Hanna v Police

[2013] NZHC 1643

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2013-404-134 [2013] NZHC 1643

BETWEEN	CAMERON ROBERT HANNA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	2 July 2013
Counsel:	P F Wicks for Appellant B Hamlin for Respondent
Judgment:	2 July 2013

JUDGMENT OF RONALD YOUNG J (Appeal against conviction)

Introduction

[1]      On the evening of 30 July 2012, Yihan Zhu was walking along Wiremu Street in Auckland with her aunt. The Police allege that the appellant shoved Ms Zhu while attempting to steal her handbag.  The attempt did not work.  Mr Hanna then got into his parent’s car which immediately left the scene.   As a result the appellant was charged with assault with intent to rob.

[2]      At trial in the District Court the appellant disputed that he was Ms Zhu’s attacker.  He said he was the driver of the car and that Ms Zhu was confused about identification.  The Judge in the District Court rejected the appellant’s version of events and convicted him.

HANNA v POLICE [2013] NZHC 1643 [2 July 2013]

[3]      The appellant appeals against his conviction on two grounds:

(a)      that the Judge erred in failing to address and give proper or any weight to relevant matters going to the reliability of the visual identification ; and

(b)      that the appellant’s conviction was against the weight of evidence.

Further background

[4]      As I have noted, at the defended hearing in the District Court it was not disputed that Mr Hanna was present at the scene of the attack; nor was it disputed that the car which sped off with the attacker belonged to Mr Hanna’s parents.  After the attack that same night Ms Zhu was interviewed by the Police.  She was provided with a photo identification montage of some eight persons, one of whom was the appellant.  She identified the appellant from a number of photographs of similar looking persons as her attacker.

[5]      At trial Ms Zhu gave evidence as did the appellant. There was other evidence about the circumstances of the attack.  It was not disputed that there was an assault with intent to rob.  What was in dispute was whether the prosecution could prove beyond reasonable doubt that it was Mr Hanna who was the offender.  Mr Hanna’s case was that he had remained in the car throughout the incident and that the person who had attempted to rob Ms Zhu had, after the attempt, jumped into his car and he had driven off.  He suggested that Ms Zhu had seen him as the driver that night and, on  the basis that he was  the only person whom she had remembered, she  had assumed he was the attacker.

The District Court decision

[6]      In her decision, the Judge warned herself in terms of s 67A of the Summary Proceedings Act 1957  about  mistaken identification.   The  Judge  considered the evidence of Ms Zhu.   She believed that Ms Zhu was a clear and credible witness. The Judge considered she had a precise memory of events and their detail.   The Judge considered her a credible witness.

[7]      As to the evidence of the appellant, she did not consider he was a credible witness.

[8]      The Judge stressed the importance of the fact that Ms Zhu’s identification of the appellant by way of a photo montage was on the very night of the attack.  The Judge accepted that Ms Zhu had made an error about what car door her attacker had got into after the attack.  Ms Zhu had said it was the front passenger door but close circuit television video showed it was to the right hand rear door of the vehicle.  The Judge, however, said that she did not consider that error detracted from the reliability of Ms Zhu’s identification.

[9]      The crucial issue in the trial was obviously the accuracy of the identification evidence.   Although the Judge’s decision focussed primarily on the question of Ms Zhu’s credibility, the real issue for her was whether Ms Zhu’s identification of the appellant was reliable.  There was no suggestion that Ms Zhu was deliberately lying about who she believed her attacker was.  The defence said that she was mistaken because of the circumstances of the identification.

Discussion

[10]     To  return  to  the  grounds  of  appeal.    As  to  the  second  ground  that  the conviction was against the weight of evidence, this can be dealt with quite briefly.  If there was reliable evidence that established beyond reasonable doubt that the appellant  was  the  attacker,  then  the  appellant’s  conviction  could  not have  been against the weight of evidence, subject also to a rejection of the appellant’s evidence that he was not the attacker. And so the pivotal question is whether the Judge was, in the circumstances, entitled to find the evidence of Ms Zhu reliable and justified in rejecting the appellant’s evidence as untruthful.  If she was, then a conviction was going to inevitably follow. If not, then the appellant was entitled to be acquitted.

[11]     The appellant identified the central defence point that his identification arose as a result of Ms Zhu having seen him as the driver of the vehicle and that that contaminated her subsequent identification of the appellant as the offender.

[12]     Several points are important here.  First, it is relevant to take into account, as the Judge did, that the photo montage identification of the appellant as the attacker took  place  a  few  hours  after  the  attack.     This  adds  strength  to  the  photo identification. But there are other factors of importance.

[13]     There was no evidence that Ms Zhu had a clear view of the driver of the vehicle at any time.  For there to have been a reasonable possibility of confusion in her mind between the driver and her attacker, it would require her to have seen the driver.   Ms Zhu maintained throughout that she did not get a good look at the driver’s face.  The appellant maintained (claiming he was the driver) that he did not leave the car.  This lack of evidence that Ms Zhu had a clear view of the drivers face undermines the primary basis of the challenge to Ms Zhu’s reliability.

[14]     Thirdly, while the driver and the attacker were of a similar age, Ms Zhu described the attacker as Caucasian.   The appellant is Caucasian.   While Ms Zhu could not accurately identify the origin of the driver, the appellant’s evidence was that the attacker was part Maori or Pacific Islander.  This was in conflict, therefore, with Ms Zhu’s evidence that her attacker was Caucasian.

[15]     Further, counsel for the appellant at trial did not put to Ms Zhu that her identification could be mistaken.  It was clear one of two men had to be the attacker the appellant or the other man.   Ms Zhu identified the person she believed had attacked her.  The defence case is that because she had seen another person (alleged to be the appellant) drive off in the car after the assault she could have mistakenly thought the driver was the attacker.  Other than the appellant’s presence at the scene of the crime, there was no reason to believe there was a mistaken identification.

[16]     Section 92 of the Evidence Act obliged the appellant to put to Ms Zhu that she could have been mistaken in her identification of the appellant as her attacker. After all, that was the heart of the appellant’s case and was the appellant’s evidence. It may be Ms Zhu had a compelling reason why she had not made a mistake.  It may be she did not. The failure to cross-examine Ms Zhu on this point detracted from the appellant’s evidence that Ms Zhu’s identification was mistaken and that he was not the attacker.

[17]     This  failure was  a  real  significance in  this  case.    There were  only two possible offenders. There was no evidence that Ms Zhu was confused.

[18]     The appellant raised two further matters.   The first related to the door in which her attacker got into the car.  It is clear from the evidence that Ms Zhu was wrong about which door of the car the attacker got into.  She said it was the front passenger door but in fact close circuit television video showed it was the right rear door.

[19]     The Judge acknowledged that error.   She concluded as she was entitled to, that such an error did not detract from the reliability of Ms Zhu’s identification.

[20]     Ms Zhu described her attacker as wearing a baseball hat. No baseball hat was found and the appellant’s family gave evidence that he did not wear a baseball hat. This evidence is essentially neutral.  It is not possible to know whether the attacker did or did not have a cap at the time of the attack.

[21]     Although both the appellant and  the other man may have been  wearing similar clothing (dark) and have been of similar age, they were not of similar appearance. This also reduced the likelihood of a mistaken identification.

[22]     Taking account of the s 67A warning, I am satisfied the Judge was entitled to conclude Ms Zhu’s identification of the appellant as her attacker was reliable.  As it turned out there were only two possible candidates for the attack, the appellant and the other man.   The circumstances I have described illustrate why the Judge was correct to conclude Ms Zhu was not confused about her identification.

[23]     When interviewed on the evening after the assault, the appellant did not mention that the real offender was another person in the car.  There were other difficulties with the appellant’s evidence and as I have noted, the weight to be attached to his evidence.

[24]     I am satisfied, therefore, that the Judge as entitled to rely upon the evidence on Ms Zhu and rely upon her evidence as accurate in her description of the appellant

as the person who attempted to steal her purse.  I am satisfied the Judge was entitled to reject the evidence of the appellant as lacking in credibility.

[25]     The appeal, therefore, will be dismissed.

Ronald Young J

Solicitors:

Meredith Connell, Barristers & Solicitors, Auckland

P F Wicks, Barrister, Auckland