Chavez v Police
[2016] NZHC 1111
•25 May 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-73 [2016] NZHC 1111
BETWEEN DIEGO LEONARDO CHAVEZ
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 23 May 2016 Appearances:
K J Patterson for Appellant
L E Meade for RespondentJudgment:
25 May 2016
JUDGMENT OF LANG J
[on appeal against conviction and sentence]
This judgment was delivered by me on 25 May 2016 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
CHAVEZ v NEW ZEALAND POLICE [2016] NZHC 1111 [25 May 2016]
[1] Mr Chavez defended a charge of common assault in the District Court.1 In a reserved judgment delivered on 2 October 2015, Judge D J Sharp found Mr Chavez guilty of the charge.2
[2] On 15 February 2016, the Judge sentenced Mr Chavez to 200 hours community work and ordered him to pay emotional harm reparation to the victim of his offending in the sum of $250.3 Mr Chavez had also pleaded guilty to an unrelated charge of wilful damage. The Judge ordered Mr Chavez to pay reparation in the sum of $632.50 in respect of that charge.
[3] Mr Chavez appeals against conviction on the assault charge and against the sentence imposed on both charges.
Issue on appeal against conviction
[4] The sole issue on the appeal against conviction is whether the Judge wrongly admitted evidence of two police officers who said they identified Mr Chavez as being the person responsible for the assault with which he was charged. If that evidence is inadmissible, it is common ground that there was insufficient evidence to enable the prosecution to prove the charge. Conversely, if the evidence of either witness was admissible, it is common ground that the Judge was entitled to find the charge proved.
Background
[5] The assault charge was laid as a result of an incident that occurred in central Auckland on 22 May 2015. On that date the Prime Minister was scheduled to give an address at the Sky City Convention Centre in connection with the Budget. The police were aware that a number of protestors were likely to be in the vicinity of Sky
City to protest against Government policy. As a result, the police sent about 50
1 Crimes Act 1961, s 196.
2 New Zealand Police v Chavez [2015] NZDC 21410.
3 New Zealand Police v Chavez [2016] NZDC 4326.
uniformed officers to the entrance of the Sky City Casino in Federal Street at about 9 am. They were under the command of Sergeant David Mayes.
[6] By midday a group of approximately 50 protestors had arrived at Sky City and commenced their protest. During the course of the protest, the police became aware that Mr Paul Henry, a well-known media personality, was in the vicinity with a friend whom he had agreed to meet for lunch. They intended to dine at one of the bars and restaurants on the opposite side of Federal Street from the Sky City Casino.
[7] The protestors recognised Mr Henry and began to crowd around him. Although some of the protestors greeted him in an amiable fashion, others reacted aggressively and abusively. This prompted security officers from the Sky City Casino to assist Mr Henry to get to his destination. Protestors continued to surround them and the security officers then tried to take Mr Henry across the road to the Sky City Casino. By this stage matters were getting out of hand, and the security officers appeared to be losing control. Observing this, Sergeant Mayes directed a group of six or seven police officers to form a line between the crowd of protestors and Mr Henry and his friend. Once the police line was established, the Sky City security officers began escorting Mr Henry and his friend to safety.
[8] At this point, one of the protestors ran around the end of the police line and ran up behind Mr Henry. He was seen to leap in the air and make contact with Mr Henry’s upper body. This caused Mr Henry to stumble, but not fall. The protestor then spat on Mr Henry’s neck. As soon as this happened, Mr Troy Palmer, one of Sky City’s security staff, pulled the protestor away from Mr Henry and pushed him up against a wall. Other members of the security staff then escorted Mr Henry and his friend into a side entrance of the Sky City Grand Hotel. Once Mr Henry and his friend were safely in the building, Mr Palmer released the protestor. The protestor then returned to join other members of the group.
[9] Sergeant Mayes had been observing the incident involving Mr Henry. He decided not to inflame matters further by immediately attempting to arrest the person who had assaulted Mr Henry. Instead, he and another officer, Constable Mark Scott, kept an eye on the assailant as the protest continued. Sergeant Mayes also instructed
a police photographer to photograph that person so that he could be identified and arrested at a later date.
[10] A short time later the police observed members of the protest group, including the person who had assaulted Mr Henry, leave the scene and walk to the Shakespeare Hotel. Sergeant Mayes decided that the police would not enter the hotel to arrest the assailant. Instead, he and several other officers including Constable Scott waited in a police van in the vicinity of the hotel.
[11] About 40 minutes later a group of persons, including the person suspected of assaulting Mr Henry, left the hotel and began walking up Albert Street. The police van followed these persons to the corner of Albert Street and Kingston Street. At that point Constable Scott and another officer alighted from the van and went to approach the person they believed to have assaulted Mr Henry. That person then began running up Kingston Street, pursued by Constable Scott. Constable Scott was able to stop and arrest this person after chasing him for about 100 metres. There is no dispute that Mr Chavez was the person Constable Scott arrested.
[12] The police then placed Mr Chavez in their van and took him back to the Auckland Central Police Station. When Sergeant Mayes subsequently interviewed him, Mr Chavez made several comments indicating hostility towards Mr Henry. He did not make any admissions, however, as to assaulting Mr Henry or having spat on him.
[13] Four days later, Sergeant Mayes obtained CCTV camera footage from the area where the assault had taken place. Having viewed this, he considered it supported his identification of Mr Chavez as the person responsible for the assault on Mr Henry.
The hearing in the District Court
[14] Sergeant Mayes and Constable Scott gave evidence at the hearing in the District Court. Both said they identified Mr Chavez as the person who assaulted Mr Henry. They both described his clothing and physical features. There is no dispute on appeal that the general description that they gave of Mr Chavez was accurate.
[15] Mr Henry and Mr Palmer also gave evidence. Their evidence was in general terms only, because they were unable to identify the person who had committed the assault. The CCTV footage was also produced and played as part of the prosecution case. This did not depict Mr Chavez’ facial features, but confirmed the evidence of the two eyewitnesses as to the height and general appearance of the assailant.
[16] As a result, the prosecution case rested almost entirely on the eyewitness identification evidence given by Sergeant Mayes and Constable Scott. Although the remaining evidence supported their evidence in general terms, it would have been insufficient without more to prove the charge beyond reasonable doubt.
Identification: Relevant principles
[17] The admissibility of identification evidence is governed by s 45 of the
Evidence Act 2006 (the Act). It relevantly 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.
(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
…
[18] The police did not arrange for either Sergeant Mayes or Constable Scott to participate in any formal identification procedure. The admission of their evidence was accordingly governed by s 45(2) of the Act.
[19] The Judge determined that the police had no good reason for not following a formal identification procedure. As a result, the evidence given by Sergeant Mayes and Constable Scott was inadmissible unless the prosecution could prove beyond
reasonable doubt that the circumstances in which they made their identifications produced a reliable identification.
[20] The leading authorities in relation to s 45(2) are the judgments of the Supreme Court and the Court of Appeal in Harney v Police4 and R v Edmonds.5 In Edmonds, the Court of Appeal held that the inquiry under s 45(1) was a broad inquiry that could take into account all relevant circumstances. It then observed:6
[112] By contrast, we consider that s 45(2) mandates a more limited inquiry than s 45(1). The phrase “circumstances of the identification” in that subsection should be given its ordinary meaning. We do, however, accept the appellants’ submission that this phrase should not be construed too narrowly. We thus consider that it would cover both factors internal to the witness (such as eyesight, state of sobriety, prior knowledge of the alleged offenders and opportunities for memory distortion) and external factors (such as the state of the lighting, distance and any obstructions to the view). It should also, in our view, extend to cover the means of collecting the identification evidence, including any possible distortions to the evidence that may have occurred during that process.
[113] While the phrase, “circumstances of the identification”, should not be given a restricted meaning, we do not consider that it can stretch to allowing a general consideration of all the other evidence. It cannot have been envisaged that the Crown would have to run two full trials – one to prove evidence admissible under s 45(2) and another to prove the charges against the defendant.
The Supreme Court endorsed these observations in Harney.7
[21] The inquiry under s 45(2) requires the Court to examine all of the surrounding circumstances at the time the witness made the identification. These will generally include the factors referred to above in the passage cited from Edmonds. These include the length of time over which the identification was made, the distance from which it was made, the lighting conditions at the time and whether or not the witness already knew the person identified. Any possibility that the identification may have been influenced or contaminated due to information coming from other sources will also need to be taken into account. The inquiry will not, however, extend to the other evidence relied upon by the prosecution third party
prove the charge.
4 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725.
5 R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762.
6 R v Edmonds, above n 5.
7 Harney v Police above n 4, at [32].
[22] The present case was not one in which the prosecution relied solely upon the identification evidence of a single eyewitness to prove Mr Chavez was the person who assaulted Mr Henry. Had that been the case, the Judge could have made a single finding to determine both the issue of admissibility and the issue of guilt.8 In the present case the prosecution relied upon the identification evidence given by two witnesses, and the defence challenged the admissibility of both. It was therefore
necessary for the Judge to separately consider the circumstances in which each made his identification in order to determine whether it was admissible. That consideration could not take into account matters extrinsic to the circumstances in which each of the two witnesses made his identification. In particular, the fact that another witness had also identified Mr Chavez as the assailant was not a factor that could be taken into account at this stage of the process.
The Judge’s decision
[23] The Judge reached his finding in relation to s 45(2) in the following passages of his decision:9
[31] As a consequence of this finding I must consider whether under s 45(2) the surrounding evidence can satisfy me that the identification made by the police officers is reliable to the standard of beyond reasonable doubt.
[32] The evidence of Sergeant Mayes is referred to above.
[33] In summary the evidence is from a police officer who was at an event with a duty to observe what happened. The importance of accurate identification is well known to Sergeant Mayes as a police officer. He was close to the events and his view was largely unimpeded. His position was higher than the important events and provided a better than usual opportunity for him to see what had occurred. The Sergeant produced a description which I find matches that of the defendant. The description also included a description of the clothing worn by the person observed. From my observations of the CCTV footage this identification of clothing is consistent with the clothing that was worn by the man who pushed Mr Henry.
[34] The observations of Constable Scott are consistent with what Sergeant Mayes said in evidence. Their evidence aside from a difference in timing is consistent with what Mr Palmer described.
[35] Bearing in mind the cautions that the law provides as regards evidence of identification and also considering that confident witnesses are potentially able to be mistaken I have reviewed the evidence.
8 Harney v R [2010] NZCA 264 at [45].
9 New Zealand Police v Chavez, above n 2.
[36] I have considered the defence submission that the Sergeant’s view may have been interrupted from time to time by other persons and the potential for persons to leave and rejoin the protest group.
[37] Bearing these things in mind I come to the conclusion that the circumstances of identification establish that Mr Chavez was the person who pushed Mr Henry beyond reasonable doubt.
(Emphasis added)
[24] It is evident from these passages that the Judge made no separate express determination as to the admissibility of the evidence of Sergeant Mayes and Constable Scott. Furthermore, any suggestion that the Judge must impliedly have found Sergeant Mayes’ evidence to be admissible immediately confronts the problem that, as the italicised portions of the decision demonstrate, he took into account the CCTV footage and the evidence given by Constable Scott in reaching his decision. Those matters were obviously relevant to the issue of guilt, but neither was relevant to the issue of admissibility. It therefore appears that the Judge conflated the admissibility issue with the ultimate issue of whether or not the prosecution had proved the charge beyond reasonable doubt.
[25] Given those errors in the Judge’s reasoning process, it is necessary for me to reconsider afresh the issue of whether or not the identification evidence of the two witnesses was admissible. Although the trial Judge enjoyed the advantage of seeing and hearing both witnesses, the admissibility issue does not require the Court to make a credibility finding. Rather, it must determine whether the evidence given by the two police officers was sufficient to prove beyond reasonable doubt that their identifications of Mr Chavez were reliable. This Court is in nearly as good a position as the Judge to make that determination.
Was the evidence sufficient to prove beyond reasonable doubt that the identifications of Mr Chavez were reliable?
Sergeant Mayes
[26] All but one of the factors to which the Judge referred in [32] of his decision10
are relevant to the admissibility of Sergeant Mayes’ evidence. As I have already
observed, the events recorded on the CCTV footage were not relevant because they
10 Set out above at [23].
played no part in the sergeant’s identification of Mr Chavez as the person who
assaulted Mr Henry.
[27] Sergeant Mayes said his attention was focussed on the actions of the protestors who were surrounding Mr Henry because that was the only incident giving rise to any concern at that particular time. He said he was able to observe the incident clearly because he was standing on a raised platform approximately 23 metres away from where the incident was taking place.
[28] Sergeant Mayes said he saw a single male person run around the police line and jog towards Mr Henry. He then saw this person launch himself off the ground so that his shoulder collided with Mr Henry’s back. This caused Mr Henry to stumble forwards, but not to the extent that he fell to the ground. Sergeant Mayes said that he continued to make eye contact with the assailant after he had been released by the security officers and rejoined the other protestors.
[29] When asked to describe the assailant, Sergeant Mayes said:
Q. Okay, so can you describe the male that you saw assault Mr Henry? A. He was very short, I guess about five foot five at the time. He had
black hair, which was longer at the back than on top. He had very pale or sallow skin and a very wide mouth. He was wearing a black t-shirt with a light grey or white writing in a box type shape on the front, blue baggy jeans and white running shoes.
Q. So how would you – apart from your specific description of his clothes and hair et cetera, how would you describe him generally speaking, in terms of other members of the public?
A. Very distinctive. The protest group wasn’t that large and he was
certainly the only person who looked like that, he was distinctive.
[30] In answer to questions from the Judge, Sergeant Mayes said that when he interviewed Mr Chavez at the police station Mr Chavez was wearing the same clothes he had seen the assailant wearing earlier in the day. Cross-examined about this evidence Sergeant Mayes said:
Q. The t-shirt that Mr Chavez was arrested in, you confirm that that was a black t-shirt?
A. I believed it was a faded black t-shirt. Certainly the original colour or dominant colour was black. I guess someone might describe it as very dark grey but it was a black t-shirt.
Q. You would accept these clothing articles are quite generic, both the articles?
A. As in a black t-shirt, blue jeans and white trainers? Yes, but on that day he was the only person wearing items like that.
[31] Sergeant Mayes said he lost contact with Mr Chavez after the protestors moved away from Sky City and walked towards the Shakespeare Hotel. He next saw the person suspected of assaulting Mr Henry about 40 minutes later after a group of about six persons had left the Shakespeare Hotel and began walking up Albert Street. At that point the police van followed the group to the intersection of Albert and Kingston Streets. Sergeant Mayes said that the persons in the group were watching the police van when it stopped at the intersection. He then saw one member of the group take the suspect by the arm or around the shoulders and lead him up Kingston Street. This led to the police getting out of the van and the suspect and his associate breaking into a run. Constable Scott then chased Mr Chavez along Kingston Street and arrested him.
[32] Some factors point against the sergeant’s identification being reliable. These are the fact that Sergeant Mayes had never met Mr Chavez before, the fact that the assault took place very quickly and the length of time that passed between the initial identification and the subsequent sighting of Mr Chavez as he walked up Albert Street after leaving the hotel.
[33] I do not, however, accept Mr Patterson’s submission that there is a reasonable possibility the sergeant’s identification was contaminated or influenced by discussions that he held with Constable Scott at or about the time the protestors left Federal Street to walk to the hotel. Sergeant Mayes said that at this point he compared notes with Constable Scott about the appearance of the man who had assaulted Mr Henry. This was necessary to ensure that the detective who was tasked to follow the protestors to the hotel knew which person was regarded as the suspect for the assault. By that stage Sergeant Mayes had already had a significant opportunity to observe the suspect during the assault and after the suspect had been released by Mr Palmer. It is also significant that Constable Scott gave a slightly
different description of the clothing the assailant was wearing. He said that the assailant was wearing black trousers and a dark grey or charcoal top. Sergeant Mayes said that the suspect was wearing blue jeans and a black T-shirt with white or grey writing on it. These differences make it highly unlikely that one officer has influenced or contaminated the identification made by the other.
[34] Similarly, I do not consider it of any moment that Sergeant Mayes lost sight of the assailant during the period when he was believed to in the hotel with other members of his group. The important period for identification purposes was that during and immediately after the incident. There was no challenge, in any event, to the sergeant’s assertion that at the time of his arrest Mr Chavez was wearing the same clothing as that worn by the assailant at the time of the assault.
[35] Several factors point to the identification being reliable. The first is that it was made in daylight and from a short distance away. The second is that Sergeant Mayes was concentrating on the incident because it had attracted his attention. That was no doubt because it was the very type of incident he had been instructed to control or prevent. Thirdly, only one person was involved in the incident. It was not a group attack that would have required Sergeant Mayes to identify several assailants. Rather, Sergeant Mayes was able to concentrate on identifying one person.
[36] Fourthly, Sergeant Mayes was able to make the identification over a period rather than instantaneously. Although the assault itself occurred quickly, Sergeant Mayes subsequently had the opportunity to observe the assailant as he was restrained by Mr Palmer and then released back into the crowd of protestors. It was no doubt during this latter period that Sergeant Mayes was able to observe the assailant’s facial features.
[37] Fifthly, the person that Sergeant Mayes observed was of noticeably short stature. He also had a distinctive hairstyle and a very distinctive mouth. It seems to have been accepted by the defence that Mr Chavez had all of these physical features.
[38] The sixth factor is that although the assailant’s clothing could reasonably be described as generic, Sergeant Mayes was not challenged when he said that nobody else in the vicinity was wearing similar clothing to that worn by the assailant. White sneakers set against dark coloured trousers would be particularly memorable for any eyewitness. In addition, the box-shaped writing on the assailant’s shirt was distinctive. The defence did not challenge the fact that Mr Chavez was wearing a shirt that had such writing on it.
[39] These factors persuade me beyond reasonable doubt that the circumstances in which Sergeant Mayes made his identification were sufficient to produce a reliable identification. His evidence identifying Mr Chavez as the person who assaulted Mr Henry is accordingly admissible.
[40] Although this conclusion is sufficient to dispose of the appeal, I will also briefly consider the identification made by Constable Scott.
Constable Scott
[41] Constable Scott was stationed in a line of police officers tasked with guarding the entrance to the Sky City Casino. He observed the incident in which Mr Henry was surrounded by a group of protestors, and saw the police form a line to protect Mr Henry from the group. He then saw a person run around the end of the police line and approach Mr Henry from behind. He saw this person leap up in the air and hit Mr Henry in the upper body from behind with both arms out in front of him. He saw the blow cause Mr Henry to stumble and then saw a security guard take the assailant to one side.
[42] Constable Scott explained that he had a clear line of sight to this incident and that it occurred about 20 metres away from where he had been standing. He said he “got a really good look” at the assailant. He said the assailant was short and was wearing a dark grey t-shirt and black pants.
[43] Constable Scott did not see this person again until later in the day. He said that he remained in the vicinity of Sky City until after the protestors had left. He recalls that at some stage Sergeant Mayes advised him that he intended to arrest the
person who assaulted Mr Henry and it was then that he gave Sergeant Mayes a description of what the assailant had been wearing. He said that he went in the police van to Albert Street, where he saw the person who had hit Mr Henry. The intention was to arrest that person.
[44] When the prosecutor asked Constable Scott whether he was sure that the person he saw in Albert Street was the person who had assaulted Mr Henry earlier in the day, he said he was “100 per cent sure”. He said it was “very easy to establish” that it was the same person because of his black hair, dark grey t-shirt and very short height. He said that the suspect was standing at the corner of Albert and Kingston Streets with several associates. The group began walking up Kingston Street towards Federal Street when they saw the police van arrive. At that stage Constable Scott said he got out of the van and began jogging after the group. This prompted the person he was chasing to break into a run. Constable Scott then described pursuing Mr Chavez up Kingston Street and arresting him between Federal Street and Nelson Street.
[45] Under cross-examination Constable Scott said that he had watched the assailant for approximately a minute after the security officer had pulled him to one side. It was at this stage that he had been able to see the assailant’s face.
[46] I consider that Constable Scott’s evidence has slightly less probative value than that given by Sergeant Mayes. Unlike Sergeant Mayes, Constable Scott was not concentrating wholly on the incident because he was part of a line of police assigned to guard the main entrance to the Sky City complex. He was also viewing events from ground level rather than from an elevated position. Nevertheless many of the features that render Sergeant Mayes’ evidence reliable also apply to Constable Scott’s evidence.
[47] In particular, Constable Scott was watching an incident that unfolded just a short distance away in broad daylight. Like Sergeant Mayes, he was able to continue watching the assailant after the assault on Mr Henry had finished. This enabled him to provide a description that matched Mr Chavez in general terms. He then saw the same person again within a relatively short period after the assault. Taken together,
these factors are sufficient to prove beyond reasonable doubt that Constable Scott’s
identification is also reliable. His evidence is also therefore admissible. [48] It follows that the appeal against conviction must be dismissed.
The appeal against sentence
[49] Mr Patterson submits that a sentence of 200 hours community work was manifestly excessive having regard to the circumstances of the offending and the fact that Mr Chavez was also ordered to pay reparation and make an emotional harm payment to Mr Henry. He points out that the assault on Mr Henry was a spontaneous incident that lasted a matter of seconds. Mr Henry was not forced to the ground, and suffered no permanent or lasting injury.
[50] The wilful damage charge related to a number of messages Mr Chavez had spray-painted on the wall of a building owned by MediaWorks New Zealand Limited. He left those messages because he was aggrieved that MediaWorks had inaccurately reported his intentions in relation to attending a restorative justice conference in respect of the assault charge.
[51] Like the Judge, I consider the assault had significant aggravating factors. First, it occurred during an incident that had already caused Mr Henry a great deal of discomfort. He was in an extremely vulnerable position after being surrounded by a group of protestors, some of whom were acting in an abusive and intimidating manner. Mr Henry was also an entirely innocent party, and the attack on him was completely unprovoked. He had nothing to do with the issues the group was protesting about. Furthermore, the act of spitting on Mr Henry’s neck was highly offensive and, understandably, upset Mr Henry greatly.
[52] Mr Chavez has never acknowledged responsibility for his actions and has never expressed remorse for what he did. In those circumstances, and even taking into account Mr Chavez’s previous good character, I do not consider that a sentence of community work amounting to just one-half of the statutory maximum can realistically be regarded as manifestly excessive.
[53] The appeal against sentence is dismissed.
Lang J
Solicitors:
Crown Solicitor, Auckland
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