HASTIE V THE NEW ZEALAND POLICE COA CA774/2011

HASTIE V THE NEW ZEALAND POLICE COA CA774/2011 [24 February 2012]IN THE COURT OF APPEAL OF NEW ZEALANDCA774/2011[2012] NZCA 21BETWEEN BRADLEY KEITH HASTIEApplicantAND THE NEW ZEALAND POLICERespondentHearing: 14 February 2012Court: Stevens, Ronald Young and Andrews JJCounsel: R Maze and M McDonald for AppellantM D Downs for RespondentJudgment: 24 February 2012 at 3.00 pmJUDGMENT OF THE COURTThe application for special leave to appeal is refused.____________________________________________________________________REASONS OF THE COURT(Given by Ronald Young J)Introduction[1] Mr Hastie was convicted in the District Court of offending including driving with an excess blood alcohol level pursuant to s 56(2) of the Land Transport Act 1998. He appealed to the High Court against his convictions.1 French J accepted that the prosecution had not proved Mr Hastie was the driver of the vehicle. She quashed the convictions but ordered the case be reheard before the District Court. The applicant sought leave from the High Court to appeal to this Court based on1 Hastie v Police HC Christchurch CRI-2010-409-222, 9 September 2011 [conviction appeal].what was alleged to be errors of law arising from the High Court Judge's decision toallow the case to be reheard. Leave was refused.2 He has now applied to this Court for special leave to appeal.[2] In his application pursuant to s 144 of the Summary Proceedings Act 1957, counsel for Mr Hastie identified three proposed questions of law:(a) was the High Court correct to find that the discretion to order a rehearing pursuant to s 131 of the Summary Proceedings Act 1957 is unfettered?(b) if the High Court is correct that the discretion is unfettered, did the High Court exercise its discretion in conformity with the authorities binding on it?(c) in any event ought the Court have directed a rehearing in the circumstances of the case?Facts and previous hearings[3] A brief description of the facts and the hearings to date will give a context for the issues in the special leave application. As to the facts of the offending French J in her appeal judgment said:[1] At approximately 4 a.m. on 28 November 2009 a Subaru motor vehicle was travelling on Clyde Road in suburban Christchurch when the driver lost control and collided with a power pole.[2] Approximately 25 minutes after the accident, police located the appellant, Mr Bradley Hastie, in an intoxicated state some two kilometres from the scene.[3] Police alleged that Mr Hastie was the driver, and charged him with careless use and driving with an excess blood alcohol level of 188 milligrams per 100 millilitres of blood. The legal limit is 80 milligrams.2 Hastie v Police HC Christchurch CRI-2010-409-222, 31 October 2011.[4] The sole issue at the summary trial was whether the prosecution could prove Mr Hastie was the driver of the car. French J summarised the District Court Judge'sconclusion as to proof of the identity of the applicant as the driver in this way:[26] Having traversed the relevant evidence, the Judge reminded himself of the dangers associated with identification evidence in terms of s 126 of the Evidence Act 2006. The Judge went on to say that he found the following facts proved:The person who was the driver had, at the time, longish fair hair.The person apprehended by Constable Morris had that kind of hair.The person apprehended by Constable Morris told him that he had come from Northlands Mall, and that was a lie.Constable Morris asked the defendant who was driving the motor vehicle and the defendant had said it was Greg – a person he did not otherwise appear to know.The defendant was driving in a motor vehicle that was registered to a person who had the same surname as himself, which was significant.The defendant did say to Ms Thornton that somebody else had been driving the car.The defendant is therefore closely associated with the driving by connecting all of these pieces of evidence together.No other person was observed at the scene or leaving the scene, even though Ms Thornton was on the scene a very short period of time after the collision.(Footnotes omitted.)[5] As noted by French J,3 the District Court Judge concluded by saying:4[23] In summary I am satisfied that the person apprehended by Mr Morris has connected himself closely with the scene and the car. I am satisfied that the connection is such that the only reasonable inference to draw is that the defendant was the driver of the motor vehicle at the time in question.[24] Leaving aside, as I do, the dock identifications the persons described by Mrs Thornton and Mr McAllister, even in such brief descriptions as they have given, are consistent with the person apprehended by Constable Morris and that person is the defendant.[25] He will accordingly be convicted on each of the charges.3 Conviction appeal at [27].4 New Zealand Police v Hastie DC Christchurch CRI-2009-009-19977, 28 October 2010.[6] On appeal French J's conclusions as to the identity point were:[40] Ms Basire, for the police, acknowledged the limitations of the identification evidence and conceded that even when combined with Mr Hastie's presence in the general area in the early hours of the morning and his false statements about Greg and coming from Northlands Mall, it was probably not sufficient to constitute proof of identity beyond reasonable doubt. However, she submitted that what made the difference was the evidence that the Subaru was registered in the same surname as the appellant.[41] I agree that without that evidence, the conviction is not sustainable.[42] I also agree that the evidence of the registered owner was hearsay as defined by s 4 of the Evidence Act. The statement that Nigel Hastie was the registered owner was what Constable Morris saw on the police computer system. The statement was being tendered for the truth of its contents and it had been made by someone (the input data operator) who was not a witness.[43] The issue then becomes whether, despite its hearsay nature, the evidence was admissible, an issue that unfortunately was never raised or considered in the District Court.[7] French J then noted that proof of the ownership of the vehicle could easily have been established. She said:[66] While both s 18 of the Evidence Act and s 18 of the Transport (Vehicle and Driver Registration and Licensing) Act were potentially available, the problem for the police in this case is that no certificate was provided and no pre-trial hearsay notice was given.[67] Like Panckhurst J in Osborn, I might have been willing to assume that the District Court Judge would probably have dispensed with the need for the requisite notice had the document itself been produced at the hearing. But it was not.[8] The Judge therefore concluded that without the evidence as to who was the registered owner of the Subaru motor vehicle, the circumstantial evidence was not sufficient to establish the driver was the applicant beyond reasonable doubt. The Judge, therefore, quashed the convictions but ordered the prosecution be reheard in the District Court pursuant to s 131 of the Summary Proceedings Act 1957.The questions of law[9] To return, therefore, to the three questions of law raised by the applicant. After discussion with counsel for the applicant it became clear none of the three questions posed could be questions of law for this Court.[10] As to (a) the Judge in the High Court did not say, as the question implies, that the discretion to order a rehearing under s 131 is unfettered. What the Judge said was:[75] The power to order a rehearing is derived from s 131 of the Summary Proceedings Act 1957. On the face of it, the discretion is an unfettered one, and as Mr Maze acknowledged, the Court of Appeal has not attempted to define the circumstances where it may be appropriate to allow the prosecution a second chance to prove its case.[11] The Judge went on to say:[76] It is well established that it is an appropriate exercise of the discretion to order a rehearing in circumstances where the proof against a defendant has been defective due to a technical or formal omission.[77] I accept that in this case the identity of the registered owner was a pivotal piece of circumstantial evidence, and so in that sense was not merely formal or technical evidence. On the other hand, it is a matter that is objectively verifiable and the need for it had not been overlooked. The failure was to observe the correct procedural formalities. It took place in a busy summary Court where the prosecution was being conducted by a person who was not a qualified barrister. It was not a situation of the prosecution failing to turn their mind to the need to put the evidence before the Court.[12] Question (b) wrongly assumes the Judge did say that the discretion was unfettered. Question (c) is not a question of law but simply an invitation to this Court to reconsider the decision of the Judge in the High Court.[13] Faced with that difficulty, counsel for the applicant reformulated the question of law in this way:Did the Judge (in the High Court) err in principle in directing a rehearing and relying solely on the public interest in the conviction of offenders?[14] As we have noted,5 the Judge did not rely solely on the public interest in the conviction of offenders in directing a rehearing. She considered a variety of factors, all of which were clearly relevant in considering whether she should exercise the discretion to order a rehearing.[15] We are satisfied that no question of law can be identified in this case. A decision under s 131 involves the exercise of a wide discretion. No particular statutory guidance is given for the exercise of the discretion under s 131. The authorities in this area are deliberately broad.6 Clearly the exercise of the discretion in s 131 must be rational and turn on relevant factors. But beyond that the exercise of the discretion will depend upon the facts in each individual case.[16] For the reasons given, leave to appeal is refused.Solicitors:Crown Law Office, Wellington for Respondent5 At [11] above.6 See, for example, Morgan v Ministry of Transport [1980] 1 NZLR 432 (CA) at 435, where theCourt said: "we think it dangerous to attempt to lay down anything approaching hard and fastrules to govern the exercise of a discretion which is conferred by statute in unrestricted terms".