Perry v Police [2015] NZHC 2810 (12 November 2015)

Last Updated: 16 November 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-251 [2015] NZHC 2810

BETWEEN	SCOTT PERRY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	3 November 2015
Counsel:	A J Maxwell-Scott for Appellant S P H Elliott for Respondent
Judgment:	12 November 2015

_{JUDGMENT OF BREWER J}

This judgment was delivered by me on 12 November 2015 at 1:00 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel: A J Maxwell-Scott (Auckland) for Appellant

Meredith Connell (Auckland) for Respondent

PERRY v POLICE [2015] NZHC 2810 [12 November 2015]

Introduction

[1] Mr Perry was charged with driving with excess breath alcohol (third or subsequent occasion). He defended the charge but, on 23 July 2015, Judge RG Ronayne found it proved and convicted him.¹ Mr Perry appeals the conviction.

[2] The basis of the appeal is that there was not enough evidence for the Judge to conclude properly that the charge was proved beyond reasonable doubt.

Principles governing appeals against conviction

[3] I can only allow Mr Perry’s appeal in this case if I conclude that Judge Ronayne erred in his assessment of the evidence to such an extent that a miscarriage of justice occurred.²

[4] A miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected; or has resulted in an unfair trial or a trial that was a nullity.³

[5] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”⁴ This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict actually is unsafe” but that there is a real possibility the verdict would be unsafe.⁵

[6] An unfair trial exists when the errors are prejudicial or unacceptably give rise to the appearance of unfairness. In Condon v R, the Supreme Court stated that “it is not every departure from good practice which renders a trial unfair”.⁶ Instead, the errors or irregularities must depart from good practice in a manner that is “so gross,

_{or so persistent, or so prejudicial, or so irremediable” that the Court must quash the}

¹ _{Police v Perry [2015] NZDC 14359.}

² _{Criminal Procedure Act, s 232(2)(b)–(c).}

³ _{Section 232(4).}

⁴ _{R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 (SC) at [110] per Tipping J.}

⁵ _{At [110].}

⁶ Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78].

decision.⁷ Ms Maxwell-Scott for Mr Perry places emphasis on the statement of the

Court of Appeal in R v Connell⁸ where the Court said:

There are cases where a point or argument is of such importance that a Judge’s failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice.

[7] Courts have held that an unfair trial can also exist when a defect in the trial causes an unacceptable appearance of unfairness without actual prejudice to the defendant.⁹

[8] An appeal against conviction proceeds by way of rehearing. I am, therefore, required to carefully consider all matters that were before Judge Ronayne, but ultimately I must reach my own decision on the merits. The weight I give to the evidence is a matter for my judgment. If I conclude that the Judge below was wrong, I must act on my own view of what the outcome should be.¹⁰ It is, however, a general principle that an appeal Court will only interfere with a trial Judge’s findings of fact in “exceptional circumstances”.¹¹ While I may come to my own view on the facts, I should remain mindful of the inherent advantage that Judge Ronayne had in determining the facts of the offending as he had the benefit of seeing and hearing from the witnesses first hand.¹²

[9] Finally, in assessing Judge Ronayne’s decision, I must bear in mind that the

Court of Appeal has said:¹³

To require the Judge to set out in writing all the matters that he has taken into account and to deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point of argument is of such importance that a Judge’s failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But

⁷ Randall v R [2002] UKPC 19; [2002] 1 WLR 2237 (PC) at [28] per Lord Bingham, cited with approval by the

_{Supreme Court in Condon v R, above n 6, at [38].}

⁸ _{R v Connell [1985] NZCA 34; [1985] 2 NZLR 233 (CA) at 237.}

⁹ See James v R [2011] NZCA 219 at [29], where the failure to address the juror’s capacity meant

that there was a risk of a miscarriage of justice even though the verdict would have stood if the juror had been discharged.

¹⁰ _{Austin Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.}

¹¹ _{Jeffries v R [2013] NZCA 188 at [91]–[95].}

¹² _{Sullivan v Police HC Auckland CRI 2008-404-152, 2 October 2008 at [30].}

¹³ R v Connell, above n 8, at 237.

it is important that the decision to convict or acquit should be made without delay. Careful consideration is an elementary need, but not long exposition.

The evidence

Constable Scott

[10] The constable was the only witness called by the prosecution. His evidence was that at about 9:30 pm on 20 August 2014 he found Mr Perry sitting in the driver’s seat of his car in a parking area adjacent to a public park. As the constable approached the car, he heard a sound which he took to be very similar to one which a starter motor can make. So he reached in and took the keys from the ignition.¹⁴

[11] The constable said that Mr Perry got out of the car and the first words he spoke were “yeah I’ve been driving”.¹⁵ At the same time he put his hands up in the air. Because of this admission, the constable told Mr Perry his rights under the New Zealand Bill of Rights Act. Having done so, the constable asked Mr Perry “have you been drinking and driving?” He replied “yeah”.¹⁶ The constable then asked him “how much have you had to drink?” The answer recorded by the constable was “half a box”. The constable’s next question was “how much have you had to drink while you have been parked up?”. The answer was “one”.¹⁷

[12] The remainder of the constable’s evidence related to the formal process which identified that Mr Perry was affected by alcohol and the final result of the testing was that Mr Perry had 879 micrograms of alcohol per litre of breath.

Mr Perry

[13] Mr Perry said that he had returned home from work that day and had then gone out again. While he was driving he happened to be seen by a friend who was also driving. The friend telephoned Mr Perry and as a result both vehicles pulled

_{over to the parking area. Mr Perry said that the friend invited him to come to his}

¹⁴ The act of turning on a car’s ignition with the intention of driving can be enough to found the charge against Mr Perry. There was some skirmishing on this point at the trial, but the Judge did not decide it. He based his finding on actual driving. I am satisfied that this was the real issue.

¹⁵ _{Notes of evidence taken before Judge RG Ronayne, at 3.}

¹⁶ _{At 3.}

¹⁷ At 4.

house, which was nearby, to have a few drinks. Mr Perry accepted the invitation, left his car in the parking area, and went with his friend.

[14] Mr Perry said that he parked his car at the parking area, he thinks, around about 6:00 pm. He drank with his friend at the friend’s house and estimated his consumption at “about half a box, about six or seven maybe, yeah”.¹⁸ He told the Judge later that he was referring to “Codies”,¹⁹ and the Judge took judicial notice that “Codies” is a pre-mixed drink containing alcohol.

[15] Mr Perry said that he was returned to his car by Ms Rowlands, a young woman who was living with his friend at the time. Mr Perry said he had previously telephoned his girlfriend, Ms Weiber, to ask her to come and pick him up from the parking area. The parking area is only a 10 or 15 minute walk from Mr Perry’s house. He believes that he got dropped off at his car at about 9:00 pm and he was sitting in the driver’s seat listening to the radio and waiting for Ms Weiber when the Police arrived. He said that he had one more drink while sitting in his car during this period.

[16] Mr Perry’s evidence is different in some important respects to Constable

Scott’s evidence as to what happened when the two met:²⁰

Q. What happened next?

A. They told me to get out of the car and asked me if I’ve been drinking and driving and I said I hadn’t. I was just waiting for my girlfriend to pick me up.

Q. What was his response to that?

A. I can’t recall but they weren’t listening to me.

Q. You say they, you mean the three or four constables? A. Yeah.

Q. Did you repeat that message to them? A. Yes.

Q. What happened next Mr Perry?

A. I think they gave me the breath test and obviously it was a failed result and I was having to go to the police station with them.

¹⁸ _{At 26.}

¹⁹ _{At 32.}

²⁰ At 29-30.

[17] Finally, Mr Perry denied that he had been drinking and driving that day.

[18] In cross-examination, Mr Perry accepted that there was alcohol in the car, which would probably have been the other half of the box which he had begun to consume with his friend.

Ms Weiber

[19] Ms Weiber, Mr Perry’s partner and mother of his newborn child, corroborated Mr Perry’s account. She described a telephone call which she received from Mr Perry at around 7:00 pm during which Mr Perry told her that he was at the friend’s place and told her where he had left his car. Ms Weiber said that at around

9:00 pm Mr Perry telephoned her again and asked her to go to the car. Ms Weiber told him that he would have to wait because she was cooking dinner and as a result did not get to the parking area until just before 10:00 pm.

[20] Ms Weiber told of finding the car and becoming concerned when she saw that Mr Perry’s tobacco and phone were inside the car but that there was no sign of Mr Perry. As a result, Ms Weiber walked back to their house, took advice from her father and then telephoned 111. The Police told her that they had Mr Perry and subsequently she was able to pick him up. I pause to note that the prosecution accepted that Ms Weiber had telephoned 111 as she said.

Ms Rowlands

[21] Ms Rowlands also corroborated Mr Perry’s evidence. She was at the time the friend’s girlfriend, although that relationship had ended. Ms Rowlands described herself as a good friend of Mr Perry’s and Ms Weiber’s.

Judge Ronayne’s decision

[22] In brief summation, the Judge found the evidence of Constable Scott to be reliable and he preferred it to the evidence of Mr Perry. He found that the admissions Constable Scott said that Mr Perry had made proved the charge. He put to one side the evidence of the three Defence witnesses as being unreliable or untrue because of self-interest (in the case of Mr Perry) or because of bias (arising from

Ms Weiber’s status as partner and Ms Rowlands’s status as a good friend). The

Judge found, further, that Mr Perry’s evidence was inherently implausible.

Mr Perry’s case on appeal

[23] Mr Perry’s case on appeal is, essentially, that if the Judge had analysed the evidence logically and with due regard to the reasonable possibilities, he would not have determined that Constable Scott’s evidence was sufficient to prove the charge beyond reasonable doubt. Ms Maxwell-Scott took me through the Judge’s analysis and made a number of criticisms. I will discuss the ones I find pertinent.

[24] Ms Maxwell-Scott’s core submissions are to the effect that the Judge accepted too readily the reliability of Constable Scott’s evidence and did not consider it critically in the light of the Defence evidence.

[25] In Ms Maxwell-Scott’s submission, the Judge adopted illogical reasoning in accepting the evidence of Constable Scott as to the admissions made by Mr Perry. The Judge noted that the constable did not accept the suggestion put to him in cross- examination that he had misheard what Mr Perry had said to him. In other words, that Mr Perry had made exculpatory statements which the constable heard as being inculpatory. The Judge, in addressing this issue, repeated the proposition of Constable Scott that if Mr Perry had made an exculpatory statement, the constable would not have needed to tell Mr Perry his rights under the New Zealand Bill of Rights Act.

[26] Ms Maxwell-Scott submits that giving Mr Perry his rights does not make it more likely that Mr Perry had just made an admission. The issue is whether the constable had misheard. If he had, then all that occurred subsequently was a mistake based upon the mishearing.

[27] As a matter of logic, I accept Ms Maxwell-Scott’s submission. The central point of the Judge’s discussion of the evidence of Constable Scott is his acceptance that the notes are accurate. The issues are whether he should have accepted that and, in any event, what the recorded admissions prove.

[28] It is submitted that the Judge ignored the corroborative value of Ms Weiber’s evidence. He summarised her evidence about going to the parking area and finding Mr Perry’s car but failed to analyse that evidence for meaning.

[29] Ms Maxwell-Scott submits that it is highly significant that Ms Weiber walked from the home she shared with Mr Perry to the parking area, arriving there about half an hour after Mr Perry had been arrested:²¹

There is a logical conclusion, based on the evidence of not just three witnesses but by an accepted ‘111’ call, that she was asked to come along which flies in the face of the contention that he had been driving or was intending to drive.

[30] Ms Maxwell-Scott’s submission is that the Judge failed to turn his mind to this evidence in any analytical way. If the prosecution case is correct, Mr Perry was driving while affected by alcohol to an extent not permitted by the law but, within a few hundred metres of his home, pulled into the parking area and telephoned his partner to walk from their home to the parking area to collect him. This simply beggars common sense. There has to be a reasonable possibility that Mr Perry, Ms Weiber and Ms Rowlands are being truthful and that taken together there is a reasonable possibility that Mr Perry pulled his car over to the parking area upon being telephoned by his friend, went in the friend’s car to the friend’s house, consumed alcohol there, was dropped back at his car and, having summoned his partner, was waiting to be collected when the Police arrived.

[31] The submission follows that the Judge was wrong to find that Ms Weiber’s evidence did not really help Mr Perry’s case. The Judge was wrong to find that Ms Weiber’s 111 call “simply reflects the fact that when she got to the vehicle he was gone”.²²

[32] In Ms Maxwell-Scott’s submission, the 111 call is very significant because it

corroborates Mr Perry’s account and the account of all of the Defence witnesses that

_{Mr Perry was waiting to be collected from the parking area. The significance of the}

²¹ _{Memorandum of submissions on appeal, dated 19 October 2015, at 15.}

²² Police v Perry, above n 1, at [30].

111 call is not that Ms Weiber got to the car and found Mr Perry to be gone, it is that she was there at all.

Discussion

[33] The Judge, of course, had to consider the evidence as it related to the essential elements of the offence. The prosecution, as the Judge noted, had the onus of proving the charge and the standard was proof beyond reasonable doubt. Since the technical aspects of the charge, such as the breath testing procedures and the result of the analysis, were admitted and given the evidence of the Defence witnesses, the Judge said “the solitary issue in the case is whether Mr Perry was the

driver”.²³

[34] With respect, that was not the issue. Rather, the issue for the Judge was:

Had Mr Perry, prior to being found by Constable Scott, driven his car on the road with a breath alcohol content greater than 400 micrograms of alcohol per litre of breath?

[35] The Judge had to decide the issue on the evidence before him. In some important ways it was unsatisfactory:

(a) The defendant’s evidence was that having returned home from work he went out again. He was driving his car when his friend telephoned him. He did not give evidence on what he did between leaving his house and being hailed by his friend.²⁴ He was not asked about it in cross-examination other than to have it put to him (unhelpfully) that he was lying. If he had been drinking, and then had gone to his

friend’s house to drink more, then the prosecution would have failed because it could not apportion his breath alcohol reading between the drink-driving period and the drinking-with-friend period. But, if, despite Mr Perry’s denials, this was a reasonable possibility, then the

_{evidence of Ms Weiber and Ms Rowlands gains credibility.}

²³ _{At [4].}

²⁴ The evidence-in-chief was (notes of evidence at 24):

Q. So where were you driving to and what happened if anything on the way?

A. I can’t recall where I was going and that’s when I saw my mate.

(b) The defendant said he had alcohol in his car and that it was probably what was left from drinking with his friend. He was not asked where he got it, or when. He was not asked why it was in his car.

(c) Constable Scott, having gained the admissions he recorded, did not ask Mr Perry for corroborating details. If he had, the issues would be much more clear than they are. If he had asked Mr Perry where he had been drinking, when he had been driving, how long he had been in the parking area, then many of the points now being raised on appeal would not be issues.

(d) Constable Scott was reliant on his notes. These were brief. For example, they do not record Mr Perry saying anything about waiting for Ms Weiber. But, since that is what he was doing, there is at least a reasonable possibility that Mr Perry talked about that.

(e) Constable Scott was not the only police officer present when Mr Perry was spoken to. None of the others gave evidence. If they had, they might have been able to say why Mr Perry became argumentative to the point of having to be handcuffed.

[36] In my view, the Judge had to make decisions on credibility against an incomplete evidence picture. Of course, that is often the case. But, where the evidence picture is incomplete then doubt as to guilt can result, and doubt must be weighed in favour of the defendant.

[37] The defendant’s evidence was that he was in his car because he was waiting for Ms Weiber to walk the 500 metres or so from their home to collect him. It was accepted that she did just that. Her alarm at finding the car empty translated into a

111 call. The Judge needed to consider that call in the context of Ms Weiber’s evidence, and in the context of the evidence of the other Defence witnesses. The fact of the 111 call means there was at least a reasonable possibility that Mr Perry had telephoned Ms Weiber before the Police arrived to ask her to walk over and collect

him. Why would he do that? The only logical reason is that he knew he was too intoxicated to drive legally.

[38] If this is the correct analysis, then the evidence of Ms Rowlands and Mr Perry about Mr Perry drinking at the friend’s address, without decisive rebuttal, must be accepted as a reasonable possibility.

[39] Constable Scott’s evidence is the only possible source of decisive rebuttal. But:

(a) The constable was clearly reliant on his notes. He was unwilling (and naturally so given the passage of time) to trust his memory.

(b) His notes were cursory. They could be ambiguous. The initial admission recorded – “Yeah I’ve been driving” – is inculpatory only if it was an admission of drink driving, rather than a statement of fact. The affirmative answer to the question – “Have you been drinking and driving?” – is, on its face, an admission. But, it does not necessarily mean that Mr Perry was accepting he had been driving while intoxicated.

(c) If he misheard the original “admission” and the later response, then he would be a convincing, but honestly mistaken, witness.

[40] There is also the possibility I have referred to, which could reconcile the evidence of the witnesses, namely that, contrary to Mr Perry’s denial, he had been drinking before pulling over to the parking area when telephoned by his friend. His admissions to Constable Scott would then refer to the earlier driving and he might well have been upset when he was ignored about his later drinking.

[41] This last point is, perhaps, speculative. But this was not a case where the Judge could easily conclude that because a police officer had recorded admissions the charge must be proved and the Defence witnesses must therefore be either unreliable or lacking in veracity.

Decision

[42] My view is that because of the incomplete evidence picture, and the inferences reasonably available from Ms Weiber’s 111 call, the evidence of Constable Scott could not operate to exclude as a reasonable possibility the exculpatory evidence of the Defence witnesses.

[43] I recognise that the Judge had the advantage of observing the witnesses give evidence. However, he makes no comment on their affect, none had their characters impeached, and the prosecution cross-examinations were ineffectual. So, I see this as a case where the analysis must be on what was said and, given the contradictions, what reasonable possibilities remain.

[44] I have decided that one reasonable possibility that remains is that Mr Perry did stop his car at the parking area and go with his friend to consume alcohol. He was returned to his car having telephoned Ms Weiber to come and collect him.

[45] It is possible that before pulling into the parking area Mr Perry had been drinking. It is possible that he referred to that when Constable Scott spoke to him. But it is also reasonably possible that Constable Scott made notes of what he thought he heard rather than what he actually heard. Otherwise, and I think this is inherently implausible, Mr Perry, driving with more than twice the legal limit for breath alcohol content, chose to pull his car over some 500 metres from his house and then called his partner to collect him.

[46] The appeal is allowed. Mr Perry’s conviction is quashed. Given the state of

_{the evidence a retrial is not indicated, and I do not make an order for a new trial.}

Brewer J