Blair v The Queen
[2014] NZCA 101
•31 March 2014 at 3.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA92/2013 [2014] NZCA 101 |
| BETWEEN | PAUL ANTHONY BLAIR |
| AND | THE QUEEN |
| Hearing: | 24 March 2014 |
Court: | Stevens, Keane and Andrews JJ |
Counsel: | T Sutcliffe for Appellant |
Judgment: | 31 March 2014 at 3.00 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Andrews J)
Introduction
Following a trial before Judge Ruth and a jury in the District Court at Hamilton, the appellant was convicted on 25 January 2013 of one charge of selling cannabis and one charge of possessing cannabis for sale.[1] This was the appellant’s second trial on these two charges. He was found guilty after a jury trial in September 2011, but a new trial was ordered following an appeal to this Court.[2]
[1]R v Blair DC Hamilton CRI-2012-063-001974, 25 January 2013.
[2]Blair v R [2012] NZCA 62.
The appellant has now appealed against his conviction on the grounds that the Crown relied on voice identification evidence which should not have been admitted, and that the Judge failed to direct the jury as to the voice identification evidence.
Background
On 17 December 2010 an undercover police officer “Tupe” went to a Rotorua address and bought a cannabis tinnie. Officer Tupe’s evidence was that he knocked on the door and a male voice yelled out from inside, “hold on”. A person then answered the door, and sold Tupe a cannabis tinnie. Officer Tupe gave a description of the cannabis seller, and identified the appellant from a photo montage. He also gave evidence that the person who sold him the cannabis was the same person who had called out “hold on”.
At trial, the appellant gave evidence that he was at the address on 17 December 2010, and had called out “hold on”, but denied having sold the cannabis to Officer Tupe. The appellant and the occupant of the house gave evidence that another person, “Andy”, said to be of similar appearance to the appellant, was also at the address at the time, and had sold the cannabis to Officer Tupe. They had given the Police a description of Andy, but the Police had not located him.
Was Tupe’s “voice identification” evidence admissible?
Officer Tupe’s evidence was that he had gone straight back to his operations base and recorded a statement after having bought the cannabis. He gave a description of the person with whom he dealt, in terms of his height, his facial appearance, hair, and facial hair. He said that when he saw the appellant’s photograph in the photo montage, it triggered his memory of the distinctive eyes of the person who sold him cannabis. He also said that the person who came to the door and sold him the cannabis had the same distinctive “baritone voice” as the person who had called out “hold on”.
“Voice identification evidence” is defined in s 4 of the Evidence Act 2006 (the Act) as follows:
voice identification evidence means evidence that is an assertion by a person to the effect that a voice, whether heard first-hand or through mechanical or electronic transmission or recording, is the voice of a defendant or any other person who is connected with an act constituting direct or circumstantial evidence of the commission of an offence
We accept Officer Tupe’s evidence, that the person who called out “hold on” had the same voice as the person who opened the door and sold him cannabis, was an assertion that the voice he heard was the voice of the person “connected with an act constituting direct or circumstantial evidence of the commission of an offence”. It was, therefore, voice identification evidence.
Voice identification evidence is admissible under s 46 of the Act:
46 Admissibility of voice identification evidence
Voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification.
For the appellant, Mr Sutcliffe (who was not the appellant’s trial counsel) submitted that in this case, the prosecution was required to prove that Officer Tupe’s voice identification was reliable, and had not done so. In the circumstances, he submitted, the evidence was inadmissible. However, he accepted that there had been no challenge to the voice identification on the issue of reliability, either before or during the second trial, and that the analysis of the reliability of the identification could be undertaken by this Court.
Mr Sutcliffe submitted that the circumstances in which Officer Tupe’s identification was made had not produced a reliable identification. He submitted, first, that Officer Tupe was not well equipped to identify the words “hold on” as being spoken by the same person who then spoke to him after the door was answered, as the appellant was not previously known to Officer Tupe. Secondly, he submitted that the words had been called out from within the house, through a closed door, and the words did not provide a sufficient basis for comparison. Thirdly, he submitted that the conversation which followed after the door had been opened did not involve the use of a raised voice, so could not be properly compared with the voice calling out “hold on”.
Ms Vear submitted for the respondent that s 46 was satisfied as Officer Tupe’s identification was reliable. She submitted that Officer Tupe was alert to the need to be accurate in identifying features of the person selling cannabis, that he had identified a distinctive baritone voice, and had not identified any background sounds which might have distorted his hearing. Secondly, Ms Vear submitted that there was a short period of time between hearing the words called out and the door being answered, and Officer Tupe was in close proximity to the two voices.
Ms Vear further submitted that Officer Tupe’s evidence that the voice that called out “hold on” was the same voice of the person who opened the door, had been led at the appellant’s first trial, and had not been challenged. In the absence of any challenge, she submitted, the prosecutor at the second trial could not have anticipated that the admissibility of the evidence would be challenged, and therefore had not sought a ruling.
Essentially for the reasons put forward by Ms Vear, we are satisfied that the circumstances of Officer Tupe’s identification of the voice that called out “hold on” as being that of the person who sold him the cannabis made that evidence, on the balance of probabilities, reliable.
Was the Judge required to give a warning concerning voice identification evidence?
Section 126 of the Act provides when a warning is required in relation to identification evidence:
126 Judicial warnings about identification evidence
(1)In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.
(2) The warning need not be in any particular words but must—
(a)warn the jury that a mistaken identification can result in a serious miscarriage of justice; and
(b)alert the jury to the possibility that a mistaken witness may be convincing; and
(c)where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.
Mr Sutcliffe submitted for the appellant that counsel for both the prosecution and defence had referred to the voice identification evidence in their closing addresses, as being a factor which the jury should consider. He submitted that the Judge was therefore required to provide a s 126 caution on the dangers of relying on voice identification. However, he submitted, the trial Judge had restricted his warning to visual identification only, despite the Court of Appeal’s observation in Wu v R that, even when the evidence regarding voice association is not strictly identification evidence, it is preferable for a trial Judge to warn the jury in terms of s 126.[3] Mr Sutcliffe submitted that in the present case, the voice identification evidence was part of the foundation on which the prosecution had built its case to prove identity, and a s 126 caution was essential. The Judge’s failure to give such a caution, he submitted, meant that the appellant’s fair trial rights had been breached and there had been a miscarriage of justice.
[3]Wu v R [2011] NZCA 358, [2011] 3 NZLR 764 at [72].
Ms Vear submitted that a s 126 warning in relation to voice identification evidence was not necessary, as the Crown had not sought to rely on the voice identification to identify the appellant as the seller of cannabis. She submitted that the main focus had been on Officer Tupe’s visual identification evidence of the appellant as the seller. She submitted that the case against the appellant was not “wholly or substantially dependent” on the voice identification evidence, and that the voice identification evidence had assumed no particular significance during the trial. Ms Vear further submitted that the Judge gave a s 126 warning in relation to visual identification evidence, and that encapsulated all matters that were relevant.
The first issue to consider is whether the Crown case against the appellant depended “wholly or substantially” on the correctness of Officer Tupe’s voice identification evidence. It was common ground that the Crown case did not depend “wholly” on that evidence. Both counsel accepted that “substantially” should be given its standard dictionary meaning of “significant” or “important”,[4] and that the determination of whether the Crown case was substantially dependent on particular evidence is to be undertaken in the context of the issues in the case.
[4]See G D Kennedy and T Deverson The New Zealand Oxford Dictionary Oxford University Press, 2008.
Mr Sutcliffe accepted that the visual identification of the appellant as the person who sold the cannabis was the principal focus of the Crown case, but submitted that the voice identification was inextricably linked to the visual identification and could not be divorced from it. He further submitted that the jury’s consideration of the voice identification evidence was crucial to the defence case, given the appellant’s concession that he had called out, and his denial that he had sold the cannabis.
Ms Vear submitted that the voice identification evidence was only of minor importance at the trial. She illustrated this by reference to counsel’s closing addresses. The Crown address linked the voice that called out with the voice of the person who sold the cannabis, but did not link the voice with the appellant. It was the appellant, she submitted, who linked himself to the voice, by accepting that he had called out. Counsel for the appellant referred to Officer Tupe’s evidence that the two voices were the same, and put to the jury that he could not have reached that conclusion.
Ms Vear further submitted that the Crown case relied on Officer Tupe’s visual identification. She submitted that it was a “but for” situation: had there not been a visual identification, the voice identification would not have been probative. It was the visual identification that was probative, and upon which the Crown case depended.
We accept Ms Vear’s submission that the visual identification evidence was the key evidence in the prosecution of the appellant. This was the focus at trial, in counsel’s addresses, and in the Judge’s summing up. The Crown case relied on Officer Tupe’s visual identification and the defence case was that he was mistaken in that identification. The focus on the visual identification was reflected in the Judge’s summing up to the jury.
In the course of his summing up the Judge gave the jury the following directions in relation to identification:[5]
[33] The chief matter that is going to be at the forefront of your minds in this case is the question of identification. That is really at the heart of this trial. This is a case where the Crown relies upon the accuracy, really, of one witness, Tupe, in his identification of Mr Blair as the person who showed him the four cannabis tinnies and who, thereafter, sold him one of them.
[34] The defence, for its part, contends, for all the reasons that the defence has advanced to you, that that is a mistaken identification. That, in fact, it was this man, Andy, who was the possessor of the cannabis, if you like, and the seller. I simply pause there to remind you that there is no onus on Mr Blair to prove that it was Andy, this is not a whodunit. The real question is, are you sure it was the accused? Not, are you sure whether it was Mr Blair or it was Andy. That is not the true question. The true question is, are you sure the seller and the possessor [of] the cannabis, for count 2, was Mr Blair?
[35] But in any identification case I do have to give you certain warnings because of what has happened in the past. You may have read about cases where this has happened, mistaken identification can and have led to serious miscarriages of justice. I need to warn you of the special need for care before you rely on identification evidence as the basis for conviction because it is the only basis for conviction in this case.
[36] The problem is that a perfectly honest, genuine and sincere witness can be mistaken. And that is what causes the problem because they seem so sincere, they are honest, they are upright, they are genuine – but they can be mistaken. An honest witness who is convinced that his identification is correct can nonetheless be mistaken. So they all come across as very honest and so in the normal course of events you might think, “Well, this is such an honest, straight-forward person why wouldn’t I accept what they say?” But you need to scrutinise it much more closely than that.
[37] I suspect that all of you have either been subject to this following example, or at least know someone who has. You see a person a little way away who you know and so you wave frantically trying to get their attention. When you get a little closer you realise it is not that person at all and you wish the ground would open up and swallow you. Well that is a common, everyday occurrence and we are talking about someone you know, not a stranger. That just illustrates the need for caution and illustrates how matters of identification have to be approached with such caution. Now, none of that is to say that you cannot rely on what Tupe said; it simply means that you have to be careful about it.
[37] There are a number of flags, as there are with credibility issues, which might occur as being helpful markers that you might think about in determining just where Mr Tupe’s evidence sits with you.
[5]R v Blair DC Hamilton CRI-2012-063-1974, 24 January 2013.
The Judge went on to suggest the jury consider how long the person was in Officer Tupe’s observation, what the distance was between them, what the lighting was like, whether there was any physical object impeding observation, whether Officer Tupe had seen the person before, whether there was anything about the situation that would cause Officer Tupe to take particular notice of the person, whether Officer Tupe would have been able to identify the appellant from a photo montage, how long it was between actually seeing the person and identifying him, how well Officer Tupe’s description matched the appellant, and what relevant experience and training Officer Tupe had.
The nature and extent of the above directions concerning visual identification amply demonstrated the importance that the visual identification issue assumed at trial.
Mr Sutcliffe accepted that, in terms of visual identification evidence, the Judge’s direction was accurate, comprehensive, and complied with the statutory requirement. Thus the adequacy of the Judge’s directions on visual identification could not be challenged. We agree.
In the present case, the strength of the Crown case was in Officer Tupe’s visual identification of the appellant as being the person who sold him the cannabis. We do not accept that the Crown case depended either “wholly or substantially” on the voice identification. It depended on the visual identification. Accordingly, a specific voice identification direction was not required. It is also relevant that, after the summing up, no specific direction was sought by trial counsel in relation to voice identification evidence.
In summary, the voice identification evidence was reliable. It was therefore admissible. In the circumstances of this case the Judge was not required to give a judicial direction. In any event, the failure to do so did not occasion a miscarriage of justice.
Result
The appeal against conviction is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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