IN THE HIGH COURT OF NEW ZEALAND INVERCARGILL REGISTRY

CRI 2013-425-000027 [2013] NZHC 1898

PAREMOEONE PAKU Appellant

v

POLICE Respondent
Hearing:	25 July 2013 (By Audio Visual Link) Counsel:	JAT Ross for Appellant
R W Donnelly for Respondent

Judgment:	25 July 2013

JUDGMENT OF WHATA J

[1]       Ms Paku appeals her conviction for driving with excess breath alcohol (third and subsequent) pursuant to s 56(1) of the Land Transport Act 1998.  Ms Paku, the appellant, alleges that the District Court Judge erred in reaching his decision, as it was not supported by the weight of the evidence.  It is said more particularly:

(a)       The evidence of a Mr Barry Sinclair Duff “Mr Duff” was inconsistent and unreliable on the issue of whether the appellant was the driver of the van; and

(b)       While the evidence of Robert Ataria (“Mr Ataria”) was that he was the driver of the van, it is accepted that the Court declared him a hostile witness.   Mr Ataria’s evidence therefore was so lacking in credibility that the Court should not have placed any weight on his
evidence.

PAKU  v POLICE [2013] NZHC 1898 [25 July 2013]

The District Court judgment

[2]       The Judge identified the key issue as whether or not it has been proven reasonable  doubt  that  the  defendant  was  the  driver.    The  Judge  then  refers  to evidence of three witnesses, Mr Duff, Mr Ataria, and Constable Boniface.

[3]       The Judge described Mr Duff’s evidence in the following terms:

[3]        ... As I say he was reluctant.  He did agree with various possibilities but his evidence in the end was to the effect that the defendant was the driver although  he was compelled to say that that was the case, even though as I said, he was very reluctant.

[4]       Mr Ataria was declared a hostile witness.  The Judge observed that he was plainly unwilling to co-operate with the prosecution.   The Judge,  however, had regard to a statement he had given to the police in this way:

[4]        ... It took the form of a notebook entry made by the constable which Mr Ataria had signed and, as mentioned before, it was to the effect that he had not driven in the van that night (15 November 2012) and he had not gone to Mr Duff’s address.  Both statements (and it is self-evident) would effectively exclude him as being the driver.

[5]       The Judge then described the evidence of Constable Boniface to the effect that there was no dispute that breath testing was undertaken of the accused.

[6]       The Judge thus concluded:

[9]        In the end, despite some (I suppose) shortcomings in Mr Duff’s evidence, I am satisfied beyond reasonable doubt that the defendant was the driver on this day.  I specifically exclude her son as being the driver for the reasons I have tried to express.  Given that there is no other possible person that was driving in this situation, I am satisfied, beyond reasonable doubt, that the aspect of the defendant being the driver is proved.   There is no challenge to the balance of the evidence.   On that basis I find the charge proved.

Threshold test

[7]       It is common ground that appeals under s 115 of the Summary Proceedings Act 1957 are by way of rehearing, and the onus is on the appellant to satisfy the Court that the decision was wrong.  Where credibility is an issue, the Judge should

ordinarily give reasons for rejecting the evidence of a witness whose evidence is material.1

[8]	In light of that guidance I turn to address the grounds of appeal. [9]	The nub of the submissions by Mr Ross are that:
(a)	Mr Duff ’s evidence was inconsistent and unreliable;

(b)       It can be inferred from the learned District Court Judge’s finding that Mr Ataria had no credibility and that he was totally unreliable with the consequence that Mr Ataria’s statement to the police, as recorded in the notebook, should not have been relied upon.

(c)       Further, under cross-examination Mr Duff accepted that he did not have a good view of Monowai Street and did not get a good look at the van.  He accepted that there could easily have been another person in the van other than the appellant.

Assessment

[10]     I am not satisfied that the appellant has demonstrated that Judge Macdonald was wrong.  Firstly, there was a sufficient basis, on the evidence, to conclude and draw the inference that the accused was the driver of the car.2

[11]     Telling in this regard is the following interchange, also highlighted by the

Crown:

Q.	So you’re not sure who was the driver?

...

A.	I think – I’ve got to – I think she was driving I’m afraid to say.

[12]     When later pressed on this he also said:3

1	Refer Police v Taiaitini HC Rotorua CIV 2005-463-5, 7 October 2005.
2	Refer page 3, line 34-35, page 4 line 26-27, page 6 line 10-12, and page 10 line 8-15.
3	Refer page 12 line 8.

A.	Oh hell – pretty sure.

[13]    I accept the basic point from Mr Ross that when pressed under cross- examination Mr Duff was more equivocal about the position.  But the significance of equivocality in context is one of the quintessential tasks of the trial Judge to assess. In short, it is for the trial Judge to consider the credibility or reliability of any equivocality expressed by a witness who might have a reason to obfuscate.

[14]     While on another day another Judge may have attached greater significance to the equivocality in the evidence given by Mr Duff, I cannot say that the Judge was obviously wrong in his assessment of the evidence.

[15]     As  to  Mr Ataria,  as  juries  are  commonly  instructed,  the  evidence  of  a deponent can be accepted in whole, rejected in whole, or accepted in part.  Mr Ataria made a statement to the police that he was not the driver.  He then simply denied that he   was not driving when he gave evidence on the stand.   It was available to the Judge to find that Mr Ataria was lying when he gave evidence but still to prefer the out of Court statement he made as being reliable in the circumstances.    I therefore can  see  no  error  that  might  justify  revisiting  the  Judge’s  determination  on  this account.

[16]     Given the foregoing, as I have said, I am not satisfied that the appellant has demonstrated that the Judge was wrong to resolve the matter in the way that he did.

[17]     The appeal is dismissed.

Solicitors:
Scholefield Cockroft Lloyd
Preston Russell, Invercargill