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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-404-128

K
Appellant

v

NEW ZEALAND POLICE
Respondent

Hearing:	2 August 2010

Appearances: S Magnussen for the Appellant
E J Walker for the Respondent

Judgment:	3 August 2010

RESERVED JUDGMENT OF ELLIS J

This judgment was delivered by me on 3 August 2010 at 2 pm, pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:	Crown Solicitors, PO Box 2213, Auckland 1140
S A Magnussen, PO Box 47, Katikati 3166

K V POLICE HC AK CRI-2010-404-128  3 August 2010

[1]       Mr   K     appeals   against   his   conviction   in   the   District   Court   on

13 April 2010 for driving with excess breath alcohol (third or subsequent occasion). The conviction followed an evidentiary hearing before Judge A-M J Bouchier on that day.  That hearing, like this appeal, was focussed on the question whether it could be proved beyond reasonable doubt that Mr K   had in fact been driving prior to the time he was tested.

[2]       It is undisputed that on the night of 7 May 2009 Mr K   was found in the driver’s  seat  of  a  car  parked  on  a  yellow  line  outside  a  liquor  store  in Commerce Street.  Friends of his were also in the car.  The keys were in the ignition. The passenger door was open and another friend was inside the liquor store purchasing alcohol.

[3]       The car was approached by a police officer with a view to advising the occupants of the liquor ban that exists in central Auckland.  Following a discussion with Mr K   he was breath tested and found to be over the legal limit.  It seems that other occupants of the car, including “George” who had gone into the liquor store, were also later breath tested in order to ascertain whether any of them were able legally to drive the car away.  Two of the occupants of the car were found to be under the limit while another, like Mr K  , failed the EBT.

[4]       After administering the EBT to Mr K   the police officer concerned wrote in his notebook in relation to Mr K   “He admits his last drink was two hours ago, he said he drove here from Mt Eden.”  Mr K   also gave false details to the police officer, saying that he was his brother.

[5]       At the hearing before Judge Bouchier in the District Court Mr K   gave evidence in his own defence.   It had also been planned to call two of the other occupants of the car including “George” who Mr K   said was the driver on the night in question.  However those witnesses were not formally summonsed and for various reasons did not turn up to court on 13 April.  Ms Magnussen sought, but was not granted an adjournment on Mr K  ’s behalf, although there is no record of this.

[6]       Ms Magnussen was, however, able to locate and call another occupant of the car, Mr Fuimoanu, who gave evidence that was broadly consistent with that of Mr K  , namely that George rather than Mr K   had been driving the car on the night in question.  Mr K   also gave evidence.  He said he had moved into the driver’s seat from the passenger seat when George got out because the car was parked on a yellow line.  He also referred to being better able to control the music that was being played in the car from that position, although he accepted that he could also do that from the passenger seat.

[7]       Evidence  was  also  heard  from  Constable  Roberts  who  had  spoken  to Mr K   and administered the EBT.  He was adamant that Mr K   had told him on the night in question that he had been the driver of the car and said that Mr K   described the route he had taken from Mt Eden in some detail.  He said that at no time during the evening (whether at the roadside or later at the police station) did Mr K   ever assert that he was not the driver.

[8]       Mr K   brings the appeal essentially on three grounds, namely that:

a)        The words written in Constable Roberts’s notebook were capable of more than one interpretation;

b)        The question of who was driving the car could only be a matter of inference and the inference that it was Mr K   could not safely be drawn  from  the  proven  facts  (there  being other,  equally plausible inferences that could be drawn from those facts); and

c)        In not permitting an adjournment to allow the defence to call the other two witnesses Mr K   had been deprived of a fair trial, contrary to s 25 of the New Zealand Bill of Rights Act.

Who was the driver?

[9]       In finding Mr K   guilty of the EBA charge, Judge Bouchier identified the key issue as being whether he was the driver of the car.  She did not approach that

issue as a matter of inference.   She made it clear that she simply preferred the evidence of Constable Roberts to that of Mr K   and his friend.   Having first noted that the fact that Mr K   had lied to the police as to his identity was not necessarily indicative of his lying in Court, the Judge said at [16] of her sentencing notes:

However, I am the judge who has seen and heard the witnesses give their evidence.  I have listened to what the police officer said and I have listened to what Mr K   and his witness have said.   I unhesitatingly accept the police officer’s evidence.  I was impressed with his evidence.  He has noted the matters.   He gave his evidence and clearly knows the excess breath alcohol procedure much better than most of the young policemen these days. He took notes in his notebook as to what he asked the defendant in the driver’s seat as to whether he was driving.  Having received the answer that he was driving, with the detailed route that was taken to that area, he then proceeded to go into the breath testing procedure.  As I have said, that has not been challenged.

[10]     The learned District Court Judge then went on to record that she considered that she had been told “untruths” not only by Mr K   but also his friend.

[11]     It is trite that an appellate Court will rightly be cautious before interfering with the factual findings of a first instance judge, particularly when they rest on issues of credibility.  That said, even credibility findings are not completely immune from appeal. As the High Court of Australia said in Fox v Percy: 1

... the mere fact that a trial judge necessarily reached a conclusion favouring the  witnesses  of  one  party  over  those  of  another does  not,  and  cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge's conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being "incontrovertible", an appellate conclusion may be reached that the decision at trial is "glaringly improbable" or "contrary to compelling inferences" in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must "not shrink from giving effect to" its own conclusion.

1   Fox v Percy (2003) 214 CLR 118 at 126 per Gleeson CJ, Gummow and Kirby JJ.

above  makes  it  clear  that  she  was  influenced  in  her  credibility  findings  by Constable Roberts’ general expertise and efficiency, together with the fact that he had made a (more or less contemporaneous) note of his conversation with Mr K   in his notebook.   As Ms Magnussen submitted, however, the note is arguably ambiguous in the sense that “he drove here from Mt Eden” might mean that “we drove here from Mt Eden” rather than “I was the driver”.  It is in any event not a verbatim record of what Mr K   actually said and was, however, not seen or signed by him at the time.

[13]     It seems to me that the question for me is whether the learned District Court Judge’s assessment of the witnesses’ respective credibility can be said to be contrary to any compelling inferences that can be drawn from the other undisputed or proven facts.   The difficulty is that those facts are, in this case, capable of yielding more than one possible logical conclusion.

[14]     The starting point is necessarily the fact that Constable Roberts did not see Mr K   driving the car.  Mr K  ’s explanation as to why he was sitting in the driver’s seat while the car was parked outside the liquor store is not wholly implausible.  It appears that there were, or had been, two sober people in the car that night, one of whom was “George”.  As a matter of common sense one might assume that it had been him who had been driving.   This is, of course, consistent with Mr K  ’s evidence and that of his friend.

[15]     On the other hand, even if Mr K   did tell Constable Roberts that he was not the driver (and Constable Roberts vigorously denied this) he cannot have done so particularly forcefully.  He agreed to accompany the constable to the police station and to undergo another test there.   He signed the form acknowledging the EBA result.  He said he understood his rights when he was advised of them and declined the offer of a lawyer.  He was charged with the EBA offence.  It is difficult to see any of this as consistent with Mr K  ’s contention at trial that he told the Police that he was not in fact the driver.

matter that largely came down to credibility.   Having made that decision she articulated her reasons for preferring the evidence of Constable Roberts.  His general competence and efficiency was relevant to her assessment of the likely accuracy of his notes and of his recall, as well as his credibility generally.  By contrast it was not disputed that Mr K   had lied to the police and had continued to assert that he was in fact his brother until just prior to the trial.  Even though he may well have done so to protect himself it was a matter that Judge Bouchier was entitled to take into account.  And tellingly, if Mr K   had in fact been adamant at the time that he was not the driver it is difficult to see why he would have thought it necessary to give a false name to the police at all.

[17]     In summary, the two factual or evidentiary grounds of appeal must fail.

Adjournment/Fair trial

[18]     As to the fair trial (Bill of Rights) ground of appeal I agree with Ms Walker for the police that declining to grant an adjournment in all the circumstances of this case was not a matter that fundamentally went to the fairness of Mr K  ’s trial. The requirements of Part 2 of the Summary Proceedings Act were met.  Mr K   was present at the hearing, he was represented by counsel and was able to give evidence in his own defence.  As Judge Bouchier’s notes record, the nature of his defence was quite clear to her.  And as I have noted, another occupant of the car, Mr Fuimoanu, gave evidence and supported what Mr K   had said.   The real problem (from Mr K  ’s perspective) is that Judge Bouchier did not believe either of them.

[19]     Essentially it seems to me that what Ms Magnussen was seeking to argue under this ground was that the other witnesses that she had proposed to call on Mr K  ’s  behalf  might  have  been  regarded  as  more  credible  by  the  learned District Court Judge than Mr Fuimoanu.  That is, of course, a matter of speculation, and necessarily Mr K   would still have been faced with the contrary evidence of Constable Roberts, whom Judge Bouchier found particularly credible for the reasons already discussed.

Rebecca Ellis J