JAILANE v NEW ZEALAND POLICE [2019] NZHC 3123

JAILANE v NEW ZEALAND POLICE [2019] NZHC 3123 [28 November 2019]IN THE HIGH COURT OF NEW ZEALANDTIMARU REGISTRYI TE KŌTI MATUA O AOTEAROATE TIHI-O-MARU ROHECRI-2019-476-26[2019] NZHC 3123BETWEEN ALI MOREDY JAILANEAppellantAND NEW ZEALAND POLICERespondentHearing: 21 November 2019Appearances: T Jackson for the AppellantH V Bennett for the RespondentJudgment: 28 November 2019JUDGMENT OF CULL J[1] Mr Jailane appeals his conviction of driving with excess blood alcoholfollowing a Judge-alone trial in the District Court.1 He appeals on the ground that hewas not the driver.[2] Mr Jailane says that the District Court erred in its assessment that the evidenceproved the charge beyond reasonable doubt when the Judge:(a) decided the case based solely on the evidence of one prosecutionwitness;(b) failed to give reasons for why he concluded the defence witnesses wereuntruthful; and1 New Zealand Police v Jailane [2019] NZDC 20834.(c) failed to take into account that the prosecution witness may have beenmistaken, wrong, inaccurate or otherwise unreliable on the issue ofdriver identity.[3] The police submit the trial Judge did have a proper evidential foundation forfinding the charge proved beyond reasonable doubt. It is submitted the Judge gaveappropriate reasons for matters which he was required to, and he made no other errorswhich give rise to a miscarriage.Facts[4] On 30 June 2018, Sergeant Lucy Horne was dispatched to Hall Street, Timaruwhere a witness had reported a person drinking and driving. She stopped the vehiclematching the description of a white Mitsubishi Lancer. She found four people in thevehicle. Mr Jailane was seated in the rear passenger seat on the passenger side. Sheundertook a breath screening test with Mr Jailane which indicated a result of over400 micrograms of alcohol per litre of breath – it returned a result of 572 micrograms.An analysis of a blood specimen taken from Mr Jailane revealed his blood contained129 mg of alcohol (plus or minus 6 mg) per 100 ml of blood. It is not in dispute thatthe drink driving procedures were correctly carried out and that the blood alcoholreading was as found by the ESR analyst.[5] At the police station photographs were taken of Mr Jailane. The clothing hewas wearing included a black hoodie and a grey-green cap.[6] Mr Jailane disputed that he was the driver of the vehicle. The police relied onone civilian witness to identify Mr Jailane as the driver. The witness was on a wharfat the foreshore at Timaru watching powerboat races. At the relevant time he wassitting in his vehicle, which was parked by the rocks. He saw a vehicle attempt to pullin and the way it was being driven caught his attention because its driver appeared notto have any space perception. He said, "[the driver] almost collected my car". Hethen said, "the driver almost fell out of the car".22 New Zealand Police v Jailane, above n 1, at [4].[7] The witness was about five metres away from the car. He said the driver wasa male of African descent, while the front passenger was a female and the two rearpassengers were Caucasian males. He observed the driver getting out, being veryunstable on his feet and thought he was intoxicated. He said the driver was wearing acap and hoodie. He described the hoodie as black and the cap was a grey-greeniecolour. He then saw the driver reaching inside the car to grab an open Woodstock canand saw him start to drink it. The other passengers were also drinking. He phonedthe police and waited for them to arrive.[8] Mr Jailane's explanation of this account was that he had been drinking at homeon the day and there were a couple of other people drinking with him, includingMr Ahmed. Mr Ahmed is also of African-descent. Mr Ahmed then drove their groupin Mr Jailane's vehicle down to the powerboat races. There were five of them in thecar. When they pulled up, Mr Ahmed left in another car and Mr Jailane jumped intothe front seat. When the police arrived an hour later, Mr Jailane told police there wasanother driver. Mr Jailane's partner, one of the other passengers, also gave evidenceof this same account.Principles on appeal[9] Section 232 of the Criminal Procedure Act 2011 provides that the High Courtmay only allow an appeal against conviction if satisfied that the trial judge "erred inhis or her assessment of the evidence to such an extent that a miscarriage of justicehas occurred", or that "a miscarriage of justice has occurred for any reason." Amiscarriage of justice means any error, irregularity, or occurrence in or in relation tothe trial that has created a real risk that the outcome of the trial was affected, or hasresulted in an unfair trial.3[10] Following Sena v New Zealand Police, appeals are to proceed by way ofrehearing, and the appeal court is required to form its own view of the facts anddetermine the appeal accordingly.4 If an appeal court comes to a different view thanthe trial Judge on the evidence, the trial Judge will necessarily have erred and the3 Section 232(4).4 Sena v New Zealand Police [2019] NZSC 55.appeal must be allowed.5 However, the appeal is not to be approached de novo: it isfor the appellant to show that an error has been made to such an extent that the processhas miscarried.6District Court decision[11] The sole issue for determination was the driver's identity.7 The Judgecanvassed the prosecution evidence from the independent witness and the policeofficer who attended the scene.[12] As Mr Jailane had elected to call evidence, the Judge reminded himself that theonus of proof remained on the prosecution throughout, and the standard of proof wasbeyond reasonable doubt.8 He traversed Mr Jailane's evidence and that of his partner.He reminded himself he had to be satisfied beyond reasonable doubt that Mr Jailanewas the driver.9[13] The Judge made a credibility finding in favour of the civilian witness in thathe was independent, disinterested in the outcome and unshaken during cross-examination from his account.10 He noted that his description of Mr Jailane's clothingwas corroborated by the photograph booklet. The Judge observed that the vehicle wasMr Jailane's so logically he would be the one most likely to be driving it. He alsonoted that the driving was consistent with someone who was intoxicated, whichmatched Mr Jailane's blood alcohol reading.[14] The Judge concluded that Mr Jailane and his partner were not telling the truth.11He found it would be fanciful that the Crown's independent witness would miss thefact there was a swap around of drivers and another car pulled up to take Mr Ahmedaway.5 At [38].6 At [38].7 New Zealand Police v Jailane, above n 1, at [3]8 At [13].9 At [16].10 At [17]-[19].11 At [21].Discussion[15] The grounds of appeal are whether the Judge erred in deciding the case basedon the evidence of one prosecution witness and/or failed to give reasons for why heconcluded the defence witnesses were untruthful.[16] In addressing these grounds of appeal, , Mr Jackson for Mr Jailene attached tohis submission an affidavit of Mr Ahmed who had sworn that he was the driver on theday in question. The affidavit was sworn on 29 March 2019, six months before thehearing because he was about to depart for Australia, where he now resides. Thisaffidavit was not filed in the District Court or served on the police and nor was thereany application by defence counsel to seek its admission as a hearsay statement orhave his evidence taken before trial or remotely.[17] Mr Jackson referred the Court to the affidavit in support of his submission thatit was "very unlikely" that the independent Crown witness did not see a fifth personon that day. In any event, he submitted the fact that the witness may not have seen thefifth person does not exclude the possibility Mr Ahmed does in fact exist, is alsoSomalian and so may be more easily mistaken for Mr Jailene, and was the driver inquestion, as his sworn evidence states.[18] Until this hearing, counsel for the police was unaware of the existence of theaffidavit. Mr Jackson accepted responsibility for the oversight, acknowledging thatno application was made to have Mr Ahmed's evidence taken by way of remoteparticipation or that the affidavit be adduced as a hearsay statement.[19] The hearing proceeded on the two grounds of appeal advanced, withMr Jackson relying on Sena v New Zealand Police to advance the proposition that theJudge's failure to provide reasons for why he concluded the defence witnesses wereuntruthful amounted to a miscarriage of justice, as a reasoned judgment was essentialto the fair trial rights of the defendant and the outcome of the trial.1212 Sena v New Zealand Police, above n 4, at [36]–[37].[20] Ms Bennett for the police responded by submitting that although the Judgerejected the defence evidence, he went on to consider whether the evidence of theprosecution was sufficient to prove the identity of the driver beyond reasonable doubt.He proceeded on a proper direction and she submits he appropriately discharged hisobligations. Further, it is submitted that this Court would be "descending into thearena" of the trial Judge as the assessor of credibility and fact finding if it were toscrutinise the trial Judge's credibility findings.13[21] I have not traversed counsel's submissions in detail because I consider that amiscarriage of justice may have occurred, due to defence counsel's oversight in notbringing to the Judge's attention that Mr Ahmed was not fictitious but a real person,who had sworn an affidavit before he departed to Australia that he was the driver onthe day. Further, attached to Mr Ahmed's affidavit was a map marked Exhibit A, withMr Ahmed's handwriting stating "This is where I dropped Ali Jailane and friends off.I parked the car here". The map shows the area with the Timaru Yacht and Power BoatClub designated.[22] Therefore, under s 232 of the Criminal Procedure Act, I find that a miscarriageof justice may have occurred in this case because of counsel's oversight causing anirregularity in relation to the trial. This has created a real risk that the outcome of thetrial was affected or has resulted in an unfair trial.14[23] For that reason, I am allowing the appeal, setting aside the conviction and Idirect that a new trial be held.15Result[24] The appeal is allowed and the appellant's conviction is set aside.[25] I direct that a new trial in the District Court be held._________________Cull J13 Kumar v New Zealand Police HC Auckland CRI-2010-404-40 at [25]–[27].14 Criminal Procedure Act 2011, s 232(4).15 Criminal Procedure Act 2011, s 233(3)(b).Solicitors:Quentin Hix Legal Limited, TimaruCrown Law Office, Timaru for Respondent