Guckert v Police

[2018] NZHC 3284

IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY

I TE KŌTI MATUA O AOTEAROA WHAKATŪ ROHE

CRI-2018-442-12

[2018] NZHC 3284

BETWEEN

SHELDON JAMES GUCKERT

Appellant

AND

THE NEW ZEALAND POLICE

Respondent

Hearing:	12 December 2018
Appearances:	S J Zindel and A R Goodison for the Appellant S J Revell for the Respondent
Judgment:	13 December 2018

JUDGMENT OF COOKE J

[1]    Mr Guckert has been charged with driving while disqualified.1 His Judge- alone trial commenced in the District Court at Nelson on 13 September 2018 before Judge Ruth. Prior to the trial the defendant indicated that he would challenge the identification evidence relied upon by the Police. At the close of the prosecution case, Judge Ruth determined that the contested evidence was admissible.2 Before the commencement of the defence case, Ms Goodison indicated that Mr Guckert would be appealing that ruling. Judge Ruth then adjourned the trial part-heard pending the outcome of this appeal. Mr Guckert now seeks leave to appeal against the decision under s 215 of the Criminal Procedure Act 2011.

1      Land Transport Act 1998, s 32(1)(a) and (4); maximum penalty two years’ imprisonment.

2      Police v Guckert [2018] NZDC 19435.

GUCKERT v NEW ZEALAND POLICE [2018] NZHC 3284 [13 December 2018]

Factual findings

[2]    The facts as found are set out in the Judge’s decision. Mr Guckert was known to the witness who gave evidence identifying him, Senior Constable Peterson. She lives in the same neighbourhood as Mr Guckert. In September 2017, she had seen  Mr Guckert driving around the suburb where they live, and on State Highway 6. She later found out that he was disqualified from driving at the time. A conviction resulted from this offending. Senior Constable Peterson also encountered Mr Guckert one other time in the community, and had seen his photograph at least two other times in the course of her work.

[3]    At about 6.40 pm on 12 February 2018, Senior Constable Peterson was off- duty and driving home along State Highway 6, near Nelson. The speed limit along that stretch of road is 100 km/h. Senior Constable Peterson saw a white station wagon driving in the opposite direction. She did not obtain the make, model or registration number of the vehicle and it was a different vehicle from that in which she had previously seen the defendant. She gave evidence that Mr Guckert was the driver, however. She described seeing the driver both from the front, through the window screen of the station wagon, and from the side as the two vehicles passed. She said that the driver’s window was partially down, and the driver was holding a cigarette.

[4]    After seeing the station wagon, Senior Constable Peterson pulled over to look up Mr Guckert in the Police National Intelligence App on her phone. This revealed that he was still  disqualified  from driving.  It  also  brought  up  a  photograph  of Mr Guckert. Senior Constable Peterson notified Police of the alleged offending the following day. A summons was subsequently issued, albeit not for another 11 days.

[5]    In April 2018, a few months after the alleged offending, Senior Constable Peterson also gave Mr Guckert a lift into town.

[6]    A photo montage was subsequently carried out in relation to Senior Constable Peterson’s identification of Mr Guckert on 29 June 2018, some four and half months later. She duly identified Mr Guckert as the person she had seen. Senior Constable Peterson gave evidence that she considered the photo montage to be a “waste of time”

and that she only carried it out on orders from a superior. She said she was 100 per cent confident in her initial identification.

Admissibility of identification evidence

[7]    Section 45 of the Evidence Act 2006 is the primary legislative control over the admission of visual identification evidence in a criminal proceeding. It is one of the recognised exceptions to the admissibility of opinion evidence. Section 45(3) sets out a “formal procedure” for obtaining visual identification evidence. That procedure usually involves the witness being asked to examine a montage of photographs, including one of the defendant and no fewer than seven of other persons “who are similar in appearance to the suspect”.3 The admissibility of identification evidence other than by the formal procedure is regulated by s 45(1) and (2) which provide:

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.

District Court decision

[8]    Mr Guckert challenged the admissibility of Senior Constable Peterson’s identification evidence under s 45 of the Evidence Act. It was accepted by the Police at the trial that the photo montage was not carried out “as soon as practicable after the alleged offence is reported” in accordance with s 45(3)(a), and thus it did not qualify as a “formal procedure” for the purposes of s 45.4

3      Evidence Act 2006, s 45(3)(b).

4      Section 45(3)(a).

[9]    The Judge made some mention of “good reasons” not to follow a formal procedure, including the Police’s suggestion that no officer involved could reasonably have anticipated that identification would be an issue at trial.5 The Judge also referred to the Supreme Court’s decision in Harney v Police.6 Ultimately, however, the Judge decided to address the case on the basis that the Police had to prove beyond reasonable doubt that the circumstances in which the identification was made had produced a reliable identification under s 45(2).7

[10]   On balance, the Judge arrived at the conclusion that the Police had demonstrated beyond reasonable doubt that Senior Constable Peterson’s evidence was reliable.

Relevant issues on appeal

[11]   I received extensive submissions from Ms Goodison, on behalf of Mr Guckert, challenging the assessment made by the Judge as to the reliability of Senior Constable Peterson’s identification. They focused particularly on the reliability of what must be regarded as a fleeting sight of the driver as the two vehicles passed on the highway at, or close to, the speed limit. Ms Goodison also relied on the potential for contamination associated with hypervigilance arising from Senior Constable Peterson’s past dealings with Mr Guckert, and her accessing of the Police National Intelligence App, which included Mr Guckert’s photograph, immediately after the identification.

[12]   The submissions from Mr Revell, on behalf of the Police, focused on the jurisdiction of the Court to deal with an appeal at this stage, as well as the process to be followed under s 45. He also briefly addressed why the Judge’s decision was an appropriate one on the facts.

[13]   I do not intend to address counsels’ submissions in any greater detail as I have concluded that the Judge has made two related errors in the way that this matter has proceeded. In particular:

5      Evidence Act 2006, s 45(4)(d).

6      Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725.

7      Evidence Act 2006, s 45(2).

(a)First, I agree with the submissions for the Police that there is no jurisdiction to entertain an appeal at this stage, and that it was wrong for the District Court to adjourn the trial part-heard for the purposes of entertaining this appeal.

(b)Second, the District Court has not properly applied the procedure contemplated by s 45, albeit that the errors in approach may not have resulted in the evidence being wrongly admitted.

[14]   As a consequence, the formal order this Court makes is simply to dismiss the application for leave to appeal. The trial can now be completed in the District Court where the Judge can assess whether this Court’s conclusions have any impact on the prosecution case.

Jurisdiction

[15]   It is appropriate to recognise that the process followed under s 45 relates to the admissibility of evidence only. That will be of particular significance in relation to jury trials, but it is also true in relation to a Judge-alone trial.

[16]   One of the first issues to be addressed by the Court is whether any contest to identification evidence should be dealt with pre-trial in accordance with s 78 of the Criminal Procedure Act 2011.  If a  matter is dealt with pre-trial in accordance with  s 78, and a decision made under s 79, then the prosecution and defence have a right of appeal to the High Court with leave in accordance with s 215 of the Criminal Procedure Act 2011. In the present case that did not occur — there was no pre-trial admissibility hearing or decision. There is accordingly no right to apply for leave to appeal under s 215(2)(a).8

[17]   Ms Goodison sought to argue that the decision was in substance a pre-trial ruling, and that I ought to adopt a broad interpretation of the relevant appeal provisions. I do not accept that. The trial had commenced, and the prosecution had begun calling its evidence, including the evidence of Senior Constable Peterson, who

8      See also Siemer v Police [2018] NZHC 1212.

was then cross-examined. The Judge then made the admissibility ruling at the request of the defendant, and then adjourned the trial to allow an application for leave to appeal to proceed. That should not have occurred. Such issues can be dealt with as pre-trial rulings with the consequential right to apply for leave to appeal, or the matter can proceed on appeal to the High Court after the trial has been completed and a decision made. In the present case, the Judge should have completed the trial and determined the outcome based on all the evidence. There are good reasons why there are no rights of appeal of rulings made during the trial given the desirability of avoiding trials being adjourned part-heard. I do not accept that this involves a legislative oversight that needs to be corrected by purposive interpretation.

Application of s 45

[18]   There have also been related errors in the way that s 45 has been applied, which have some potential for causing prejudice and which are appropriately addressed in connection with the completion of the trial.

[19]   In the present case, it became obvious that the formal identification process that had been followed by the Police was not in accordance with s 45. When no formal identification procedure is involved, the next question to be addressed by the Court is whether there is good reason for not following a formal procedure.

[20]   Section 45(4) lists various “good reasons” for not following a formal procedure. As recognised by the Supreme Court in Harney v Police, however, this list is not exhaustive.9 In particular, the Court said that there may be good reason not to follow a formal procedure if the visual identification evidence “takes the form of a recognition by the eyewitness of someone already known to the witness”.10 The Court said:

[27]      It does not follow, of course, that merely because identification evidence takes the form of recognition of a person known to the defendant, that factor will necessarily provide a good reason for dispensing with a formal procedure. It will not do so unless the appearance of the alleged offender was sufficiently known to the witness before the time of the alleged offending that a formal procedure would be of no utility. Where a procedure would serve a

9      Harney v Police, above n 6, at [25].

10 At [26].

“useful purpose” from the point of view of the defence, in that it may expose an element of unreliability in the identification, there will not be good reason in terms of s 45(1).

[28]      The sufficiency of the familiarity of the witness with the defendant’s appearance and the utility of a formal procedure need to be gauged in the individual case. In determining the issue of utility of a formal procedure the judge who is ruling on admissibility needs to consider the particular circumstances in which the witness has previously seen the defendant and how, and with what degree of cogency, those prior circumstances demonstrate that the witness had the capacity to identify the defendant with accuracy. Where there has been extensive past association, that is likely to provide a powerful argument against a formal procedure. On the other hand, if the prior acquaintance with the defendant’s appearance is slight only, such a procedure will usually have value; the potential weight of the witness’s opinion may not be much greater than that offered by a complete stranger. There can be, however, no formulaic requirement, such as that the defendant must have been “well” known to the witness. The degree of prior contact or knowledge of appearance, and its sufficiency, must be assessed in each case taking account of all the circumstances.

[21]   In that case the Supreme Court concluded that the previous knowledge of the defendant by the witness — who was also a police officer identifying a defendant whilst driving — was not sufficiently strong to establish a good reason not to follow a formal identification procedure.

[22]   By contrast, in Thornton v R, the Court of Appeal agreed that requiring the witness in that case to follow a formal procedure “… would have been valueless because the complainant had already concluded that Ms Thornton’s appearance was familiar to her and that she was the attacker. The complainant would have been certain to identify her because of that opinion, and the evidence could have been prejudicial to Ms Thornton.”11 One of the concerns with requiring a formal procedure to be followed in circumstances where the witness claims to have identified a defendant based upon recognition is that a formal procedure could create a false impression of reliability.12

[23]   In the present case, the Judge does not appear to have determined whether there was good reason not to follow a formal identification procedure. At one point that question is referred to, but only in relation to the suggested good reason under s

11     Thornton v R [2017] NZCA 256 at [28].

12    See Mukoko v R [2018] NZCA 87 at [48], where the Court of Appeal applied similar reasoning in a context where it was not clear that the witness had recognised the defendant at the time, but she would likely have picked him out of a photo montage because he was known to her.

45(4)(b) — that the prosecution could not reasonably anticipate that identification would be in issue.13 But in the present case there was clear evidence that formal identification could have no value, and would only be prejudicial. Senior Constable Peterson said she had identified Mr Guckert because she knew him. She said herself that she thought that formal identification was a waste of time. Given the findings of the District Court that is clearly so, as her familiarity with Mr Guckert, and her related confidence in the correctness of her opinion, mean that she was always certain to have chosen Mr Guckert out of a line-up. In that respect, this case was much closer to Thornton v R than Harney v Police. Accordingly, there was a good reason here not to follow a formal procedure.

[24]   In those circumstances, the Judge erred by not asking whether there were good reasons not to follow a formal identification process. Moreover, given what is implicit in the Judge’s findings, the correct section to have applied to the admissibility question was s 45(1). I do not accept Ms Goodison’s submission that it is wrong for s 45(1) to be the governing section because it was Senior Constable Peterson’s error in looking up the Police National Intelligence App, which brought up Mr Guckert’s photograph, that rendered a formal identification process inappropriate. Even if Senior Constable Peterson could be criticised for doing this (which I do not accept), she had prior familiarity with Mr Guckert in any event such that there was good reason not to follow a formal process even before she took that step.

[25]   Under s 45(1), the evidence of identification would then be admissible at the trial “unless the defendant proves on the balance of probabilities that the evidence is unreliable”. That is not the test that the Judge applied. Rather the Judge applied the test arising from s 45(2), and required the prosecution to prove beyond reasonable doubt that the identification was reliable. That seems to me to be in error.

[26]   That error would seem to be to the defendant’s advantage, however, as the prosecution were required to satisfy the Judge to a higher standard of proof. That would be so provided that the Judge clearly distinguished between the admissibility question arising under s 45, and the ultimate requirement for the prosecution to prove

13     Police v Guckert, above n 2, at [44].

its case beyond reasonable doubt. That distinction is more obvious when the matter involves a jury trial, and the issue is dealt with before trial, particularly if dealt with under s 45(1). In R v Edmonds, the Court of Appeal noted:14

[108] … we specifically endorse Dobson J’s comment at [84] that the reliability assessment under s 45(2) is a threshold requirement, which is undertaken solely for the purpose of rendering evidence admissible. The Judge’s assessment under s 45(2) does not affect the jury’s role and is not to be referred to at trial. In this case, the jury will still be required to evaluate both the reliability and credibility of Mr Biddle’s evidence at trial.

[27]   This is still so in a Judge-alone trial. The question under s 45(2), if it applies, is whether the prosecution has proved beyond reasonable doubt that the witness’ identification evidence is reliable. That does not necessarily establish that the prosecution has proved beyond reasonable doubt the element of the offence relating to identity, which will still be at large for determination, and may be affected by other evidence, including any evidence the defendant may call. In the present case, that distinction may be harder to maintain given that the charge is driving while disqualified, and Senior Constable Peterson’s evidence is that Mr Guckert was driving a vehicle when she identified him. But it is still important to maintain this distinction to avoid prejudice to a defendant.

[28]   The Judge correctly identified the conclusion required to be applied by s 45(2) in his judgment — for example, in the last paragraph of the decision. But there are one or two paragraphs in the decision that suggest that the distinction has not been maintained. In describing the question before him the Judge began:

[3] The issue in this case is whether or not Mr Guckert has been correctly identified by the witness called for the prosecution. That being so, I have today at the Judge-alone trial heard evidence from the witness who was an off- duty police officer at the time …

[29]And then later in the judgment:

[47] … And really the focus is the extent to which I can be sure the actual identification on 12 February is proved beyond reasonable doubt and this requires an assessment on a case-by-case basis and the degree of knowledge and contact with a person must be assessed in the same way.

14     R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762.

[30]   As indicated, the question was not whether the identification of Mr Guckert had been proved by the prosecution beyond reasonable doubt. Had s 45(2) been the correct section to apply, the question would have been whether the prosecution had proved beyond reasonable doubt that the witness’ identification evidence was reliable. The latter question leaves open the ultimate determination of the element required to be proved, including by considering other evidence.

[31]   It may be that the above references are simply verbal slips, and the Judge well understood the different questions to be addressed. But given that the trial will continue, and the other related errors referred to above, it is as well that I identify the issue so that it is squarely before the Judge when the trial resumes. In any event, if the evidence was admissible here it was under s 45(1), not s 45(2).

Merits of the Judge’s conclusion

[32]   As to the ultimate correctness of the Judge’s decision under s 45, given there is no jurisdiction to entertain the appeal I do not intend to address the criticisms advanced on behalf of Mr Guckert. It is possible that the issue may return to this Court if any appeal is pursued after trial. It is undoubtedly true that the sighting must have been very fleeting, and that there could have been a risk of a wrongful identification arising from Senior Constable Peterson’s familiarity with Mr Guckert, including because of the prior prosecution for driving while disqualified when she had identified him in more or less the same circumstances. Nevertheless, it seems to me that a significant factor in support of the reliability of the identification is the evidence that Mr Guckert has a very distinctive personal appearance. Such factual determinations are appropriately made by the trial Court. Dismissing the application for leave to appeal will allow the trial to continue. When it does so, the Judge can proceed on the basis that the admissibility question has already been determined by him under s 45, but the ultimate issue of identification is still to be satisfied beyond reasonable doubt based on all evidence at trial, including any evidence called by the defence.

[33]   For the avoidance of doubt, I reiterate that the errors in the application of s 45 that I have identified above do not mean the Judge’s admissibility ruling is set aside. I have no jurisdiction to do so, and the errors have not in themselves resulted in the

evidence being wrongly admitted. But the trial can now proceed with the ultimate issue of identification alive for determination, including on the basis of the evidence so admitted. Any further consideration of this issue by this Court, including the s 45 admissibility point, will only take place if there is an appeal against any conviction that is entered.

[34]   For these reasons, the formal order of the Court is that the application for special leave is dismissed for want of jurisdiction.

Cooke J

Solicitors:

Zindels, Nelson

Crown Solicitor, Nelson