Ake v R - [2015] NZCA 334

IN THE COURT OF APPEAL OF NEW ZEALAND

CA704/2014
[2015] NZCA 334

BETWEEN	JACK SIMON AKE Appellant
AND	THE QUEEN Respondent

Hearing:	22 July 2015
Court:	Stevens, Heath and Collins JJ
Counsel:	N P Chisnall and O J Brittain for Appellant M A Corlett for Respondent
Judgment:	28 July 2015 at 10.00 am

JUDGMENT OF THE COURT

AThe appeal is allowed.
BThe convictions are quashed and the first warning given under s 86B(4) of the Sentencing Act 2002 is cancelled.
CThere is no order for a retrial.

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REASONS OF THE COURT

(Given by Stevens J)

Introduction

Following a jury trial in the Tauranga District Court, Mr Ake was convicted of charges of wounding with intent to injure and assault with a weapon.[1] For this offending he was sentenced to a term of imprisonment of four years and nine months.[2] He appeals only against conviction.
[1]Sections 188(2) and 202C of the Crimes Act 1961.
[2]R v Borell DC Tauranga CRI-2012-070-5921, 3 December 2014. Mr Ake was sentenced alongside co-offenders.
The initial focus of the appeal was against a pre-trial ruling allowing the prosecution to lead what the District Court Judge characterised as “observation evidence”.[3] The events resulting in the charges in question arose out of a large group assault, involving numerous assailants, one evening in November 2012. In summary, the challenged evidence comprised a purported identification of Mr Ake by two witnesses, each of whom had been shown by a police officer a set of photographs of four persons (three male, one being Mr Ake, and one female) said to have been involved in the alleged offending. The officer deposed the purpose of showing witnesses these photographs was to assist in identifying what role the defendants played in the assault. During the police investigation prior to the witness identifications, Mr Ake had accepted he was at the complainants’ address on the night in question but maintained he had taken no part in any of the assaults. Pursuant to the District Court ruling, the challenged evidence was found to be admissible and was led by the prosecutor from the two witnesses at trial.
[3]R v Ake DC Tauranga CRI-2012-070-5921, 7 August 2014 [admissibility ruling] at [15]–[16].
During argument on appeal, it emerged there was a further significant issue regarding the identification of Mr Ake. During the trial, the same two witnesses who identified Mr Ake from his photograph and described what they saw him doing at the scene during the investigation, gave what amounted to a dock identification. It seems from the transcript of evidence that these dock identifications were unanticipated by the prosecutor. They occurred as follows:
(a)By Mr Kevin Duncan:
Q. So you didn’t have that long to observe this person, did you?
A.I had more than adequate time to observe this person and this person is the second [seated in] the dock. Even now I can still positively identify that person, nearly two years on. I have a very clear recollection of that person’s description.
(b)By…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Ake v R

Details

AGLC: Ake v R [2015] NZCA 334
Case: [2015] NZCA 334
Decision Date: 28 July 2015 at 10.00 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Jack Simon Ake appealed against his conviction by the Tauranga District Court for wounding with intent to injure and assault with a weapon. The appeal was heard by Stevens, Heath, and Collins JJ on July 22, 2015, and judgment was given on July 28, 2015. The primary legal issue before the Court was whether the District Court erred in not providing adequate warnings to the jury about the reliability of dock identifications of Mr. Ake during the trial. The Court found that the District Court's summing-up did not adequately address the dock identifications, which had not been previously anticipated by the prosecutor. The absence of a tailored direction on the dock identifications constituted a fundamental legal error, leading to a miscarriage of justice.

The Court of Appeal concluded that the omissions in the summing-up amounted to legal errors that constituted a miscarriage of justice, as they did not properly inform the jury about the dangers of relying on dock identifications. The Court noted that such identifications typically have limited value, and it is essential that the jury understand the identification process. The Court also considered the limited nature of the evidence supporting Mr. Ake's involvement in the offenses and concluded that a retrial would not be in the interests of justice due to the unsatisfactory state of the evidence.

The appeal was allowed, the convictions were quashed, and the first warning given under s 86B(4) of the Sentencing Act 2002 was cancelled. There was no order for a retrial.

Orders