IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-404-285 [2013] NZHC 54

BETWEEN	AARON JAMES AUSTIN Appellant

AND	NEW ZEALAND POLICE Respondent

Hearing:	4 February 2013

Counsel:	AJ Haskett for Appellant
KV Mills for Respondent

Judgment:	4 February 2013

ORAL JUDGMENT BY RODNEY HANSEN J

Solicitors:	Legal Defence Service Limited, P O Box 90265, Auckland 1142 for Respondent
(Email:  lawyer@legaldefence.co.nz )
Meredith Connell, P O Box 2213, Auckland 1140 for Respondent
(Email:  kate.mills@meredithconnell.co.nz )

AARON JAMES AUSTIN V NEW ZEALAND POLICE HC AK CRI-2012-404-285 [4 February 2013]

Introduction

[1]       On 23 August 2012, after a hearing before Judge Fitzgerald in the Auckland District Court, Mr Austin was convicted on a charge of driving while disqualified. He was fined $600 and disqualified from driving for six months.

[2]       Mr Austin’s defence relied on evidence that at the time he drove he did not know that he was disqualified.   This is the so-called Millar defence based on a requirement that while knowledge of disqualification is to be assumed in the absence of evidence suggesting otherwise, if there is such evidence the prosecution must
affirmatively prove knowledge beyond reasonable doubt.

[3]       Mr Austin appeals against conviction on the grounds that the Judge wrongly excluded  evidence  of  prior  consistent  statements  that  would  have  assisted  the defence.  Alternatively, it is submitted that even without those prior consistent statements, the evidence did not establish to the requisite standard that Mr Austin knew that he was disqualified at the time he was apprehended.

Background facts

[4]       Mr Austin was disqualified from driving for six months on 6 May 2011.  He was stopped by the police while riding his motorbike on 14 October 2011.  He told both  police  officers  to  whom  he  spoke  at   the  time   that  he  believed  his disqualification  had  come  to  an  end.    In  evidence  at  the  hearing,  Mr  Austin reasserted his belief, claiming that he believed the period he was disqualified from driving ended on 6 October 2011.  He said that the miscalculation of one month was “just a stuff up on my behalf”.  In cross-examination it was put to him that he was aware that he could not get his licence back until November.   He emphatically rejected that proposition.

[5]       In re-examination, Mr Haskett, who also represented Mr Austin in the District

Court,  sought  to  introduce  evidence  of  conversations  in  which  Mr Austin  had

discussed with a friend the date on which the period of disqualification would expire. He argued that these conversations were admissible under s 35(2) of the Evidence Act   2006   on   the   basis   that   the  prosecution’s   cross-examination   challenged Mr Austin’s veracity by a claim of recent invention. The application was declined by Judge Fitzgerald who did not accept that there had been a claim of recent invention.

Judge’s decision

[6]       In his decision Judge Fitzgerald rejected Mr Austin’s claim that he believed his period of disqualification ended on 6 October 2011.   He said there were unsatisfactory aspects to his evidence which he found “not plausible”.  He described Mr Austin’s claim to have counted out the days on his fingers incorrectly in July for the first time and not turning his mind to the issue before riding in October as “not honest evidence in my view”.

The previous consistent statements

[7]       In support of the appeal, affidavits have been filed detailing the conversations relied  on  as  evidence  of  previous  consistent  statements.    Mr Austin  deposes  to having spoken to Wilfred Michael Rollason about his expectation that he would be able to drive after 6 October 2011.   Mr Rollason is a friend of Mr Austin’s father who was looking after Mr Austin’s house while he was overseas.

[8]       In his affidavit Mr Rollason confirms that on two occasions prior to the offending Mr Austin made statements to him regarding his ability to drive after his scheduled return from a trip to Thailand on 7 October 2011.  The first occasion was
23 September 2011 when Mr Austin is said to have asked Mr Rollason to pick up his truck from storage so that it would be at his home ready for him to drive when his disqualification ended upon his return from Thailand.  The second conversation took place on 30 September while Mr Rollason was driving Mr Austin to the airport.  The evidence is that Mr Austin said to him that he was looking forward to no longer being disqualified from driving when he returned from Thailand.

Discussion

[9]       Section 35 of the Evidence Act 2006 states:

35	Previous consistent statements rule

(1)        A  previous  statement  of  a  witness  that  is  consistent  with  the witness's evidence is not admissible unless subsection (2) or subsection (3) applies to the statement.

(2)        A  previous  statement  of  a  witness  that  is  consistent  with  the witness's evidence is admissible to the extent that the statement is necessary to respond to a challenge to the witness's veracity or accuracy, based on a previous inconsistent statement of the witness or on a claim of recent invention on the part of the witness.

(3)        A  previous  statement  of  a  witness  that  is  consistent  with  the witness's evidence is admissible if—

(a)	the	circumstances	relating	to	the	statement	provide reasonable assurance that the statement is reliable; and

(b)	the statement provides the court with information that the witness is unable to recall.

[10]     A claim of recent invention is made when it is suggested that a witness is being untruthful or inaccurate in their testimony.   It applies to any “invention” more recent than the events described.   The focus in Hart was on complainants in sexual cases inventing a story about the alleged sexual offending but the principles apply broadly  to  all  cases.    There  is  no  reason  to  confine  it  to  a  challenge  to  a complainant’s veracity.   It should apply equally to a challenge to a  defendant’s veracity on the basis of recent invention as is the case here.

[11]     It appears that the Judge accepted that in cross-examination the prosecution challenged the appellant’s veracity as to whether he genuinely thought his disqualification ended in October.   However, he appears to have been of the view
that Mr Austin’s evidence on this issue was not recent.  He said:

It was some questioning around timing of the holiday and that sort of thing but it certainly did not go beyond that to suggest that this was just something thought up at the last minute or thought up recently.

[12]     It appears that the Judge took the view that to be “recent” the invention had to have occurred within a short period before trial.   That is not the position as the discussion in Hart clearly shows.  In cross-examination the prosecution effectively put to Mr Austin that what he said to the police and in evidence about his disqualification ending in October was a concoction.   That was undoubtedly a challenge to his veracity based on a claim of recent invention in terms of s 35(2). Ms Mills responsibly did not seek to argue otherwise.

[13]     It  was  initially  suggested  by  Mr  Haskett  that  evidence  of  the  two conversations could be given as part of the appeal and that I could make a determination as to whether the evidence would or could have raised a reasonable doubt.    However,  I  am  satisfied  that  the  evidence  of  the  previous  consistent statements must be evaluated as part of Mr Austin’s evidence overall and, for that purpose, the appropriate course is to remit the matter back to the District Court for rehearing pursuant to s 131 of the Summary Proceedings Act 1957.

[14]     Mr Haskett presses, however, for the appeal to be allowed on the basis that the prosecution failed to prove beyond reasonable doubt that Mr Austin did not know that he was disqualified at the time of driving.  This is an ambitious submission in circumstances where, as the Court said in Millar, knowledge of the disqualification is to be assumed in the absence of evidence suggesting otherwise.  Credible evidence is required and the Judge made a clear finding that on that issue he did not find Mr Austin’s evidence to be plausible.   This Court on appeal will defer to a Judge on credibility findings unless it appears that, having regard to the evidence overall, the Judge has fallen into error.  There is nothing to suggest that to have been the case.  I am satisfied that the alternative ground advanced in support of the appeal cannot be sustained.

Result

[15]	For these reasons, the appeal is allowed.   The conviction is quashed.   The matter is remitted back to the District Court for rehearing.