Fleetwood v The King - [2023] NZCA 429

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA378/2022
[2023] NZCA 429

BETWEEN	CAINE FLEETWOOD Appellant
AND	THE KING Respondent

Hearing:	23 August 2023
Court:	Goddard, Whata, Downs JJ
Counsel:	P L Murray for Appellant S C Baker for Respondent
Judgment:	7 September 2023 at 11.30 am

JUDGMENT OF THE COURT

ALeave to appeal is granted.
BThe appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Whata J)

Mr Fleetwood appeals against his conviction for aggravated burglary and kidnapping. He claims the trial Judge failed to give the jury appropriate directions in respect of three dock identifications. We disagree for the following reasons.

Leave

Leave to appeal is required because Mr Fleetwood filed his appeal 70 days late. We are satisfied the dock identification issue is worthy of consideration, and the delay has not caused any prejudice. Leave to appeal is granted accordingly.

Facts

On the Crown case, Mr Fleetwood and three others entered a flat on Dixon Street. Mr Fleetwood and one of the other offenders, Mr Smith, were armed and entered first. Mr Smith had a knife and Mr Fleetwood had a screwdriver and axe. Another male and female entered the flat shortly after. Mr Fleetwood made threats to the occupants and was involved in manhandling one of them. He was involved in ransacking the address over a period of time. At one point, Mr Fleetwood asked the female occupant, Ms Corfield, to remove her clothing. She did not comply.
The occupants were detained within the flat including at various times in different places in the flat — the lounge and bedrooms — and were not free to leave, as one of the four offenders stayed with them at all times. A substantial amount of property, cash, identity documents and clothing were taken from the address. Further threats were made to the occupants about what would happen to them if they called the police either at the time or later.

Identification

The evidence about identification of Mr Fleetwood included:
(a)Formal photo montage identification by two victims of the offending, Mr Vargas-Gonzalez and Mr Drury, together with confirmation by them at the trial that they were “100% sure” about Mr Fleetwood being one of the kidnappers described as “male number 2”.
(b)Common descriptive evidence of “male number 2” by Ms Corfield, Mr Vargas-Gonzalez and Mr Drury, including common references to a beard, short shorts, a leg tattoo, and to carrying an axe.
(c)Dock identifications of Mr Fleetwood by Mr Vargas-Gonzalez as “male number 2”.
Only the dock identifications, and the way the Judge directed the jury on those dock identifications, are in issue in this appeal.

Dock identification

Mr Vargas-Gonzalez purported to identify Mr Fleetwood from the dock under cross-examination. The transcript records the following exchanges:
Q. A fact or detail, when you say you’re 100% sure about it you could be mistaken, couldn’t you?
A. Yeah, if, about a little detail or something like that but, um, of the…

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.

Continue reading Fleetwood v The King

Details

AGLC: Fleetwood v The King [2023] NZCA 429
Case: [2023] NZCA 429
Decision Date: 7 September 2023 at 11.30 am

CaseChat Overview and Summary

Mr Fleetwood appeals against his conviction for aggravated burglary and kidnapping. He contends that the trial Judge failed to provide the jury with appropriate directions regarding three dock identifications. The appeal against his conviction was dismissed. The court found that the trial Judge's approach to the dock identifications was sufficient to avoid any risk of an adverse inference to Mr Fleetwood. The identification references were fleeting and the court's low-key response was appropriate to avoid giving them undue significance. The Judge's clear direction to the jury to disregard the dock identifications meant that there was no reason to think that the jury would attach significance to them. The Judge also gave a comprehensive direction in summing up about the risks associated with identification evidence, which would have been obvious to the jury that all types of identification evidence carry the risks identified by the Judge. The court saw no real risk of miscarriage in this case.

The appeal against conviction is dismissed.

Orders