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| IN THE SUPREME COURT OF NEW ZEALAND |
| SC 64/2010 [2011] NZSC 107 |
| JUSTIN LEIGH HARNEY |
| v |
| POLICE |
| Hearing: 17 August 2011 |
| Court: Elias CJ, Blanchard, Tipping, McGrath and Anderson JJ |
| Counsel: A J Bailey and K H Cook for Appellant |
| Judgment: 16 September 2011 |
JUDGMENT OF THE COURT
A The appeal is allowed and the convictions are set aside.
B No order is made for a re-trial.
REASONS
(Given by Blanchard J)
This appeal is about the application of s 45 of the Evidence Act 2006 to identification evidence given by a police officer, who said that at the time of the incident giving rise to the charges he recognised the defendant, Mr Harney, from having had dealings with him on two occasions some years previously. No identification parade or other formal identification procedure had been carried out. The issue is whether in the absence of such a procedure the evidence should have been admitted.
Facts
The circumstances in which Constable Vallender came to give his identification evidence were these. On 3 May 2009 the constable was driving a police patrol car on State Highway 1 at Waimate. At about 4.04 pm he observed a motor vehicle with some distinctive features drive past him in the other direction. He said that the driver was a “thin faced white male aged about 35 to 40 years old”. He did not claim to have recognised the driver at this point. Constable Vallender carried out a U-turn and activated the red and blue lights on his vehicle as a signal to the other vehicle to stop. Instead it accelerated away at high speed towards Glenavy with the constable’s vehicle in pursuit. Because of the manner in which the pursued vehicle was being driven, Constable Vallender abandoned that pursuit.
At about 4.24 pm the constable’s vehicle was positioned beside an intersection in Glenavy. The constable saw the same distinctive vehicle approaching when it was some distance from the intersection. When it reached the intersection it made a turn in front of the constable (about 15 metres away from him) into a street on the other side of the intersection. He estimated its speed as it turned at “possibly 10–15 k’s”. He said he had an initially front-on view and then a side-on view of the driver “as he rolled around the corner in front of me”. He said that he saw the driver clearly (just the top of his shoulders and head) and recognised him as Mr Harney. He had dealt with him on two occasions before:
The first time was possibly seven years ago when there was an incident in Waimate. The second time was possibly I’m guessing a couple of years later, if not a year, two years later in a hotel.
The constable said Mr Harney had changed slightly in appearance in the intervening time but he was “very sure” that…
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- AGLC
- Harney v Police [2011] NZSC 107
- Case
- [2011] NZSC 107
- Decision Date
CaseChat Overview and Summary
The court was required to examine whether the police followed a formal procedure in obtaining the visual identification evidence or if there was a good reason for not following the formal procedure. If the police did not follow the formal procedure and there was no good reason for doing so, the court had to consider whether the prosecution could prove beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification. The court also had to determine if the visual identification evidence was admissible under the provisions of section 45 of the Evidence Act.
The court found that the police officers had not followed a formal procedure in obtaining the visual identification evidence, but there was a good reason for not doing so. The court accepted that there was a good reason for not following the formal procedure as the alleged offence was reported soon after it occurred, and the identification was made in the course of the initial investigation by an officer. The court concluded that the visual identification evidence was admissible as it complied with the provisions of section 45(1) of the Evidence Act. The court found the evidence to be reliable and admissible in the criminal proceeding.
The court ordered that the visual identification evidence obtained by the police officers be admitted as evidence in the criminal proceeding against the defendant. The court found that the evidence was reliable and that the statutory requirements for admissibility were met.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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