D v Police HC Auckland CRI 2008-404-34

[2008] NZHC 910

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-404-000034

D

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing:         16 June 2008

Appearances: M Ryan for Appellant

E Walker for Crown

Judgment:      16 June 2008

ORAL JUDGMENT OF VENNING J

Solicitors:           Crown Solicitor, Auckland

M Ryan, Auckland

D V NEW ZEALAND POLICE HC AK CRI 2008-404-000034  16 June 2008

[1]      On 30 January 2008 the appellant was convicted on a charge of theft of a security camera valued at $400.  The conviction followed a hearing in the District Court before Judge Johns.

[2]      On 11 February 2008 the appellant filed an appeal against conviction.  The matter has come before the Court this afternoon for hearing.  The Crown presented wide-ranging submissions on 11 June 2008.   There have been no submissions presented on behalf of the appellant.   Mr Ryan, counsel for the appellant, has indicated he has not been able to contact the appellant to obtain the appellant’s final instructions on the appeal.   Mr Ryan also noted that he had only very recently received a copy of the judgment of Judge Johns.

[3]      The notes of evidence from the hearing and the judgment have been available for sometime.  The Crown at least have had the typed up copy of the judgment since

12 May 2008.  Mr Ryan accepts that it was his responsibility to follow that matter through.   However, even though Mr Ryan now has the judgment his principal difficulty is his  inability to  communicate  with  the appellant.    Despite trying to contact the appellant through his cellphone which is his principal means of contact with the appellant he has received no response over the last few days.   In those circumstances he sought an adjournment.

[4]      I have declined the application for adjournment.  It is the appellant’s appeal. It is his responsibility to communicate with counsel and to ensure that the appeal is prepared properly for hearing.  There is no explanation at all as to why the appellant has not liaised with counsel to enable counsel to argue the appeal on his behalf.

[5]      Further, the appeal turns on a relatively short point, namely whether there was sufficient evidence before the Court to enable the Judge to find that the appellant was indeed the offender and whether she properly directed herself as to the issue of identification evidence.  Nothing else arises.

[6]      On my declining the application for adjournment Mr Ryan then indicated that he had no further instructions.  As noted his initial instructions from the appellant

were that it was not him.  That raises the issue of whether the Judge was right to find the charge proved, particularly whether the Judge was right to find that the appellant was the offender in this case.

[7]      The short background to the matter is that on 13 June last year Mr Aran, the building manager of Seaview Apartments in Day Street in Auckland, noticed that a CCTV  surveillance  camera  had  been  stolen  from  within  the  carpark  of  the apartments.  He reviewed the surveillance footage and noticed two males entering the carpark at five to midnight on 12 June and that one of them, a male in a green jumper took the camera from its fixed position in the carpark.

[8]      There were two police witnesses called in addition to Mr Aran, the first Constable Sheehan.  Constable Sheehan gave evidence that he was at a meeting at which a still photograph taken from the video footage referred to above was distributed.  He identified the person in the photograph as the appellant Mr D  . Constable Sheehan had had dealings with Mr D   on a number of previous occasions on unrelated matters.   Constable Sheehan was able to identify Mr D   because of those previous dealings.  Also the person in the photographs was wearing a distinctive green sweatshirt that the constable had seen Mr D   wearing on a previous occasion and further, the constable said that he could identify a mark on the left hand side of the person in the photograph that coincided with a distinctive tattoo that the appellant has on his neck.   The tattoo says the word “criminal”.   The constable’s evidence was that he could see the beginnings of the “C” in that tattoo.

[9]      Constable  Bland  also  gave  evidence.    His  evidence  was  that  about  two months later he noticed the appellant walking beside the road.  He stopped and spoke to the appellant.  He knew the appellant was a suspect in this matter.  He took the appellant back to the station and spoke to him about it.  The appellant asked to see the photograph.  When it was shown to him he denied that it was him and gave the name of another person.   The constable also gave evidence that having seen the video footage he also considered the distinctive marking described by Constable Sheehan was the distinctive marking that was on the appellant’s neck.

[10]     Although the appellant did not give evidence before the Judge there were issues raised during the course of cross-examination as to whether the person identified was a Jason rather than the appellant.   An issue also arose because the appellant had a tattoo on about the middle of his wrist which was not apparent in the video footage.

[11]     During the course of the hearing the video footage was played.  The Judge herself considered that video  footage.   Having reviewed that video  footage  and having considered the evidence she concluded that she had no doubt that the person on the video footage was the appellant.

[12]     Against the uncontested evidence there cannot be any issue with the findings that the video surveillance camera was taken dishonestly, without any claim of right and with the intention to deprive the owner permanently.

[13]     The elements of the offence were made out.  The sole issue before the Judge was the issue of identification.  As the incident preceded the coming into force of the Evidence Act 2006 that Act does not apply.   Section 67A of the Summary Proceedings Act 1957 did however apply.  That provides:

Where any evidence of identity is given against the defendant and the defendant disputes that evidence, the Court shall bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, the possibility that the witness may be mistaken.

[14]     That section has been referred to and applied on a number of occasions. Reference can be made to the Auckland City Council v Brailey [1988] 1 NZLR 103 and Waaka v Police HC ROT AP87/94 11 November 1994 in which case Morris J noted that:

[The Judge] is not required to specifically refer to the section nor indeed quote its provisions provided it is plain he has taken the provisions into account when considering the evidence before him, provided it is clear from his judgment he has done so.

[15]     In the present case the Judge was well aware of the need to be cautious in relation to the identification evidence.  She noted that counsel for the appellant had made submissions on the issue of identification, the Judge observing:

She is quite right that the case law dictates that the Court should take special caution where the only evidence is one of identification.

The Judge also accepted that the police are not regarded as having any specialist expertise in identifying people.

[16]     The Judge also correctly directed herself at para [28]:

I remind myself that at any defended hearing, it is for the Prosecution to prove the essential elements of a charge beyond reasonable doubt.

before going on to record at para [29]:

I can say, Mr D  , that had it not been for that video footage, I would have been left in some doubt.  But, having viewed the video footage, I am of no doubt that the person on that video footage is you.   You are an extremely distinctive looking person.  From my view, I could tell immediately that that was you on that camera.   When I approached the screen to look at the marking on the left side of your neck, whilst I cannot distinguish it specifically as a C, it is clear that there is marking on your neck which corresponds with the marking I can see in Court.

[17]     The Judge in this case had the advantage of seeing that video footage herself. So that in addition to the evidence of identification given by the police constables she was herself able to assess the identification of the appellant as the offender. Having properly directly herself as to the need to be cautious about identification the Judge has then been satisfied beyond reasonable doubt that the appellant was the offender.

[18]     There  was  sufficient  evidence  before  her  that  enabled  her  to  make  that finding.   As noted apart from the constables’ evidence there was the physical evidence of the CCTV video footage.  The Judge was able to consider that herself.

[19]     There was no evidence given by the appellant to the contrary.  On that basis there was more than sufficient evidence for the Judge to find the charge proved beyond reasonable doubt.

[20]     The appeal must be and is dismissed.

Venning J