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High Court of New Zealand Decisions |
Last Updated: 8 November 2011
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2011-485-37
SHAY NICHOLAS OWEN
Appellant
v
NZ POLICE
Respondent
Hearing: 16 August 2011
Counsel: Mr W Johnson for the Appellant
Ms A Ewing for the Respondent
Judgment: 25 October 2011
JUDGMENT OF MALLON J
Contents
Introduction ....................................................................................................................................... [1] The facts ............................................................................................................................................. [4] The District Court hearing ............................................................................................................... [8] Issue 1: Recording of the telephone call ....................................................................................... [10] Issue 2: Proof that Mr Owen was the driver ................................................................................ [22] Issue 3: Chain of custody ............................................................................................................... [27] Issue 4: Authority to arrest ............................................................................................................ [35] Issue 5: Good cause to suspect ...................................................................................................... [37] Issue 6: Proof of previous convictions........................................................................................... [40] Issue 7: Proof of reparation ........................................................................................................... [43] Issue 8: Medical fee ........................................................................................................................ [48]
Result ................................................................................................................................................ [51]
OWEN v NZ POLICE HC WN CRI 2011-485-37 25 October 2011
Introduction
[1] Mr Owen appeals against his conviction and sentence on charges of driving with excess breath alcohol, dangerous driving and failing to stop after a non-injury accident.
[2] The convictions were entered following a defended hearing in the District
Court. Mr Owen contends that:
(a) a transcript of a telephone call from a witness to the police was wrongly admitted in evidence (Issue 1);
(b) the evidence was insufficient to establish that he was the driver of the car at the relevant time (Issue 2);
(c) the chain of custody of the blood sample was not proved (Issue 3);
(d) the police did not have authority to arrest Mr Owen because it was not established that they were in uniform (Issue 4); and
(e) the evidential breath test should not have been administered because the police did not have good cause to suspect that Mr Owen had committed an offence against the Land Transport Act 1998 that involved the driving of a motor vehicle (Issue 5).
[3] The sentence appeal is on the basis that:
(a) the prosecution failed to prove Mr Owen’s previous drink driving convictions and so he should have been sentenced on the basis that this was his second offence rather than his third (Issue 6);
(b) reparation ought not to have been ordered because there was no proof of the loss incurred by the victim (Issue 7); and
(c) The order to pay medical expenses exceeded the permitted maximum order (Issue 8).
The facts
[4] At around 1:30am to 2:00am on 20 September 2009, Mrs Gillespie (the driver), Mr Gillespie (seated in the front passenger seat) and their daughter (in a rear passenger seat) were driving from Wellington to their home in Whitby when they observed a car being driven erratically. They became sufficiently concerned about the driving to contact the police. As they followed the car, Mr Gillespie advised the police over the telephone of the registration number.
[5] They followed the car off the motorway and into Tawa. They saw the car crash into a parked car and then continue on its way. The Gillespies followed the car for a few more streets on. They remained in communication with the police. They became concerned about their safety and the police told them to stop following the car and to return to the place where the parked car had been crashed into, which they did. The police arrived shortly after this and took statements from them.
[6] Meanwhile Ms Madden had recently returned from work and was sitting in a parked car outside her house in Tawa, talking to her partner. While she was there she heard a screeching sound and smelt burning rubber. She saw a man drive his car into the neighbouring driveway. She noticed that the car’s front bonnet was pushed in and there was smoke coming out of it. She saw the driver get out of the car and use a key to enter the house through the front door.
[7] A few minutes later police officers (Constable Press and Constable Stewart) attended the address in Tawa which the man had been seen entering. On knocking at the door, Mr Owen answered. In answer to questions from the police he said that he was the only one home and he did not know what had happened to his car. At this point he was arrested for dangerous driving, advised of his rights and escorted to the police car. In answer to further questions he said that he had been home from around
10:30 or 11:00 pm and that as far as he knew no-one else had come to the house that evening. He gave permission to the police to check the house to see if anyone else
was present. The house keys were retrieved from his jacket pocket so that the check could be made. The check of the house confirmed that there was no-one else present. Mr Owen was taken to the police station where he gave an evidential breath test and then a blood specimen.
The District Court hearing
[8] The defended hearing of the charges commenced in the District Court on
21 June 2010. The prosecution called evidence from Mr and Mrs Gillespie, Ms Madden, the two police officers who attended at the Tawa address, two courier workers and a police officer involved in arranging for the blood specimen to be sent for testing. The hearing was adjourned as a result of an evidential issue around proving the registration number of the car as observed by Mr Gillespie. The hearing was to have resumed on 26 July 2010 but it was adjourned to 27 September 2010. At the resumed hearing Mr and Mrs Gillespie’s daughter gave evidence. Constable Press was also recalled.
[9] In a reserved judgment dated 4 November 2010 the District Court Judge found the charges proven and entered convictions. On 11 May 2011 Mr Owen was sentenced by the District Court. He was sentenced to 150 hours community work and disqualified from driving for 12 months and 1 day. He was ordered to pay reparation of $450.00 and to pay the medical and analyst fees of $239.50.
Issue 1: Recording of the telephone call
[10] At the District Court hearing in June 2010 Mr Gillespie was asked in his evidence in chief if he could see the registration number of the car that he and his wife were following. He said:
Not til later on in the driving. At the start we didn’t pay much attention until it got to the stage where it became quite serious and the police officer on the other end of the phone asked us could we get close enough to see the registration plate. This did take some time because of the car speeding up, slowing down and my wife’s desire not to exceed the speed limit ...
[11] He was then asked if he remembered what the registration number was. He said he did not remember it off the top of his head. Leave was sought for Mr Gillespie to refer to his formal written statement to refresh his memory. This was objected to. The Judge asked Mr Gillespie if he would have an independent memory of the number if he was shown a transcript of the call he made to the police. He said he would not. The Judge considered that the prosecutor would need to make an application under s 22 of the Evidence Act to admit the record of the telephone call to the police as a business record. The hearing was adjourned to enable this to occur.
[12] The prosecutor filed an application on 29 June 2010. It was accompanied by a transcript of the telephone call. The adjourned hearing did not proceed on 27 July
2010 because counsel for Mr Owen considered that notice of the application and the transcript were late. It appears that Mr Owen’s counsel also raised on issue about whether there was proof “that the transcript or the audio recording relates to the particular conversation”. On 17 August 2010 the prosecution filed another s 22 application with a brief of evidence describing the mode of operation of the call recording system.
[13] At the resumed hearing on 27 September 2010 Ms Gillespie confirmed the circumstances in which she and her parents came to be following the car. She said that Mr Gillespie called the police. She said that they were trying to get the registration number for the police. She said that when they were in viewing distance her father asked her to write it down so that they would not lose it. She said that it was her and her father trying to look and see what the plate was. She said she could see it but that it was her father that was calling out the number while she wrote it down. She said that she called the number back to her father as he relayed to the police on the telephone. She said that they did not keep the piece of paper. She was cross-examined about the licence plate number, particularly as to whether she could see it clearly from the back seat, at night and from the distance at which they were following the car. She confirmed that she could see the registration number.
[14] The audio CD was also produced. The transcript of the audio contained the following:
[Operator] Okay. What’s the rego?
[Caller] Um, (speaks to someone else in the car) What was the rego? (reply from someone else in car repeated by caller) Nissan Skyline YF4178
[15] Constable Press also gave evidence at the resumed hearing. She gave evidence that she had looked up the registration number of the car parked outside Mr Owen’s house on the police computer system to obtain the ownership details. That registration number was the same as that which Mr Gillespie had given the police in the telephone call. The computer check recorded Mr Owen as the registered owner of the vehicle.
[16] In his reserved judgment of 4 November 2010, the District Court Judge noted that counsel for Mr Owen objected to the evidence about the registration number. The Judge noted that the basis for the objection was that counsel for Mr Owen had lost the opportunity to cross-examine Mr Gillespie and the prosecution had not proved that the record was Mr Gillespie’s statement to the call taker or that it was a complete record. The Judge rejected this on the basis that it was clear from the content of the recording that it comprised the relevant call. He also concluded that there had been no tampering. He said that the suggestion that it might be a record of another call by another person was so remote as to be impossible.
[17] Counsel for Mr Owen also objected on the basis that the prosecution had been given undue latitude to patch up its case and that he had been given insufficient prior notice. The District Court Judge rejected this saying that it was in the interests of justice to allow the prosecution to put forward a reliable record. To the extent that the evidence was hearsay the Judge allowed it on the basis of its reliability. To the extent that the evidence was a statement from Ms Gillespie he admitted it under s 35(3) of the Evidence Act.
[18] On this appeal counsel for Mr Owen submits that the transcript of the registration number should not have been admitted. He says that it had been disclosed to him late, it was double hearsay and he was prejudiced because he did not have the opportunity to cross-examine Mr and Mrs Gillespie on the content of the telephone call.
[19] I consider that no prejudice arose in the late production of the evidence about the telephone call. The prosecutor presumably anticipated that Mr Gillespie would be permitted to refresh his memory from his statement to the police. When it became apparent that counsel was going to object to this, the Judge was entitled to take the view that an adjournment was in the interests of justice. The transcript of the telephone call was provided on 29 June 2010. Counsel was granted an adjournment on 27 July 2010 and the hearing did not resume until 27 September
2010. By then counsel had had the application and the transcript for nearly three months. Counsel for Mr Owen did not seek to have Mr and Mrs Gillespie recalled for cross-examination. Given that the registration number as conveyed to the police by Mr Gillespie matched the registration number of the damaged car outside his house, it is difficult to see what could be gained from cross-examining Mr and Mrs Gillespie about this. In any event when Mr Gillespie had earlier given his evidence, he was able to be cross-examined on all matters relating to his ability to observe the car and its driver. In fact counsel largely confined his cross-examination to how much alcohol Mr Gillespie had drunk in the course of the evening.
[20] The transcript and audio CD were a record of what Mr Gillespie had said to the police operator. That in turn was a record of what Mr Gillespie (and Ms Gillespie) had earlier observed. Ms Gillespie and Mr Gillespie both gave evidence at the hearing. They were able to be questioned about the reliability of their observations. The transcript was admissible under s 35(3) of the Evidence Act. The transcript and audio CD were properly admitted as evidence at the defended hearing.
[21] This ground of appeal fails.
Issue 2: Proof that Mr Owen was the driver
[22] The District Court Judge noted that the proof that Mr Owen was the person who had been driving the car depended on inferences to be drawn from the circumstantial evidence. He referred to the following evidence:
(a) the registration number as conveyed by the Gillespies to the police matched the registration number of the car parked at Mr Owen’s address;
(b) Ms Madden had given evidence that she was sure that the person she saw arrested by the police was the same person she had seen driving the car and entering the house a few minutes earlier;
(c) when the police officers knocked at the door and spoke with Mr Owen, Mr Owen told them that there was no-one else in the house and that he knew of no-one else as having come to the house;
(d) Mr Owen was intoxicated which the Judge viewed as being consistent with the uncontrolled driving seen on the motorway;
(e) the police had found no-one else in the house.
[23] On the basis of this evidence the Judge was satisfied beyond reasonable doubt that Mr Owen was the driver of the car that the Gillespies had followed. He said that there was “no evidence to give any substance at all to the remote possibility that another person had entered and left the house”.
[24] Counsel for Mr Owen submits that the evidence as to identity was insufficient. He says that Ms Madden had only a few seconds to observe Mr Owen out the back window and that she had only seen a male shape. He says that the statements Mr Owen had made to the police officers had been excluded by the Judge (on the basis that there was no evidence of the usual caution being administered before questioning Mr Owen) and, in any event, he had not admitted that it was his car and said that he had only been driving 3 or 4 hours ago. He says that there was a conflict between the two police officers as to who had arrived at the scene first and that there was no evidence as to why they turned up to this particular address.
[25] The circumstantial evidence that Mr Owen was the driver is overwhelming even without the statements Mr Owen made after his arrest which the Judge
excluded. Those statements essentially repeated what Mr Owen had already said at the door before his arrest. There was no suggestion that Mr Owen’s earlier statement was improperly obtained and inadmissible. But even without considering any statement made by Mr Owen, in addition to the other matters relied on by the District Court Judge, there was also:
(a) Mrs Gillespie’s evidence that the driver of the car was a man who had short hair (which was consistent with Ms Madden’s description);
(b) Mr Gillespie and Ms Gillespie referred to a male driver;
(c) Ms Madden had seen the driver of the car enter the house with a key.
After Mr Owen had been arrested he gave permission to the officers to search his house. The keys for the house were obtained from Mr Owen’s pocket;
(d) Ms Madden had not seen anyone else enter or leave the house while she was parked outside;
(e) Mr Owen was wearing a jacket and other clothing which indicated to the police officer that he had returned home shortly before the officers had arrived;
(f) the car parked outside Mr Owen’s address was registered in
Mr Owen’s name;
(g) the car was damaged (consistent with having hit the parked car) and was warm (consistent with having been driven recently).
[26] This ground of appeal fails.
Issue 3: Chain of custody
[27] This issue relates solely to the driving with excess blood alcohol charge. The evidence in relation to the taking and testing of the blood specimen came from
Constable Press, Constable McGregor, two courier employees and via the analysis certificate given under s 75(5) of the Land Transport Act.
[28] The sample was taken in the presence of Constable Press. She watched it being separated into two samples. She said that the bottles were sealed and the details were written on the label. She took the samples with her as she continued to process Mr Owen. She was then despatched to attend a priority job. She handed the samples and the paperwork to Constable McGregor.
[29] Either Constable Press or Constable McGregor packed the sample in the box (the evidence is not clear which of them it was). Constable McGregor’s evidence was that he then sealed the samples in a courier bag and put them in a secure, designated area of the watchhouse behind the counter. The courier company was called to collect them. This was at about 3:00 or 4:00 am.
[30] A courier employee arrived at the police station just after 7:00am. He picked up the package which was retrieved from a door behind the counter. He took the package to the Porirua Depot where it was placed in a bin. He waited until the second courier arrived. The second courier took the package from the bin. The second courier delivered the package to the receptionist at the ESR who signed for it.
[31] Counsel for Mr Owen submits that there were such gaps in the evidence about the securing of the blood specimen for testing that the prosecution had not proven beyond reasonable doubt that Mr Owen’s blood alcohol level exceeded the limit.
[32] The first gap in the chain of evidence is that Constable Press and Constable McGregor could not remember which of them sealed the samples in the box. However, their evidence was clear that the samples were passed directly from Constable Press to Constable McGregor and Constable McGregor was clear that the samples were in the box when he sealed the courier bag. That they did not say which one of them sealed the samples in the box does not raise any concerns about whether the samples were taken from Mr Owen or whether they were tampered with.
[33] Counsel for Mr Owen’s main concern is that the package was not put in a safe. However Constable McGregor’s evidence was that they were put in a secure area. The samples had been sealed before they were put in the secure area. There was no evidence to suggest that anything was amiss with the packaging. The analyst’s certificate confirmed that a blood specimen in a sealed bottle taken from Shea Nicholas Owen was received by the ESR. The certificate also confirmed that there was no deterioration or congealing of the blood sample which would prevent a proper analysis.
[34] The gaps in the evidence relied upon do not give rise to a reasonable doubt about the integrity of Mr Owen’s blood specimen when tested. This ground of appeal fails.
Issue 4: Authority to arrest
[35] Counsel for Mr Owen submits that it was not proven that the police officers were in uniform when they arrested Mr Owen. This submission was made even though there was no cross-examination of the officers challenging their authority. Direct evidence of the officer being in uniform is not required if the matter has not
been put in issue.[1] Here there was evidence that Constable Press was working the
night shift and that she was on general duties. She also referred to taking Mr Owen to the patrol car. She also referred to receiving instructions over the police communications system. There was no evidence that Mr Owen disputed her authority when she approached his front door or when Mr Owen was arrested and taken back to the police station. This was evidence on which it could be inferred that Constable Press was in uniform. Even if this were not the case, as the District Court Judge held, the officers had authority to arrest Mr Owen under s 315 of the Crimes Act.
[36] This ground of appeal fails.
Issue 5: Good cause to suspect
[37] Section 68 of the Land Transport Act provides that the police may administer an evidential breath test to “a person who the officer has good cause to suspect has recently committed an offence against this Act that involves the driving of a motor vehicle”. Counsel for Mr Owen submits that the officers did not have good cause to suspect any such offence. This submission is made on the basis that the two police officers gave conflicting evidence about who had spoken to Ms Madden and which of them had arrived at the address first.
[38] However the police had received information from the Gillespies as to their observations of erratic driving including the crash into the parked car. They had provided the registration number. As a result of the information they conveyed the police arrived at an address where a car with that registration number was parked. The car was damaged and was still warm. Constable Press said that Mr Owen appeared to be intoxicated at the door. The police officers therefore had good cause to suspect that Mr Owen had committed driving offences.
[39] This ground of appeal fails.
Issue 6: Proof of previous convictions
[40] Section 71 of the Summary Proceedings Act 1957 provides:
(1) The Registrar of each Court appointed for the exercise of criminal jurisdiction shall keep Criminal Record 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.
...
(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.
[41] Counsel for Mr Owen submits that the proof of one of Mr Owen’s previous convictions did not comply with s 71 because the signature in the criminal record entry is not identified as being that of a District Court Judge. However s 71(1) does not require that the District Court Judge who has signed the entry to include his or her printed name. As was said in Keliher v Police,[2] the Registrar cannot issue a certified copy under s 71(3) unless the Judge has signed the entry in the Criminal Records. Here the Registrar had issued a certified copy which “can only signal that the Registrar is certifying that the Judge did sign the original”.[3]
[42] This ground of appeal fails.
Issue 7: Proof of reparation
[43] The order for reparation was made in favour of the owner of the car that Mr Owen crashed into. She had insurance, but the reparation was for costs incurred in replacing the car. Counsel for Mr Owen submits that these costs were not disclosed and not proven.
[44] The evidence as to costs came from the victim impact statement. In that statement the car owner set out her costs as being:
(a) $210 – Interisland Ferry crossing – Picton to Wellington; (b) $190 – flight to Christchurch;
(c) $100 – incidentals relating to borrowing other people’s cars for three
weeks;
(d) $15-$20 – costs in borrowing cars.
[45] The Judge discounted the total amount claimed to $450 on the basis that the
$100 for incidentals was not itemised.
[46] One of the matters which victim impact statements are intended to cover is any loss of property.[4] It was therefore an appropriate means of conveying that loss to the Judge. It does not appear that at the District Court sentencing Counsel for Mr Owen objected to the method of proof of the loss nor the time he was given to consider it. Other than the claim for costs and incidentals in borrowing cars, which the Judge reduced on the basis that it was itemised, the amounts appeared to be
reasonable. In the absence of a submission from Counsel that there should be further proof of the loss, I consider that the victim impact statement was sufficient evidence of loss to the victim and the Judge’s award of $450, on the basis of it, was appropriate.
[47] This ground of appeal fails.
Issue 8: Medical fee
[48] The Judge ordered Mr Owen to pay “the medical and analyst fees of
$239.50”. This sum appears to have come from the summary of facts which refers to
“ESR blood analysis fee of $93.00 and medical expenses of $146.50 to a total of
$239.50”.
[49] Medical expenses cannot exceed $93.00.[5] However there is no maximum for the analyst’s fee. In this case it appears that the summary of facts has inadvertently mixed the two. The Judge did not specify how the $239.50 was broken down. As a total sum for both fees the amount was unobjectionable. I therefore decline to quash the order.
[50] This ground of appeal fails.
Result
[51] The appeal against conviction and sentence is dismissed.
Mallon J
[1] Southall v Police [2011] NZAR 430 (HC) citing Transport Ministry v Quirke [1997] 2 NZLR
497; and Spiekerman v Police HC Wellington AP 83/99, 27 May 1999.
[2] Keliher v Police CA 22/98, 2 April 1998.
[3] Keliher v Police at 4.
[4] Section 17 Victims’ Rights Act 2002.
[5] Barr v Police [2009] NZSC 109.
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