Craigie v Police [2012] NZHC 208 (20 February 2012)

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Craigie v Police [2012] NZHC 208 (20 February 2012)

Last Updated: 7 March 2012

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-411 [2012] NZHC 208

JARRAH CRAIGIE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 20 February 2012

Counsel: R McCausland for Appellant

L Clancy for Respondent

Judgment: 20 February 2012

(ORAL) JUDGMENT OF LANG J [on appeal against conviction]

JARRAH CRAIGIE V NEW ZEALAND POLICE HC AK CRI-2011-404-411 [20 February 2012]

[1] Mr Craigie faced charges in the District Court of driving whilst disqualified (having previously been convicted at least twice of that offence) and failing to remain stopped as long as necessary for an enforcement officer to obtain his particulars. Mr Craigie pleaded not guilty to those charges, but after a defended hearing on 25 November 2010, Judge Kiernan found both charges proved. She

subsequently gave written reasons for her decision on 10 October 2011.1

[2] Mr Craigie appeals against his conviction on both charges. He contends that the evidence was not sufficient to prove the charges beyond reasonable doubt.

Background

[3] The incident that gave rise to the charges began at approximately 12.30 am on 29 July 2009, when a police patrol stopped Mr Craigie’s vehicle on New North Road in Avondale. At that time Mr Craigie’s associate, Mr Harvey Watson, was driving the vehicle. Mr Watson exhibited signs of having consumed alcohol and, after a short delay whilst the necessary equipment was brought to the scene by another police patrol, breath testing procedures were carried out on him. These proved positive, and the police officers took Mr Watson to the Avondale Police Station at approximately 12.55 am.

[4] One of the officers who attended that incident, Constable Peebles, spoke to Mr Craigie, who was in the front passenger seat of the vehicle. She took his name and details, and was able to ascertain that he was the owner of the vehicle. She was able to provide a physical description of him at the hearing, and was also permitted by the Judge to identify him in Court. There was ultimately no dispute regarding the fact that Mr Craigie was travelling as a passenger in the vehicle at that time, because he confirmed that fact when he gave evidence.

[5] The police officers who dealt with Mr Watson said that they left the vehicle locked on the side of New North Road when they took Mr Watson to the police station. Constable Peebles said that the key was not in the ignition, and that she

_{asked Mr Watson whether he had it. He said that he did not. By that stage Mr}

1 New Zealand Police v Craigie DC Auckland – CRI-2009-004-018168, 10 October 2011.

Craigie had already left the scene, ostensibly to walk home. Constable Peebles said that in order to lock the vehicle it was necessary to activate the door locks, and then to shut the doors in a manner that ensured that the vehicle remained locked.

[6] The next event of interest occurred at or about 1.15 am. At that time, another police patrol noticed Mr Craigie’s vehicle on Blockhouse Bay Road. The members of that patrol had seen Mr Craigie’s vehicle a short time earlier, because they had brought the breath testing equipment to the officers who had carried out the breath testing procedures on Mr Watson. They considered it to be unusual for the vehicle to be driving again so soon after the earlier incident. They therefore followed the vehicle as it turned into Bollard Avenue.

[7] When the patrol car turned into Bollard Avenue, the officers inside it saw Mr Craigie’s vehicle pointed towards them and in the middle of the road. It then performed a reversing manoeuvre before coming to a stop on the side of the road.

[8] Constable Sun, who was in the passenger seat of the police vehicle, got out of the vehicle and, as he did so, he saw that the driver of the other vehicle had also got out. Constable Sun called out to that person to stay where he was, and advised him that the police wanted to talk to him. The person then ran down a bank and crossed a stream, before disappearing into a nearby reserve. Constable Sun gave chase, but without success.

[9] At approximately 1.45 am the same police patrol visited Mr Craigie’s home in Blockhouse Bay Road. Mr Craigie’s flatmate opened the door and told the officers that Mr Craigie was not present. He also permitted them to walk through the house and look into Mr Craigie’s bedroom in order to satisfy themselves that Mr Craigie was not at the address.

[10] Mr Craigie’s vehicle was then impounded by the police for 28 days. The prosecution contended that Mr Craigie did not make any attempt during this period to make enquiries about, or uplift, the vehicle.

The Judge’s decision

[11] The Judge took the view that the general descriptions given by the officers who saw the driver of the vehicle in Bollard Avenue had probative value. She also considered that other aspects of the prosecution case assisted to establish that Mr Craigie had been the driver of the vehicle at that time. She couched her final conclusion on this point in the following terms:2

I remind myself both of the caution with which fact finders must approach evidence of identification and the standard in a criminal hearing. Having carefully considered the evidence I am satisfied beyond reasonable doubt that Mr Craigie was the person driving ALC685 about 1.15 in the morning on 29 July 2009 In making this decision I take into account the descriptions given by Constables Sun and Tippet, the short period of time between the occasion when Mr Craigie was a passenger in the vehicle and then those officers saw a person driving the vehicle in Bollard Avenue, the evidence from Constable Peebles that the keys of the vehicle were not retained by the police after the earlier stop, the fact that Mr Craigie was not home when police visited at 1.45 in the morning, and the fact that he did not contact police about the impounding of his vehicle for 28 days. All of those matters taken together, in my view support the conclusion that Mr Craigie was the driver of ALC685 at 1.15 am on 29 July 2009 in Bollard Avenue. I convicted Mr Craigie, the other essential elements of each offence being made out.

Grounds of appeal

[12] Counsel for Mr Craigie contends that the factors that the Judge relied upon were not sufficient to enable her to conclude beyond reasonable doubt that Mr Craigie was the person who was driving the vehicle when it stopped in Bollard Avenue. Allied to this is a subsidiary submission that the Judge ought to have made an express finding regarding Mr Craigie’s credibility, particularly given the fact that Mr Craigie said in evidence that he was not driving the vehicle at the critical time.

Was the evidence sufficient to prove the charges beyond reasonable doubt?

[13] The prosecution case was based on circumstantial evidence. Taken individually, aspects of the evidence might not be sufficient to prove the charges

2 Ibid, at [17].

beyond reasonable doubt. The issue is whether, viewed collectively, they were sufficient to permit the Judge to conclude that the prosecution had met that standard.

The identification evidence

[14] Constable Tippet said that he came within five to eight metres of the driver of the other vehicle, and that there was lighting from both the headlights of the police vehicle and a nearby street lamp. He said that he was able to observe the occupant of the other vehicle for up to ten seconds. His description of the driver of that vehicle was as follows:

A. The male, the male I described as male Caucasian, um, at the time I thought he was 30s, 30 to mid 30s. He was of slight to medium build with fair hair and he was dressed all in black, he had black trousers on, a black jacket, black coat. Um, it was, it was not a short jacket and it wasn’t very long but it may have been just covering the, the buttocks area.

[15] Constable Sun said that he was able to see the man who got out of the vehicle for several seconds. He gave the following description of that person:

A. Yeah, the driver was, um, male Caucasian, he’s about late 30 or late

30, um, he’s about 175, shorter than me about 175 centimetres tall, he’s dark coloured hair, um, oh dark colour hair, yeah. Um, he was

wearing dark colour clothes.

Q. Can you be more specific with –

A. Skinny (Inaudible 12:22:02) Q. - the clothing?

A. Oh could not recall exactly what clothes he was wearing but it was pretty sure (Inaudible 12:22:11) white trackpants or I thought black trackpants or black jeans, I’m not sure of the colour of the jacket but I was sure that it was a dark colour jacket.

[16] Like Constable Tippet, Constable Sun said that there was street lighting nearby, and that he had an opportunity to see “pretty clearly” what the other person looked like. He believed that he was approximately five to eight metres away from the driver of the other vehicle.

[17] Constable Peebles gave the following description of Mr Craigie:

A. Yep there was a front seat passenger, um, he was describe him as fair hair with ginger, strawberry blonde coloured hair. He was Caucasian he was thin to medium build. He was wearing dark clothing. He had a jacket type, dark black jacket thing on and jeans, dark jeans. I can’t remember what footwear he was wearing but, um, he also got out of the vehicle while I spoke to the driver of the vehicle.

Q. Did you speak to the passenger of that vehicle?

A. Yep after dealing with the driver I then spoke to the passenger. I also obtained his details in my notebook.

Q. Can you tell us the details that you obtained?

A. Yep I spoke to him he provided me with the first name of Jarrah, surname of Craigie, date of birth 23 –

Q. I’ll stop you, you don’t have to tell us the date of birth. Did you confirm those details constable?

A. Ah, yes we confirmed them with our Comms centre at the time.

[18] Counsel for Mr Craigie submits that there is inherent conflict between the descriptions given by Constables Sun and Tippet, and also between their evidence and that given by Constable Peebles. She points out that all three witnesses gave different descriptions of the clothing worn by the driver of the vehicle. Importantly, counsel reminds me that there is a critical conflict in their evidence relating to the colour of the driver’s hair. Constable Peebles said that the driver of the other vehicle had ginger or strawberry blonde coloured hair, whilst Constable Sun considered that the driver had dark coloured hair. Constable Tippet, on the other hand, said that the driver had fair hair. In those circumstances, counsel for Mr Craigie contends that the physical descriptions given by the three officers are so diverse as to be virtually worthless.

[19] I agree that the differing versions of the hair colour of the driver of the vehicle mean that this evidence can only be given limited weight. Nevertheless, the preponderance of the evidence was to the effect that the driver of the vehicle was a Caucasian male in his 30s. Mr Craigie is a Caucasian male, who was in his mid-30s as at the date of the incident.

[20] The evidence was also broadly to the effect that the driver of the vehicle was dressed in dark clothing and, in particular, had a dark jacket.

[21] Taking all of those factors into account, I accept that the evidence has some probative value, although it cannot be given great weight.

The issue relating to the car key

[22] An important issue in the present case was whether or not Mr Craigie was in possession of the key to his vehicle after the police had begun dealing with Mr Watson. The evidence for the prosecution on this point was that the police did not uplift any keys, either from the vehicle or from Mr Watson or Mr Craigie. This was why Constable Peebles described the need to lock the vehicle using the door locks.

[23] The fact that Mr Watson told the police that he did not have the keys to the vehicle is important. There was then a very short interval between the time when the police left the vehicle at approximately 12.55 am, and the time when the vehicle was seen again shortly before it went into Bollard Avenue. That interval appears to be in the order of 15 minutes.

[24] Mr Craigie accepted in answer to questions from the Judge that he had given Mr Watson the key to the vehicle before they had set out on their journey earlier that evening. There was no evidence to suggest that the vehicle had been broken into, or that it had been started using any means other than a key.

[25] Given the very short space of time between 12.55 am and 1.15 am, and the absence of any damage to the vehicle to suggest that intruders had entered it, I consider that the only realistic inference to be drawn is that Mr Craigie must have obtained possession of the key at some stage after the police stopped the vehicle whilst Mr Watson was driving. Mr Craigie must then have been in possession of the key at the time that he left the vehicle, and whilst the police were still processing Mr Watson.

[26] It is also relevant in this context that, in answer to questions from the Judge at the very end of his evidence, Mr Craigie said that Mr Watson had returned the key to him the following morning. This means that he accepted that he was in possession of the key the following day. His explanation as to how he came into possession of it

is at odds with Constable Peebles’ evidence that Mr Watson told the police that he did not have the keys at the time that they were seeking to lock the vehicle. Mr Watson was not called to give evidence by either the prosecution or the defence. For that reason there was no direct evidence from him regarding this issue. Nevertheless, I consider it significant that he told the police at the time that he was being processed that he did not have the key in his possession.

[27] Taking those factors into account, I consider that the only realistic conclusion is that Mr Craigie had the key, and this strongly supports the inference that he returned to the vehicle and began driving it again shortly after the police left the scene with Mr Watson.

Mr Craigie’s absence from his home

[28] The fact that Mr Craigie was absent from his home at about 1.45 am when the police visited is of some assistance, but does not take matters a great deal further.

Conversations with police

[29] Counsel for the respondent also drew my attention to another matter that the Judge did not refer to in her decision. This relates to a conversation that Mr Craigie had with Constable Peebles when the police were dealing with Mr Watson. Constable Peebles said that Mr Craigie told her that he was quite keen to get away, and that he wanted to go to his girlfriend’s house. He also told Constable Peebles that he wanted to drive. She believed that he had been drinking, and for that reason she advised him that he should walk home. He walked away from the scene a short time later. This conversation suggests that Mr Craigie was keen to get behind the wheel of his vehicle, and to drive it to his girlfriend’s house.

The impounding of the car

[30] Likewise, I find the circumstances surrounding the impounding of Mr Craigie’s vehicle to be relevant. A person who loses the use of their vehicle for a period of 28 days is unlikely to let that issue pass without comment, particularly if he

or she is innocent of any wrongdoing in relation to it. Although Mr Craigie said that he made a couple of attempts to contact Constable Tippet, he accepted that he had never succeeded in doing so. For that reason he appears to have accepted the loss of use of his vehicle for a substantial period without complaint. This suggests that he may have been aware that he was guilty of some wrongdoing in relation to it.

Conclusion

[31] Taken individually, none of these factors is decisive. I consider, however, the issue relating to the key to be of considerable probative value. When that is added to the other factors I have identified, I conclude that the Judge was entitled to be satisfied beyond reasonable doubt that Mr Craigie was driving the vehicle at the critical time. Put another way, I do not consider it to be a reasonable possibility that a person other than Mr Craigie was the driver of the vehicle at that time.

Failure to expressly reject Mr Craigie’s evidence

[32] It is implicit in the Judge’s decision that she did not accept Mr Craigie’s evidence that he was not the driver of the vehicle, although she did not give explicit reasons for rejecting it.

[33] In cases involving a direct conflict of evidence it can be of considerable assistance, particularly to an appellate court and to the person who has not been believed, for express reasons to be given for such a finding. In the present case, however, the tenor of the Judge’s decision is to the effect that the totality of the circumstances compelled her to the view that Mr Craigie must have been the driver. I do not consider that it was necessary for the Judge to further articulate her reasons for putting Mr Craigie’s evidence to one side.

Result

_{[34] The appeal is dismissed.}

Lang J

Solicitors:

Crown Solicitor, Auckland

Public Defence Service, Auckland