McLaren v Police HC Dunedin CRI-2011-412-000024 [2011] NZHC 1434 (1 September 2011)

Last Updated: 9 November 2011

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

_{CRI-2011-412-000024}

DOUGLAS ALEXANDER MCLAREN

v

POLICE

Hearing: 1 September 2011

Appearances: S Saunderson-Warner for Appellant

R Bates for Respondent

Judgment: 1 September 2011

_{ORAL JUDGMENT OF HON JUSTICE FRENCH}

Introduction

[1] Following a defended hearing in the District Court, Mr McLaren was convicted of driving with excess breath alcohol.

[2] He now seeks to appeal that conviction, and asks that there be a re-hearing.

[3] The key issue for determination is whether the Judge’s reasoning involved an

_{inadvertent mis-application of the burden of proof.}

MCLAREN V POLICE HC DUN CRI-2011-412-000024 1 September 2011

The hearing in the District Court

[4] At the hearing, the sole issue was whether the police had proved beyond reasonable doubt that Mr McLaren had driven the motor vehicle. There was no dispute as to the level of his intoxication.

[5] The prosecution called three witnesses: Mr McLaren’s former partner and

two police officers.

[6] The former partner gave evidence that Mr McLaren visited her on Saturday

12 February 2011 at around 10.40 p.m. They had an argument and he left, reversing out of her driveway.

[7] She said he had a bottle of beer in his hand.

[8] She also gave evidence that he returned approximately 15 minutes later, at which point either she or her cousin phoned the police. According to her evidence, when Mr McLaren found out that the police had been called, he left again in his car. She could not see him driving.

[9] The police arrived about ten minutes after he had left. While they were there, she said she heard the distinctive sound of Mr McLaren’s car arriving, and the beeping of its alarm.

[10] Mr McLaren then ran down the driveway, within probably about 30 seconds.

[11] Constable Ray testified that he arrived at the address at approximately 11.28 p.m.

[12] He said that while speaking with Mr McLaren’s former partner, he heard a vehicle with a distinctive engine sound come into the street, heard it stop a short distance away, and the sound of a car door opening and closing.

[13] He then heard a sound which he associated with a car alarm locking the vehicle, and saw Mr McLaren appear at the top of the driveway.

[14] He testified that he did not hear any other vehicles come into the street after hearing this first vehicle.

[15] The prosecution’s third witness was a Constable Marr. She testified that she heard a vehicle pull up, heard the car alarm being activated, and that Mr McLaren began running down the driveway within seconds of the vehicle arriving.

[16] After the prosecution had closed its case, Mr McLaren gave evidence.

[17] He denied being at the address earlier in the night, as claimed by his former partner. He said he only travelled to the address once, and that his current partner, a Ms Tunnah, had driven him there.

[18] Mr McLaren’s version of events was supported by Ms Tunnah.

[19] She testified that she had driven him to the address, and that when they arrived, she got out of the car and sat in the gutter. Her six year old son was in the back seat, sleeping.

[20] Ms Tunnah further testified that she did not see the police car, or anything that happened on the street in relation to Mr McLaren being arrested or being put in the police car, as she was looking at her phone. Nor did she hear anything.

The Judge’s decision

[21] In finding the charge proved, the Judge gave the following reasons:[1]

[2] The evidence I regard as reliable and credible is this. Constable Ray

went to Ms Armishaw’s home in Moana Crescent and spoke to her at about

11.28 premium on 12 February 2011. Not long afterwards the defendant’s

WRX car arrived and stopped on the road about opposite the entrance to the

driveway to Ms Armishaw’s home. Constable Ray heard the alarm of the car being activated and within seconds saw Mr McLaren. Mr McLaren had a key to the car and an alarm activator in his pocket. Mr McLaren was mildly agitated and upset. He told Constable Ray a mate had dropped him off. He did not say to either constable who attended that his partner had dropped him off. One or other of the constables put Mr McLaren in the rear passenger

seat of the patrol car. Neither of them saw Mr McLaren’s partner sitting on the road or on the curb beside the WRX. The evidence I accept is that the WRX was parked behind some other vehicle, perhaps a four wheel drive that itself was parked behind the patrol car. Neither constable saw Mr McLaren’s partner, Ms Tunnah, on the side of the road nor did either constable see a child in the car.

[3] Mr McLaren gave evidence and he called evidence from his partner, Ms Tunnah. I reject Mr McLaren’s evidence. I also reject the evidence of Ms Tunnah for these reasons. It would have made no sense for Mr McLaren to have a key to the car and set the alarm on the car if he had not driven the car, especially when one considers the evidence he and Ms Tunnah gave is that Ms Tunnah was still with the car and there was a child, then aged five years, in the backseat of the car. The second factor is that Mr McLaren said in evidence that upon seeing the constables he panicked. There would have been no reason for that reaction.

[4] Despite receiving text messages from Mr McLaren that he had been arrested, Ms Tunnah did not make herself known to the police. That simply does not make sense. It also lacks credibility that Ms Tunnah did not hear a beep as the constable deactivated the alarm nor did she see Mr McLaren being put in the police car that was only one car away. Furthermore, Ms Tunnah admitted in cross-examination that she had informed Ms Armishaw via Facebook the day after this event, that is 13 February 2011, that the car had been picked up at 2.00 am that morning. She did not provide any credible explanation for making that remark.

[5] Those factors lead me to the inevitable conclusion that the charge is proved.

Grounds of appeal

[22] On appeal, counsel, Ms Saunderson-Warner, advanced two grounds of appeal:

(i) The Judge inadvertently placed the onus of proof on Mr McLaren, in that he jumped to a finding the charge was proved on the basis of disbelieving the defence evidence, without undertaking any analysis of the prosecution evidence.

(ii) The Judge failed to take into account evidence that there were two sets of keys, when making an adverse credibility finding against Mr McLaren.

Discussion

[23] Ms Saunderson-Warner submitted that, because none of the prosecution witnesses actually saw Mr McLaren driving, the police case rested entirely on inference.

[24] Yet the judgment contains no real analysis of the inference. Instead, she says, the Judge has approached the matter on the basis that he had to choose between competing versions of events, and having rejected Mr McLaren’s version of events, then jumped wrongly and directly to a finding of guilt.

[25] In Ms Saunderson-Warner’s submission, the case was similar to Hayes.[2]

[26] In Hayes, the High Court found there had been an accidental reversal of the onus in that the District Court Judge in that case had required a defendant to persuade her a motor vehicle accident had been caused by a seizure, rather than by his careless driving.

[27] In my view, however, the present case is distinguishable.

[28] Although there was no direct evidence Mr McLaren had driven to the property, there was a significant body of circumstantial evidence, which the Judge identifies at [2] of his decision, and which he expressly found credible and reliable.

[29] The inference to be drawn from the evidence which the Judge did accept is, in my view, self-evident. It led inevitably to the conclusion that Mr McLaren was the driver.

[30] The order in which the Judge analyses the issues, his treatment of the defence evidence and his concluding paragraph must, in my view, be seen in that context.

[31] This, after all, as Mr Bates points out, was a summary case in the District Court on a single issue. There was no complexity requiring a lengthy analysis of the evidence.

[32] Short form decisions which state the essential elements of the Judge’s

reasoning are acceptable and appropriate.

[33] I am satisfied, reading the decision in its entirety, that the Judge has not fallen into error regarding the burden of proof.

[34] The second ground involves consideration of whether the Judge wrongly made an adverse credibility finding against Mr McLaren, on grounds involving a mistaken view of the facts.

[35] At [3], the Judge states:

Mr McLaren gave evidence and he called evidence from his partner, Ms Tunnah. I reject Mr McLaren’s evidence. I also reject the evidence of Ms Tunnah for these reasons. It would have made no sense for Mr McLaren to have a key to the car and set the alarm on the car if he had not driven the car, especially when one considers the evidence he and Ms Tunnah gave is that Ms Tunnah was still with the car and there was a child, then aged five years, in the backseat of the car. The second factor is that Mr McLaren said in evidence that upon seeing the constables he panicked. There would have been no reason for that reaction.

[36] Ms Saunderson-Warner points out that there was evidence there were two sets of keys, and that it was Ms Tunnah who had activated the alarm.

[37] If that evidence were accepted, it would logically mean no adverse inference could properly be drawn from the fact that Mr McLaren had a set of keys on his person.

[38] Ms Saunderson-Warner says the Judge has overlooked the evidence about the keys.

[39] I accept that does, indeed, appear to be the case.

[40] However, Mr McLaren’s possession of the keys was only one of several matters which, in my assessment, amply justify the Judge’s rejection of the defence evidence.

[41] The defence version of events was inherently implausible. It involved Ms Tunnah sitting on the footpath by the car, locking it and setting the alarm, despite her being seated alongside the car, and despite her six year old being inside; failing to see or hear Mr McLaren being arrested or put in the police car only one car away; and then failing to make herself known to the police once she received a text message Mr McLaren had been arrested.

[42] Added to this is a Facebook entry she made, stating the car had been collected at 2 a.m. from the former partner’s address, which of course is inconsistent with her evidence claiming to be at the address and driving the car away shortly after Mr McLaren was arrested.

[43] I have read the transcript carefully, and I am satisfied that the Judge’s findings of credibility are amply justified, notwithstanding what appears to have been a mistake over the keys.

[44] It follows from all of the above that I do not accept either of the two grounds of appeal, and the appeal is accordingly dismissed.

Solicitors:

Aspinall Joel, Dunedin

Crown Solicitor’s Office, Dunedin

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[1] Police v McLaren DC Dunedin CRI-2011-012-000617, 13 July 2011.

[2] Hayes v Police HC Christchurch CRI-2009-409-000005, 7 July 2009.