Cassidy v Police - [2016] NZHC 457

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000411 [2016] NZHC 457

BETWEEN
MATTHEW CASSIDY

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 1 March 2016

Appearances:

P Chamberlin and M Allen for the appellant
N Dobbs for the respondent

Judgment:

16 March 2016

JUDGMENT OF WOOLFORD J

This judgment was delivered by me on Wednesday, 16 March 2016 at 2:30 pm pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar
……………………………………

Solicitors: Public Defence Service, Manukau City, for Appellant
Kayes Fletcher Walker (Crown Solicitor), Manukau, for Respondent

CASSIDY v NZ POLICE [2016] NZHC 457 [16 March 2016]

Introduction

[1] Following a Judge-alone trial in the Manukau District Court on 14 October

2015, Matthew Ivan Karama Cassidy was found guilty of one charge of burglary by

Judge R Earwaker in an oral decision given on 16 October 2015. On 11 December

2015, Judge Earwaker sentenced Mr Cassidy to two years intensive supervision,

80 hours community work and ordered him to pay $250 reparation. Mr Cassidy now appeals against conviction.

Factual background

[2] At about 6:50 pm on Wednesday, 4 March 2015, a residential property in Stratford Road, Manurewa, was burgled. The offenders attempted to jemmy open a sliding door on the side of the property using a wheel spanner. After failing to gain access to the sliding door, they used the spanner to smash a window next to it. They gained access to the living room of the property by unlocking the sliding door and walking inside. The offenders attempted to uplift a television from the room, but were unable to do so. They then uplifted an Xbox 360 console from the living room along with a black and white Xbox controller and black wallet. They then left through the sliding door.

[3] Neighbours heard breaking glass and went outside to investigate. Two offenders were seen walking towards a white Ford Transit van. One carried a spanner. The other carried electrical equipment. One of the neighbours approached one of the offenders and a short conversation took place on the roadside near the van. Another neighbour also saw the offenders as they exited the property, but from a further distance away.

[4] Both neighbours gave descriptions of the offenders to the Police, who responded immediately. They also gave the Police the registration number of the white Ford Transit van. It was registered to Mr Cassidy’s partner. Accordingly, the Police went round to Mr Cassidy’s address and arrested him at about 10:40 pm for the burglary based on a description of the offenders and Mr Cassidy’s connection to the Ford Transit van. Photographs were taken of Mr Cassidy on arrest showing the clothes he was wearing at the time.

[5] Later that night, both neighbours were shown a photo board containing photographs of eight males of a similar age and ethnicity, each of whom also had some facial hair and the same hair length. One of the photographs was that of Mr Cassidy. One of the neighbours identified Mr…

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] NZHC 457
Decision Date: 16 March 2016

CaseChat Overview and Summary

The appellant, Matthew Cassidy, appeals against his conviction of burglary, which was found by a Judge alone in the Manukau District Court. The appeal is based on three grounds. The first is that the evidence of the identification of the appellant by one of the neighbours through the use of a photo board was inadmissible because it failed to comply with s 45 of the Evidence Act. The second is that during the hearing of evidence in the Judge-alone trial, photographs of the appellant taken by the arresting officer at the time of arrest were unnecessarily displayed in view of, and close proximity to, the witnesses the prosecution relied upon to identify the appellant as responsible for the offending. The third is that the judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred. The appeal was dismissed by the High Court. The appeal was dismissed because the photo board procedure was a formal procedure and the evidence was reliable. The display of the arrest photographs did not affect the outcome of the trial and was not so serious as to make the trial unfair. The Judge’s assessment of the evidence was not flawed because the finding of guilt beyond reasonable doubt was open to him.

Orders