Yoganathan v Police
[2014] NZHC 3335
•19 December 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2014-404-000333 [2014] NZHC 3335
BETWEEN RAGULAN YOGANATHAN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 16 December 2014 Appearances:
A Haskett for the Appellant
K Muirhead for the RespondentJudgment:
19 December 2014
[RESERVED] JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie on 19 December 2014 at 11.00 am
Pursuant to r 11.5 of the High Court Rules
Registrar/Deputy Registrar
Date:
YOGANATHAN v POLICE [2014] NZHC 3335 [19 December 2014]
Introduction
[1] On 19 September 2014, the appellant, Mr Yoganathan, was found guilty of one charge of driving with excess blood alcohol contrary to s 56(2) of the Land Transport Act 1988 by Judge L I Hinton in the District Court on the North Shore.
[2] The prosecution case was described by Judge Hinton in [2] of his judgment as follows:
There was one issue only. The question was whether or not Mr Yoganathan was the driver or rather had the prosecution proved beyond reasonable doubt that he was. The brief facts here are that Mr Yoganathan was being treated in an ambulance at the scene at the time the police arrived. There was a Mazda vehicle and a truck stationary with obvious prior involvement in a collision. No one was in the vehicles. The police case was essentially that because Mr Yoganathan was there, because he apparently owned the vehicle, and because his wallet and licence were found by the police officer in the vehicle, that he was the driver. No other witnesses were called by the police, including the truck driver or ambulance personnel. There was no witness as to the accident or as to the driving of the vehicle.
[3] Mr Yoganathan appeals the conviction. The appeal is advanced on two grounds:
(a) First, that Judge Hinton erred in admitting evidence that Mr Yoganathan’s driver’s licence was found in one of the vehicles – a Mazda car – involved in the collision. Judge Hinton considered that the licence was found in the course of an unlawful search and it was asserted for Mr Yoganathan that he erred in the proportionality assessment required under s 30 of the Evidence Act 2006.
(b)Secondly, it was asserted that even if evidence from the search was admissible, the prosecution had still not proved beyond reasonable doubt the act of driving, or the identity of any driver.
Judge Hinton’s Decision
[4] As noted above, Judge Hinton recorded that there was only one issue before him – whether or not the prosecution had proved beyond reasonable doubt that Mr Yoganathan was the driver of the vehicle involved in the collision.
[5] The Judge found that the police officer who attended the scene was not acting pursuant to any particular power of search when he entered the Mazda vehicle and found a wallet containing a driver’s licence in the car. Judge Hinton observed that the officer did not have a warrant to search the vehicle, and that various provisions in the Land Transport Act did not allow a search of the vehicle. He concluded that the search of the vehicle was unlawful, but that nevertheless, evidence that the driver’s licence was found in the vehicle should be admitted. He considered that the search of a glove box in a motor vehicle was less obtrusive than a search of a person or home, particularly when the motor vehicle is searched following an accident. The Judge took the view that Mr Yoganathan’s privacy interest was low, and that evidence of his driver’s licence being found in the vehicle was admissible. While he considered that other options were available to the police, the search was the most common sense option at the time. He also considered that evidence in relation to the driver’s licence was reliable and highly probative.
[6] Judge Hinton found that there was no evidence as to the registered owner of the Mazda vehicle in which the wallet was found, and that observations made by the truck driver to the police were inadmissible hearsay (the truck driver was not called).
[7] The Judge found that Mr Yoganathan was at the scene receiving treatment, and that his wallet and licence had been found in one of the vehicles which were involved in the collision. He accepted the police officer’s evidence that Mr Yoganathan appeared to have been drinking. The Judge concluded as follows:
…The irresistible inference is that Mr Yoganathan had been involved in an accident. Common sense tells me that it was recently before he was in the ambulance and that it was the accident involving at least the Mazda and the truck and he was in the Mazda…
Judge Hinton was satisfied that Mr Yoganathan was the driver. He considered that there was “no reasonable other inference or doubt”. The Judge noted that
Mr Yoganathan did not give evidence on oath at the trial, and he considered that the circumstances called for an explanation. He found the charge proven.
Analysis
[8] Given the views I have reached on this matter, it is not necessary for me to address whether or not Judge Hinton erred in admitting the evidence that Mr Yoganathan’s driver’s licence was found in the Mazda vehicle. Instead, I focus my attention on the second point raised in support of the appeal – see [3(b)] above.
[9] Section 56(2) of the Land Transport Act 1998 provides as follows:
56 Contravention of specified breath or blood-alcohol limit
…
(2) A person commits an offence if the person drives or attempts to drive a motor vehicle on a road while the proportion of alcohol in the person's blood, as ascertained from an analysis of a blood specimen subsequently taken from the person under section 72 or section 73, exceeds 80 milligrams of alcohol per 100 millilitres of blood.
[10] As can be seen, the prosecution has to prove beyond reasonable doubt that the person charged was driving or attempting to drive a motor vehicle.
[11] Here, there was no evidence that the Mazda car involved in the collision was being driven or that any attempt was being made to drive it at the relevant time.
[12] The only witness called by the police was a police constable, Constable Reid. He said that he was working with another police constable on the afternoon of
11 December 2012, and that he attended a crash on Dominion Road at about
2.10 pm. He was asked what he saw when he arrived. He answered as follows:
I saw a Mazda Atenza registration FUR453 had crashed into a side of a truck the truck being a white Mitsubishi Canter registration BKL818.
In cross-examination, Constable Reid accepted that he did not see the crash. He acknowledged that when he arrived at the scene, both the fire and ambulance emergency services were already there. They had dealt with oil which had spilled on the road, and they had attended to traffic control and other matters. He accepted that
there was nothing to assist him to determine how long before he arrived, the accident had occurred. He could not say whether anything had been moved or altered between the time of the accident and his arrival. He confirmed that no crash investigation was carried out by the police.
[13] For some inexplicable reason, the police did not call the truck driver as a witness.
[14] In my view, there was no evidence on which the Court could find, beyond reasonable doubt, that the Mazda car was being driven at the relevant time or that any attempt had been made to drive it. While perhaps unlikely, it is not inconceivable that the truck driver had collided with the Mazda car while it was parked.
[15] In my judgment, the Crown failed to prove the actus reus of driving beyond reasonable doubt.
[16] The other matter which the Crown failed to prove beyond reasonable doubt is the identity of the driver of the Mazda car, even if it was being driven at the time.
[17] Judge Hinton considered that identity was proved because Mr Yoganathan was in the ambulance when Constable Reid arrived, and because a wallet was found in the Mazda which contained Mr Yoganathan’s driver’s licence.
[18] In my judgment, even if the evidence about the driver’s licence was admissible (and I make no finding in that regard), there was still insufficient evidence to prove the identity of the driver of the Mazda vehicle beyond reasonable doubt. I note the following:
(a) The driver’s licence was not produced as an exhibit;
(b)Details from the licence such as name, address and date of birth were not given in evidence;
(c) The only evidence which connected the licence to Mr Yoganathan was Constable Reid’s non-expert opinion that Mr Yoganathan was the person in the photograph on the driver’s licence. In his evidence-in- chief, Constable Reid stated that Mr Yoganathan’s driver’s licence was found in the vehicle. He said:
I could see from the driver’s licence that it was in fact
Yoganathan in the back of the ambulance.
The constable also made a dock identification of Mr Yoganathan in
Court.
(d)When he was cross-examined about this, Constable Reid conceded that he had not made any notes at the time of what the person in the back of the ambulance looked like. When he was asked what the person on the photograph on the driver’s licence looked like, he simply said that he was an Indian male. When he was asked to describe the person shown on the photograph, he said as follows:
I can’t recall if he had hair, or had, didn’t have hair, all I know that when I looked at the ID at the time, it was the person in the back of the ambulance, which is the defendant here today.
He could not recall what the person in the back of the ambulance was wearing.
[19] In my view, this evidence is unsatisfactory and certainly not particularly reliable. The Court was left simply with Constable Reid’s opinion. The constable had little recollection of the detail of the person shown in the photograph on the licence, or of the person in the back of the ambulance.
[20] Further, even if it was Mr Yoganathan’s licence which was found in the Mazda vehicle, that does not of itself compel the conclusion that Mr Yoganathan was driving the vehicle at the time. There was nothing else linking Mr Yoganathan to the vehicle. The police did not carry out any checks as to its ownership. There was no evidence as to whether there was anyone else in the vehicle at the time. No eyewitness to the accident was called and there was simply no evidence as to how
had left the scene, either to get help or to avoid responsibility. The case advanced by the prosecution amounted to no more than that the unlucky person in the ambulance must have been the driver of the motor vehicle involved in the collision. That is not proof beyond reasonable doubt.
[21] In my view, the prosecution have also failed to prove the identity of the driver and whether or not evidence of Mr Yoganathan’s driver’s licence found in the motor vehicle was properly admissible in evidence.
[22] I acknowledge that the Court of Appeal in Trompert v Police1 held that in a summary trial, where a prima facie case has been established, a District Court Judge is entitled, in determining what weight should be given to the evidence, to take into account the failure of the accused to give, by his or her own evidence or otherwise, the explanations which he or she might naturally be expected to give if he or she were innocent.
[23] No doubt, in light of the New Zealand Bill of Rights Act 1990, and in particular s 25(c) – the presumption of innocence – and s 25(d) – the right not to be compelled as a witness – the New Zealand courts have applied the Trompert approach conservatively.2 Even accepting full application of the Trompert principle, in my view, this was not a case where the prosecution established a prima facie case against Mr Yoganathan. The police evidence was simply that Mr Yoganathan was in
an ambulance near the unpreserved scene of an accident that had occurred sometime earlier. Constable Reed’s evidence that Mr Yoganathan was the person whose photograph appeared on the licence was not particularly reliable, and even if the licence belonged to Mr Yoganathan, that does not prove that Mr Yoganathan was driving the vehicle. In my view, the prosecution evidence was insufficient to require an explanation from Mr Yoganathan, or to allow adverse inferences to be drawn
against him under the Trompert principle.3
1 Trompert v Police [1985] 1 NZLR 357 (CA); and see, Brodrick v New Zealand Police HC Whangarei CRI-2004-488-053, 25 November 2004.
2 R v Haig CA-267/04, 23 August 2006 at 104.
3 And see, R v Griffith (1985) 1 CRNZ 445 (CA) at 448.
Wylie J