Clasen v Police HC Auckland CRI-2011-404-000108
[2011] NZHC 766
•7 July 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2011-404-000108
BETWEEN HARTWIG CLASEN Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 4 July 2011
Appearances: A Speed and S Clark for Appellant
B Hamlin for Crown
Judgment: 7 July 2011 at 4:30 PM
JUDGMENT OF VENNING J
This judgment was delivered by me on 7 July 2011 at 4.30 pm, pursuant to Rule 11.5 of the High
Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Crown Solicitor, PO Box 2213 Shortland Street Auckland 1140 [email protected]
Copy to: A Speed, Auckland [email protected]
S Clark [email protected]
CLASEN V NEW ZEALAND POLICE HC AK CRI-2011-404-000108 7 July 2011
Introduction
[1] Following a defended hearing before Justices of the Peace the appellant was convicted of behaving in an offensive manner in a public place. He was fined
$250.00 together with Court costs $132.89. He appeals against the conviction.
Background
[2] On 17 May 2010 the complainant was in the Westfield downtown shopping mall near the escalator. A person on the escalator shouted at the complainant, words to the effect: “Sieg heil you fucking Jew, go home, you don’t belong here” and at the same time gave a Nazi salute. The shouting was heard by Mr Ward, who was also in the Westfield mall. He also saw a person giving the Nazi salute. Mr Ward took the complainant to the security office and made a complaint to the mall staff. He waited with him until a police officer arrived and then left. The police officer, Constable Lemon, then walked through the mall with the complainant. The complainant identified the accused as the person who had shouted at him. The appellant was subsequently charged with offensive behaviour.
[3] The only witnesses for the police at the prosecution were Mr Ward, who was not formally interviewed and so did not give a statement until 3 June over two weeks after the incident, and Constable Lemon. The complainant was an overseas visitor to New Zealand. He did not attend the hearing. No written statement had been taken from him. The defence was that the appellant was not the person who had sworn or shouted at the complainant. Identification was in issue.
[4] During the course of his evidence Mr Ward identified the appellant in the dock. He was challenged in cross-examination on the basis that the description he gave of the offender did not match the appellant. Constable Lemon also gave evidence confirming that the complainant had identified the appellant as the offender. The Justices of the Peace must have been satisfied on the issue of identity
because they concluded:[1]
[1] Police v Clasen DC Auckland CRI-2010-004-8705, 15 March 2011.
[10] The prosecution submission, appearances can change, identification is not an issue because on that particular day, which was months ago, two people, that is Mr Ward and the victim, gave positive identification within minutes of the alleged offence.
[11] The victim is now overseas, and that is why he is unable to attend
Court today.
[12] Mr Clasen, we are satisfied with the evidence from the prosecution witness and also the police officer who attended the incident on that particular day. We are satisfied that it did occur, and we find the case against you proven, sir.
The appeal
[5] The appeal is pursued on the ground there was insufficient evidence to find the case proved beyond reasonable doubt, in particular the admissible evidence was insufficient to establish the identity of the accused as the offender.
[6] The Crown’s response is that the police case for identity relied both on the evidence of Mr Ward and the evidence of Constable Lemon that the complainant had pointed out the appellant as the offender. While accepting that identification evidence should be approached cautiously, Mr Hamlin submitted that identification evidence, including the dock identification of the appellant, by Mr Ward, could be more readily accepted in a summary context. Mr Hamlin also emphasised that the evidence of Mr Ward formed only part of the evidence on the issue of identity and that the complainant had pointed the appellant out as the offender to Constable Lemon.
Decision
[7] The first issue is whether the evidence of Mr Ward identifying the appellant as the offender was properly admissible. Mr Ward’s dock identification of the appellant falls within the definition of visual identification evidence under s 4 of the Evidence Act 2006. Its admissibility is governed by s 45. It is conceded that there was no formal procedure followed in relation to Mr Ward’s identification of the appellant. While the complainant’s identification of Mr Clasen to Constable Lemon shortly after the incident might have provided good reason for not following a formal
procedure in relation to his identification, it does not provide good reason for not following a formal procedure in relation to Mr Ward’s evidence, if Mr Ward’s evidence is to be relied on as identification evidence. As the authors of The Evidence Act 2006: Act & Analysis state:[2]
The underlying justification behind s 45(4)(e) is a recognition that identifications made shortly after the occurrence of the offence may make a further, formal, procedure unnecessary.
[2] Richard Mahoney, Elisabeth McDonald, Scott Optican and Yvette Tinsley Evidence Act 2006: Act & Analysis (2nd ed, Brookers, Wellington, 2010) at [EV45.07] (6).
But the good reason, where a complainant has pointed out an offender at the scene of the offence, does not apply to the visual identification evidence of a witness who did not identify the offender at the scene of the offence. In this case Mr Ward did not identify the appellant on the day. He did not make a statement concerning identification of the appellant until over two weeks later when he made his statement to Constable Lemon. There was no good reason for not following a formal procedure in respect of Mr Ward’s visual identification evidence of the appellant as the offender. Mr Ward’s description of the appellant as being 70 years old, having grey hair, six foot tall and of medium build wearing glasses was a very general description and was not consistent with the appellant’s appearance. The appellant is
50 years old, balding on top and, at least in Court, was not wearing glasses. Mr Ward’s identification of the appellant as the offender really came down to his dock identification.
[8] In R v Peato[3] the Court of Appeal stated:
[3] R v Peato [2009] NZCA 333, [2010] 1 NZLR 788 at [59] and [65].
There is ample authority for the proposition that a dock identification by a witness who has not previously identified the accused is of negligible probative value and has the potential for significant prejudicial effect.
…
We think it will usually be the case that identifications in Court for the first time should be ruled inadmissible under ss 45 and 8(1) Evidence Act.
[9] The dock identification of the appellant by Mr Ward occurred almost a year
after the event. There were inconsistencies between Mr Ward’s description of the
offender and the statement he made in June 2010 and the appellant’s appearance.
[10] I conclude that Mr Ward’s evidence purporting to identify the appellant as the
offender was so unreliable as to be inadmissible.
[11] That, however, is not an end of the matter. The police also relied on the complainant’s identification of the appellant to Constable Lemon, which was offered in evidence by Constable Lemon. That identification was visual identification evidence by hearsay statement.
[12] In the case of the complainant there was good reason for not following the formal procedure in respect of his purported visual identification of the appellant. He made the identification of the appellant to Constable Lemon an hour after the offence was reported and in the course of Constable Lemon’s initial investigation. The evidence is therefore prima facie admissible unless the appellant proves on the balance of probabilities, it is unreliable: s 45(1).
[13] The next issue is hearsay. As a hearsay statement the evidence would generally be inadmissible unless it comes within an exception under s 18. For it to be admissible, the police must establish the circumstances relating to the statement provide reasonable assurance it is reliable and that the complainant was unavailable as a witness.
[14] The circumstances in which the statement were made suggest it was reliable. Although it was oral and there was no detail in Constable Lemon’s evidence of what the complainant told him, the evidence does establish that the complainant identified the appellant to a police officer in a well-lit mall, during the day, and within an hour of the incident. Next, the complainant was unavailable as a witness. He had returned overseas. The Justices of the Peace recorded that. I conclude that even though the complainant’s identification was hearsay, prima facie it would be admissible. However, s 8 is also relevant in this case, s 8(2) in particular.
[15] The appellant’s defence in this case was identification. For the reasons given above Mr Ward’s evidence of identification was inadmissible. That left the police case relying on the hearsay identification of the appellant. The appellant was unable to cross-examine the complainant who had provided that identification. That
entailed a significant prejudice to the appellant’s defence. I refer to the decision of Bishop v Police.[4] In that case the appellant was convicted of assault charges. The prosecution relied on a written statement made by the complainant on the evening of the incident. The complainant was unavailable as a witness. The trial Judge ruled the statement admissible under ss 18 and 8. The appellant appealed on the basis the probative value of the statement was outweighed by the risk that it would have an
[4] Bishop v Police HC Gisborne CRI-2008-416-000003, 28 February 2008, Lang J.
unfairly prejudicial effect on the proceeding, because the introduction of the statement deprived him of the opportunity to offer an effective defence to the charges against him.
[16] Lang J observed:[5]
[5] At [25].
The importance of the ability to cross-examine an opposing party’s witness increases significantly when the evidence of the witness is crucial to that party’s case. Any restriction on the ability to cross-examine the witness in those circumstances is liable to create a substantial risk of unfair prejudice. This flows from the fact that the ability to demonstrate, through cross- examination, that the evidence of the witness is wrong or unreliable forms an extremely important component of offering an effective defence.
[17] In the circumstances of the present case, the admission of the complainant’s identification evidence creates a risk of particular and unfair prejudice to the appellant in the conduct of his defence. Identification was crucial to the case against the appellant. Cross-examination alone could have exposed the unreliability of the complainant’s identification. I note that Constable Lemon’s evidence about the complainant’s identification was general in the extreme. Importantly, no written statement was taken from the complainant at the time to which the officer could refer. The constable’s evidence was unaccompanied by any detail as to the victim’s eyesight, whether he wore glasses, relevant distances etc. It was impossible to subject the complainant’s purported identification to any scrutiny at the hearing before the Justices of the Peace.
[18] I conclude that the hearsay identification evidence of the complainant offered through Constable Lemon was also inadmissible. In the circumstances there is no
need to consider the effect of the failure to comply with s 22 in this case.
Result
[19] The appeal must be allowed. The conviction and fine is quashed. Given the circumstances of this case I make no order for rehearing.
Venning J
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