Lawrence v Police [2013] NZHC 348 (27 February 2013)

Last Updated: 20 March 2013

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000110 [2013] NZHC 348

LIAM LAWRENCE

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 27 February 2013

Appearances: Appellant in Person

K Basire for the Respondent

Judgment: 27 February 2013

_{INTERIM JUDGMENT OF FOGARTY J}

[1] This is an appeal against conviction after a trial in the District Court, before Judge J E MacDonald. The appellant, Mr Lawrence, was charged with breaching a protection order. He was in fact facing two charges, but the other charge of being without reasonable excuse in an enclosed yard, a driveway of a house, was dismissed by the Judge.

[2] The police case was that there was a protection order out against Mr Lawrence, on behalf of a woman with he had had a relationship for some eight years or more. She lived at 261B Lyttleton Street. It was her evidence that shortly after midnight, she was on a balcony having a cigarette when she saw the defendant, the

_{appellant in this case, pop out from behind her letterbox. She described his clothing.}

LAWRENCE V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000110 [27 February 2013]

She was pretty sure it was him. She told a flatmate what she saw. He came out, went down the driveway to have a look. He believes he saw the appellant as well, at the time when the appellant lit a cigarette. The police were called, and they arrived. There was a dog team, and the dog tracked the appellant to another address in Lyttelton Street, which the police officer, who was not part of the dog team, was 275

Lyttelton Street. The constable who did the tracking did not give evidence. The

Judge does not appear to be quite sure where the tracking started from. He said:

There were dogs there that tracked the defendant, it seems, from the

letterbox, of the complainant’s place.

So, in broad terms, that is the evidence from the informant.

[3] There was a reference in the evidence to the letterbox as the place from which he was tracked in an answer and cross-examinaton from the constable who gave evidence. She was the constable who made the arrest, but she was not part of the tracking team.

[4] The defence case before the trial was that he had been working in Birmingham Drive and he was living in Marine Parade, New Brighton. The most convenient route post-earthquake was to go down Birmingham Drive, get on to Lyttelton Street, go down Wainoni Road, and thus across town. He said that the engine of his van overheated and he had to stop in Neville Street, which intersects with Lyttelton Street, and go and find some water. That is what he was doing when he was found. He disputed the case that he was breaching the protection order.

[5] Obviously from what I have said, he gave evidence. In his evidence, he referred to “my friend told me to pull over because something was overheating”. So there was evidence that there was another person with him in the van at the time he pulled over. That person was not called as a witness.

[6] The Judge, in his decision, was impressed by what he saw as a highly unlikely coincidence that the appellant was found by a police dog in the neighbourhood on the same night and time that the lady with the benefit of the protection order had telephoned the police and said he was nearby, and when her

flatmate had also confirmed that there was someone he believed was the appellant nearby.

[7] The other final detail is that the constable who attended the scene and arrested the appellant said he smelt strongly of alcohol.

[8] On appeal before this Court, Mr Lawrence challenged the Judge’s finding, coming from the evidence that he was found about 30 metres away. Rather, he argued that he was between 1000 and 1400 metres away. He also said that the protected person had since come to his home and broken in. He had dialled a 111 emergency call, and the police have this on record. That he is now a victim. After he was arrested, he had been injured by the police dogs and was hospitalised. He was also not granted bail. By the time he got back to his van, it had been broken into.

[9] I explained to Mr Lawrence that the law is you have got to bring your best case to trial, which means if you have got a witness who supports your case, you have got to bring the witness to the trial at the time. Mr Lawrence responded by saying that he did not realise when he went to see his lawyer, Mr Owen, that this was the day of the trial, otherwise he would have brought the other person who was with him to support his story. Six days after the judgment, that person swore an affidavit. Mr Lawrence brought the affidavit to Court. I have not read that affidavit. I have not allowed him to file it, because the other witness clearly was available.

[10] The difficulty with this case is that, on what Mr Lawrence has told me, it was really a breakdown in communication between himself and his lawyer as to what the day of the trial was, which was the reason why the witness was not called. That is not normally the sort of reason given to allow new evidence to be called at a trial, or to redirect a new trial. Again, if it was the fault of the lawyer that another witness was not called, the Court expects that lawyer to give evidence on appeal.

[11] At this stage then, I am of the view that I cannot set aside this conviction, as there is not sufficient ground for remitting the evidence of the other witness. I remind myself that Mr Lawrence is appearing on his own. I have decided that this

will be an interim decision, giving Mr Lawrence one opportunity to see whether Mr Owen, his solicitor, can support his proposition that he did not realise it was the case of the trial, because I am of the view that if the appellant, Mr Lawrence, had an opportunity to call the person who was with him in the van and decided not to, then it is simply not open under the law for me to set aside the verdict.

[12] By 12 March, Mr Lawrence is to file an affidavit by Mr Owen. Ms Basire will have until 21 March 2013 to reply. Those papers will then be put in front of me, and I will decide what to do.

[13] I adjourn this appeal.

Solicitors:

Raymond Donnelly, PO Box 533, Christchurch

Copy to:

Mr L Lawrence, 31 Truman Road, Bryndwr, Christchurch