Hikaka-Beattie v The King
[2023] NZHC 985
•28 April 2023
IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY
I TE KŌTI MATUA O AOTEAROA TE PAPAIOEA ROHE
CRI-2023-454-000007
[2023] NZHC 985
BETWEEN SHAYDEN COLE HIKAKA-BEATTIE
Appellant
AND
THE KING
Respondent
Hearing: 20 April 2023 Appearances:
O S Winter for Appellant
G J C Carter for Respondent
Judgment:
28 April 2023
JUDGMENT OF GRICE J
Introduction
[1] Following a Judge-alone trial the appellant, Mr Hikaka-Beattie, was convicted1 of two counts of using a firearm against an enforcement officer,2 kidnapping,3 failing to stop,4 and dangerous driving.5
[2] The appellant now appeals these convictions, on the basis the Judge erred in his assessment of the evidence to such an extent that it created a real risk that the outcome of the trial was affected and a miscarriage of justice occurred.
1 R v Hikaka-Beattie [2022] NZDC 16242 [conviction decision].
2 Crimes Act 1961, s 198A(1) — maximum penalty 14 years’ imprisonment.
3 Section 209 — maximum penalty 14 years’ imprisonment.
4 Land Transport Act 1998, ss 52A(1)(a)(ii), (5), (6) and 114(2) — maximum penalty three months’ imprisonment.
5 Section 35(1)(b) — maximum penalty three months’ imprisonment, six months’ disqualification,
$4,500 fine.
HIKAKA-BEATTIE v R [2023] NZHC 985 [28 April 2023]
Background
[3]The appellant faced three groups of charges arising from different locations:
Events at Sanson
(a)unlawful carrying an imitation firearm;
(b)presenting an imitation firearm;
(c)threatening to kill.
Events at Feilding
(d)using a firearm against an enforcement officer (x2);
(e)aggravated robbery;
(f)kidnapping;
(g)failing to stop;
(h)dangerous driving.
Events at New Plymouth
(i)failing to stop;
(j)dangerous driving;
(k)refusing to undergo a compulsory impairment test.
[4]The appellant pleaded guilty to the Sanson and New Plymouth charges.
[5] The trial for the Feilding charges commenced on 24 August 2022. In a reserved decision issued on 2 September 2022, the appellant was acquitted on the charge of
aggravated robbery and convicted on the remaining charges. The Feilding convictions are the subject of this appeal.
[6] The appellant was sentenced on all charges on 21 February 2023.6 He was sentenced to six years and three months’ imprisonment and was disqualified from driving for a total of 18 months, with a minimum period of imprisonment of 50 per cent, or three years, one month and two weeks’ imprisonment.7
Factual background to the offending
[7] The appeal grounds relate to the identification of Mr Hikaka-Beattie. In addition, in relation to the firearm charges, the appellant says there was insufficient evidence for a finding to the requisite standard of proof that the weapon involved was a sawn-off shotgun.
[8] The following summary of the factual narrative is taken from the judgment.8 On the morning of 13 June 2023, police staff were briefed about the appellant being wanted by the police. Constables Nathan Stewart and Kevin Garrick were at the briefing.
[9] Just after 11am, Constables Stewart and Garrick saw a stolen Subaru Legacy they had been sent to Feilding to help recover. After a short pursuit, the vehicle was stopped where it effectively blocked half the roadway.
[10] One man got out of the passenger side of the vehicle but the officers could not get a good view of him as he ran away. The driver walked towards the police officers but then ran away from them. The police followed in their vehicle. The officers said the driver was the appellant.
[11] The officers said the driver ran past the front of the police vehicle before turning around and presented what appeared to be a sawn-off shotgun at the officers
6 Mr Hikaka-Beattie had also filed an appeal against sentence but has withdrawn that appeal.
7 R v Hikaka-Beattie [2023] NZDC 3208 [sentencing decision].
8 Conviction decision, above n 1, at [1]–[30].
and did a “pūkana” to the police officers.9 The man was about five to seven metres from the officers when he is said to have presented the firearm.
[12] Constable Garrick was let out to deal with a local resident while Constable Stewart followed the man at about a 200 metre distance as he ran away. He saw the offender open the driver’s door of a Holden being reversed out of a driveway by Ms K.10 The offender tried to pull Ms K from the vehicle and held the firearm to her face with his other hand. Ms K was unable to get clear of the vehicle, because of the seatbelt she was wearing. The offender then sat on top of Ms K to drive the vehicle. The man threatened to shoot her and kill her, saying he had a gun and demanding that she get out of the car.
[13] Constable Stewart pointed his pistol at the offender and instructed him to stop, but the offender did not and continued driving.
[14] Ms K said he was driving at something like 120 or 130 kilometres per hour. He drove erratically. The man eventually stopped the car and told Ms K to get out of the car, apologising to her.
[15] The driver continued to drive at speed pursued by the police. Eventually the pursuit was abandoned at 11.21 am.
[16] About 40 minutes after the pursuit was abandoned, at just after 12 noon Constable Mark Reid was off duty at the Manawatū River walkway. He heard a loud car engine and saw the Holden. The driver’s window was open and Constable Reid said he saw the driver, whom he identified as the appellant. The constable also said he saw a passenger in the vehicle. The Judge said this suggested a second person had got into the car sometime after the police abandoned the pursuit.11
[17] At 3.30am the next morning, Constable Ryan Lei located the missing Holden, with extensive damage to the front right wheel. Between the driver’s seat and the
9 At [12], described at [67] of the conviction decision as “… a pukana, with his eyes wide and his tongue poking out”.
10 The Court records indicate the name of the victim, Ms K, was suppressed in the District Court.
centre console, the police found a black wallet, with the appellant’s driver licence inside. On a forensic examination of the Holden, police found the appellant’s left forefinger print on the rear vision mirror inside the vehicle. A second fingerprint taken from the driver’s window revealed the right thumb print of another person.12
[18] On 21 June 2023, Ms K handed in to the police a backpack with clothing in it that did not belong to her but had been in the Holden when it was returned to her.13
Decision on appeal
[19] The appellant’s defence at trial was that he was not the person driving the vehicle or running from the police, and that the prosecution could not prove that to beyond a reasonable doubt. The Judge said the accuracy of the identification of the appellant as the offender, particularly by Constables Stewart and Garrick, was critical, and it therefore was necessary to consider the reliability and credibility of each witness.14 The Judge noted that inaccuracy about secondary, marginal or unimportant facts often arose “because the attention of the witness was focused on more central matters.”15
[20]The Judge stated:
[33] It is important to record my role in this judge-alone trial. I am required to decide whether the essential elements constituting the alleged offences have been proved beyond reasonable doubt. The onus is on the Crown to prove the elements of each charge beyond reasonable doubt. There is no onus on Mr Hikaka-Beattie to prove or disprove anything. All facts need not be proved beyond reasonable doubt, only the elements of the charges.
[21] The Judge noted that in reaching a decision in the trial, it was neither necessary nor was he required “to articulate findings of fact about every item of evidence.”16 Rather, the Judge stated his role was “to determine whether the prosecution [has] proved the elements of the alleged offences beyond reasonable doubt.”17
12 At [30].
13 At [29].
14 At [36].
15 At [38].
16 At [40].
[22] His Honour further went on to note that it was a circumstantial evidence case, and that aside from the purported identification of Mr Hikaka-Beattie by the police, the Crown had asked him to draw inferences from all of the reliable evidence in arriving at a conclusion that Mr Hikaka-Beattie was the offender.18 He noted:19
… An inference is a logical deduction from two or more proven facts. Circumstantial evidence relies on reasoning by inference, the force of the evidence arises from the connection with a number of factors that … independently points to the guilt of the defendant. An inference is a conclusion drawn from established facts and is not a guess. It is a logical deduction from facts that have been established.
[23] In respect of the identification of the appellant as the offender, the Judge noted there were four main topics to discuss, namely:20
(a)the finding of the appellant’s fingerprint and wallet in the car;
(b)the claimed recognition of the appellant by Constable Reid;
(c)the finding of a backpack with clothing in it in the Holden, that did not belong to Ms K; and
(d)the description of the offender by Constables Stewart and Garrick and the claimed identification of the appellant.
[24] The Judge found the finding of the appellant’s wallet and fingerprint in Ms K’s Holden provided clear evidence that he had been in it.21 The Judge found it was “certain” that the appellant had been in the vehicle (and likely drove it at some stage) “sometime between the hijacking of the vehicle and the finding of it the following morning.”22 The Judge acknowledged it was a “fair point” that the backpack and pants that Ms K had found could have been left in the vehicle sometime after the hijacking and before the car was located.23 However, he said:24
18 At [41].
19 At [41].
20 At [42].
21 At [43].
22 At [48].
23 At [61].
… But on the other hand, it is something of a circumstantial coincidence that the man seen running on Monmouth Street was seen carrying what was described as a satchel, and what is described as a backpack was found in the vehicle, with the backpack having no connection with Ms K.
[25] The Judge was also satisfied as to Constable Reid’s identification of the appellant just after 12 noon on 13 June 2023 close to the footbridge across the Manawatū River.25 The Judge noted that Constable Reid had had dealings with Mr Hikaka-Beattie prior to that date and they had met face-to-face on a number of occasions. Given Mr Hikaka-Beattie’s distinctive appearance, the Judge indicated that Constable Reid recognised Mr Hikaka-Beattie “as someone he knows and has met before.”26 The driver had looked at Constable Reid briefly as the vehicle was moving past and the constable was about five metres above the roadway looking down at the car with an unimpeded view.27 Therefore, the Judge was “sure” that the appellant was driving the Holden at 12.02pm or so, around 40 minutes after the police had abandoned the pursuit of the Holden.28
[26] The Judge found the backpack had been left in the car sometime after the hijacking, and the car being found by the police.29 The Judge considered it was a circumstantial coincidence that the man seen running was seen carrying what was described as a satchel, and a backpack having no connection with Ms K was found in Ms K’s vehicle.30
[27] As to the identification by Constables Stewart and Garrick he noted they had been shown photographs of the appellant before leaving the police station on the morning of 13 June 2023.31 They both said that they recognised the appellant when he turned toward them and presented what they said was a firearm at them.
[28] Constable Stewart said he noticed the “obvious facial tattoos, particularly the word “Forever” across the offender’s forehead”.32 That identification was from a distance of five to seven metres.33
[29] The Judge traversed the identification of the appellant as the offender by the two police constables in some detail.34 The Judge found the constables’ descriptions of the offender were “[u]ndoubtedly” consistent with the appellant’s appearance and conformed “entirely” with a photograph the Crown produced of the appellant.35
[30] In relation to the identification by Constable Garrick the Judge referred to Constable Garrick’s description of the man as being:36
… male, slim, male Māori with facial tattoos, he had a fist tattoo on the left cheek and sort of writing down the right jaw line and a large forever – the word “Forever” tattooed across the forehead.
[31] The Judge had earlier described the tattoos in some detail based on a photograph of the appellant as follows:
[53] Mr Hikaka-Beattie’s appearance is distinctive. I have been provided with the NZTA photograph that was used by the police for the briefing on the morning of 13 June 2021. The word “Forever” is tattooed in large capital letters across his forehead. He has two significant tattoos on each cheek. On his left cheek there is a circle of apparent flames surrounding what I was told in evidence as a large fist. As best I can tell from the photograph, there is large lettering down the right side of his cheek following the jawline. There is additional tattooing on Mr Hikaka-Beattie’s neck, but that appears to be faded, or at least the text is unclear.
[32] The Judge noted that Constable Garrick’s description was consistent with the appearance of the appellant as shown in the photograph.37 He noted the constable had described the presentation of the firearm in detail, with the offender’s right hand on the trigger, his left hand on the barrel, and the object was held at waist height.38 The presentation was front on and “there was a clear view of his face.”39 Nothing
obstructed his view of the man’s forehead. The Judge again referred to the pūkana described by Constable Garrett as the offender having his eyes wide and his tongue poking out.40 The Judge noted this was confirmed by Constable Stewart, without referring to this as a pūkana.41
[33] The Judge was satisfied that both constables saw the word “Forever” tattooed on the man’s forehead.42 The sighting of the tattoo was contemporaneous with the presentation of the alleged firearm. The constables were focusing intently on that presentation as they were facing a threatening situation and were focusing on the man’s face.43
[34] The evidence of the witnesses was inconsistent as to whether or not the offender was wearing a cap. This was one matter upon which the defence focused its argument that the identification of the defendant as the offender was insufficient to satisfy the burden of proof.
[35] The Judge said other details such as clothing would have been background issues.44 Other witnesses, including a bystander who had pursued the man for a time, had described the offender as wearing “a light-coloured singlet, a baseball cap and a dark pair of jeans”. That bystander could see a baseball cap when the man looked straight at him and was also able to see some facial tattoos.45
[36] Two other constables who pursued the Holden for a time had noticed the male figure wearing a cap or a hat.46 One of them said it seemed he had a face covering as well.47 She could not discount the possibility that what she thought was a face covering was in fact facial tattoos, but she clearly saw a cap.48 The other constable, Constable Te Ani Sanders, said the man driving the vehicle had tattoos on his face and was wearing a black hat with a peak facing forward.49
40 At [67].
41 At [67].
[37] The Judge rejected the contention that a cap would obscure the words on the man’s forehead.50
[38]The Judge said:
[74] I make no finding as to whether the man was wearing the cap at that particular time. He may have been. In any event, I am sure the police officers saw the word “Forever” on the man’s forehead.
[75] If the man was wearing a cap or a hat at the time, then it was simply positioned in a way that meant that word could be seen. I have already quoted Constable Garrick’s description of the man’s tattoos. That description is very clear, compelling and conforms well with Mr Hikaka-Beattie’s appearance.
[39] The second factor that was a focus for the defence in submitting that the identification was unreliable was that neither constable described any tattoo on the man’s back, despite the fact the appellant has a significant Black Power tattoo on his back and there was evidence that the man was bare-chested at the time.51 The Judge noted the defence and Crown agreed that the back and neck tattoo was present at the time of the alleged offending.52 The defence submitted that since there was ample evidence the man was not wearing a shirt, the fact the significant back tattoo was not seen by any witnesses impacted the reliability of the officers’ identification.53
[40] The Judge found the evidence clearly supported that the man was not wearing a shirt at the time of the offending.54 However, he concluded that the evidence of seeing distinctive facial tattoos was not undermined by the failure of the police to see the back tattoo.55 The Judge was satisfied the constables saw a man with the word “Forever” tattooed on his forehead, and the constables’ description of the man was compelling.56
[41] In terms of visual identification evidence, the Judge stated that if the matter were to be decided on the admissibility of visual identification evidence, the evidence would be admissible in the proceeding unless the appellant proved on the balance of
probabilities that the evidence was unreliable.57 The Judge said even if he were to put the identification of the appellant as the offender by the police constables to one side, he would have found that there was a “compelling circumstantial case” that he was involved in the incidents and was the driver of the Holden immediately afterwards.58 The “compelling description” of the appellant’s tattoos was a “critical factor”.59 The Judge was therefore “sure”, even putting the identification by the constables to one side, that the appellant was the man seen by the constables who then hijacked the Holden and drove it until sometime after the police abandoned the chase.60
[42] Having concluded that the appellant was the man seen by the constables,61 the Judge turned to the essential elements of the individual charges. The Judge found the elements were made out in respect of all charges except the aggravated robbery.62
[43] For the purpose of this appeal, it is only necessary to detail the Judge’s findings in respect of the firearm charges. The Judge found the appellant used a firearm against the two police officers.63
[44] As the Judge noted, there were three elements the Crown was required to establish beyond reasonable doubt.64 The first was that the appellant used a firearm against an enforcement officer which is the focus of the appeal. The Judge set out the definition of “firearm” in s 2 of the Arms Act 1983 as follows:
[105] An important point is whether the Crown can prove that the object seen by Constable Stewart and Constable Garrick was a firearm. That term has the same meaning as in the Arms Act 1983:
firearm—
(a)means anything from which any shot, bullet, missile, or other projectile can be discharged by force of explosive; and
(b)includes—
57 At [94].
(i)anything that has been adapted so that it can be used to discharge a shot, bullet, missile, or other projectile by force of explosive; and
(ii)anything which is not for the time being capable of discharging any shot, bullet, missile, or other projectile but which, by its completion or the replacement of any component part or parts or the correction or repair of any defect or defects, would be a firearm within the meaning of paragraph (a) or subparagraph (i); and
(iii)anything (being a firearm within the meaning of paragraph (a) or subparagraph (i)) which is for the time being dismantled or partially dismantled; and
(iv)any specially dangerous airgun.
[106] Paragraph (a) of the definition imports the ordinary meaning of firearms. Paragraph (b)(i) extends the definition to include makeshift or converted firearms that are operable. I set to one side paragraphs (b)(iii) and (iv). Those aspects of the definition do not apply to this case.
[107] The defence submits that it would be unacceptably speculative to conclude beyond reasonable doubt that the object seen by the constables fits within the definition of a firearm. The best that can be said is that the object looks like a sawn-off shotgun.
[45] The Judge noted it was necessary to review the evidence of what was seen “with some care.”65 The Judge referred to the evidence of Constable Garrick, who drew upon 27 years of military experience, was experienced in handling firearms, and whom he considered “clearly knows a lot about firearms”.66 He found the evidence of both Constable Garrick and Constable Stewart meant that they “saw what was identical with a real sawn-off shotgun.”67
[46] The Judge said the case of Timmins v R “typifie[d] the wide-ranging definition of inoperable firearms” and considered that “[a]t the very least the object the police officers saw … fits within the inoperable firearm definition”.68 He said it followed that the Crown had proved beyond reasonable doubt that the item presented was a firearm.69
[47] The Judge considered the remaining two elements were “easily made out on the evidence” and therefore the charges of using a firearm against the two police officers were proved.70
Submissions
Appellant's submissions
[48] The appellant appeals all of the Feilding convictions on the basis the Judge erred in his assessment of the evidence to such an extent that it created a real risk that the outcome of the trial was affected and a miscarriage of justice occurred.
[49] As I have noted, the two main grounds on appeal are, first, that the identification evidence is unreliable and insufficient to satisfy the standard of proof of guilt beyond reasonable doubt. The second ground is that the evidence relating to the firearm is insufficient to establish to the requisite standard of proof that it was a firearm within the definition. In particular, the appellant says the identification of the item pointed at the constables was unreliable because the middle part of the item was covered with a cloth, and therefore the constables could not have seen the middle part of the gun, which would have allowed them to identify it as a shotgun.
Respondent's submissions
[50] The respondent submits there was substantial evidence that corroborated the identification of the appellant at the scene. The respondent also submits the Judge was entitled to find that the item presented to police by the offender was a firearm.
Approach to appeal
[51] An appeal against conviction is governed by s 232 of the Criminal Procedure Act 2011. The Court must allow an appeal of a decision in a Judge-alone trial if the Court is satisfied that the Judge erred in their assessment of the evidence to such an extent that a miscarriage of justice has occurred, or a miscarriage of justice has occurred for any reason.71 The Court must dismiss the appeal in any other case.
70 At [115]–[116].
[52] If the appeal is allowed, the Court must set aside the conviction.72 The Court may direct that a judgment of acquittal be entered, to direct that a new trial be held, to substitute a conviction for a different offence or to make any other order it considers justice requires.73
[53] A “miscarriage of justice” is defined in s 232(4) as “any error, irregularity, or occurrence in or in relation to or affecting the trial that— (a) has created a real risk that the outcome of the trial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity”. A miscarriage of justice is “more than an inconsequential or immaterial mistake or irregularity”.74 Rather, the errors or irregularities must depart from good practice in a manner that is “so gross, or so persistent, or so prejudicial, or so irremediable” that an appellate Court must condemn the trial as unfair and quash the decision.75
[54] A “real risk” that the outcome was affected exists when “there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong”.76 The appellant does not have to establish that the verdict was “actually unsafe” but rather that there is a real possibility the verdict would be unsafe.77 As the Court of Appeal observed in Gotty v R, “something more” than a simple disagreement with a Judge’s factual assessment is required to meet the “real risk” test.78
[55] In Haunui v R the Supreme Court contemplated a two-step approach to appeals under s 232(4).79 As it stated, the question under s 232(4) “requires consideration of whether there is a reasonable possibility another verdict would have been reached”.80 If the answer to that question is “no”, the appeal must be dismissed. If the answer is “yes”, the appeal court then asks whether it is sure of guilt. If the answer to that
72 Section 233(2).
73 Section 233(3).
74 Matenga v R [2009] NZSC 18 at [30].
75 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002] UKPC 19, [2002] 1 WLR 2237 at [28].
76 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].
77 At [110].
78 Gotty v R [2017] NZCA 528 at [15].
79 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189.
80 At [67], citing Misa v R [2019] NZSC 134 at [48].
question is “no”, the appeal will be allowed. If the answer is “yes”, the court determines the error did not in fact create a real risk that the outcome was affected and the appeal will be dismissed.81
[56] The Supreme Court clarified the approach to appeals from Judge-alone trials in Sena v Police.82 The appellate court must form its own independent judgment on the merits of the appeal following the approach in Austin, Nichols.83 As the Court said, “[i]f an appellate court comes to a different view on the evidence, the trial judge necessarily will have erred and the appeal must be allowed.”84 However, the appellant bears the onus of persuading the appellate court to reach a different conclusion, and in discharging that onus must identify the respects in which the judgment under appeal is said to be in error.85 Additionally, in determining whether the judgment was wrong, the Court said, the appellate court “must take into account any advantages a trial judge may have had.”86 As a result of this, where the challenge is to credibility findings based on contested oral evidence, the Court said an appellate court will exercise “‘customary’ caution”.87 This was for two main reasons:
(a)first, because a slow-paced trial, at which the evidence emerges gradually, provides a good opportunity for evaluating the strengths and weaknesses of a case, and allows a Judge the advantage of being able to form a view as to what sort of people the witnesses are;88 and
(b)secondly, because a trial judge is likely to be much better placed than an appellate judge to determine contested questions of fact based on contested oral evidence.89
[57] The Supreme Court accepted that a Judge has to justify their findings. The Court explained the kind of reasons Judges should provide in this respect as follows:90
81 At [67].
82 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575.
83 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
84 Sena v Police, above n 82, at [38].
85 At [38].
86 At [38].
87 At [38], citing Austin, Nichols, above n 83, at [13].
88 At [39].
89 At [40].
… [The reasons] should show an engagement with the case, identify the critical issues in the case, explain how and why those issues are resolved, and generally provide a rational and considered basis for the conclusion reached. Reasoning which consists of a conclusory credibility preference is unlikely to suffice … A failure to provide [an assessment of the evidence and why that assessment resulted in a conviction] frustrates the operation of s 232(2)(b) and may well engage s 232(2)(c); this on the basis that a reasoned judgment is essential to a fair trial …
[58] Notwithstanding this, the Court accepted that imperfection of expression was “practically unavoidable” and that “[a]ccordingly, appellate courts should assess reasons contextually, in light of the evidence given and allowing for the burden … [of] other workload requirements”.91
Analysis
[59] I now turn to consider whether there was a miscarriage of justice in either of the respects alleged, namely the Judge finding the evidence sufficient to establish the identification of the appellant as the offender, and the finding that the appellant used a firearm against the two police officers.
Identification of the appellant as the offender
[60] The appellant’s submissions that the evidence was not sufficient to find it established beyond reasonable doubt that the appellant was the offender focus on two main areas: the evidence as to whether the man was wearing a baseball cap, and the evidence around the appellant’s back tattoo.
Baseball cap
[61] The appellant says the Judge’s decision not to make a finding as to whether the man was wearing a hat or not was a significant error in his reasoning, as it was particularly relevant to the appellant’s defence.
[62] The appellant also states the Judge erred in failing to refer to the evidence of Ms K, who in her evidence said she thought the man was wearing a hat but was not sure. The appellant submits that when Ms K gave evidence that there was some word
tattooed on the man’s forehead, but that it was obscured, it is a reasonable inference that it was obscured by a hat, and therefore it could not be proved beyond reasonable doubt that the appellant was the offender.
[63] The appellant suggests that as Mr Hikaka-Beattie was a person of real interest to the police, and the officers had seen photographs of the appellant recently, they then simply assumed that the person confronting them with what they believed to be a firearm was the appellant when they realised the person had facial tattoos. The appellant points out that the constables did not refer to the appellant’s back tattoo, which would have been visible on the offender’s back if the appellant was the offender. The defence points out that, unlike the facial tattoos, the back tattoo was not in the identifying photographs the constables had seen.
[64] It was not necessary for the Judge to find beyond reasonable doubt that the offender was or was not wearing a hat. What was necessary was for the Judge to determine beyond reasonable doubt whether Constable Garrick and Constable Stewart had identified the appellant.
[65] I am satisfied this was the case. There was evidence before the Judge at trial that a tattoo reading “Forever” across the forehead was unusual, but not unique, with perhaps two others having similar tattoos. If the appellant was wearing a cap, this may at times have obscured at least partially the “Forever” tattoo on the appellant’s forehead. However, it was not only the “Forever” tattoo that was referred to. The appellant has a combination of facial tattoos which together are unique and distinctive. Both constables described seeing writing along the jawline and a fist on the opposite cheek. The photograph of the appellant produced at trial and referred to by the Judge matches the constables’ description of the man.
[66] Mr Winter for the appellants stressed the difficulties in seeing the forehead tattoo if the appellant was wearing a cap, and that three people said that he was wearing a cap. He noted that Ms K did not see the cap but her view of his face was impeded, given that the offender was sitting on her. Mr Winter emphasised that the Supreme Court in Haunui v R reiterated that the appellate court “must itself feel sure of guilt”.92
It went on to note that “the point being made is that it is best just to focus on the need for the appellate court to be sure of guilt.”93
[67] On the basis of that alone, Mr Winter said the Judge made an error resulting in a miscarriage of justice. However, added to that he said was the fact that the constables did not refer to the back tattoo which would have been distinctive. There was no contest that Mr Hikaka-Beattie had a patch tattoo on his back at the time of the events.
[68] I do not consider the Judge made an error. He considered the whole of the evidence concerning identification. The Judge made allowances for the witnesses’ recollections given the stressful nature of the incidents and the presence of what was believed to be a firearm in what he described as “potentially a very threatening situation.”94 In such circumstances, the Judge noted the man’s face, together with the firearm, would have been the focus of Constable Garrett and Constable Stewart’s attention at the time of the identification.95 Other details such as the offender’s clothing would have been background issues.96
[69] The Judge was not required to make a finding as to whether the offender was wearing a cap or not. The Judge left open the possibility that the man might indeed have been wearing a cap. So too did both Constable Garrick and Constable Stewart, who both accepted the man may have been wearing a cap, but they had not noted it.
[70] Mr Winter was also critical of the reliance by the Judge to support his findings as to identification on the evidence of Constable Reid that he recognised Mr Hikaka-Beattie driving the Holden 40 minutes after the car was taken. Similarly Mr Winter discounted the evidence concerning the appellant’s wallet being found the next day in the Holden, which had been damaged and abandoned, as well as the fact that Mr Hikaka-Beattie’s fingerprint was on the car mirror. He pointed out that Constable Reid’s evidence had been that there was a passenger in the car, and there was not a passenger in the car at the time the car was taken. Therefore, anything could have happened in the 40 minutes between the taking of the car and when Constable
93 At [57].
94 The conviction decision, above n 1, at [73].
95 At [73].
96 At [73].
Reid saw the defendant, on the constable’s evidence, someone else seems to have got into the car. Mr Winter submitted that the fact that the appellant’s wallet and fingerprints were found in the car the next day added nothing. The time that had elapsed meant there could be no certainty that even if the appellant had been in the car before it was abandoned, he was the offender the day before. The defence made similar criticisms as to the support that could be drawn as to identification derived from the evidence that the offender had a satchel with him and the backpack not belonging to Ms K that she found in the car after it was returned to her.
[71] However, I am satisfied that the Judge had sufficient evidence to conclude that Constable Stewart and Garrett had correctly identified the appellant as the offender. The Judge carried out a careful analysis as to why the identification was reliable. This involved the evidence of Constables Garrett and Stewart, including their descriptions as to the man’s facial tattoos in combination, which description matches the photograph of the appellant squarely. The evidence is relatively detailed and they were focused on the face and actions of the offender, who was wielding what the constables took to be a shotgun pointed at them and then used to threaten Ms K. Their evidence was consistent with each other, including the description of the pūkana, although one constable did not describe it using that name. The Judge explained why he accepted this identification, and dealt with the inconsistencies between the evidence of the witnesses. He noted the constables would have been focused on the face and actions of the offender. Inconsistencies in descriptions in such a stressful situation are not uncommon, as the Judge noted. For instance, Ms K had given evidence that the offender was wearing a shirt, when most of the evidence suggests that he was not. The further circumstantial evidence as to the identification 40 minutes later of the appellant driving the vehicle, and the finding of the appellant’s wallet and fingerprint in the car a day later, were also matters that, in addition to the direct evidence, the Judge was entitled to take into account.
[72] There was criticism that the Judge made no specific reference to the evidence of Ms K when discussing the constables’ identification of the offender. However, the Judge had referred to the evidence of Ms K at different points in his analysis. He made no error in not referring to her evidence again when discussing the constables’ identification evidence.
[73] I am satisfied this finding was open to the Judge based on the evidence, and the Judge made no error in finding it established beyond reasonable doubt that the constables had correctly identified the appellant as the offender.
Back tattoo
[74] Mr Winter points out that there is no reference by the constables to the appellant’s back tattoo. He says this would have been clearly visible if the appellant was the offender. It appears to have been accepted that the offender was bare-chested at the time.
[75] Neither Constable Garrick nor Constable Stewart referred to a back tattoo. Indeed, none of the identification witnesses reported seeing such a tattoo on the man’s back. The appellant submits the failure of the Judge to find that this gave rise to a reasonable doubt as to whether the appellant was the offender or not was a second substantial error giving rise to a miscarriage of justice.
[76] I do not consider this was an error, nor does it give rise to reasonable doubt as to identification of the appellant. The police officers gave consistent and plausible answers in cross-examination on this matter. They acknowledged they had not seen a back tattoo. However, they also gave reasonable explanations for why that might have been the case. Constable Stewart accepted he did not see a full back tattoo, but explained as follows:
I was operating a motor vehicle, I had possession of a firearm in one hand and I was operating my radio at the same time. There is a lot of things going on.
[77] When it was put to the constable that he could identify that the item the man was holding was a 12-gauge shotgun, yet not see the tattoo on the man’s back, Constable Stewart said “it’s hard not to stare down the barrel of a firearm as it is pointed at you” and “when he presented the firearm he faced me, my focus was on the barrel of the firearm and his facial expressions at the time he was presenting it”.
[78] I do not accept, as was suggested, that Constable Stewart was reluctant to answer questions as to why he did not identify a back tattoo. The constable’s answers
were entirely plausible given the high-pressure situation he was facing at the time of the events.
[79] Similarly, Constable Garrick stated he did not recall seeing a back tattoo. For the reasons the Judge canvassed in his judgment, the absence of such a description did not mean he could not be sure that the officers had identified the appellant as the offender. As the Judge stated, there was “every reason for the police officers to focus on other things going on”.97
[80] The Judge also canvassed the evidence of other witnesses on this point, including Ms Sandra Angus, who was on the other side of the street from where the man was running. The Judge said it was “not surprising that she did not see a back tattoo (assuming there was one) from where she was”.98 This was a conclusion reasonably available to the Judge.
[81] Though the Judge did not refer to Ms K’s evidence, this was not an error. As the Judge recorded, “Ms K was very upset and traumatised and had no memory of the offender.”99
[82] In such circumstances, the Judge was entitled to rely on the other evidence available.
[83] I am satisfied the Judge made no error in finding that the lack of reference to a back tattoo did not undermine the strong evidence in other respects identifying the appellant as the offender.
Conclusion on identification
[84] The arguments as to the mistaken identification of the appellant focus on discrepancies in the eyewitnesses’ descriptions of him, particularly in the two areas concerning whether or not the offender was wearing a cap and in relation to the appellant’s back tattoo. However, the Judge had earlier noted he had considered the
reasonableness, coherence and probability of the evidence of each witness, and whether it was consistent with or supported by other evidence, though noting that inaccuracy about secondary, marginal or unimportant facts often arises.100 The Judge noted evidence can “often be accurate about essential details, but not about secondary or minor matters.”101 The Judge was clearly cognisant of the possibility of discrepancies as to eyewitnesses’ evidence.
[85] The Judge made no errors in his assessment of the visual identification evidence, in particular the evidence concerning the baseball cap and the lack of evidence concerning the appellant’s back tattoo.
[86] I am satisfied there was no miscarriage of justice in the identification of the appellant as the offender on the evidence.
Firearm charges
[87] The Judge found in respect of the firearm charges that the appellant used a firearm against the two police officers. As the Judge identified, there were three elements to be made out.102 There is no challenge to the second and third of these. However, the appellant submits there are serious errors in the Judge’s reasoning regarding the first element, in his finding that the object was a firearm. The appellant says the evidence in this case was well short of proof to the required standard that what the offender had in his hand falls within the definition of “firearm” as defined in s 2 of the Arms Act.
[88] The surrounding circumstances are that the offender presented the firearm at police and Ms K to facilitate fleeing from the police. He also threatened Ms K, telling her he had a gun and would shoot and kill her.
[89] I accept the respondent’s submission that, contrary to the assertion of the appellant, the reference to the Timmins case was well made. That case is authority for the proposition that a firearm being temporarily inoperable does not prevent it from
being a firearm. I am satisfied that the Judge properly referred to this case in the context of explaining that a failure to recover the firearm and test its operability did not prevent it being found to be a firearm.
[90] I am satisfied that the Judge was entitled to make the finding on the evidence before him that the item the offender presented at the police officers was a firearm.
[91] As noted, the Judge relied particularly on the evidence of Constable Garrick. Constable Garrick was only five to seven metres away from the object and provided a detailed description of what he saw appeared to be a firearm. Constable Garrick is an experienced police officer with 27 years of experience working with and around firearms in the military virtually every day. He was confident in his recognition of the weapon as a shotgun. His evidence on this was supported by the evidence of Constable Stewart, who also testified to seeing a firearm, the diameter of which he described as “similar to a 12-gauge shot gun” but “cut down significantly”. However, it was largely the evidence of Constable Garrett that supports the finding of the Judge as to the fact that the item was a shotgun.
[92] Mr Winter submitted that cloth covered the middle of the item so only the bayonet end and the back, described by Constable Garrett as the stock, could be seen. The submission was that as the way to identify a shotgun was the middle section, where the operational parts were situated, it was therefore impossible to identify the item as a shotgun.
[93] However, the evidence of Constable Garrett is that the firearm was presented at the constables, they were five to seven metres away from the offender, the barrel was black, there was fabric wrapped around the barrel coming back to “the receiver area, and he “could see the wooden stock behind the trigger”. The constable went on to say that “the size of diameter led me straight to believe it was a shot gun. It couldn’t have been anything else but”. He went on to say that the diameter led him to believe it was a shotgun and that it looked to him like it was a 20-gauge shot gun. He said it was “bigger than a rifle. I mean a rifle barrel was small with a small hole, this had a large hole”. The constable indicated that he immediately recognised that it was a shotgun.
[94] On this evidence, given the background and experience that the constable had with firearms, I am satisfied the Judge’s finding that the item was a firearm was available to him. The Judge made no error and there has been no miscarriage of justice in this respect.
Conclusion
[95] For the reasons set out above, I am satisfied the Judge made no error in finding that the appellant was guilty of the offences with which he was charged and convicted. In particular, I am satisfied the Judge made no error in finding the evidence sufficient to establish the identification of the appellant as the offender, and in finding that the appellant used a firearm against the two police officers.
[96] There is no real risk that the outcome of the trial was affected, and no miscarriage of justice.
Result
[97] The appellant’s appeal against his convictions is dismissed. The convictions stand.
Grice J
Solicitors:
Winter Woods, Palmerston North BVA The Practice, Palmerston North
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