Cronin v Police
[2017] NZHC 3078
•12 December 2017
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI-2017-419-66 [2017] NZHC 3078
BETWEEN REGAN PAUL CRONIN
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 17 November 2017 Counsel:
G Boot for Appellant
T Needham for RespondentJudgment:
12 December 2017
JUDGMENT OF WHATA J
This judgment was delivered by me on 12 December 2017 at 4.00 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date: ………………………….
Solicitors: Gavin Boot Law, Hamilton
Crown Solicitor, Hamilton
CRONIN v POLICE [2017] NZHC 3078 [12 December 2017]
[1] Mr Cronin appeals against conviction on one charge of burglary.1 The matter was considered in a Judge-alone hearing.2 Mr Cronin appeals on the basis the Judge erred in fact and law and therefore the verdict was wrong. He submits:
(a) the identification evidence relied upon by the Judge was unreliable;
(b)the circumstantial evidence adduced by the police was not sufficient to prove the charge; and
(c) insufficient weight was given to the defence witness evidence.
Background
The burglary
[2] I adopt Judge Saunders’ description of the burglary, which is not disputed:
(a) On 21 August 2015, a burglar entered and left Lifestyle Meats through the rear down. He was only in the building for a short time, approximately two minutes. The interior alarm located above the rear door was activated by the burglar at 10.47 pm, and remained on until it was deactivated some nine minutes later, at 10.56 pm.
(b)There was no sign of a forced entry. The rear door had been locked and the alarm set earlier that night, so a key was likely used by the burglar to enter the shop. The rear door was relocked on departure.
(c) The rear CCTV camera was also activated and it, for the most part, recorded the actions taken by the burglar both when he entered Lifestyle Meats and when he left. Consequently, there are images of both the front and back view of him. The CCTV camera was aimed straight ahead through the downstairs retail area of Lifestyle Meats. It
did not cover the stairs to the left of the rear door leading to an upstairs
1 Crimes Act 1961, s 231(1)(a).
2 Police v Cronin [2017] NZDC 10773.
office, so a person walking up those stairs could do so without being recorded.
(d)Float money was hidden overnight in one of two places: in a tin sausage filler kept downstairs in the toilet area, or in the bottom drawer of a filing cabinet located upstairs. The CCTV camera captured the burglar coming down the left-hand side of the camera, through to the toilet area downstairs where the sausage filler was kept, and then back towards the camera and the rear door. The float of $300 was taken from the filing cabinet drawer upstairs.
The key issue: identification
[3] At trial the key issue in dispute was the identification by the store manager, Mr Marcum and the owner, Mr Klein, of Mr Cronin from CCTV footage of the burglary. The Judge carefully explained her approach to this issue. The Judge examined the credibility and reliability of the witnesses, noting among other things that the defence witnesses were all good friends and consumed alcohol and that there was room for bias:
[13] I also bear in mind that a witness, although honest and sincere, may be genuinely mistaken about events. A witness needs to not only [be] honest and sincere, but also reliable and credible.
[14] I further bear in mind the defence witnesses are all good friends and alcohol was consumed that night. There is room for bias and an account that is more favourable to Mr Cronin particularly as they were recounting events and times of almost two years ago.
[4] She observed that matters such as who knew the security processes, who had access and who had opportunity were particularly relevant to the assessment.
[5] The Judge also stated:
[17] As to the identification of Mr Cronin by Mr Marcum and Mr Klein I remind myself that mistaken identification can result in miscarriages of justice. A mistake witness can be convincing, and even though two identification witnesses give the same evidence, there is a possibility they may both be mistaken. When considering the reliability of the identification evidence, I bear in mind that Mr Marcum and Mr Klein viewed the CCTV footage together so that, although well intention, they may have influenced
each other. Additionally, the visual images, both the CCTV footage and the still images of it that are photographs from the computer screen are I accept, not particularly clear but I do not think that in itself precludes a reliable identification by someone who knows the person well.
[6] With this in mind, the Judge observes:
[18] Mr Cronin is well known to Mr Marcum and to Mr Klein.
[19] I am sure the burglar captured on the CCTV footage is Mr Cronin and Mr Marcum and Mr Klein are not mistaken in their identification of him. They are both credible and reliable witnesses. This was not a fleeting glimpse of a relative stranger. They know Mr Cronin and could assess the person on screen for a number of minutes from both a front and back perspective.
[20] There are too many distinctive features for this to be a coincidence and I reject the defence evidence. It is simply inconsistent with the more compelling identification evidence.
[21] Mr Cronin is of the same height and build[.]
[22] Mr Cronin had a distinctive Mohawk at the time. [23] Mr Cronin has worn the distinctive leather jacket.
[24] Mr Cronin knew the security measures in place. He knew there were cameras, both at the rear of the premises and at the front retail area. He also knew they did not always work. He knew how to activate the alarm by the rear door (but not how to turn it off) and he had a key to lock the same door. He would regularly close up for the night. Mr Cronin knew cash was hidden on the premises overnight, both a float of $300 and till takings.
[25] The burglary happened very quickly. The CCTV footage shows the burglar knew what to look for and where to look.
[26] Mr Cronin was nearby at the relevant time. Bremworth Avenue, it is conceded, is not far from the Dinsdale shops, a matter of a few minutes’ drive and within relatively easy walking range.
[27] There is in addition the unchallenged evidence that there were only six secure keys issued weeks earlier, and of those six keys, two were given to the directors, one to Mr Marcum, two to the female employees and the last to Mr Cronin. The person captured on the CCTV footage was not either of the two directors, it was not Mr Marcum, it was not a female.
[28] Mr Cronin had the opportunity and the means to commit the burglary. [29] I am satisfied beyond reasonable doubt on the totality of the evidence
that Mr Cronin burgled Lifestyle Meats on 21 August 2015. The charge is proven.
Jurisdiction
[7] This Court must allow an appeal against conviction in a Judge-alone trial if
satisfied the Judge erred in her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or if a miscarriage of justice has occurred for any reason.3 This involves, if necessary, four steps:4
(a) establishing whether there is an error or irregularity;
(b)excluding irregularities which could not, either singularly or collectively, have affected the result;
(c) considering whether the adverse effect potentially arising from an error of that type may actually, that is in reality, have occurred; and
(d)exercising the discretion to dismiss the appeal only if, having reviewed all the admissible evidence, the guilty verdict was the only possible verdict on the evidence.
Assessment
[8] The appeal is based on three interrelated claims as noted at [1]. I will address each in turn, though for reasons that follow each goes to the ultimate issue of whether the verdict was wrong. However, it is necessary first to identify the relevant thresholds that identification evidence based on CCTV footage must pass to be admissible and probative evidence of guilt.
[9] Helpfully these were set out by the Court of Appeal in Keil.5 Most important for present purposes, the identification evidence must be materially relevant: it must logically affect a jury’s assessment of the probability that the defendant is the person
in the CCTV footage. This is unlikely to occur where the fact-finder is in the same
3 Criminal Procedure Act 2011, s 232(2)(b), (c).
4 As set out in Matenga v R [2009] NZSC 18, [2009] 3 NZLR 145, and endorsed in Wylie v R [2016] NZCA 28, [2016] 3 NZLR 1. See [12] and [56].
5 Keil v Police [2017] NZCA 430.
position as the witness to assess the identity of the person.6 This will turn on the facts of the case. The witness, for example, might have knowledge of the of the characteristics of the person shown which means the evidence given will assist the fact-finder.7
[10] The probative value of the identification evidence must also outweigh the risk of unfair prejudice per s 8 of the Evidence Act 2006, and as a species of opinion evidence it must satisfy the tests at ss 23-25 – it must be opinion evidence enabling the witness to convey what they have seen and, if expert evidence, it must be substantially helpful. Furthermore, the evidence must be admissible in terms of s 45. Finally, as identification evidence in this case goes to the central issue at trial without which a guilty verdict could not be imposed, the fact-finder must be satisfied beyond reasonable doubt that the identification evidence is both credible and reliable.8
Identification
[11] Mr Boot submits the two witnesses who identified Mr Cronin, Mr Marcum and
Mr Klein, did not provide reliable evidence as to identity.
[12] As to Mr Marcum’s evidence, he submits:
(a) Mr Marcum watched CCTV and purportedly recognised Mr Cronin from his height, facial hair, the mohawk he had at the time and the leather jacket.
(b)As to the leather jacket, Mr Marcum purportedly described a chrome button sticking out, but perusal of the photographs does not enable such identification to be made.
(c) The references to unshaven facial hair and the mohawk are speculative.
6 At [27]-[30].
7 At [31].
[13] As to Mr Klein, Mr Boot submits he relied on the shape of the burglar’s face, the mohawk and the jacket, but as with Mr Marcum’s evidence, those matters are not reliably ascertainable from the available CCTV footage.
[14] Generally, he submits it is obvious the witnesses discussed identity between them and have gone out of their way to identify the intruder as Mr Cronin. Therefore, he submits, the Judge was wrong to be influenced by the purported identification, that it is unreliable, and should have been put to one side. He is also critical of what he says are efforts to bolster the identification evidence by reference to “tenuous inferences”.
Analysis
[15] Mr Boot does not challenge to the admissibility of the identification evidence in terms of ss 23-25 and 45. If he did, I am satisfied the identification evidence was recognition evidence;9 Mr Cronin was well known to both Mr Marcum and Mr Klein. Thus, there was good reason to dispense with the formal identification procedure. As set out in King, little would be served by undertaking the threshold analysis for reliability mandated by s 45(1) as the assessment will necessarily be overtaken by the assessment of whether the identification is established beyond reasonable doubt.10 It is in this respect that Mr Boot challenges the Judge’s conclusion. He contends the evidence was not sufficiently reliable to pass the reasonable doubt threshold.
[16] Before turning to the reasonable doubt assessment, I am satisfied the identification evidence is relevant and not unfairly prejudicial. First, both witnesses were familiar with Mr Cronin’s visual characteristics at the time of the offending, as well as his connection to the burgled premises. They were able therefore to logically assist the Judge in forming a view as to whether the person in the footage was more likely to be Mr Cronin. Second, the Judge was plainly aware of the risks associated
with identification evidence, including the potential in this case for collusion. I
9 As defined by the Supreme Court in Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [16] as identification evidence “where the witness purports to identify the offender as someone with whose appearance the witness is already acquainted”.
consider therefore the evidence has probative value, which is not outweighed by risk of unfair prejudice.
[17] Turning then to the reasonable doubt threshold, I am satisfied the Judge had a proper basis for finding that Mr Cronin’s identity was established beyond reasonable doubt for the following reasons:
(a) As Ms Needham submitted, the identification evidence took the form of recognition evidence – both Mr Marcum and Mr Klein had worked closely with Mr Cronin over a reasonably considerable period.
(b) Mr Cronin accepted in a police interview the person in the CCTV
footage looked like him.
(c) The CCTV footage provides tolerably clear images of the body type, face, ethnicity, hair colour, clothing (including a hat) and movements of the person in view.
(d) Mr Marcum and Mr Klein:
(i)identified distinctive features attributable to Mr Cronin, including a mohawk, which they were well-placed to recognise;
(ii)identified an economy of movement attributable only to someone who knew the premises and where the float money was hidden – i.e. Mr Cronin; and
(iii)were unshaken by cross-examination about Mr Cronin’s identity.
(e) There was strong circumstantial evidence bolstering the accuracy of the identification – an aspect I return to below.11
11 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [32], and R v Edmonds [2009] NZCA
303, [2010] 1 NZLR 762 at [111].
(f) While the defendant’s witnesses provided alibi evidence, it was plainly available to the Judge to prefer the identification evidence, which provided direct evidence of Mr Cronin’s presence at the premises – another aspect I return to below.
[18] Overall, having reviewed the evidence, I have no reason to disagree with the
Judge’s assessment of the reliability and cogency of the identification evidence.
Circumstantial evidence
[19] Mr Boot also submits the circumstantial evidence is not sufficient to support a finding of guilt. He identifies and criticises the following key circumstantial evidence relied upon by the Judge:
(a) the jacket – there is no clear evidence supporting a finding that the jacket was Mr Cronin’s;
(b)the offending is consistent with the burglar knowing layout of the premises – this is speculative;
(c) Mr Cronin was aware of the security system – there is no evidence to support this, and in fact the alarm went off;
(d)the other holders of keys can be discounted as burglars – this is speculative;
(e) Mr Cronin acknowledged being in the general vicinity – this adds nothing to the prosecution case; and
(f) none of the matters relied upon by the Judge, indirectly or collectively, point unequivocally to guilt.
[20] With respect to the care with which Mr Boot approached this issue, the findings about the circumstantial evidence were available to the Judge. Each matter is relevant evidence tending to support the prosecution case on a key issue – that is was it more
likely that Mr Cronin is the man in the footage. The weight to be afforded to each item was a matter for the Judge. I accept some aspects deserved low weight, for example the likelihood of another key holder not having entered the premises or enabled another person to enter the premises. Nevertheless, the combination of factors listed goes to the implausibility of another different person having been present at the premises and captured on CCTV. For my part, assessed afresh, when combined with the identification evidence whose reliability it bolsters, a very compelling picture supporting a finding of guilt emerges.
Evidence of Mr Cronin and other witnesses
[21] Mr Boot emphasises the defence produced strong alibi evidence, including from Mr Cronin’s friends, who he says were not discredited. He submits it was never put to them that they were lying or making up the defence and there was nothing to otherwise impeach their credibility or truthfulness.
[22] I do not accept Mr Boot’s criticism. There was an ample basis for the Judge to find, as she did, that in the alibi witnesses’ evidence there was room for bias and an account that was more favourable to Mr Cronin. Each of the three alibi witnesses were directly questioned about the timing of the events, how much they drank on the night of the alleged offending, the closeness of their relationship with Mr Cronin and the possibility of collusion. While it was not directly put to them that they were lying, it would have been obvious to them that their alibi evidence was not accepted by the prosecution and they were given ample opportunity to buttress the defence case.12
[23] Furthermore, assessment of the reliability and credibility of the alibi witnesses’ accounts is quintessentially a matter for the trial Judge, in light of all the evidence. There must be a cogent reason to depart from her assessment.13 I accept the absence of direct challenge to the credibility of the alibi witnesses is a factor to be weighed, including within the assessment of the reliability of the identification evidence. But, there is nothing to suggest the Judge has erred in the weighing exercise. In reality,
there was cogent evidence identifying Mr Cronin in CCTV footage. It was plainly
12 Kennedy v Kennedy [2007] DCR 507 (HC) at [28].
13 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [5].
available to the Judge to treat the evidence of his friends with scepticism and to ultimately prefer the evidence identifying Mr Cronin as the offender over the alibi evidence.
Result
[24] The Judge did not err, and no miscarriage of justice has occurred.
[25] The appeal is dismissed.
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