[1] Mr Okeby seeks leave to appeal a pre-trial ruling given by Judge Barry on 11 August 2010.[1] Mr Okeby is charged under s 56(2) of the Land Transport Act 1998 with driving with excess alcohol on 27 March 2009, having been convicted at least twice previously for similar offences. The issue Mr Okeby seeks to argue relates to the manner in which the prosecution may prove the previous convictions.
[2] Initially, the prosecution indicated at a pre-trial hearing that it would rely on s 71(3) of the Summary Proceedings Act 1957 to tender proof by Registrar’s Certificate of the details of the previous convictions. The prosecution gave notice under s 130 of the Evidence Act 2006 that it intended to produce the s 71(3) certificates without calling a witness. Counsel for Mr Okeby objected to this proposal stating that he wished to cross-examine the signatories to the certificates.
[3] The Crown then decided it would proceed by the alternative process of producing a Registrar’s Certificate under s 139 of the Evidence Act 2006, again without calling a witness. Copies of the certificates signed by a Deputy Registrar of the relevant District Courts were provided. Mr Okeby objected to the admissibility of the s 139 certificates as well.
[4] The Crown responded by filing an application under s 344A of the Crimes Act 1961 for an order that the certificates under s 139 of the Evidence Act were admissible to prove the prior convictions.

The issues

[5] The issues raised before Judge Barry and which Mr Okeby seeks to pursue on appeal are essentially these:

(a) Whether certificates under s 139 of the Evidence Act may be invalid for non-compliance with s 71 of the Summary Proceedings Act.

(b) Whether a certificate under s 139 is conclusive proof of the facts stated therein.

(c) Whether there is proper proof that the Deputy Registrar signing the s 139 certificates is the person having custody of the relevant court records.

(d) Whether Mr Okeby will be unfairly prejudiced if the relevant court officers are not called by the Crown for cross-examination as to the accuracy of the material in the certificates.

The relevant statutory provisions

[6] Section 71 of the Summary Proceedings Act 1957 relevantly provides:

71 Criminal Records

(1) The Registrar of each Court appointed for the exercise of criminal jurisdiction shall keep Criminal Records in the prescribed form, in which shall be entered a minute or memorandum of all proceedings in the Court under its criminal jurisdiction. Every such minute or memorandum shall be signed by the District Court Judge or Justice or Justices [or Community Magistrate or Community Magistrates presiding over the Court.

(1A) A statement of the way in which the requirements of section 30 of the Sentencing Act 2002 have been satisfied shall be entered in the Criminal Records of each Court in respect of all proceedings under its criminal jurisdiction to which that section applies.]

(1B) Subsection (1) does not apply in respect of proceedings commenced in the way described in section 21(3) or (3D).

...

(3) Any entry in the Criminal Records or a copy thereof or extract therefrom, sealed with the Seal of the Court and purporting to be signed and certified by the Registrar as a true copy or correct extract, shall at all times without further proof be admitted in all Courts and places whatsoever as evidence of the entry and proceeding referred to thereby and of the regularity of that proceeding.

...

(5) Every reference to a Criminal Record Book in this Act or in any other Act or in any regulation, rule, bylaw, order, or other enactment or in any deed, instrument, notice, or other document whatsoever, shall, unless the context otherwise requires, be read as a reference to the Criminal Records kept pursuant to this section.

[7] Section 139 of the Evidence Act 2006 provides:

139 Evidence of convictions, acquittals, and other judicial proceedings

(1) Evidence of the following facts, if admissible, may be given by a certificate purporting to be signed by a Judge, a registrar, or other officer having custody of the relevant court records:

(a) the conviction or acquittal of a person charged with an offence and the particulars of the offence charged and of the person (including the name and date of birth of the person if the person is an individual, and the name and date and place of incorporation of the person if the person is a body corporate):

(b) the sentencing by a court of a person to any penalty or other disposition of the case following a plea or finding of guilt, and the particulars of the offence for which that person was sentenced or otherwise dealt with and of the person (including the name and date of birth of the person if the person is an individual, and the name and date and place of incorporation of the person if the person is a body corporate):

(ba) a record of first warning (within the meaning of section 86A of the Sentencing Act 2002) or a record of final warning (within the meaning of that section) made in respect of a person:

(c) an order or judgment of a court and the nature, parties, and particulars of the proceeding to which the order or judgment relates:

(d) the existence of a criminal or civil proceeding, whether or not the proceeding has been concluded, and the nature of the proceeding.

(2) A certificate under this section is sufficient evidence of the facts stated in it without proof of the signature or office of the person appearing to have signed the certificate.

(3) The manner of proving the facts referred to in subsection (1) authorised by this section is in addition to any other manner of proving any of those facts authorised by law.

(4) Subsection (5) applies if—

(a) a certificate under this section is offered in evidence in a proceeding for the purpose of proving the conviction or acquittal of a person, or the sentence by a court of a person to a penalty, or an order made by a court concerning a person; and

(b) the name of the person stated in the certificate is substantially similar to the name of the person concerning whom the evidence is offered.

(5) If this subsection applies, it is presumed, in the absence of evidence to the contrary, that the person whose name is stated in the certificate is the person concerning whom the evidence is offered.

(6) Subpart 1 of Part 2 (which relates to hearsay evidence) does not apply to evidence offered under this section.

The District Court decision

[8] The essential findings by Judge Barry were:

(a) The form of the certificates complied with s 139(1)(a).

(b) By virtue of s 139(2) the certificates were sufficient evidence of the facts stated in them without proof of the signature or office of the person appearing to have signed the certificates.

(c) Following the decision of this Court in R v Morunga[2] and as provided by s 139(3), proof by certificate under s 139 was in addition to any other manner of proving the facts stated in the certificates.

(d) Section 130 of the Evidence Act had no direct application to the admissibility of the s 139 certificates.

(e) Section 71 of the Summary Proceedings Act was irrelevant when reliance is placed on certificates under s 139 of the Evidence Act.

(f) By virtue of s 139(5) it is presumed, in the absence of evidence to the contrary, that the person whose name is stated in the certificate is the person concerning whom the evidence is offered.

(g) It was open for Mr Okeby to call evidence to dispute the accuracy of the certificates.

(h) There was no obligation on the prosecution to require the certifier to come to the court to produce the certificates and to be cross-examined.

(i) On general principles, the Crown cannot be required to call a specific witness unless the interests of justice or issues of good faith arise. There were none arising in the present case.

Whether certificates under s 139 of the Evidence Act may be invalid for non-compliance with s 71 of the Summary Proceedings Act.

[9] This Court was faced with very similar issues in Morunga. The effect of s 139 was summarised as follows:[3]

Further, s 139 of the Evidence Act provides an alternative method of proving convictions. Under subs (3) it is additional to any other manner of proving a conviction that is authorised by law, and it is available for a certificate purporting to be signed by a Registrar and recording a conviction. Under subs (5), there is a presumption, in the absence of evidence to the contrary, that the person whose name is stated in a certificate of conviction is the person concerning whom the evidence is offered. That presumption applies where a certificate under s 139 is offered in evidence in a proceeding to prove conviction and the name of the person stated in the certificate is substantially similar to that of the person concerning whom the evidence is offered. The certificate given in this case complies with s 139, in that it purports to be signed by a Registrar and provides particulars of the offence charged and Mr Morunga’s identity, including his name and date of birth.

[10] In the present case, all of the certificates are in the same form. It is sufficient to detail the content of one of the certificates by way of example:

I, Peter Noel Batchelor, Deputy Registrar of the Porirua District Court, certify pursuant to s 139 Evidence Act 2006, that

Stephen Rinhold Okeby, date of birth 11/10/52, was convicted in the Porirua District Court on 2nd August 2000, of the following offence:

On the 12th day of February 1999 at Paraparaumu, did commit an offence against s 58(1)(c) Transport Act 1962, in that he did drive a motor vehicle on a road, namely Wharemauku Road, while the proportion of alcohol in his blood exceeded 80 milligrams of alcohol per 100 millilitres of blood, in that it was 113 milligrams of alcohol per 100 millilitres of blood.

Given under my hand and the seal of the Porirua District Court, this 27th day of July 2010.

[11] The signature is over the typed words: “Peter Noel Batchelor, Deputy Registrar” with the Seal of the District Court of Porirua affixed alongside.
[12] We agree with the Judge that the form complies with s 139(1)(a) of the Evidence Act. As Mr Johnson submitted on behalf of Mr Okeby, the Criminal Records which s 71 of the Summary Proceedings Act requires to be kept include particulars of the address and occupation of the person stated therein and the sentence imposed.[4] Mr Johnson submitted that the absence of these particulars meant that the s 139 certificates were invalid for non-compliance with s 71.
[13] Section 139(1)(a) authorises proof by certificate of particulars of the person convicted in addition to the name and date of birth and s 139(1)(b) authorises proof by certificate of the sentence imposed. But it is not necessary that the certificate contains such particulars. That is because, as the Judge found, and as s 139(3) provides, the s 139 certificate is an alternative means of proving the conviction and other facts stated in the certificate. It follows that not every particular required to be kept by s 71 of the Summary Proceedings Act need be included in such a certificate. The only constraint on the scope of the certificate is that the facts which may be proved by the certificate are limited to those specified in s 139(1).
[14] We conclude that there is no basis to successfully challenge the certificates in the present case on the grounds that they do not contain all of the particulars required to be kept by s 71 of the Summary Proceedings Act.

Whether a certificate under s 139 is conclusive proof of the facts stated therein.

[15] The second issue relates to the effect of the certificates and the ability of a defendant to challenge their accuracy. The principal ground upon which Mr Okeby wishes to challenge the certificates relates to his identity as the person previously convicted. He raises issues as to discrepancies of address and occupation between the various informations laid against him and the certificates issued under s 71 of the Summary Proceedings Act.
[16] Where issues of identity arise, s 139(4) prescribes when the presumption in s 139(5) applies. The presumption applies where a certificate is offered under s 139 in evidence for the purpose of proving the conviction (or where applicable an acquittal, sentence or other order) and the name of the person stated in the certificates is “substantially similar” to the name of the person concerning whom the evidence is offered.
[17] We observe that, in the present case, there is no suggestion that there is any discrepancy in the relevant records about Mr Okeby’s full name (which is an unusual one) or his date of birth. But even if there were minor discrepancies between the name of the person in the certificate and the person concerning whom the evidence is offered, the presumption under s 139(5) would nevertheless apply so long as the names were substantially similar. There being no discrepancy of that kind, the person whose name is stated in the certificate (Mr Okeby) is presumed to be the person concerning whom the evidence is offered, subject to any evidence to the contrary.
[18] There may be cases where a defendant wishes to challenge a s 139 certificate on grounds other than identity. That might occur, for example, if there were a clerical error in the records and it could be demonstrated that the defendant had not been acquitted or had only been convicted of some other offence not relevant to the case at hand.
[19] In respect of one of the four certificates involved in the present case, there is some discrepancy as to the date of the conviction although all other details appear to be consistently stated. The discrepancy as to date relates to a conviction in the Lower Hutt District Court for the relevant offence which is said to have been committed on 30 May 2002. The “offence date” is consistently stated, but the “conviction date” is stated to be 29 October 2002 in the s 139 certificate while the “date of hearing” is stated as 21 November 2002 in the previously produced certificate under s 71(3) of the Summary Proceedings Act. The record of criminal and traffic history produced by the Ministry of Justice refers to a “result date” of 14 November 2002. Mr Johnson does not yet have the information relating to this conviction which may provide the answer to the discrepancy.
[20] In Morunga it was accepted that a certificate under s 71 of the Summary Proceedings Act was merely evidence of the matters that it must contain but could be rebutted.[5] We note that s 71 of the Summary Proceedings Act is expressed differently from s 139(2) of the Evidence Act which speaks of the certificate being “sufficient evidence” of the facts stated in it without proof of the signature or office of the person appearing to have signed the certificate.
[21] Our research has not revealed any authority on the meaning of the expression “sufficient evidence” in s 139(2) of the Evidence Act nor the use of the same expression in the new section’s statutory predecessor[6] which is expressed in slightly different form. However, we do not consider the legislature could have intended that the certificate was to be treated as conclusive evidence of the facts stated therein. Clear words would be needed to deprive an accused person of the opportunity to call evidence to demonstrate that the certificate was in error. It would be anomalous and unjust if there were an opportunity to dispute identity under s 139(5), but no opportunity to show the certificate contained some other form of material error.
[22] As this Court stated in Matthews:

The use of recorded information in criminal proceedings is a sensitive subject. The Courts should not allow it unless statutory provisions or common law principles of evidence clearly allow it.

[23] We conclude that the expression “sufficient evidence” in s 139(2) means that the Crown need not call any evidence beyond the certificate to prove the facts stated therein, but an accused person is not precluded from calling evidence to the contrary.

Whether there is proper proof that the Deputy Registrar signing the s 139 certificates is the person having custody of the relevant court records.

[24] This issue relates to proof of Mr Batchelor’s status for the purpose of the s 139 certificate. The certificate under s 139 must be one “purporting to be signed by a Judge, a registrar or other officer having custody of the relevant court records”. The Evidence Act does not define the term “registrar” but we are satisfied that, in context, the term refers to a registrar of a court. For present purposes, this includes the Registrar of the relevant District Court in terms of the Summary Proceedings Act. Under that Act, the Registrar includes any Deputy Registrar.[7]
[25] Mr Johnson submitted that it had not been proved that Mr Batchelor had custody of the relevant court records for the purposes of s 139(1). We do not consider that the words “having custody of the relevant court records” qualify all of the three persons contemplated by s 139(1) who may sign such a certificate. Those words only qualify “any other officer”. We say that because a Judge does not have custody of the relevant court records and a District Court Registrar (including a Deputy Registrar) has custody of the relevant court records by virtue of s 71(1) of the Summary Proceedings Act. If another officer of the court signs the certificate, then that person must be shown to be someone who has custody of the relevant court records, but that issue does not arise in the present case.
[26] We are satisfied that, by virtue of s 139(1) and (2), no further proof is required of Mr Batchelor’s signature or office nor of his status as a person having custody of the relevant court records.

Whether Mr Okeby will be unfairly prejudiced if the relevant court officers are not called by the Crown for cross-examination as to the accuracy of the material in the certificates.

[27] We agree with the Judge that it is open for Mr Okeby to call Mr Batchelor or other appropriate officer (or indeed any other relevant evidence) to show that he is not the person named in the certificate. That could extend to evidence that there is any other material inaccuracy as to the relevant convictions. We do not see any unfairness to him in that respect. He is entitled to disclosure of any relevant records bearing on the issue and we would not expect him to be under any disadvantage by this process.
[28] Bearing in mind the stern observations of the Supreme Court in Alywin v Police,[8] the courts will be unsympathetic to the raising of technical, trivial, or unmeritorious points. The courts will also be alert to ensure that the efficacy of proof of convictions by certificate is not undermined by court officials being needlessly summoned to attend court.[9] But if there are genuine issues relating to the correctness of the court records then we expect the presiding judge would give reasonable latitude to the introduction of evidence suggesting the records are materially incorrect. Except in unusual circumstances where the interests of justice may require, we do not see any obligation on the prosecution to call the relevant witness or witnesses.

Result

[29] We are satisfied that none of the grounds raised on behalf of the applicant have any prospect of success. Applying the criteria in R v Leonard[10] the application for leave to appeal is dismissed accordingly.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Okeby DC Wellington CRI 2009-091-1836, 11 August 2010.
[2] R v Morunga [2009] NZCA 292.
[3] At [14].

[4] See s 15 of the Summary Proceedings Act and Schedule 2 Form 1 (in relation to an information) and Form 22 of the Summary Proceedings Regulations 1958.
[5] At [13] referring to Matthews v Department of Labour [1984] 2 NZLR 400 (CA).
[6] Evidence Amendment Act (No 2) 1980, s 27.
[7] See s 2 of the Summary Proceedings Act.
[8] Alywin v Police [2009] 2 NZLR 1 at [13].

[9] Section 8(1)(b) of the Evidence Act provides that evidence which will needlessly prolong the proceeding must be excluded.
[10] R v Leonard [2008] 2 NZLR 218 (CA).

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/519.html