B v Police HC Tauranga CRI 2006-470-26
[2007] NZHC 176
•20 March 2007
This case has been anonymized
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI 2006-470-000026
B
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 19 March 2007 (Heard at Rotorua)
Appearances: N M Dutch for Appellant
D J McWilliam for Crown
Judgment: 20 March 2007 at 3.00 p.m.
JUDGMENT OF VENNING J
This judgment was delivered by me on 20 March 2007 at 3.00 p.m. pursuant to Rule 540(4) of the
High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, Tauranga
N M Dutch, Tauranga
B V NEW ZEALAND POLICE HC TAU CRI 2006-470-000026 20 March 2007
Introduction
[1] On 9 August 2006 the appellant was convicted on a single charge of theft of
$1,420.00 from McGinty’s Turf Bar on 3 August 2005. He was sentenced to 100 hours community work and supervision for 12 months with one special condition. He appeals against conviction.
Background
[2] On 3 August 2005 the bar manager at McGinty’s was in the office doing paper work when she heard a thud. She looked up at the security camera and saw a person over the pokie drawer taking money. She went out to the gaming area but by the time she got there the person she had seen was walking out the door. Other patrons followed him but he was not apprehended.
[3] When the police arrived the bar manager described the person as wearing a jacket and being tall, slim with his hair tied back.
[4] On 29 August 2005 the bar manager was shown a montage of photographs by the police. On that occasion she was unsure between two of the people on the montage, one of which was the accused. Some months later, on 10 May 2006, the police showed a second montage of photographs to the witness. She identified the accused from that montage. A different photograph of the accused was used in the second montage.
[5] The bar manager also identified the accused in Court. [6] The accused did not give evidence.
[7] Judge Ingram accepted the identification of the accused by the bar manager and found the other elements of the charge (which were not in issue) proved.
[8] Mr Dutch advanced two grounds of appeal. First, the Judge may have been biased against the appellant. That submission was based on the fact that an incident involving the accused occurred in the courtroom prior to the hearing of this matter. Mr Dutch submitted the presiding Judge would have been aware of the incident, which initially led to the appellant being charged with attempting to pervert the course of justice. He submitted that either defence counsel should have sought to ask the Judge to recuse himself because he would have observed the incident or counsel ought to have challenged the identification witness about the incident and whether seeing the accused might have affected her evidence.
[9] Secondly, Mr Dutch submitted the Judge misdirected himself when considering the evidence of identification which underpinned the police case against the appellant.
[10] For the Crown Mr McWilliam submitted that there was nothing in the first appeal point and that while the Judge might have expressed himself more accurately, it was clear he had considered s 67A of the Summary Proceedings Act and had found the witness had proved the identification of the accused beyond reasonable doubt.
Decision
[11] The essence of Mr Dutch’s first submission on behalf of the appellant is that because the District Court Judge observed the appellant misbehaving in the Court before this particular case in some way that may have affected the Judge’s assessment of the appellant, so that there was a risk of bias to the appellant as a result. There is, however, no factual basis for that submission. This was a summary trial before the District Court Judge sitting alone. There is nothing in the decision of the District Court Judge that Mr Dutch was able to point to that suggested in any way the District Court Judge took the earlier incident into account. If an allegation of predetermination or bias is to be made out it must be substantiated by evidence. There is no evidence in this case. The appellant’s credibility was not in issue as the appellant chose not to give evidence. The sole issue for the Judge was identification.
[12] Nor can it seriously be suggested counsel should have questioned the identification witness about the incident. The Judge would have been unlikely to have allowed such cross-examination in any event.
[13] Mr Dutch’s challenge to the Judge’s acceptance of the witness’ identification of the appellant was based on three submissions:
• First, that the Judge misdirected himself by referring at para [10] of his decision to the decision of Trompert v Police [1985] 1 NZLR 357.
• Next, Mr Dutch submitted that the Judge misdirected himself at para [13] of the decision where he conflated the requirement that the identification witness be both honest and reliable.
• Finally, he submitted that the identification evidence was unreliable as the appellant was the only person in both photograph montages shown to the identification witness.
[14] I agree that there was no need in this case for the Judge to refer himself to the decision of Trompert. In that case the Court of Appeal held that in deciding what weight should be given to the evidence a judge may take into account the failure of the accused to give by his own evidence or that of others an explanation which he might naturally be expected to give if he were innocent. The issue for the Court in the present case was whether the Judge was satisfied beyond reasonable doubt that the witness properly identified the accused. The principle of Trompert could not assist the Judge on that issue. However, while it was unnecessary for the Judge to refer to that decision when his decision is read as a whole I do not consider it impacted on his ultimate findings. After referring to Trompert the Judge then went on to consider the issue of identification and properly directed himself to the provisions of s 67A of the Summary Proceedings Act. The Judge went on to consider to find in relation to identification:
[11] The circumstances here are that there has been a clear and unequivocal identification of the accused in Court. He was also identified from a photo montage shown in August 2005 and further positively identified in May of 2006.
[12] In the circumstances, notwithstanding Ms Moynihan’s characterisation of the quality of her identification of 99%, I am satisfied that identification by Ms Moynihan is more than adequate for me to find her identification reliable.
[13] Taking all the circumstances into account, given her truthful diffidence in relation to the identification in August of 2005 on the first photo montage, I consider that her reliability more than meets the standard required of criminal law. That notwithstanding the warning which I am required to give myself under s 67A of the Summary Proceedings Act, that a honest but mistaken witness can be very convincing. I do not accept that she has been mistaken in this case. She had a good opportunity to see the man during the course of the day. She recognised the person who took the money from the till as being a person who had been playing the pokies and she has identified him on a number of subsequent occasions. I consider her identification to be adequate for the purposes of criminal law, which is proof beyond reasonable doubt.
[15] While I also accept Mr Dutch’s submission that in the introductory comments of para [13] the Judge effectively conflated the requirement for the witness to be both truthful and reliable, the Judge again clarified the matter in the following passage from para [13] by noting that:
… a honest but mistaken witness can be very convincing. I do not accept that she has been mistaken in this case.
[16] The Judge accepted the witness was honest but importantly, went further and found that she was not mistaken in this case. He thus separated out in the balance of para [13] the requirement for the witness to be both honest and reliable. Importantly he did so after directing himself to s 67A. While the Judge’s use of the word “adequate” in relation to the purposes of criminal law is perhaps curious, again he has expressly referred to the proper standard, namely proof beyond reasonable doubt.
[17] Mr Dutch’s final point was that as a matter of policy the approach of showing the witness two separate montages when the accused was the only person to feature in both was unfair.
[18] There can be a risk of mistaken identity by reason of displacement: R v Tamihere [1991] 1 NZLR 195, 197, but each case must be considered on its facts. In R v Tranter (CA486/03, 14 June 2004) evidence of two identifications from photographs was admitted on the basis that each provided some support for the
other. In that case the witnesses were shown the two separate sets of photographs approximately a week apart.
[19] In the present case the two separate montages were shown to the witness some nine months apart. The witness identified two photographs from the first montage, one of which was the accused. She identified the accused solely on the second occasion. Given the time delay I am unable to accept the submission there was a risk that the witness identified the accused on the second occasion by displacement. Further, in this case there was the dock identification (with its limitations). Dock identification is admissible and allowable even where there has been a previous photographic montage identification: R v Kerr (2003) 20 CRNZ
592.
[20] The Judge’s acceptance of the identification evidence is supported by the fact that in cross-examination the witness confirmed that she could see the appellant head on when she was first alerted to look at the CCTV security screen and then, in response to questions from the Judge, confirmed that the person she saw and identified had been in the pokie room all afternoon. She said she had seen him sitting at the same machine during the course of the afternoon and that he had also cashed up coins on at least two occasions. The witness recognised the man she saw on the t.v. monitor as the person who had been sitting in the pokie room playing on the machine. This was not a case of an identification witness later identifying a person that she had only had a passing or momentary observation of. The witness had seen the appellant during the course of an afternoon.
Result
[21] The appeal against conviction is dismissed.
Sentence
[22] There is no appeal against sentence. I am told by counsel that the sentence has been suspended pending the hearing of this appeal. The appellant is directed to report to the Probation Service at Tauranga on Friday, 30 March 2007, between the
hours of 9.00 a.m. and 4.00 p.m. for the purposes of direction as to his community work. The reparation payments directed by the Judge are to commence as from
5 April 2007.
Venning J
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