Gittings v Police [2013] NZHC 3573 (18 December 2013)

Last Updated: 8 July 2014

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2013-409-93 [2013] NZHC 3573

BETWEEN	JASON GITTINGS Appellant
AND	NEW ZEALAND POLICE Respondent

Date:	14 November 2013
Counsel:	P J Norcross for Appellant K B Bell for Respondent
Judgment:	18 December 2013

_{JUDGMENT OF FOGARTY J}

Introduction

[1] The defendant faced four charges arising from a crash in Christchurch. The charges were driving with excess blood alcohol, driving while disqualified, failing to stop after an accident and ascertain whether anybody had been injured, and careless driving causing injury.

[2] The trial issue was on identification of the accused. The complainant was on a moped. She was about to go into the car park of the Speights Ale House in Troup Drive, Christchurch. A vehicle exited the car park and collided with her. She suffered a number of injuries and will require ongoing surgery. The vehicle in question left the scene.

[3] The crash was witnessed by a lady who was at the Ale House at the time. She described the car as being a gray Mitsubishi Gallant motor vehicle. She noted

GITTINGS v NEW ZEALAND POLICE [2013] NZHC 3573 [18 December 2013]

the licence plate number and texted the number to her mother. She gave the police two numbers, as she was not sure if she had transposed them. They were WQ3892 and WQ8392.

[4] Acting on this information, a police constable went to the address of the registered owner of one of these two registered numbers and there found a gray vehicle parked behind another vehicle in the driveway. He noticed crash damage to the right-hand side of the Mitsubishi Gallant. He felt the bonnet of the car, and it was warm. He spoke to the defendant outside the house, and subsequently placed him under arrest for failing to stop, and required the breath screening test etc.

[5] The following day, the constable went to the Ale House, his purpose being to examine the closed circuit television footage from the previous day to ascertain whether or not there was evidence that the offender was at the hotel. The constable observed the closed circuit television recordings. From that observation he formed the opinion that the person he observed on the CCTV and the person he arrested were one and the same. At the time, he took a photograph taken from the CCTV, and is also of the opinion that the person in the photograph was the same person he had dealt with the previous day.

[6] The problem in the case is the fact that in course of the trial Judge O’Driscoll

excluded the CCTV evidence. He reasoned as follows:

[32] The next issue is whether or not the evidence establishes beyond reasonable doubt that the defendant was the driver of the motor vehicle that collided with the complainant on Troup Drive and injured her, failed to stop and in those are circumstances I am also required to consider if the defendant was the driver whether he was disqualified at the time and whether he drove with an excess blood alcohol level.

[33] In deciding whether the officer had good cause to suspect that the defendant was the driver, I have specifically excluded the officer’s subsequent investigations from the closed circuit television at the Ale House. Any information gleaned as a result of subsequent investigations cannot bolster the officer’s good cause to suspect which must exist at the time that the requirement for the breath test was made.

[34] In determining whether or not the charge has been proved beyond reasonable doubt I exclude from my mind the evidence that I ruled inadmissible namely the observations Constable Alder made from his observations of the closed circuit television and the opinion evidence which

he gave to the Court that from his observations on closed circuit television the defendant was at the scene of the crash minutes before it occurred.

[35] On the other hand, I do take into account in my decision the evidence from Constable Alder that he took a still photograph from the closed circuit television at Speights Ale House showing a person on 15

December 2012 leaving the hotel. I take into account the officer’s opinion

that that person is the defendant. I take into account in considering the weight to attach to that opinion the fact that the officer spent some time in

the presence of the defendant when arresting him and processing him for

drink driving on 15 December 2012. I take into account also the time between when the defendant was in the officer’s presence and the examination of the photograph the following day.

[36] I do not believe it is necessary for me to specifically warn myself of the dangers of accepting the evidence of Constable Alder relating to his opinion that the person in the photograph from the CCTV is the defendant. Constable Alder did not observe the defendant driving the Mitsubishi. By the time the constable saw the defendant on the CCTV and took the still photograph the defendant was not a stranger to the constable: they had spent some time in each other’s presence the previous day.

[37] When looking at the relevant and admissible evidence, I am satisfied beyond reasonable doubt that the defendant was the driver of the vehicle in question on 15 December 2012. That is a result of the cumulative circumstantial evidence that has been placed before me by the prosecution. While I accept that there are circumstantial matters that the defence had raised including the positioning of the car and the clothing worn by the defendant, I believe that there are reasonable and plausible explanations for them.

[38] I am therefore satisfied beyond reasonable doubt that each of the elements has been proved beyond reasonable doubt (subject to the prosecution proving the aggravating factors in the drink-drive charge and driving while disqualified charge i.e. the previous convictions).

[7] I do not think it is possible for the Judge to maintain the distinction between [34] and [35]. This is because it is clear from the evidence of the constable that he relied significantly on his observations of more than the photograph, namely what he saw on the CCTV.

[8] In his evidence on the voire dire the constable had specifically referred to “a set of tattoos on his arms” as a basis for his identification of the appellant. He, however, accepted that no tattoos were visible on the still photograph. Indeed, stating: “That’s the trouble with that snapshot.”

[9] There is no doubt from the abundant circumstantial evidence that the appellant was probably the driver of that car. The law, however, is quite strict on

proof of identity. This is because there have been numerous instances in the history of the common law or persons being convicted due to mistake as to identity. An underlying background problem was that the constable was looking at the CCTV filming in order to confirm an opinion he had already for practical purposes reached, having found the still warm car on premises which were occupied by at least the defendant.

[10] On the evidence before the Court, it is simply not possible to exclude from the formation of the constable’s judgment what he saw on the CCTV, and in particular the tattoos.

[11] The still photograph shows a man wearing a cap, possibly dark glasses and a dark t-shirt. Certainly, it goes to the probability of that man being the defendant, who was described by both the eye-witness I have referred to and another eye- witness as “a man wearing a dark t-shirt”.

[12] However, the standard of proof in criminal proceedings is proof beyond a reasonable doubt. Identification was necessary to be proved before any of the four charges could be proved beyond a reasonable doubt.

[13] In my view, the failure of the police to obtain the admission of the CCTV film was fatal to the prosecution. With respect to the learned District Court Judge, I repeat, I do not think the distinction he sought to set out in [35] can be maintained. Therefore, the evidence did not meet the standard required by law, as the constable’s opinion relied upon the tattoos, part of the inadmissible evidence. In turn, the Judge relied upon the constable’s opinion, see [35] and [36].

[14] The appeal succeeds. All the convictions depended on proof of identity beyond reasonable doubt. They are set aside.

Solicitors:

Paul Norcross Barrister, Christchurch

Raymond Donnelly & Co, Christchurch