Prosecutor Gave Evidence

Press, Volume CVI, Issue 31115, 19 July 1966, Page 1

Prosecutor Gave Evidence

(N.Z. Press Association)

WELLINGTON, July 18.

A traffic officer in his role as prosecutor should not be permitted to give evidence, as an expert, on whether a motorist was unfit to drive because of the influence of drink, Mr Justice Turner said in a dissenting judgment delivered in the Court of Appeal today. The Court, by a majority decision, dismissed an appeal by Jack Austin Blackie, aged 52, a land agent, against his conviction in the Magistrate’s Court at Upper Hutt on a charge of driving while under tb e influence of drink.

Mr B. E. Brill appeared for Blackie and Mr J. H. C. Larsen for the Crown.

“For myself I think It impossible that a traffic officer or a constable who is himself concerned in the apprehension or prosecution of a defendant can ever be sufficiently indifferent to the result of the case to be allowed, as an expert, to answer the very question which the Court has to answer in determining his guilt or innocence,” said Mr Justice Turner.

“Such a witness must always be regarded as biased, since he has an interest, though it be only an emotional one, in the result In using the word ‘biased’ as strictly applicable to the traffic officers in the present case, I do not wish to be understood as meaning that they gave their evidence consciously unfairly: all that is necessary is that they should be themI selves interested in the result

of the case to be determined on their testimony,” he said. “If this appeal is dismissed, the evidence given by the two traffic officers being received, the effect will be that an accused may be convicted in a New Zealand Court on the mere expression of opinion that he is guilty by a prosecutor, or one so directly concerned in the prosecution as to be in the same position. “I do not forget that there is other evidence in the present case upon which the Magistrate might well have been justified in convicting, but this is not the point. “The point is whether the prosecutor, or one in the same position, should be allowed to give in evidence, in support of the prosecution, his opinion as an expert that the accused is guilty. “The Magistrate allowed this to be done, and relied expressly on the answers given. If such a procedure is to be held acceptable it will

not be with my assent,” said Mr Justice Turner. Mr Justice North and Mr Justice McCarthy were in favour of the appeal being dismissed.

The law was plain that a person who sought to give expert evidence must first qualify himself to the satisfaction of the Court, they said in their joint judgment. “Coming to the particular case we have held that the first traffic officer giving evidence did not qualify himself. If his expression of opinion materially influenced the Magistrate then the appeal must be allowed, but we do not think it did. “We have read the Magistrate’s reasons with care and we are satisfied that although the Magistrate does, in the course of his judgment, refer to the expression of opinion by the two traffic officers, he arrived at his decision substantially, at least, on other evidence.”