Cassidy v Police - [2016] NZCA 549

IN THE COURT OF APPEAL OF NEW ZEALAND

CA168/2016
[2016] NZCA 549

BETWEEN	MATTHEW IVAN KAREMA CASSIDY Applicant
AND	NEW ZEALAND POLICE Respondent

Hearing:	14 November 2016
Court:	Winkelmann, Duffy and Whata JJ
Counsel:	M I Koya for Applicant R D Butler for Respondent
Judgment:	23 November 2016 at 10.30 am

JUDGMENT OF THE COURT

The application for leave to bring a second appeal against conviction is declined.

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REASONS OF THE COURT

(Given by Winkelmann J)

Mr Cassidy was found guilty on 16 October 2015 of one charge of burglary following a judge‑alone trial before Judge Earwaker in the Manukau District Court.[1] In December 2015 Judge Earwaker sentenced Mr Cassidy to two years’ intensive supervision, 80 hours’ community work and ordered him to pay $250 in reparation. Mr Cassidy appealed that conviction. On 16 March 2016 Woolford J dismissed his appeal.[2]
[1]Judge Earwaker delivered an oral decision convicting Mr Cassidy on the charge of burglary. The recording of that oral decision was lost. Judge Earwaker completed a memorandum dated 15 February 2016, drawing upon his handwritten notes prepared for delivery of the oral judgment, setting out the matters he took into account when convicting Mr Cassidy.
[2]Cassidy v Police [2016] NZHC 457.
Mr Cassidy now seeks leave under s 237 of the Criminal Procedure Act 2011 to commence a second appeal against conviction. He seeks to advance three grounds of appeal:
(a)that identification evidence was wrongly admitted in the District Court and the High Court Judge erred in finding that was not so;
(b)that the evidence did not support a conviction; and
(c)that there was prosecutorial misconduct which resulted in a miscarriage of justice.
Section 237(2) of the Criminal Procedure Act provides that this Court must not give leave for a second appeal unless satisfied that:
the appeal involves a matter of general or public importance; or a miscarriage of justice may have occurred, or may occur unless the appeal is heard.
Mr Koya for Mr Cassidy accepts he cannot argue that the proposed appeal involves a matter of general or public importance — Mr Koya grounds the application for leave squarely upon the contention that a miscarriage of justice may have occurred. As this Court made clear in R (CA176/2016) v Police,[3] the threshold for leave to bring a second appeal is high:
In particular, not every error at trial will amount to a miscarriage. This Court is slow to grant leave where success for an appellant would require this Court to reverse concurrent findings of fact below. That is particularly so where, as here, the trial was before a judge alone, giving the applicant the benefit of two judgments giving reasons for those factual findings.

Background

[3]R (CA176/2016) v Police [2016] NZCA 403 at [26].

We gratefully adopt the summary of facts set out in the judgment of Woolford J:[4]
[2] At about 6:50 pm on Wednesday, 4 March 2015, a residential property in Stratford Road, Manurewa, was burgled. The offenders attempted to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZCA 549
Decision Date: 23 November 2016 at 10.30 am

CaseChat Overview and Summary

In Cassidy v Police, the defendant, Mr Cassidy, faced a criminal trial in the District Court, contesting charges related to an alleged burglary. The primary dispute centred on the admissibility and reliability of visual identification evidence provided by the witnesses Mr Charan and Mr Pienaar, who had identified Mr Cassidy as the offender. The case was further heard by Woolford J in the Supreme Court, who had previously ruled on the admissibility of this evidence.

The court was tasked with determining whether the identification evidence provided by Mr Charan and Mr Pienaar was admissible under Section 45(1) of the relevant statute, which stipulates that visual identification evidence is admissible unless the defendant proves its unreliability. The court also had to consider whether Woolford J properly assessed the admissibility of this evidence, particularly in light of the arguments presented by Mr Koya, counsel for Mr Cassidy, regarding the reliability of the identification.

Woolford J had previously concluded that the identification evidence was reliable, noting that the identification occurred under good conditions and was corroborated by other factors such as the timeliness of the identification and the absence of significant discrepancies in the witness accounts. The Supreme Court held that Mr Koya's arguments were essentially attempts to re-litigate the reliability of the evidence rather than pointing out new factors that would alter the admissibility assessment. Consequently, the court found no error in Woolford J's handling of the admissibility issue.

The Supreme Court upheld the lower court's decision, confirming the admissibility of the contested identification evidence. No new orders were made, and the case proceeded based on the existing findings regarding the reliability of the identification evidence.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 45(1) 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. Counsel for Mr Cassidy in the District Court (counsel other than Mr Koya) did not object to the admissibility of this evidence. Nevertheless, as Mr Koya says, counsel for Mr Cassidy did cross-examine extensively in relation to the reliability of the identification evidence. Indeed, that was a central plank of his defence. But because the admissibility of the evidence was not challenged before Judge Earwaker, it is not surprising that he did not address the issue in those terms. Nevertheless, the issue was squarely addressed by Woolford J. Woolford J outlined a number of arguments directed to undermining the reliability of the formal identification evidence but concluded the evidence was not unreliable. In particular he said:[6][42] In my view, the evidence is not unreliable. The burglary happened in daylight. It was “a nice bright day”. Mr Charan heard breaking glass and came out of his property to see what had caused the breaking glass. He observed an offender coming out of his neighbour's property and quickly called the Police after seeing Mr Pienaar coming up his driveway, telling him to call the Police. When he first saw the offender he was about 25 to 30 metres away. He then moved half way down his driveway and ended up about 15 to 20 metres away from him. While Mr Pienaar got closer to the offender (only two to three metres away) and did not select number 2 as a photograph of the offender, that does not mean that Mr Charan’s identification is unreliable. The photo board identification was made just five hours after the burglary, when Mr Charan’s recollection would have been fresh. While initially hesitant, Mr Charan wrote down photograph number 2 as the photograph he recognised as a person involved in the burglary of his neighbour’s house. [6]Cassidy v Police, above n 2. Mr Koya now argues the Judge failed to take into account various matters when he addressed the s 45(1) admissibility issue. In large part the arguments advanced by Mr Koya are no more than an attempt to reformulate or re-argue the matters advanced before Woolford J and taken into account by him in reaching the view he expressed at [42] of his judgment. Mr Koya does add two additional matters — the differences in the description of the offender given by Mr Charan and Mr Pienaar, and Mr Pienaar’s failure to identify Mr Cassidy on a photo board. While these facts were relevant when deciding whether or not the prosecution had proved its case against Mr Cassidy, they were not such as could cause a different view to be taken of the admissibility of the formal identification evidence under s 45(1).

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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