Aramoana v Police
[2019] NZHC 225
•21 February 2019
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 Court decision
[5] The Judge gave an oral decision. After outlining the factual background of the case, the Judge noted that Mr Grainger, counsel for Mr Aramoana, had taken issue with the alleged lack of similarity between the images used in the photo montage. The Judge concluded that the images were “well within any reasonable interpretation of the words “substantially similar”.4 He noted that particular issue was taken with the hairstyles of the men in the photo montage. He did not consider there was any substance to that complaint. Hair was not, in the Judge’s opinion, a permanent feature of someone’s appearance. No cross examination of the complainant had been undertaken as to the length of the offender’s hair at the time of the offending. The Judge also noted that the offender was wearing a cap and hoodie at the time of the offence, making hair length less material.
[6] On the basis of the evidence before the Court, the Judge concluded that “clearly and unequivocally” Mr Aramoana was the person who was inside the complainant’s car.5 The Judge also accepted that a laptop and bags were taken. The Judge concluded that the police were unable to establish that the items taken were valued at $3,300, as alleged. He amended the charge to one of theft under $500.
[7] The Judge addressed the elements of the charge and concluded it was clear that items were stolen by someone, that it was done dishonestly, without claim of right and with the intention to deprive the owner of their interest in the property permanently. These conclusions were reached on the basis the car window was smashed and items were taken from the car.
4 At [4].
5 At [5].
[8] As to identification, the Judge reminded himself of the seriousness of a mistaken identification, that mistaken witnesses can be convincing, and that context, lighting and stress can influence a witness. The Judge noted the complainant had identified Mr Aramoana in CCTV footage within minutes of seeing him. He accepted that, when she did see the offender in person, the lighting was poor, although the offender did pass within a few metres of her. The Judge also noted that the complainant had identified Mr Aramoana from the photo montage, which he said included photographs of “substantial likeness” to Mr Aramoana.6 The Judge then said that, in order for there to be a mistake of identity:
[8] … there would need to be some explanation for the extraordinary coincidence that this defendant’s car has been identified as being in that carpark on that night and some explanation would need to be advanced for the witness’s ability to pick the defendant out of a line-up of eight … In all the circumstances, I consider those coincidences to be unrealistic.
[9] In concluding on identification, the Judge refocused on the complainant’s identification of Mr Aramoana, saying he accepted “unreservedly” that her identification was accurate.7 Identification was established beyond reasonable doubt on that basis.
[10] Finally, the Judge noted that, although it was clear that the man in the car was Mr Aramoana, he had not been seen removing items from the car. The Judge said the “inevitable” conclusion from Mr Aramoana leaving the car so quickly was that he had something to hide.8 He rejected Mr Aramoana’s contention that someone else took the items, noting that Mr Aramoana ran away rather than talking to the complainant to explain that he saw her car had been broken into. The Judge considered he could safely infer Mr Aramoana was hiding the items he had stolen.
[11] The police had, in the Judge’s assessment, established beyond reasonable doubt that Mr Aramoana had committed the offence of theft under $500.
6 At [8].
7 At [9].
8 At [9].
Law on appeal
[12] Section 232(2)(c) of the Criminal Procedure Act 2011 provides that the High Court must allow an appeal if the Court is satisfied that a “miscarriage of justice has occurred for any reason”.
[13] A “miscarriage of justice” is defined in s 232(4) as “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”. Not every error or irregularity causes a miscarriage of justice. Importantly, “a miscarriage is more than an inconsequential or immaterial mistake or irregularity”.9
[14] 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”.10 This standard means that “an appellant does not have to establish a miscarriage in the sense that the verdict is actually unsafe” but that there is a real possibility the verdict would be unsafe.11
[15] As an appellate Court, there are limitations involved in not seeing or hearing directly from the witnesses,12 and this Court should only interfere with the factual findings of the trial judge “in exceptional circumstances”.13
[16] Section 232(2)(b) of the Criminal Procedure Act provides that the High Court must allow an appeal where a judge, in a judge-alone trial, erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred. Under this provision, the verdict of a judge sitting alone is to be treated as the equivalent of a jury’s verdict.14 To that extent, the principles in set out by the Supreme Court in R v Owen apply:15
9 Matenga v R [2009] NZSC 18 at [30].
10 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].
11 At [110].
12 Sullivan v Police HC Auckland CRI-2008-404-152, 2 October 2008 at [30]–[31].
13 Rae v Police HC Hamilton CRI-2006-419-162, 3 May 2007 at [38]; affirmed in McLean v R [2017] NZHC 3127 at [10].
14 Roest v R [2013] NZCA 547, [2014] 2 NZLR 296 at [56].
15 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13]; affirming the principles set out in
R v Munroe [2007] NZCA 510, [2008] 2 NZLR 87.
(a)The appellate court is performing a review function, not one of substituting its own view of the evidence.
(b)Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c)The weight to be given to individual pieces of evidence is essentially a jury function.
(d)Reasonable minds may disagree on matters of fact.
(e)Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.
(f)An appellant who invokes s 385(1)(a)16 must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.
[17] A simple disagreement with a judge’s factual assessment is insufficient, “[s]omething more is required to meet the “real risk” test”.17
Issues
[18] Mr Aramoana appeals his conviction on the basis the Judge erred by concluding he was the offender based on:
(a)inadmissible hearsay evidence; and
(b)inadmissible visual identification evidence.
[19] Mr Grainger submits that the Judge relied on a combination of the visual identification evidence and Mr Aramoana’s car being in the carpark in finding identification was proven beyond reasonable doubt. In his submission, neither form of evidence was admissible and Mr Aramoana’s identity as the offender could not be
16 Section 385 of the Crimes Act 1961 was replaced by s 232 of the Criminal Procedure Act. The new section does not materially change the approach to conviction appeals: Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [56].
17 Gotty v R [2017] NZCA 528 at [15].
proven beyond a reasonable doubt. He says these matters, either individually or together, give rise to a real risk that a miscarriage of justice has occurred.
Did the Judge rely on inadmissible hearsay evidence?
[20] Mr Grainger challenges the Judge’s reliance on evidence pointing to Mr Aramoana’s car being in the carpark. The source of the evidence relating to Mr Aramoana’s car was Constable Bullock – the officer who investigated the case the morning after the offending. At the hearing, the following exchange occurred between the police prosecutor and Constable Bullock:
Q. What did you do then?
A.I read the job and it said that the staff member had recognised a – sorry, recognised the defendant from the previous job and provided a registration number.
[21] Mr Grainger immediately objected to this evidence on the grounds it was hearsay. An in-chambers discussion followed during which the Judge commented that he assumed the purpose of the evidence was to introduce the identification process to explain why Constable Bullock took the steps he did and that the evidence was not being led to prove the truth of its content. The prosecutor confirmed that was the case and the Judge admitted the evidence on that basis.
[22]However, in his judgment the Judge said:18
[8] … there would need to be some explanation for the extraordinary coincidence that this defendant’s car has been identified as being in that carpark on that night and some explanation would need to be advanced for the witness’s ability to pick the defendant out of a line-up of eight … In all the circumstances, I consider those coincidences to be unrealistic.
[23] Mr Grainger submits there was no admissible evidence to establish that Mr Aramoana’s car was in the carpark that night. The witness who provided Constable Bullock with the registration number of Mr Aramoana’s car did not give evidence. It was an error, therefore, to conclude it was Mr Aramoana’s car which was in the carpark that night.
18 Police v Aramoana, above n 1.
[24] Mr Mortimer, for the respondent, properly concedes that the Judge should not have used the evidence in this way. He submits, however, that this was a case of the Judge overstating the evidence, as there was other admissible circumstantial evidence before the Court to enable the conclusion that a car matching Mr Aramoana’s car was present in the carpark that night. Constable Bullock gave admissible evidence that Mr Aramoana was present at the scene (based on the CCTV stills). Furthermore, the car used by the offender was shown in the CCTV stills which Constable Bullock had viewed. Constable Bullock said he had performed a check on the Police National Intelligence Application (NIA). It could be inferred, in Mr Mortimer’s submission, that the check would have disclosed certain information about the car. It could then be inferred from that information that Mr Aramoana’s car matched the car depicted in the CCTV stills. In my view, that is drawing too long a bow, requiring speculation rather than properly drawn inferences, and I reject the proposition.
[25]The Judge therefore erred in concluding that:
[3] … [Constable Bullock] pretty quickly established it was the defendant who owned the car that had been parked next to the complainant’s car …
[26] The error was repeated when the Judge concluded that the car in the car park was Mr Aramoana’s:
[8] … there would need to be some explanation for the extraordinary coincidence that this defendant’s car has been identified as being in that carpark on that night …
[27] However, a reading of the judgment as a whole shows the Judge relied primarily on the visual identification evidence in assessing the identity of the offender. He accepted unreservedly that the complainant made an accurate identification of the person she saw leaning into the car.
[28] I agree the Judge erred but I do not consider this error alone was such that a real risk of a miscarriage of justice arose. I base this conclusion primarily on the availability of the visual identification evidence and the Judge’s strong language in accepting that evidence. I now address that evidence.
Was the visual identification evidence inadmissible?
[29] At the hearing and on appeal, Mr Grainger challenged the visual identification evidence on the basis that the photo montage contravened s 45(3)(b) of the Evidence Act 2006 which provides:
45 Admissibility of visual identification evidence
(1)If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(2)If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
(3)For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—
…
(b)in which the suspect is compared to no fewer than 7 other persons who are similar in appearance to the suspect[.]
…
[30] Mr Grainger relies on the High Court decision of R v Briggs in submitting that, when determining similarity, simply having a common skin colour, eye colour and hair colour are features too general to rely upon when they are common to all members of the racial group being considered.19 Instead, other facial features are also important such as jaw, nose, lip and face shape.20 The statements in R v Briggs were made primarily in relation to the difference that facial hair can make to a person’s appearance. The point of Duffy J’s criticism was not to call for identical or highly similar images but to ensure that race was not solely relied upon in compiling a photo montage.
19 R v Briggs HC Whangarei CRI-2008-027-660, 19 March 2009.
20 At [30].
[31]The Court of Appeal addressed s 45(3)(b) of the Evidence Act in the case of
Ah Soon v R and said:21
[23] Whether the photographs show men of similar appearance to the appellant is a fact-dependent evaluative exercise. Whether the others shown in the montage are similar in appearance to the suspect is a question of degree. Similar does not mean identical. The police are not required to go to extraordinary or impractical lengths to ensure that those shown are similar in appearance. However, there may be cases where an accused person has particular identifying features which, unless the others shown in the montage have similar features, may lead to a witness unfairly picking out the accused. The guiding principle must be whether the photo montage or other formal procedure is such as to avoid any material risk of predisposing the witness to identify the accused.
[32] In that case, the defendant was a young Polynesian man who had dark hair with blond tips. Although the hairstyles of the men in the images were broadly similar, the presence of blond tips on Mr Ah Soon’s hair was a distinguishing feature which none of the other men in the photo montage shared. Some of the other men had blond elements to their hair but none had blond tips.22
[33] Mr Grainger itemised what he considers to be the differences between Mr Aramoana and the other men in the photo montage. His complaints about the images of each of the men include hair length, the length of the face, nose shape, moles, build, chin shape, double chins, skin tone, stubble length, eye size, background colour, hairline, length of eyebrows and style of hair. Fundamentally, he suggests the racial features of all of the men appear consistent but, in his opinion, all of the images are materially different from that of Mr Aramoana. He criticised three images in particular.
[34] I agree with Mr Mortimer that natural variations in face shape are unavoidable and that the men in the photo montage are of a similar age, ethnicity and skin tone (when lighting is considered). They also share similar facial hair, hairstyle and colour, and broadly similar features. It is not possible to discern their build with any certainty as the photographs show only the men’s necks and faces. The one image which stands out from the others is image number 5. The difference is wholly attributable to lighting and means that it is difficult to determine the skin tone of that individual, although it
21 Ah Soon v R [2012] NZCA 48.
22 At [24].
is reasonably apparent that he has a darkish skin tone. Aside from that, however, his hair and face are similar to Mr Aramoana and indeed all others shown in the photo montage.
[35] While it would be preferable if a photograph with markedly different lighting were not included in a photo montage, in this case the different lighting does not, in my assessment, mean that the photograph is of a person who is not similar in appearance to Mr Aramoana. In this regard, the case of Moulden v R can be distinguished.23 In that case, the Court of Appeal allowed an appeal against conviction. The appellant argued that the other seven individuals in the photo montage were not sufficiently similar to him because he was the only person: (a) with fair hair;
(b) with noticeable facial hair; and (c) who was illuminated. The appellant maintained that those features made him stand out from the other seven images which were of men who had dark hair, no visible facial hair and were not illuminated. The Court of Appeal specifically addressed the different lighting and agreed there was a sheen across the appellant’s face which was not present even in the other two images, which had light backgrounds. This meant the appellant’s face unavoidably appeared to stand out from the others. The Court of Appeal, however, then said:24
More significantly in our view, he is the only one with obviously fair hair. It might properly be described as a mix of fair or sandy and grey hair. None of the other images depict individuals with that hair colour. The other images are of men with significantly darker hair in our view.
[36] In that case, a difference in lighting, causing a sheen across the appellant’s face, was not the determinative factor in the appeal being allowed. This was despite the sheen making the appellant stand out from the other images in the photo montage. This case is also different because it is not Mr Aramoana whose face is shown with significantly different lighting from the other images and whose image stands out.
[37] In carrying out the fact-dependent evaluation, I have viewed carefully the photo montage in light of counsel’s submissions. Overall, I do not consider (taking each photograph separately) that the small individual variations pointed to by
23 Moulden v R [2017] NZCA 433.
24 At [48].
Mr Grainger are sufficient to amount to non-compliance with s 45(3)(b) of the Evidence Act. I am satisfied each image is similar in appearance to Mr Aramoana.
[38] The result, therefore, is that a formal procedure was followed and the visual identification evidence was admissible as Mr Aramoana did not prove on the balance of probabilities that the evidence was unreliable.25
[39] Mr Grainger did make submissions as to whether, if a formal procedure had not been followed, the prosecution had been able to prove beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification.26 I have found a formal procedure was followed. In any event, in assessing the Judge’s overall conclusion as to identification, I have considered Mr Grainger’s submissions as to the short period of time during which the complainant saw the offender, that he was not previously known to her, there was poor lighting, she gave a vague description and had consumed alcohol.
[40] The Judge reminded himself of the dangers inherent in identification evidence and then said:27
[9] I accept unreservedly that [the complainant] has made an accurate identification of the person she saw leaning into the car. So as far as identification is concerned, I accept that the police have established beyond reasonable doubt that this defendant was there on that night, that he was leaning into a car with a broken window and that he was seen leaving at pace
…
[41] In light of the following factors, the Judge’s conclusion is unsurprising: the complainant’s identification of Mr Aramoana from the photo montage; the circumstances of the identification such as the close proximity of the offender when seen by the complainant (1.5 to 2 metres); that the complainant saw enough of the offender to identify his build, skin colour and potential ethnicity; that the complainant
25 Evidence Act 2006, s 45(1).
26 Evidence Act 2006, s 45(2).
27 Police v Aramoana, above n 1.
was not significantly impacted by alcohol, and was awake and alert; and that on the same night as the offence the complainant identified the offender on the CCTV footage.28 When giving evidence, the complainant appropriately conceded that it was dark and did not overstate the circumstances.
[42] Therefore, despite the Judge’s error in relying, in part, on Mr Aramoana’s car being present in the carpark, the Judge relied on the identification of Mr Aramoana in circumstances where he was entitled to do so. In light of that, and the other evidence, he could be sure of Mr Aramoana’s guilt beyond reasonable doubt. I am satisfied there was no miscarriage of justice.
Result
[43]For the reasons given, the appeal is dismissed.
Thomas J
28 Mr Aramoana does not accept the CCTV footage showed him. In this regard, there is no dispute with Mr Grainger’s submission that Constable Bullock’s evidence to the effect that he considered Mr Aramoana was the person shown in the CCTV footage should not have been admitted. The Judge as fact-finder was well able to compare the images with the photograph of Mr Aramoana on the photo montage – and indeed the Judge would have seen Mr Aramoana in person.
0
6
0