Fleetwood v The King
[2023] NZCA 429
•7 September 2023 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA378/2022 [2023] NZCA 429 |
| BETWEEN | CAINE FLEETWOOD |
| AND | THE KING |
| Hearing: | 23 August 2023 |
Court: | Goddard, Whata, Downs JJ |
Counsel: | P L Murray for Appellant |
Judgment: | 7 September 2023 at 11.30 am |
JUDGMENT OF THE COURT
ALeave to appeal is granted.
BThe appeal against conviction is dismissed.
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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 individual, I believe I’m 100% confident.
Q. Okay and when you say of the individual you’re talking about when you’ve gone through and done an identification process with police?
A. Yeah, of him, yeah.
Q. Sorry, of - when you saw a photograph –
A. Of your defendant, sorry?
Q. – so a series of photographs with male faces?
A. Yeah.
Q. With beards?
A. Yeah.
Q. And you identified someone from that, didn’t you?
A. Yeah. I identified male number 1 and 2. They were both were in the pictures.
Q. All right. And I’m just going to ask you about the series of photographs with the ones with the beards. You identified someone saying that that was the tall guy with the axe?
A. Yeah, which is your defendant.
Q. And you also say that your’e [sic] 100% sure – sorry, hang on, Sir I’ll – I obviously didn’t ask the question but obviously he’s answered.
There were then discussions in chambers about how to deal with this dock identification. Ultimately it was agreed that Mr Vargas-Gonzalez should be spoken to, and the Judge should address the jury about it. Mr Vargas-Gonzalez was warned by the Judge, in the absence of the jury, not to point out Mr Fleetwood. The Judge then directed the jury:
Thank you Madam Foreperson and members of the jury. I apologise, there has been a bit of a delay until resuming now. I guess you’ve had a longer lunchbreak, so hopefully that’s been okay but there is something I need to say to you before the witness comes back in. Prior to breaking earlier today and in response to some questions from Mr Pohiva you heard the witness Mr Gonzalo Vargas-Gonzalez give some evidence that the defendant in the dock is the same person seen by him in a photograph. Now you will have more evidence about that later, about the witness being shown a set of photographs by the police and counsel will refer to it in closing addresses and I will give you directions about it in summing up the case and the evidence, but in the meantime I ask you to please ignore the fact that by implication that the witness referred to the defendant in court and that you deal with the totality of the evidence as it comes out in this trial. So, I just make that point to you now and underline. Thank you.
However, late in his cross-examination Mr Vargas-Gonzalez purported to identify Mr Fleetwood again:
Q. At some point in your evidence, you said that someone threatened you to take you away on the back of the truck, is that right?
A. Yep, and that’s the guy behind you, number two.
Q. Mr Vargas-Gonzalez –
Mr [Pohiva] addressed the Court - twice now
A. Sorry, I was meant to say dude number 2, my bad, forgot. It’s been a long day and I kind of want to go home, you know.
Q. Understandable.
A. Yeah.
Once Mr Vargas-Gonzalez had finished giving evidence, the Judge gave the following additional direction to the jury:
Members of the jury, you may have noticed that there was, just with that last witness there was another one of those answers which was along the lines of the warning or the direction that I’ve given you earlier. I just make the same – give you the same warning now that please put that particular piece of evidence to one side. You’ll get to hear the whole evidence and then you can make your own conclusions once you’ve heard that, all right?
Summing up
During his summing up, the Judge gave an orthodox warning about visual identification evidence. He said:
[76] I want to say something about identification evidence.
[77] The Crown case here depends substantially on the correctness of the visual identification evidence given by the complainants, Mr Gonzalo Vargas-Gonzalez and Mr Michael Drury.
[78] I am required to and do warn you that there is a special need for caution before finding a defendant guilty on the basis of visual identification evidence.
[79] The reason for this warning is that experience has shown that it is quite possible for a perfectly honest witness to be mistaken about identification. If such a mistake is acted on, miscarriages of justice can and have occurred.
[80] Remember that a mistaken witness may be convincing. Further, where there is more than one identification witness, as is the case here, both of them may be mistaken.
The Judge then set out the factors that the Crown relied on to support the identification:
[81] There are a number of factors in this case that the Crown relies on to support the identification evidence. Both identification complainants had the offender described as “male 2” under observation for a period of time. They were able to give detailed descriptions about male 2 that you heard, including facial and other features, including build, height, ethnicity and clothing, and on their evidence at the time making a mental note of the features of the offender with a view to later giving the most accurate description possible to the police.
[82] The incident occurred in the afternoon, indoors and both of the identification complainants were on a number of occasions very close to male 2. The descriptions they provided to the police and confirmed in evidence are, the Crown say, a reasonably good fit with the defendant in terms of general height and build, ethnicity, hairstyle and colour, facial hair, and with a tattoo on his calf. They further say that it is supported in some respects by the independent CCTV footage and stills taken at the time.
This was followed by the factors Mr Fleetwood relied upon:
[83] The defence, however, rely on the following factors regarding the identification. Neither Mr Gonzalo Vargas-Gonzalez or Mr Michael Drury had ever met male 2 before. Both must have been understandably nervous and traumatised during the incident, and in particular, that Mr Vargas-Gonzalez was crying for a period.
[84] There is evidence that male 2 was moving throughout the address constantly and that Mr Drury at the time he made his identification, while going through the process, wrote the words “believe number 5 could be him”. Now, of course, Mr Pohiva says to you: “Well, that suggests he was not sure despite what he said in Court some many months later about how certain he is now.”
[85] Mr Pohiva also says to you it is significant that Ms Corfield, who appeared to have spent the most time with male number 2, could not identify the defendant from the montage, although you may think that to a degree that might be explainable due to her attending to her baby.
[86] He also refers to the tattoos and the inconsistency there, a description of a half-naked lady on one of his legs.
[87] He also refers you to the use of names by other persons, “Ricky” and “Isaiah” who were persons with those names. Male 2 was heard to be referred to by use of the name “Keru” which of course he submits is not the defendant’s name.
[88] Mr Pohiva says to you that the complainant[s] who identified the defendant are mistaken.
Later in his summing up when summarising the Crown’s case, the Judge said:
[111] They say the evidence against him is strong. In particular, they refer to the identification evidence of Mr Vargas-Gonzalez, who said he was 100 per cent sure and he picked Mr Fleetwood out from the montage of photographs after conducting a rigorous process explained by the officer in charge of the case, Detective O’Fee and that was done within a couple of days. She says to you that that can be relied upon.
[112] She also says that Mr Drury identified the defendant from a montage a few days later and that is supportive. Although, as I say, at the time he recorded: “Believe number 5 could be him.” But, of course, he firmed up on that position when he gave evidence at trial.
When summarising Mr Fleetwood’s case, the Judge said:
[130] He has urged you to be careful about the identification evidence and refers to the caution, which I have given you, about such evidence. He says to you that honest witnesses can be mistaken regardless of their confidence. He says here they are mistaken.
The dock identifications were not addressed.
Submissions
Mr Murray for Mr Fleetwood emphasised that dock identification is impermissible.[1] Furthermore where, as here, the defendant is identified from the dock, the jury must be given a warning pursuant to s 126(2) of the Evidence Act 2006 at the time the evidence is given. That section states:
(2) The warning need not be in any particular words but must—
(a) warn the jury that a mistaken identification can result in a serious miscarriage of justice; and
(b) alert the jury to the possibility that a mistaken witness may be convincing; and
(c) where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.
[1]Citing R v Young [2009] NZCA 453 at [26] and [29].
Mr Murray thus submits that the danger inherent in dock identification was never correctly addressed by the trial Judge with reference to s 126(2) and it was not enough to simply invite the jury to put that evidence to one side.
Mr Baker responds that the combination of the formal photo montage identification, the clear direction given by the Judge to disregard the purported dock identification, and the orthodox direction given in summing up obviated the need for the s 126(2) direction at the time of dock identification.
Analysis
As stated by this Court in Dey v R:[2]
[31] At a minimum, if an unintended dock identification occurs, the judge must give a properly tailored direction to the jury in terms of s 126. The factors in subs (2) are mandatory, and a failure to expressly instruct a jury about the risk of miscarriage is an error of law which may lead to a retrial.
[2]Dey v R [2021] NZCA 342 at [31], citing Ake v R [2015] NZCA 334 at [10]; and Fukofuka v R [2013] NZSC 77, [2014] 1 NZLR 1 at [38] and [40] (footnotes omitted).
While the Judge gave no such direction at the time of the dock identification, we consider that the approach taken by the Judge was sufficient overall to avoid risk of adverse inference to Mr Fleetwood.
First, the dock identification references were fleeting. A low-key response to them was appropriate to avoid giving them undue significance. Second, the direction given to the jury at the time of the identification was clear — they were to put the dock identifications to one side. There is no reason to think that the jury would have then attached significance to them. Third, to the extent there was any residual risk of use of the dock identification evidence, the direction given in summing up would have made clear to the jury the risks associated with identification evidence as required by s 126(2). While this was not specifically directed to the dock identifications, it must have been obvious to the jury that all types of identification evidence carry the risks identified by the Judge. Fourth, it would have been inconsistent with the direction to the jury to disregard the dock identifications, to then go on and warn the jury about the need for caution in relation to those identifications. The Judge was right to confine his s 126(2) direction in summing up to the formal identifications that the jury were entitled to take into account.
Therefore, we do not consider that the approach taken to the dock identifications was materially erroneous. We also see no real risk of miscarriage in this case.
Result
Leave to appeal is granted.
The appeal against conviction is dismissed.
Solicitors:
Paul Murray, Palmerston North for Appellant
Crown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent
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