C v Police HC Auckland CRI-2007-404-265

[2008] NZHC 2390

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2007-404-265

C

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         3 June 2008

Appearances: Mr B J Hart and Mr A J Haskett for Appellant

Mr B Keown for Respondent

Judgment:      30 June 2008 at 4 pm

JUDGMENT OF LANG J [on appeal against conviction]

This judgment was delivered by me on 30 June 2008 at 4 pm, pursuant to Rule

540(4) of the High Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:
Meredith Connell, Auckland
Counsel:

Mr B J Hart and Mr A J Hackett, Auckland

C V NZ POLICE HC AK CRI-2007-404-265  30 June 2008

[1]      Mr C   faced charges of burglary and converting a truck to his own use.   After a defended hearing in the District Court at Manukau on 24 August 2007, Her Honour Judge Burnett convicted Mr C   on both charges.    The Judge ordered Mr C   to perform 210 hours of community work, and directed him to pay the sum of $2000 by way of reparation.   He now appeals to this Court against his conviction and sentence.

[2]      During the hearing before me counsel confirmed that Mr C   did not pursue the appeal against sentence, and that aspect of the appeal is accordingly dismissed.

[3]      The sole issue in the District Court was that of identity.     Mr C   contended that the prosecution could not prove beyond reasonable doubt that he was the person who committed the offences alleged in the informations.   On appeal, the sole issue is whether the Judge was entitled to conclude that the prosecution had discharged that onus.    Counsel for Mr C   contends that the learned Judge committed  several  significant  errors,  and  that  her  ultimate  conclusion  should therefore be set aside.

[4]      Before summarising the issues that the appeal raises, it is appropriate to set out the factual background that gave rise to the charges that Mr C   faced.

Factual background

[5]      The charges arose from an incident that occurred on the night of 19 January

2006.     On that evening, or during the early hours of the following morning, an intruder  gained  entry  to  the  premises  of  the  transport  firm  Knight  and  Dickey Limited in Waiuku.    In order to gain entry to the premises the intruder used a key that was hanging on a hook outside the premises.    The key had been left in that position to enable truck drivers to obtain access to the premises when starting early.

[6]      After entering the premises the intruder transferred engine oil from bulk containers to smaller drums.    He then carried the drums outside the premises and loaded them onto the tray of a small pickup truck.     A closed circuit television

system monitored both the interior of the premises and the outside yard.     That system captured the movements of the intruder, who appeared to be aware of the existence of the camera inside the premises.   That was evident by virtue of the fact that he wore a hood for part of the time that he was transferring the oil into drums, and he was also careful to keep his face averted from the direction of the camera.

[7]      The television system then filmed the intruder driving the pickup truck out of the yard with the drums of oil on the tray of the truck.   Some time later, the intruder returned the truck to the yard and parked it in approximately the same location that he had uplifted it from.   The truck was later found to have travelled approximately

18 kilometres during its absence from the yard.

[8]      The next morning the owner of Knight and Dickey Limited, Mr Graham Dickey, was called in when the burglary was discovered.   He then viewed the film from the television camera installed inside the premises.   Having done so, he formed the view that Mr C   was the intruder.   Mr C  ’s father had worked for Mr Dickey for many years, and Mr Dickey had known Mr C   himself since Mr C   was a child.   Mr Dickey had also employed Mr C   as a casual driver from time to time in the past.   Mr C  ’s latest period of employment by Mr Dickey had finished in November 2005, approximately two months before the burglary which has given rise to the present charges.

[9]      Mr Dickey subsequently contacted Mr Cockurn’s  father  and mother, and invited them to view the videotape.    When they did so, they disagreed with Mr Dickey’s conclusion that their son was the intruder.

[10]     Mr Dickey also asked the police to investigate the burglary.   One of the police officers who attended the scene was Constable McKenzie, who was a scene of crime officer.  His function was to locate, develop and preserve any fingerprints or other forensic evidence from the scene.   Constable McKenzie examined the pickup truck for fingerprints, and found a fingerprint on the outside of the door of the truck on  the  driver’s  side.      He  preserved  that  fingerprint  by  transferring  it  onto  a fingerprint lift form.    A fingerprint expert subsequently examined the fingerprint, and he identified the print as having come from Mr C  ’s right ring finger.

[11]     The police then arrested and charged Mr C   with the burglary of the premises and the conversion of the truck.

The prosecution case

[12]     The prosecution relied upon both direct and circumstantial evidence.    The direct evidence took the form of Mr Dickey’s identification of Mr C   as the intruder shown on the film from the closed circuit television camera inside the premises.   The most important aspect of the circumstantial evidence comprised the fingerprint on the truck.    The prosecution contended that Mr C   must have left the fingerprint on the door of the truck when he was using it to remove the drums of oil from the yard.

[13]     The prosecution also relied on the knowledge that Mr C   could be taken to have as a former employee of Knight and Dickey Limited.   That knowledge extended to the layout of the premises and the fact that bulk oil was stored within them.   He would also have known of the location of the key that was used to gain entry to the premises, and the location of the television surveillance systems inside and outside the premises.    Mr C   acknowledged the latter by means of a formal admission that he made through his counsel at the beginning of the hearing.

The defence case

[14]     Mr C   gave evidence in his own defence.    He accepted that he had worked for Knight and Dickey Limited for approximately four years, and that he had last worked there in November 2005.   He said that he had driven the pickup truck on at least one occasion whilst he was employed by Knight and Dickey Limited.    He also said that after he had finished working at Knight and Dickey Limited in November 2005 he had been back to the yard briefly on a few occasions to visit people that he knew there.

[15]     When he was asked to explain the fingerprint that the police had found on the outside of the door of the vehicle, Mr C   said that he recalled seeing one of the  other  drivers,  Mr  Colin  Campbell,  parked  in  the  truck  outside  a  bakery  in

Waiuku.    He said that he went over to the truck and spoke to Mr Campbell.    He then said:

I can’t quite remember how he was when he was in the truck, whether the door was open or anything like that.   I was leaning against it but that is all I can really say.   I can’t say whether I put my hand right on it or anything like that.   I was talking to him anyway.

[16]     Mr C   accepted that he had not been inside the cab of the vehicle on any occasion since he had ceased to be employed by the company in November

2005.

[17]     Mr C   denied any involvement in the burglary and the removal of the oil from the premises using the truck.

The Judge’s decision

[18]     After reciting the general factual background the Judge reminded herself of the onus and burden of proof and of the principle that it was not for Mr C   to prove anything.      She also correctly reminded herself of the three possible consequences that flowed from the fact that he had chosen to give evidence.

[19]     Next, she referred to the fact that identification of the intruder was clearly in issue, and that Mr Dickey had purported to identify that person as being Mr C  .   She appropriately reminded herself of the need for special caution when considering eyewitness identification.

[20]     The Judge did not, however, purport to base her decision on the identification made by Mr Dickey.   Rather, she referred to all of the other circumstances that the police and prosecution relied upon.   In doing so she correctly referred to the nature and effect of circumstantial evidence.    She ultimately reached the conclusion that, taken in combination, all of the circumstances relied on by the prosecution were sufficient to leave her satisfied beyond reasonable doubt that Mr C   was the person who had entered the premises on the night in question.

Grounds of appeal

[21]     In advancing the appeal on Mr C  ’s behalf, counsel contended that the

Judge erred in five significant respects.   Counsel submitted that the Judge had:

i)      Admitted and relied on inadmissible hearsay evidence. ii)        Admitted and relied on inadmissible opinion evidence.

iii)Wrongly concluded that the fingerprint was in a downward position on the door of the cab.

iv)Failed to appropriately apply the necessary cautions on identification evidence.

v)     Failed to make a reasoned assessment of the defence evidence. [22]     I now consider each of these in turn.

1.       Did the Judge admit and rely on inadmissible hearsay evidence?

[23]     Counsel contended that the Judge had erred in admitting and relying on two specific items of inadmissible hearsay.   The first of these related to a prior incident in which Mr C   is said to have been at the premises of Knight and Dickey Limited at night and in circumstances when he had no right to be there.   The second related to the production by Mr Dickey of a spreadsheet purporting to summarise the use to which the pickup truck had been put during the months leading up to and following the burglary.

The previous visit by Mr C   to the premises at night

[24]     During  evidence  in  chief  the  following  exchange  occurred  between  the prosecutor and Mr Dickey:

Q.       Using those photographs that you saw who is in those photographs?

A.       Well I got the impression that it looked like Beven. Q.      How certain are you that it was the defendant?

A.        Very certain.   Why I am saying that is because Beven knew we had a camera in there because previous to this, the exact date I wouldn’t like to say on oath, but previous to that, a short period of time back, we also had an alarm in there and it went off one night at about quarter to one.   The alarm rang at my son’s house who just lives up the road.  He went down there and Beven was outside the premises.

Q.       Were you actually on the premises on that date? A. I was not at the premises that night.

Q.        So what you are saying is what you found out from your son, is that correct?

A.        That’s correct.  He told me about it the next morning that the alarm had gone off and he came down and Beven and he had a friend with him –

Q.        Without you actually being there that is not actually evidence you can give to the Court today …

[25]     It is clear that Mr Dickey’s reference to this incident was hearsay evidence that was inadmissible.   The prosecutor, however, was clearly alert to this issue and stopped Mr Dickey from developing this aspect of his evidence any further.    The Judge, too, can be taken to have been aware that Mr Dickey’s evidence on this point was inadmissible and could not be relied upon.

[26]     The issue arose again, however, when counsel for Mr C   was cross- examining Mr Dickey.    During cross-examination counsel asked Mr Dickey about the number of people that would have known of the existence of the security camera inside the premises.   In this context the following exchange occurred:

Q.        So Beven knew that the system was there but he is not the only person who would know that who worked there or had been told by someone who worked there, correct?

A.        People know about the outside ones but they didn’t know about the inside ones.   Quite a few people who have been working there never knew about the inside camera.

Q.       But some did?

A.        There was myself, the office staff, the rest of the staff would not know until you were caught on one and then you would be told about it by us.    I was the one who questioned Beven in the first

instance when the alarm went off because he did say to me he had not been inside and I said well have a look, I have got you on the camera.

Q.        And that turned out to be him and his friend getting water for the truck?

A.       Yes.

Q.        He was getting the water, there was an incident about getting water for a vehicle but I don’t know if you know about that because you weren’t there.

A.       Sorry, no.

Q.        That wasn’t an incident where Beven was being accused of stealing anything, correct?

A.       No, he wasn’t accused of stealing anything. Q.     And nothing was stolen?

A.       No.

Q.       And he worked there at the time.

A.        And I must say he was the one who set the alarm off when he went in the room with a friend.    Somebody had opened the door to get into that building and then somebody moved the wheels and tyres. All I am saying was he was seen on the camera in that building where the camera was.

…

Q.        You can’t rule out the possibility that somebody else might have known or found out [about the security camera] and you don’t know who Beven would have told?

A.        I don’t know who was told there was one there or not.    I told him there was one there because I had seen him.   I questioned him and he said he wasn’t there and I said well I seen you on the camera, you were there.

Q.        In that instance that was all satisfactorily explained wasn’t it in the end?

A.        I spoke to Beven and I said I want the truth and that was the end of that.   I was naturally concerned about it because the person who was with Beven that particular night, it was his friend that’s fair enough, but there are also hundreds of thousands of dollars worth of tyres in there.   So we don’t want everybody knowing about it because these days (inaudible) but I am not accusing Beven of doing that.

Q.        I understand from Beven that the car overheated and they went and got some water for the car.

A.       They wanted some water for the car. Q.    Water in a can?

A.        That’s right.    That’s where they were when my son came out but before that the alarm went off and the camera also had Beven on the camera.   So if he only got water for his car the alarm wouldn’t have gone off and he wouldn’t have been on the camera.

Q.        Beven is saying he got water in the can from the tyre bay which is inside the door.

A.        Yes that would have set the alarm off if he went in the tyre bay.

[27]     It is clear from this passage that Mr Dickey’s knowledge about the earlier incident was not restricted to what his son had told him.   He had personally become involved in the incident because he had raised directly with Mr C   the issue of whether or not he had been in the premises on the previous occasion.    He was entitled to give that evidence because it was not hearsay.     It was also clearly relevant,  because  it  demonstrated  that  Mr  C    knew  from  his  earlier discussions with Mr Dickey that there was a security camera inside the premises. Moreover, counsel for Mr C   continued with questions on this point for some considerable time in order to extract from Mr Dickey the concession that no issue of dishonesty had arisen as a result of the previous incident.

[28]     Viewed in this light, I do not consider that any of the evidence that Mr Dickey gave, with the possible exception of that given during his evidence-in-chief, can properly be categorised as hearsay in nature.   It was also directly relevant to a matter in issue during the hearing.   Moreover, it is clear that the Judge appreciated the relevance of the evidence.    The fact she did not use it as a basis for improper propensity  reasoning  is  evident  from  the  following  passage  from  the  Judge’s decision:

[4]       Two circumstances are also connected.    Shortly before this event Beven C   had gone to the Knight & Dickey premises when the premises were closed for business.    Mr Beven C   had entered into the area, into the bay area, around the area where the oil is located.    An alarm had been set off.    Mr Dickey’s son had apparently attended and Mr C   and somebody not known or identified to me was with Mr C  .      It  seems  from  cross-examination  and  from  Mr  Dickey’s evidence that Beven C   did attend at the premises that night.   From cross-examination his purpose for going there was to access water for his motor vehicle.     It was put to Mr Dickey that he had used water.     Mr

Dickey’s view was that if he had just accessed water then the alarm would not have been activated as it was not in that area and that he would not have been on the video in either/or [sic] of those situations.

[5]       When Mr Dickey asked Beven C   about his attendance on that night Mr C   denied that he had been inside and Mr Dickey said to him, well that is not right because you were on security footage.    The inference I am asked to draw there is that first of all Mr C   had been there in circumstances when he was not invited to be there, that he had entered inside and significant that he now knew for the first time that there had been a security camera mounted outside and indeed as Mr Dickey said in his evidence that camera is visible to anybody who comes in and out and it is well known that it is there.   However, he also said in his evidence that the only people who knew of the camera installed inside was himself and the person  who  installed  it,  and  as  it  turned  out  Mr  Beven  C  ,  and anybody of  course  that  Mr  C    may  have  told,  but  there  was  no evidence of him telling anybody or otherwise.

[29]     I therefore do not accept that the Judge wrongly admitted and relied upon inadmissible  hearsay  evidence  in  relation  to  the  previous  incident  when  Mr C   had been at the premises at night.

Use of the spreadsheet

[30]     During his evidence-in-chief the prosecutor asked Mr Dickey to produce a spreadsheet that purportedly showed the dates on which the pickup truck had been used, the driver who had driven it on each occasion, the kilometres travelled and the product carried.   In explaining how the spreadsheet was made up Mr Dickey said:

How we got this is we went through every timesheet, like every vehicle has a jobsheet and we went through them and got them all out.

[31]     Counsel for Mr C   did not raise any objection when Mr Dickey first referred to the spreadsheet.    When the prosecutor asked Mr Dickey to produce it, however, counsel objected on the basis that Mr Dickey was not the author of the document.   At this point the following exchange occurred between counsel for Mr C   and the Judge:

MS HARDING:

Just in relation to that exhibit he is not the maker of that document.    The office lady produced the document.

THE COURT:

Have you read the new Evidence Act at all?

MS HARDING:

I did the short course and read the summary.

THE COURT:

During the morning adjournment you might like to take the opportunity to go through the specific –

MS HARDING:

I have no objection to that Your Honour.

THE COURT:

Thank you.

EXHIBIT 3 PRODUCED – SPREADSHEET.

[32]     Counsel for Mr C   never raised the issue of the admissibility of the spreadsheet  again.      She  did  not  cross-examine  Mr  Dickey  in  relation  to  the reliability of the spreadsheet either.   Neither did she ask the Judge to determine the admissibility of the spreadsheet during her final submissions.   As a result, the Judge did not deal with that issue in her decision.

[33]     Counsel  for  Mr  C    contends  on  appeal  that  the  objection  to  the admission of the document was “unfairly withdrawn” after the Judge intimated that the document was admissible.   Reading the passage cited above, however, I do not consider that that is a fair criticism.     The Judge did no more than suggest that counsel for Mr C   should read the relevant portions of the Evidence Act

2006.

[34]     Viewing the way in which matters developed, counsel for Mr C   must be taken to have waived or withdrawn her objection to the production of the spreadsheet.   That is the only realistic conclusion to be drawn from the fact that the topic was never mentioned again.     For this reason I do not accept that it was incumbent on the Judge to determine the admissibility of the spreadsheet in her decision.   As soon as counsel for Mr C   had withdrawn her objection to the production of the document, it became an exhibit.   Thereafter it was open to the

parties and the Court to rely upon it as an accurate summary of the manner in which the pickup truck had been used during the months leading up to the burglary.

[35]     It follows that Mr C   does not succeed in relation to this ground of appeal has not been made out.

2.       Did the Judge admit and rely on inadmissible opinion evidence?

[36]     This issue arises because the Judge accepted the evidence given by Constable McKenzie, the scene of crime officer, that the fingerprint would not have been more than a week old.   Counsel for Mr C   contends that Constable McKenzie did not have the necessary expertise to answer that question, and that it should have been addressed instead to the fingerprint expert.    Counsel for Mr C   contended that the Judge should not have accepted Constable McKenzie’s evidence in relation to this issue, and that in doing so she fell into material error.

[37]     I accept that the Judge expressly said that she accepted Constable McKenzie's evidence in relation to the likely age of the fingerprint.   I also accept that Constable McKenzie himself had conceded that questions regarding this issue were more appropriately addressed to the fingerprint expert.    I do not consider, however, that the matter is as simple as counsel for Mr C   would have the Court conclude. In  particular,  I do  not  consider  that  the  Judge  blindly  accepted  the  constable’s evidence regarding the likely age of the fingerprint.   Instead, she undertook her own analysis of the evidence in order to reach her ultimate conclusion regarding that issue.

[38]     In cross-examination Constable McKenzie had said that several factors were relevant when considering the age of a fingerprint on a truck.    These included the fact that road grime naturally builds up on a commercial vehicle, the atmospheric conditions to which the truck was exposed and the regularity with which the truck was washed.   He said that he believed that he was in a position to give this evidence because he had had four years experience as a scene of crime officer.   During this period he had attended, and presumably lifted fingerprints from, numerous crime scenes.

[39]     I consider that Constable McKenzie’s experience as a scene of crime officer was sufficient to provide him with a degree of expertise regarding the factors that were likely to influence the length of time that a fingerprint might remain on a particular surface.    The factors to which the constable referred were in any event matters of common sense.   They bore little resemblance, in my view, to issues that were likely to be within the exclusive domain of an expert.

[40]     The fact that the Judge undertook her own analysis of the evidence is evident from the three paragraphs that follow paragraph [22], in which the Judge said that she accepted Constable McKenzie’s evidence regarding the likely age of the fingerprint.  In those paragraphs the Judge said:

[23]     The vehicles were washed down on a regular basis.     There was much examination and cross-examination as to who drove the number truck and when, on the days leading up to the event and how many times it may or not may have been washed down.    Exhibit 3 was produced and showed a compiled schedule of the dates and drivers of the number one truck leading up to the day in question and how many kilometres it had been driven. Starting on the 4th of January it was used on the 4th, 5th, 7th, 9th, 10th, 11th, 12th,

13th 14th, four times on the 16th four times on the 17th and was not used again until the 26th apart from the night in question.

[24]      There was considerable evidence as to how often this truck may have been cleaned, how it was cleaned bearing in mind that the fingerprint was located on the door of the cab below the driver’s window.   The manner of washing was an arm with a high powered water jet attached to it.    That would be sprayed out spraying the tray of the truck.   There would naturally be wash over of dirty material and the drivers would routinely then hose off the can and often the wheels and underneath the truck, all of which seems quite frankly completely standard and appropriate conduct, bearing in mind that it was important that the material remaining in the truck not contaminate any subsequent loadings for the various reasons given.  Unless the truck was kept reasonably clean it would very quickly become extremely dirty.   I have no doubt of that.

[25]      I  accept  the  evidence  that  the  number  one  truck  was  routinely cleaned and that it was routinely cleaned in a manner that was described including the cab being washed off and including underneath.    This was relevant, of course, because had the cab been washed the fingerprint would have been washed off and the reason that there were no other fingerprints identified by Officer McKenzie was that there were no other fingerprints present and the obvious reason for that is that the truck had been washed and the  other  fingerprints  had  been  removed,  the  earlier  fingerprints  that evidently would have been there were removed and this would presumably happen every time the truck was washed.

[26]     He gave evidence under cross-examination as to why there was no fingerprints [sic] located on the inside surfaces and the door handle and the

reason for that is that it simply is a plastic surface, the steering wheel and the dash board and the truck door handles.   There were also no fingerprints on the rear vision mirror.   His evidence was, and I accept it, if there were any other fingerprints he would have lifted them but there were not.    The only fingerprints that were on that vehicle that could be lifted was that of Beven C  .

[41]     Constable McKenzie had said that the regularity with which the truck was washed  was  a  factor  to  be  taken  into  account  in  determining  the  age  of  the fingerprint.   He did not, however, attempt to analyse the evidence specific to that factor.    That exercise, which involved consideration of the evidence of witnesses other than Constable McKenzie, was left exclusively to the Judge.

[42]     I have therefore concluded that the Judge was entitled to have regard to the factors that Constable McKenzie identified as relevant to a determination of the likely age of the fingerprint.  I am also satisfied that the Judge carried out her own analysis of the evidence relevant to that issue, and that she reached her own conclusion in relation to it.     It follows that I do not consider that she gave inappropriate weight to the opinion that Constable McKenzie expressed regarding the likely age of the fingerprint.

3.       Did   the   Judge   wrongly   conclude   that   the   fingerprint   was   facing downwards?

[43]     The orientation of the fingerprint on the door of the truck is a matter that assumes considerable importance.     If the fingerprint was facing upwards, Mr C   could easily have left it there by leaning against the door of the vehicle. The discovery of the print would therefore need to be viewed in light of Mr C  ’s evidence that he had spoken to Mr Campbell in town, and that he may have leaned against the truck on that occasion.

[44]   If, however, the fingerprint was pointing downwards, the only realistic explanation for its presence would be that Mr C   left it there whilst sitting inside the vehicle.   That conclusion would effectively remove the incident with Mr Campbell as a possible explanation for the presence of the fingerprint on the door, because Mr C   accepted that he did not sit inside the vehicle during that

incident.     He accepted also that he did not sit inside the vehicle on any other occasion after he left Mr Dickey’s employment in November 2005.

[45]     The prosecutor at the hearing in the District Court obviously proceeded on the basis that the fingerprint was facing downwards, because he asked several questions based on that premise.   The Judge also proceeded on the same basis in her decision, although she did not give any reason for doing so.

[46]     Counsel  in  the  hearing  before  me  were  unable  to  say  why  matters  had proceeded on that basis in the District Court, because none of them had appeared as counsel at the hearing in that court.   The brief of evidence of the fingerprint expert, which was handed up by consent at the hearing in the District Court, did not assist either.   It said only that the print was “facing downwards in relation to an arrow on Lift 01”.     I was not able to examine the fingerprint lift, however, because the exhibits from the hearing in the District Court had not found their way to this Court prior to the hearing before me.

[47]     At the end of the hearing I was therefore left in real doubt as to how the Judge had concluded that the fingerprint was facing in downward on the door.   The correctness of that conclusion was obviously of considerable importance, because it affected other grounds advanced in support of the appeal.   In particular, it impacted upon the manner in which the Judge was required to approach the defence based on the incident involving Mr Campbell.

[48]     After reflecting on the matter overnight, I concluded that I was not prepared to determine the appeal until such time as I had viewed the exhibits produced in the District Court.   I therefore issued a Minute in which I directed the registrar to obtain the whole of the District Court file, including the exhibits produced at the hearing in that court.     After some delay the exhibits arrived, and were made available for inspection by counsel.   I have also given counsel the opportunity to file further memoranda regarding the orientation of the fingerprint.   It is fair to say that the supplementary submissions that counsel for Mr C   filed went some distance beyond that particular topic.

[49]     The exhibits included a “scene of crime form” that Constable McKenzie filled in at the time that he lifted the fingerprint from the door of the truck.    This contained  a  diagram  showing  that  the  fingerprint  had  been  lifted  from  an  area marked by a square to the upper right of the door handle.     An arrow with the notation “01” points upwards (ie towards the top of the door) beside the square from which the lift was obtained.

[50]     When this form is read in conjunction with the evidence of the fingerprint expert, the orientation of the fingerprint becomes clear.     The evidence of the fingerprint expert, as I have already indicated at [49], is that the fingerprint faces downwards in relation to the arrow on the lift.   Given the fact that the arrow points upwards on the door of the truck, the effect of the fingerprint expert’s evidence is that the print faces downwards on the door of the truck.

[51]     Counsel for Mr C   submitted that, when the admissible evidence in relation to the fingerprint is taken into account, there remains considerable doubt regarding its orientation.  First, counsel submitted that the fingerprint expert was not entitled to give evidence regarding the orientation of the fingerprint, because he did not take the lift.  He also contended that the fingerprint expert was not entitled to have regard to the scene of crime form, because the prosecution did not prove that the form that the fingerprint expert examined was the same form that Constable McKenzie prepared.

[52]     The first of these submissions ignores the fact that the fingerprint expert did not purport to give evidence regarding the orientation of the fingerprint on the door. He did not refer to the door at all.  He said no more than that the fingerprint faces downwards in relation to the arrow on Lift 01.

[53]     The second submission demonstrates, in my view, the difficulties that can arise when appellate counsel is other than counsel who appeared at first instance. The submission needs to be examined in light of the evidence that was presented at the hearing in the District Court.

[54]     Constable McKenzie confirmed in his brief of evidence, which he read to the Court by consent, that he went to Mr Dickey’s yard on 20 January 2006.  There he examined the pickup truck.  He was able to develop a fingerprint impression on the exterior of the driver’s door panel.  He then lifted that fingerprint and preserved it by way of fingerprint tape applied to a clear backing sheet.  He described the fingerprint as “Lift 01”.  He said that he also prepared a scene of crime form at the time that he took the fingerprint lift.  This contained relevant case details.  Constable McKenzie said that he then put both the fingerprint lift and the scene of crime form in an envelope, and sent them to the Auckland Fingerprint Section.

[55]     The fingerprint expert, who is attached to the Auckland Fingerprint Section, then gave evidence.   He said that on 9 February 2006 the Auckland Fingerprint Section received an envelope containing a fingerprint lift dated 20 January 2006.  He then produced both the fingerprint lift and the scene of crime form as exhibits.  The documents speak for themselves.  The fingerprint lift is marked “01”.  The scene of crime form was clearly that which Constable McKenzie prepared, because it records that he prepared the form and it relates to the burglary of the premises of Knight & Dickey Limited.  It also shows the lift, described as “01”, as having been taken from the area of the driver’s door to which Constable McKenzie referred in his brief of evidence.

[56]     Counsel for Mr C   now suggests that the Judge ought to have been left in a reasonable doubt as to whether the fingerprint lift and the scene of crime form that Constable McKenzie prepared and sent to the Auckland Fingerprint Section were the same documents that the fingerprint expert examined.  On the evidence, I do not consider that there can be any doubt regarding that issue.  There was ample evidence to confirm that the documents that the fingerprint expert produced were the same documents that Constable McKenzie prepared on 20 January 2006 and sent to the Auckland Fingerprint Section.

[57]     Moreover, reading the evidence as a whole, I have concluded that the issue of the orientation of the fingerprint was never actually in issue during the hearing in the District Court.  I reach this conclusion because of the absence of anything to suggest that it was a live issue.

[58]     Counsel  for  Mr  C    did  not  cross-examination  on  the  issue  at  all. There is nothing, either, to suggest that Counsel for Mr C   made any submissions regarding the sufficiency of the chain of evidence.   The fact that the Judge did not address that issue in her decision also confirms that that issue was never been raised.   Instead, the Judge proceeded on the basis that the evidence demonstrated conclusively that the fingerprint pointed downwards, and that there was no dispute regarding that fact.  I consider that it would now be wrong to allow Mr C   to advance an argument based on alleged deficiencies in the chain of evidence when he never raised that issue at first instance.

[59]     I am therefore satisfied that the Judge was entitled to proceed on the basis that the fingerprint faced downward, and that it could only have been placed on the door of the truck whilst Mr C   was sitting inside it.

4.       Did  the  judge  correctly  apply  the  principles  relating  to  identification evidence?

[60]     I have already referred at [18] to the fact that the Judge correctly reminded herself of the need to apply special caution when considering the weight to be placed on eyewitness identification evidence.

[61]     As I read her decision, however, she did not decide the case on the basis of Mr  Dickey’s  identification  of  Mr  C    as  being  the  person  captured  on videotape by the surveillance cameras.   Rather, she based her decision on all of the circumstantial evidence, including in particular the fingerprint.   This is confirmed by the references at [29] and [31] to the principles relating to circumstantial evidence. The Judge immediately followed these comments by saying at [31] that “the combination of facts that [had] been proven beyond reasonable doubt” led her to be satisfied that Mr C   was the person who entered the premises and took the oil.

[62]     The Judge was entitled to decide the case on the basis of the circumstantial evidence that the prosecution adduced.     Moreover, the principles relating to eyewitness  identification  play  no  role  in  cases  based  solely  on  circumstantial

evidence.   Decisions made on the basis of circumstantial evidence focus instead upon the cumulative strength of the circumstances proved by the prosecution.

[63]     It follows that this ground of appeal cannot succeed either.

5.       Did the Judge fail to make a reasoned assessment of the defence evidence?

[64]     The Judge did not expressly reject the defence theory that the fingerprint may have been left on the door of the truck when Mr C   leaned against it whilst talking to Mr Campbell.   It is clear from her decision, however, that she must have done so.     Counsel for Mr C   contended that the Judge should not have rejected that theory without giving at least some reasons for doing so.

[65]     I consider that the answer to this submission is obvious.   Once it is accepted that the fingerprint faced downwards, the defence theory disintegrated.    It did so because it would not have been physically possible for Mr C   to have left the fingerprint facing in a downwards position whilst leaning against the door of the truck.   The fingerprint must instead have been placed on the door of the truck whilst Mr C   was sitting inside the truck.   Given that Mr C   accepted that he did not get into the truck whilst he was speaking to Mr Campbell, the fingerprint could not have been placed on the truck during that particular incident.

[66]     This ground of appeal fails also.

Result

[67]     None of the grounds advanced in support of the appeal have succeeded.   As a result, the appeal is dismissed.

Lang J