B v Police HC Napier CRI 2007-418-3

[2008] NZHC 966

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

CRI 2007-418-3

BETWEEN  B

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         4 June 2008

Appearances: Appellant in person

Nicola Graham for Respondent

Judgment:      23 June 2008

JUDGMENT OF HARRISON J

In accordance with R540(4) I direct that the Registrar endorse this judgment with the delivery time of

9:00 am on 23 June 2008

SOLICITORS

Elvidge & Partners (Napier) for Respondent

(copy to: Appellant in person)

B V POLICE HC NAP CRI 2007-418-3  23 June 2008

Introduction

[1]      Mr B    appeals  against  his conviction  in  the  District  Court  at

Greymouth on one charge of theft of a laptop computer from a retail outlet.

[2]      Mr B   represented himself at the summary trial in the District Court and on appeal in this Court.   Mr B  ’ written synopsis of submissions is discursive and while some direction was brought in oral argument his focus on unsubstantiated and irrelevant allegations of police bad faith and witness deceit diverted attention from the real issue.

[3]      The principal question at trial was whether or not the prosecution was able to discharge its burden of proof by relying on the identification evidence given by its principal witness.

Background

[4]      IT Work is a retailer as its name suggests of computers and related equipment in Greymouth.   Some time in the afternoon on 28 July 2006 staff noticed that a Hewlett Packard computer worth about $1,895 was missing from a window display. An inquiry revealed no evidence of sale.  The staff then inferred that the item had been stolen.  Mr James Graham is the branch manager.  He viewed security footage shot by three cameras in the store earlier on 28 July which showed a man pick up the missing laptop and walk out of the shop.

[5]      Mr Graham did not know the man shown in the security footage personally but he recognised him.   The two had spoken in the shop a few hours earlier after Mr Graham had unpacked some equipment and was cleaning up.   Mr Graham had approached the man and asked whether he needed assistance.  The man replied that he had just come in out of the cold and was waiting for some children.  Mr Graham advised that he would be available if the man needed assistance.  He did not see the man again.

[6]      Mr Graham phoned the Greymouth police following discovery of the theft and made a complaint.   Mr Graham compiled a video for police officers to view when they arrived by synthesising footage from the three security cameras on to a compact  disk.    Mr Graham  later  made  his  own  attempts  to  discover  the  man’s identity.  He copied the disk on to his personal website and gave copies to others. Mr Graham received a positive response and in due course advised the police of the person’s identity.

[7]      Later the police showed Mr Graham a montage of photographs.  Mr Graham identified Mr B   in the montage as the thief.  He also identified Mr B   in Court. The police charged Mr B   with theft of the computer.  Mr B   pleaded not guilty and elected summary trial.

[8]      Mr Graham was the principal prosecution witness at the hearing before Judge Gary MacAskill.   Mr B   subjected Mr Graham to extensive cross-examination, taxing him on almost every aspect of his evidence, whether relevant or not.   The transcript of his questioning runs to 24 pages.

[9]      Mr B   held, as he confirmed on appeal, a strong sense of self-confidence in his own abilities to conduct his defence competently.  He professed a familiarity with the Court procedures and his rights although Judge MacAskill was forced to interfere on numerous occasions in order to ensure compliance with basic rules of evidence. There is no question, and Mr B   does not suggest otherwise, that he decided to represent himself in preference to engaging legal counsel.

[10]     In summary Mr B  ’ cross-examination probed every possible circumstance of Mr Graham’s identification of the thief including his position within the store and timing at various times and places; Mr Graham’s compilation of the security footage compact disk; his use of his own website and communications with others over the internet following his copying of the compact disk; his statements to the police; and his dealings with the police officers.  Mr B   did not accept the Judge’s prescient advice that aspects of his cross-examination were not assisting his defence and that some  of  the  material  he  was  seeking  to  introduce  through  Mr Graham  seemed

contrary to his interests.  Mr Graham remained unyielding throughout in his positive identification of Mr B  .

[11]     Two police officers were called.  One, Constable Paul O’Hara, gave a brief account in chief of taking initial and subsequent statements from Mr Graham and his later compilation of a photo montage.  The officer was also subject to detailed cross- examination   by   Mr B  ,   again   much   of   it   irrelevant   and   arguably   self- incriminatory, even though his account fell within a limited compass.   The other officer, Constable Owen Bainbridge, gave evidence of receiving and investigating the initial complaint of theft.  He was also subject to careful cross-examination.

[12]     Mr B   did not give evidence in his own defence or call any witnesses.

Decision

[13]     It  is  appropriate  to  reproduce  the  ratio  of  Judge  MacAskill’s  decision delivered orally at the conclusion of evidence:

[9]       The police enquiries followed.   In the meantime, Mr Graham took some steps to make independent enquiries about the identity of the person in the video footage.  He put the footage on his website and received responses. As a result of information received, he passed on [to the police] the name of the defendant [as the person] who might be the person in the video footage. Acting on that information, the police prepared a montage of a number of persons bearing physical similarities to the defendant and the defendant. That montage was put before Mr Graham and he identified the defendant, who was the third person from the top of the montage.

[10]      It was suggested by the defendant that Mr Graham, in some way, had his evidence contaminated by the fact that he received information about the defendant as a possible suspect and that he had viewed photographs on a website which may have put it into his mind that defendant was the person in the video footage and the person in the shop at the time, when he in fact was not.   Mr Graham rejected that suggestion and indicated that he was not affected by it and that he had a clear recollection of the defendant being the person in the shop.  While dock identifications are regarded with suspicion, nevertheless Mr Graham was also adamant that the defendant was the person he had seen in the shop and that he identified him in the montage without being influenced by any other material that he had seen.

[11]     In assessing this evidence of identification, which is critical to the prosecution case, I remind myself that identification evidence ought to be approached with caution and that identity witnesses can be wrong, even honestly  and  mistakenly  so.    In  considering  what  weight  to  give  the

identification evidence in this case, I take into account that the video footage itself appears on the face of it to be consistent with the defendant’s general appearance.  I take into account that a description was given to the police by Mr Graham on the day that was generally consistent with the description of the  defendant  and  that  when  a  formal  written  statement  was  taken  on

6 September 2006, a similar description was given.  He described this man as ‘a Caucasian male in his late 50s.  He had white hair and a white beard,

which was tidily groomed and between one and two centimetres in length.

He was a solid build and he appeared taller than me.  I am 185 centimetres tall, so I would estimate his height at 185-190 centimetres.  He was wearing black pants, which appeared to be tidy, and they had a logo on them’.  And he says in his statement, ‘The man in the video footage was dressed exactly the same as the person I have described’.  I should add that the statement of

6 September 2006 was put into evidence by the defendant himself.  So, there is a general consistency in the various descriptions that have been given by Mr Graham of the person in the shop who took the laptop computer.

[12]      In assessing Mr Graham’s evidence, I have taken into account that he was extensively cross-examined about his reliability as a witness.   No stone was left unturned by the defendant.   However, Mr Graham was not shown to be an unreliable witness.  On the contrary, I accept him, not only as a credible witness, but as a reliable witness.  I consider the Court is justified in reaching the conclusion that his evidence, identifying the defendant as the man in the shop, can be relied upon.  There is no evidence to put against that identification.  While the defence endeavoured to introduce the evidence of other persons who might have had something to say about the matter, no one was called by the defence to give evidence.  All such attempts to introduce evidence in this way were rejected by the Court on the ground that hearsay evidence is not admissible.

…

[14]     For these reasons, I am satisfied beyond reasonable doubt that the prosecution evidence does show that the defendant was the man recorded in the video footage.  I am satisfied that the video footage does show that the defendant removed a laptop computer from display…

Appeal

[14] The question is whether Mr B who bears the burden is able to show that Judge MacAskill erred materially in finding that Mr Graham’s evidence provided a sufficient foundation to prove the prosecution case beyond reasonable doubt: at [14]. Unfortunately Mr B did not approach the appeal with that degree of discipline. His arguments are characterised by the same diffusion that marked his cross- examination of Mr Graham. His submissions dissect and criticise many sentences in the narrative to the District Court decision (at [1]-[8]), regardless of their relevance to the ratio, but fail to discriminate between or give weight to a particular argument

or arguments.  I have attempted to isolate out those grounds which might relate to the

Judge’s findings.

[15]    Before addressing those grounds, I record some material points.   Judge MacAskill was uniquely placed to assess Mr Graham’s reliability and credibility, and his favourable findings on both must be given appropriate weight.  The Judge was expressly conscious of the care with which a Court must approach identification evidence where the strength of the Crown’s case depends solely on its acceptance.

[16]     Also, while Mr B   was entitled not to give evidence at the hearing nor call witnesses in his defence, the result was that the Judge did not have to decide between conflicting accounts.  Mr Graham’s evidence of identification was not challenged or undermined by another witness, and there was no contrary version of events against which  Mr Graham’s  evidence  might  be  adversely  measured.    The  risk  which Mr B   ran in exercising his right to silence was that the Judge would find against him if he was unable to discredit Mr Graham’s evidence or at least raise a sufficient factual uncertainty to give rise to a reasonable doubt.   Mr B  ’  failure in that respect was decisive.

[17]     Another relevant factor, overlooked by Mr B   in his submissions, is that when deciding what weight to give to Mr Graham’s evidence the Judge himself was entitled to take into account his own findings based on viewing the appearance of the man shown on the security film and comparing it with Mr B  ’ general appearance. Mr B   makes a number of criticisms about the process adopted by Mr Graham with his father’s assistance in compiling a video from the three security cameras then in operation.  His pre-occupation with this issue in cross-examination (for example, knowing who edited the footage or what editing system was used) only served to divert him from the real issue.

[18]     What is relevant is that the Judge was able himself to make a prima facie finding of consistency between the images of the man depicted on the security camera and Mr B  .  That finding is not, of course, of itself sufficient to justify the Judge’s ultimate finding of guilt.   Its relevance lies in its corroborating effect on Mr Graham’s primary evidence of identification.

[19]     Mr  B  ’  first  apparent  ground  of  appeal  is  to  repeat  the  challenge  to Mr Graham’s credibility which he mounted so forcefully in the District Court.  The thrust of his submission is that Mr Graham’s evidence was ‘a litany of lies’ and that he was ‘prepared to pervert the course of justice’ in his determination to see Mr B   convicted.  He characterises Mr Graham’s account as perjury, relying principally on his own questions and Mr Graham’s answers.

[20]     I have read the transcript carefully.  I am unable to find any answers which might possibly support Mr B  ’ proposition.   Indeed, the extremity of his attack detracts from its tenability.  Mr B   complains that he was put in the position by Mr Graham’s evidence, coupled with the Judge’s rulings, where he was unable to call expert evidence to show Mr Graham was attempting to mislead the Court, for example, about footage in the compact disk.   There is nothing to support this proposition whatsoever, or Mr B  ’ allegation that ‘someone who had access to the file … [attempted] … to pervert the course of justice’.

[21]     Mr B     maintains   his   argument   that   Mr Graham’s   evidence    was contaminated because after putting the security camera footage on his website he received information about Mr B   being a possible suspect and saw photographs on a website which might have influenced his later identification.  This was a valid but  ultimately  unsuccessful  line  of  argument.    Mr B    expressly  suggested  to Mr Graham that he did not have a clear memory of the man until he saw Mr B  ’ photograph on the website.  Mr Graham’s answer was emphatic to the contrary, and he referred to his initial identification of the thief being predominantly moulded from the confirmation available from viewing the security video footage later on the day of the theft.  Mr Graham said that by the end of that day he ‘had a clear image in [his] mind of what the person looked like’.   The Judge who had the advantage of seeing and hearing Mr Graham was satisfied that Mr Graham’s evidence was not contaminated, and I am not prepared to interfere.

[22]     Mr B   submitted that the video shows that Mr Graham only had the alleged thief under observation for less than  a second.   But that  was  what  Mr Graham admitted was a fleeting glance when he first saw the man after he had finished unpacking the computer.  Mr B   later suggested to Mr Graham that the subsequent

conversation between him and the man would have taken 15 seconds if he was correct.  Mr Graham countered that the duration was probably less, about six seconds rather than the 15 seconds suggested by Mr B  .   All of this was unhelpful to Mr B  ’ defence, and reinforced the reliability of Mr Graham’s identification of the thief.

[23]     Mr B   also attempted to show inconsistencies in Mr Graham’s statements to the police, the first made on the day of the theft and the second on 6 September. However, a comparison shows that they are strikingly similar, adding to the consistency of Mr Graham’s account.   The Judge noted that it was Mr B   who produced the second statement in cross-examination, and in that way reinforced Mr Graham’s reliability.

[24]     As  I  have  observed,  Judge  MacAskill  was  uniquely  placed  to  assess Mr Graham’s credibility.   The length and nature of Mr B  ’  cross-examination would only have served to reinforce the Judge’s conclusion.  I am not satisfied that Mr B  ’ allegations have any foundation whatsoever, and I am not prepared to interfere with the Judge’s finding that Mr Graham was a credible witness.

[25]     Mr B   also complains that the Judge improperly refused to allow him to explore legitimate avenues of cross-examination.  In my assessment the Judge acted fairly and properly throughout.  Mr B   consistently breached fundamental rules of cross-examination.   He sought to get onto the record his own account through questions of Mr Graham and to introduce hearsay.  Mr B   was argumentative and invited speculation and conjecture.  He put damming questions without any factual foundation (for example, he suggested that Mr Graham directed the police not to investigate evidence unless it incriminated Mr B  ).  And many of the propositions inherent in his questions were irrelevant.

[26]     Mr B  ’ submission that the Judge failed to carry out his duty to assist an unrepresented defendant represents his misunderstanding of the judicial function. The Judge’s role was to ensure that the trial was conducted fairly and in accordance with the law, not to actively assist either party.   Judge MacAskill was forced to

intervene frequently and forcefully because of Mr B  ’ improper questioning, and his refusal to accept the Judge’s succinct advice on the rules of evidence.

[27]     Finally,  on  appeal  Mr  B    made  similar  allegations  against  the  police officers.  As noted, their evidence fell within a narrow and what would appear to be uncontroversial ambit.   It was in the nature of a record of material events and inquiries following the complaint.  Yet Mr B   devoted large tracts of his 42-page written synopsis on appeal to vilifying the police officers.  He called their inquiries corrupt in failing to follow other leads about other suspects and asserted that they obtained ‘search warrants under false pretences by swearing false affidavits’.

[28]     Mr B   attempted at trial to introduce evidence about the existence of other suspects through cross-examination on hearsay documents.   His objective was to introduce material such as job sheets of interviews to establish the reasonable possibility that  the  crime  was  committed  by  another  person.    Judge  MacAskill properly  prevented  Mr B    from  adducing  hearsay  evidence  to  this  effect  in questions to the police officers although at one stage, in answer to a question from Mr B  , one officer confirmed that nobody else was suspected of the crime.  The Judge explained to Mr B   his right to call as witnesses in his defence those who spoke to the police.   There is nothing to justify Mr B  ’ allegations of corrupt police conduct.

Result

[29]     Mr B  ’ appeal against conviction is dismissed.

Rhys Harrison J