well established that an appellate court should be hesitant to overturn the findings of
12 At [26].
13 At [27].
14 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J. See also Matenga v R [2009] NZSC 18.
15 At [110].
credibility made by a judge who has had the advantage of hearing the witnesses in court.16
[23] Despite this, these findings should not be treated as being immune to appeal and the appellate court is still required to undertake a “real review” by way of weighing conflicting evidence and drawing independent inferences and conclusions from the evidence as to credibility.17
Credibility
[24] Mr Haskett submits that the District Court Judge made adverse credibility findings against Constable Morgan as to:
(a) how the appellant broke four bones in his body; and
(b)the timing around evidential testing procedures back at the police station.
[25] Mr Haskett submits that the District Court Judge did not take into account these adverse credibility findings when it came to assessing Constable Morgan’s evidence on other matters central to establishing the actus reus of the charge.
[26] Constable Morgan’s evidence regarding the injuries sustained by the appellant was that he had fallen forwards whilst resisting police. He had his hands cuffed behind him at the time. This proposition was put to Mr Yoganathan during cross examination before the Judge. It was in the course of an exchange with the prosecutor about that line of questioning that the Judge remarked “I didn’t come down in the last shower Ms Ball, people and police going through this shouldn’t
come out at the other end with broken collarbones and broken ribs.”18
16 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5] and
[13]; Kueh v R [2013] NZCA 616 at [32]; Chetty v R [2015] NZCA 241 at [82].
17 Austin, Nichols & Co Inc v Stichting Lodestar, above n 16 at 5; and Tang Ming Hardware Co Ltd v Yu (2010) 19 PRNZ 683 (HC) at [9].
18 Notes of evidence at page 97, line 15.
[27] In his judgment, the Judge records that the injuries in question were suffered in the course of the appellant refusing to accompany the constable to the Manukau Police Station and that the appellant was forced to the ground.19 That is the extent of the Judge’s findings on how the injuries were sustained.
[28] The evidence regarding the testing at the police station was recorded by the
Judge as follows:20
[13] Constable Morgan was cross-examined at length by Mr Haskett, and was taken through the timeline of events which occurred in the Manukau Police Station. At 12.20 am Constable Morgan read Mr Yoganathan his bill of rights. At 12.20 am he refused the evidential breath test. At 12.20 am he was advised of the result. At 12.23 am he was given advice of the effect of failing to undergo the breath test. At 12.24 am he was read the bill of rights for the second time. At 12.24 am he was undergo (sic) a blood sample and at
12.25 am was arrested for failing to supply a blood sample.
[29] The Judge discussed this evidence in the context of the charge of failing to supply a blood specimen. As recorded in his decision, the Judge had expressed concern about whether or not the appellant had sufficient time afforded to him to decide whether to provide a blood specimen.21 The Police acknowledged those concerns and elected not to proceed with that charge which was then dismissed.
[30] Mr Haskett invites this Court to conclude that the evidence given by Constable Morgan regarding the testing procedures at the police station was false because it could not have happened due to the very tight timing of the process. He submits that the failure to disclose CCTV footage of the suite at the police station where the breath testing procedures were attempted to be administered is further evidence that the evidential procedures were not conducted, and therefore Constable Morgan’s evidence was false.
[31] The failure to disclose the CCTV footage was put to Constable Morgan in cross examination who replied that he had only been informed of the request the day
prior to the trial and that it was not his responsibility to source the footage.
19 Decision at [6].
20 At [13].
21 At [15].
[32] I do not consider the Judge’s findings on these two aspects of the evidence to amount to adverse credibility findings against Constable Morgan. Nor do I consider that the Judge erred by not making express adverse credibility findings against Constable Morgan in these respects. A finding that injuries were sustained as a result of being forced, rather than falling, to the ground does not mean Constable Morgan was lying when he gave his account. A truncated timeline of events at the police station as recorded by the Constable does not necessarily mean that the events did not occur at all, and that the Constable’s evidence that they did is therefore fabricated. That evidence could equally mean that the events did occur, but the time at which they occurred was incorrectly recorded by the Constable. Similarly, failure to disclose CCTV footage could be evidence of a cover up; or it could indicate administrative oversight. The Judge had the advantage of hearing the witnesses give their evidence first hand. I am not persuaded there is any reason to depart from Judge Russell’s view of the evidence, or his findings, on these two aspects.
[33] Finally, even if there was an error in the weight the Judge attributed to Constable Morgan’s evidence, then I am not persuaded it was an error leading to a miscarriage of justice. Constable Morgan’s evidence was not the only evidence relied upon by the Judge in reaching his decision. Emphasis was also placed on the appellant’s own admissions, and the evidence of Dr Parbhu. The latter evidence in particular was independent objective evidence of the appellant’s capability to drive and provided cogent evidence establishing the charge.
Assessment of evidence
[34] Mr Haskett submits that the Judge erred in weighing seven factual issues in establishing that the appellant was not capable of having proper control.
[35] The first of those factual issues is the conflict in the evidence between Constable Morgan and the appellant as to whether or not the second test was administered. Mr Haskett submits that the weight of the evidence was that there was no second test administered. He submits that Constable Morgan’s evidence that there was such a test should not be believed given the scepticism the Judge
expressed about Constable Morgan’s account of how the appellant’s injuries were
sustained.
[36] The Judge considered the conflict in the accounts regarding the second test and preferred the evidence of Constable Morgan. He did so on the basis that the appellant’s recall and judgment were affected by the alcohol he had consumed. That was a reasonable finding for the Judge to make having heard each of the witnesses give evidence. There is no basis to interfere with this factual finding and I decline to do so.
[37] In respect of the other issues, Mr Haskett’s submissions in summary are that the Judge failed to properly weigh:
(a) the fact that the appellant had only consumed three vodka and orange drinks;
(b)that, other than Constable Morgan’s evidence of a “very strong” smell of alcohol, there was no evidence about the strength of the smell of alcohol;
(c) that there were other plausible explanations for the appellant’s red eyes and that Dr Parbhu’s evidence in that respect should be excluded because it came after an illegal arrest on the roadside;
(d)that there was no evidence that the appellant’s speech was not normal and that Constable Morgan’s evidence regarding slurring should be disregarded given the adverse credibility findings made against him;
(e) there was no evidence that the appellant was unsteady on his feet; and
(f) there was evidence of the appellant’s actual control over the vehicle.
[38] The parties’ competing contentions on each of these issues was before the Judge at trial. Dr Parbhu was cross examined about the cause of the appellant’s red eyes and was adamant that that it was due to intoxication rather than crying,
tiredness or distress. Mr Haskett’s submission regarding the appellant’s actual control of the car was rejected by the Judge given his finding on the effects of the consumption of alcohol on the appellant.22
[39] The Judge weighed the totality of all this evidence in concluding that the appellant was “incapable” for the purposes of the charge. That was an appropriate approach to take. I see no reason to disturb that finding on appeal.
[40] Mr Haskett’s submission that Dr Parbhu’s evidence should be excluded on the grounds that it followed an illegal arrest was considered by Judge Russell also. The Judge rejected those arguments stating that he did not consider there had been an unlawful arrest and that in any event he would have admitted the evidence following the balancing exercise in s 30 of the Evidence Act.
[41] There was some dispute in the District Court about whether Mr Yoganathan was arrested before he was taken back to the police station. Mr Haskett submits that the Judge found that Mr Yoganathan was not arrested until the end of the breath testing procedure at the police station. He submits that because Mr Yoganathan was not arrested, the officers’ actions in handcuffing and physically moving Mr Yoganathan were illegal and should result in the exclusion of evidence subsequently obtained.
[42] I agree with the Judge’s conclusion that any impropriety that occurred in the process of taking Mr Yoganathan from his car to the police station does not justify the exclusion of Dr Parbhu’s evidence. Mr Yoganathan was lawfully required to accompany the officers to the police station. If he refused to accompany the officers, they were entitled to arrest him. He was advised of his rights under the New Zealand Bill of Rights Act multiple times. Dr Parbhu’s evidence is cogent and reliable. In those circumstances, the Judge’s conclusion is justified.
[43] In summary, I do not accept Mr Haskett’s submission that the prosecution did not prove that the appellant drove under the influence of alcohol to such an extent as
to be incapable of having proper control. I agree with the Judge’s assessment of the
22 At [25].
evidence as proving that charge and see no reason to depart from the conclusions he reached in respect of that evidence.
Excess alcohol not determinative
[44] Finally, Mr Haskett submits that Judge Russell has applied a wrong legal test by treating any excess alcohol level as being determinative of whether all motorists are capable of having proper control. Mr Haskett relies on the decision of this Court in Gutsell v New Zealand Police as establishing that it is not enough to prove intoxication; it also has to be proved that “the level of intoxication was to such an extent as to render [the alleged offender] incapable of having proper control”.23
[45] It is clear from the Judge’s decision that the Judge did not rely solely on the second test result showing a reading over 400 micrograms in determining that the appellant was intoxicated to the extent that he was incapable of exerting proper control. This was simply one strand of evidence which the Judge took into account, along with others, in showing that the degree of intoxication was such as to render the appellant incapable for the purposes of the charge.24 I do not regard the Judge as making an error in this respect, let alone an error leading to a miscarriage of justice.
Other grounds
[46] Mr Haskett raised two other issues during the hearing of the appeal. First, he submits the Judge’s statements regarding the burden of proof were at odds with the statements made in R v McI.25 Second, he submits that the Judge had failed to give reasons for his decision, and in particular reasons for his credibility findings.
[47] As to the first issue, Mr Haskett submits that the correct direction where the defendant gives evidence as to the onus and burden of proof is as set out in R v McI
as follows:26
23 Gutsell v New Zealand Police [2013] NZHC 1499 at [32].
24 Decision at [21].
25 R v McI [1998] 1 NZLR 696 (CA).
26 At 708.
Ideally, the direction should have followed the logically correct form, that is, if you accept the accused’s evidence on the key issues, you should acquit; if you consider there is a reasonable possibility the accused’s evidence on the key issues might be true, you should acquit; if you reject the accused's evidence on the key issues, you must not automatically conclude he is guilty, you must still examine all the evidence which you do accept and decide whether it establishes the accused's guilt beyond reasonable doubt.
[48] Mr Haskett submits that the Judge’s statements on the burden of proof (reproduced at [13] above) differ to this in that the Judge referred to not being sure about the defence evidence rather than whether there was a reasonable possibility that the accused's evidence might be true.
[49] I do not consider there to be anything of substance in this complaint. The slight difference in the expression of the test is not material in my view and does not amount to an error vitiating the decision in any way.
[50] On the second issue, Mr Haskett refers to the decision in Tekira.27 In that case, the Court referred to the Court of Appeal’s decision in R v Awatere in which the Court observed that “Judges and Justices should always do their conscientious best to provide with their decisions reasons which can sensibly be regarded as adequate to the occasion”.28 The Court in Tekira went on to note that:
[26] Where there are competing narratives of the events in question, given by an accused and the Police, reasons for accepting one narrative ahead of the other are, as Ronald Young J emphasised in Wilkie, important to ensure that reasons “adequate to the occasion” are provided.
[51] Mr Haskett also refers to Wright v Police in which the Court referred to the expectation that reasons for credibility determinations would be given by a District Court Judge.29
[52] Mr Haskett submits that just because the Judge rejected the evidence regarding the second test, does not mean he should have rejected the other evidence on the other matters going towards establishing the charge. In respect of those matters, he says that there were not adequate reasons as to why the evidence given
by the defence was rejected.
27 Tekira v New Zealand Police [2014] NZHC 700.
28 R v Awatere [1982] 1 NZLR 644 (CA) at 649.
29 Wright v Police HC Christchurch AP 17/91, 15 March 1991 at 7.
[53] The obligation is to provide reasons “adequate to the occasion”. The Judge gave reasons why he preferred the evidence of Constable Morgan in relation to the administration of the second test. Although explicit reasons were not given in relation to each of the other factors, it is clear from his decision that the Judge preferred the evidence of Dr Parbhu, whom he noted was an experienced general practitioner and who did not agree that the red eyes could have been caused by
crying.30 In my view, the reasons given by the Judge as to the rejection of the
appellant’s evidence were adequate to the occasion.
[54] Overall, I am not persuaded that Judge Russell erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.
Result
[55] The appeal is dismissed.
Edwards J
30 At [10] and [12].
2
3
0