Harney v Police

[2011] NZSC 107

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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
C L Mander and B J Fenton for Police

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)

1. 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

1. 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.

2. 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…