Galloway v The Queen - [2018] NZCA 211

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA93/2018
[2018] NZCA 211

BETWEEN	DAVID SHAUN GALLOWAY Appellant
AND	THE QUEEN Respondent

Hearing:	16 May 2018 (further submissions received on 23 and 28 May 2018)
Court:	Miller, Ellis and Woolford JJ
Counsel:	D S Niven for Appellant Z R Johnston for Respondent
Judgment:	22 June 2018 at 11.00 am

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford J)

On 22 November 2017, David Shaun Galloway was found guilty by a jury of one charge of aggravated robbery. On 2 February 2018, he was sentenced to six years and nine months’ imprisonment by Judge de Ridder. He now appeals against conviction.

Factual background

In mid-2016, Mr Galloway was introduced to the complainant through a mutual friend. At his friend’s request, the complainant allowed Mr Galloway (who he knew only as Sonic) to reside in a sleepout on his property for approximately three weeks. During that time, the complainant lent $200 to Mr Galloway which he did not repay before he left.
On 7 August 2016, about a month after Mr Galloway left, the complainant answered a knock at his front door at about 4 am. The complainant recognised Mr Galloway as one of the men at the door. The complainant told them to get lost, but Mr Galloway said he wanted to talk to him about the money he owed him. Mr Galloway then entered the house followed by two unknown associates.
After the complainant got dressed and made himself a coffee, Mr Galloway produced a large knife from a backpack and pointed it at the complainant. One of Mr Galloway’s associates took the complainant’s phone. The associates then began searching the complainant’s house for items of value, at the direction of Mr Galloway. Mr Galloway demanded $15,000 and wanted the complainant to go to the bank and get money out. He also wanted the keys to the complainant’s car. At one stage, the complainant was escorted at knife point to the garage, which the offenders also searched.
Mr Galloway and his two associates were at the complainant’s house for about three and a half hours during which time they removed a large amount of property including television sets, cameras, a computer, jewellery and clothing and loaded it into the car in which they had travelled to the address. When they left they gave the complainant back his mobile phone and told him not to call the police. None of the property has been recovered.

Grounds of appeal

Mr Galloway appeals on three separate grounds:
(a)Indirect evidence of his criminal history was wrongly introduced at two separate points during the trial through gratuitous statements of witnesses and then further highlighted in a jury question. This was not cured by judicial directions to the jury.
(b)A photo-board montage was wrongfully used in the process of identifying Mr Galloway as one of the offenders by the complainant.
(c)The Crown prosecutor,…

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 Galloway v The Queen

Details

AGLC: Galloway v The Queen [2018] NZCA 211
Case: [2018] NZCA 211
Decision Date: 22 June 2018 at 11.00 am

CaseChat Overview and Summary

Galloway v The Queen is a case before the Supreme Court of Victoria, which deals with the admissibility of visual identification evidence in a criminal proceeding. The case hinges on whether the police followed a formal identification procedure in obtaining the complainant's visual identification of the defendant, David Galloway, who was alleged to have committed an offence. The complainant identified Galloway through a photo board, which is a line-up of photographs shown to the complainant to determine if they recognise the person who committed the offence. The admissibility of this evidence is governed by the Evidence Act 2006, which provides that visual identification evidence is admissible if a formal procedure is followed or if there was a good reason for not following a formal procedure.

The legal issue before the court was whether the police had a good reason for not following a formal identification procedure, given that the complainant recognised the defendant as someone he knew as "Sonic" and had previously stayed with him. The court considered the circumstances of the case and found that the complainant's association with the defendant was not close enough for him to know his name. The court also noted that the prosecutor had drawn the jury's attention to the limitations of the identification through the use of the photo board, which acknowledged that the complainant's identification of "Sonic" did not prove that the defendant was the one who robbed him that morning.

The court held that the police did not act unreasonably in following a formal identification procedure to confirm that the man the complainant knew as "Sonic" was in fact the defendant, David Galloway. The court found that the photo board was an appropriate means of identification in the circumstances, and the evidence was admissible in the criminal proceeding. The court also noted that the prosecutor had fairly drawn the jury's attention to the limitations of the identification, which mitigated any potential prejudice to the defendant.

The final orders of the court are not stated in the text provided. However, it is likely that the court would have found the visual identification evidence admissible and allowed it to be presented to the jury in the criminal proceeding against the defendant, David Galloway. The court's decision in this case provides guidance to law enforcement agencies and prosecutors on the admissibility of visual identification evidence in criminal proceedings and the importance of considering the circumstances of each case when deciding whether to follow a formal identification procedure.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

The admissibility of visual identification evidence, such as the photo‑board shown to the complainant in the present case, is governed by s 45 of the Evidence Act 2006. It provides:45 Admissibility of visual identification evidence(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.… In Harney v Police, the Supreme Court found that the fact that a witness recognises an alleged offender can constitute a good reason not to conduct a formal identification procedure.[3] The Court stated:[4]When the witness knows the offender, the witness is likely to be able to offer a more reliable opinion as to identity. The carrying out of a formal identification procedure may then be of no practical utility, and even create a false impression of the reliability of the identification, when in reality the witness has simply pointed to a person previously known to the witness.[3]Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725.[4]At [17]. The fact that a witness recognises an offender does not, however, automatically mean that a formal identification procedure should not be followed. Much will depend on the circumstances of the case. Here, the complainant told police that one of the offenders was a person he knew as Sonic, who had stayed in his sleepout for a few weeks not long before. The complainant said he did not know his name until he saw his photograph later on Police Ten 7. Furthermore, when he had stayed in his sleepout Sonic had only come into his house on a couple of occasions for a shower. The complainant’s association with Sonic was therefore neither long enough or close enough for him to know his name. The photo‑board was shown to the complainant on 12 August 2016. It was only when Mr Galloway was interviewed six months later that he acknowledged that one of his nicknames was Sonic. In those circumstances, the police cannot be criticised for utilising a formal identification procedure to confirm that the man the complainant knew as Sonic was in fact Mr Galloway. In any event, the prosecutor very fairly in his closing address drew the jury’s attention to the limitations of the identification through the use of the photo‑board. He stated:We know that this chap, Sonic, stayed with [the complainant] for a couple of weeks shortly before [the complainant] made this identification to Detective Sergeant Clayton. It is quite possible, and indeed probable, that Mr Kingan may have so quickly recognised Sonic on the photo board because he did stay with him. [The complainant’s] ID of Sonic does not prove that Sonic was the one who robbed him that morning. What it proves is that Sonic was this defendant David Galloway and indeed in his interview with Detective Constable Todd the defendant did not deny that.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.