Aramoana v Police - [2019] NZHC 225

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-339

[2019] NZHC 225

BETWEEN
NATHAN ROBERT ARAMOANA

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 February 2019

Counsel:

J M Grainger for Appellant M J Mortimer for Respondent

Judgment:

21 February 2019

JUDGMENT OF THOMAS J

This judgment was delivered by me on 21 February 2019 at 3.00 pm pursuant to
Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar

Solicitors:
Public Defence Service, Auckland for Appellant
Crown Solicitor’s Office, Auckland for Respondent

ARAMOANA v NEW ZEALAND POLICE [2019] NZHC 225 [21 February 2019]

[1] The appellant, Mr Aramoana, was convicted in the Auckland District Court of theft under $5001 on 10 October 2018.2 He appeals his conviction on the basis the Judge erred by concluding Mr Aramoana was the offender based on:

(a)inadmissible hearsay evidence; and

(b)inadmissible visual identification evidence.

Factual background

[2] On 2 September 2017, the complainant was at a restaurant with her husband while her car was parked in the restaurant carpark for around 45 minutes. At around
11.00 pm, they left the bar and she saw a white Toyota parked near her car. There was a man in her car “with his legs outside” of it.3 As the couple approached her car, the white Toyota beeped its horn, and the man jumped out of the back seat of her car. The man passed within a couple of metres of the complainant before jumping into the white Toyota and driving away.

[3] The complainant viewed the CCTV footage from the restaurant and identified the person whom she said she saw in her car as well as the white Toyota. No car number plate was visible. She later discovered that several bags and a laptop had been taken from her car.

[4] The complainant gave a statement to the police that night, and Constable Bullock made inquiries the next day. He read the reports of overnight activity by the police. Constable Bullock said a “staff member” had recognised the man identified by the complainant in the CCTV images from “a previous job”. That staff member had provided a registration number for that man’s car. The Constable then performed a check for the registered owner of the car. He then viewed an image of the owner of the car and compared it to the CCTV image from the night of the offence. Believing the owner of the car and the offender in the CCTV images identified by the complainant were the same person, on 2 October 2017 he undertook a visual

1 Crimes Act 1961, ss 219 and 223(c); maximum sentence of 1 year imprisonment.
2 Police v Aramoana [2018] NZDC 22623.
3 At [1].

identification process with the complainant. Constable Bullock showed the complainant a board with photographs of the faces of eight men, including Mr Aramoana (the photo montage). The complainant selected Mr Aramoana as the person she had seen in her car that night.

District…

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.

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Details

Case: [2019] NZHC 225
Decision Date: 21 February 2019

CaseChat Overview and Summary

The appeal against conviction was brought by Nathan Robert Aramoana, who was convicted in the Auckland District Court of theft under $500. The appeal was based on the assertion that the Judge had erred in concluding that Aramoana was the offender, relying on inadmissible hearsay evidence and inadmissible visual identification evidence. The High Court was required to determine whether the Judge's reliance on these pieces of evidence constituted a miscarriage of justice. The Court first considered whether the Judge erred in relying on inadmissible hearsay evidence that Aramoana’s car was in the carpark on the night of the offence. While the Judge should not have relied on this evidence, the Court concluded that the Judge’s error did not give rise to a real risk of a miscarriage of justice because the Judge primarily relied on the visual identification evidence to assess the identity of the offender. The Court then considered whether the visual identification evidence was inadmissible. The Court held that the formal procedure for obtaining visual identification evidence was followed and therefore the evidence was admissible. The Court concluded that despite the Judge’s error in relying on the inadmissible evidence, the Judge was entitled to rely on the admissible visual identification evidence, and was able to be sure of Aramoana’s guilt beyond reasonable doubt. The appeal was dismissed.

Orders