Holmes v Police - [2012] NZHC 2227

IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

CRI-2012-409-000056 [2012] NZHC 2227

MICHAEL PATRICK HOLMES
Appellant
v

NEW ZEALAND POLICE
Respondent

Hearing: 29 August 2012
(Heard at Christchurch)

Appearances: Ms T Aitkin for Appellant
Ms Raj for Respondent

Judgment: 30 August 2012

JUDGMENT OF J WILLIAMS J

Introduction

[1] This appeal raises two issues as to identification evidence under s 45 of the Evidence Act. The first is whether the identification in this case was made “soon after the offence was reported and in the course of ... initial investigations” as required by s 45(4)(e). The second is whether the identification was reliable to the
standard of beyond reasonable doubt in terms of s 45(2).

HOLMES V NEW ZEALAND POLICE HC CHCH CRI-2012-409-000056 [30 August 2012]

The facts

[2] Late one November night in Christchurch, Senior Constable Hansen stopped the driver of a blue Subaru, registration number AHQ115. The location was a suburban street. It was dark but the street was lit. The Subaru did not stop under a street lamp but Senior Constable Hansen said he pulled up immediately behind the Subaru and his headlights were on, throwing light into the cab of the Subaru. The Senior Constable walked forward to the driver’s side door. He said that the lighting around the Subaru was sufficient for him to hold a discussion with the driver and make notes in his notepad without the need to use his torch.

[3] A discussion ensued between the two. It took between three and four minutes. During the course of that discussion, Senior Constable Hansen came to suspect that the driver was giving false details of identity. The driver was described by the Senior Constable as a “white male in his 20s”. He was wearing a black beanie but otherwise had no particularly distinguishing features. Since the driver did not get out of the car, the Senior Constable could not give details of height or build.

[4] Fearing that the driver might drive off when he went back to the patrol car to check details for the car and driver, Senior Constable Hansen tried to pull the Subaru’s keys from the ignition. At that point, the driver drove off at high speed. A chase ensued. It was soon broken off for safety reasons. Senior Constable Hansen saw the Subaru again a few minutes later, reengaged in the pursuit, but again soon broke it off for safety reasons.

[5] Forty-five minutes after first pulling the Subaru over, Senior Constable Hansen was back at the Police station and had been provided with the name of a person “associated” with the vehicle. Apparently the vehicle was registered to a female, and Mr Holmes, the appellant here, was her boyfriend. Senior Constable Hansen searched the police computer and found a photograph of Mr Holmes. The Senior Constable confirmed to himself that the person in the photo was the driver of the car. The trail on the night had gone cold, but this information was no doubt filed…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Holmes v Police

Details

AGLC: Holmes v Police [2012] NZHC 2227
Case: [2012] NZHC 2227
Decision Date: 30 August 2012

CaseChat Overview and Summary

In the case of Holmes v Police, the appellant, Michael Patrick Holmes, challenged the admissibility of identification evidence provided by Senior Constable Hansen under section 45 of the Evidence Act. The case centred on whether the identification made by the Senior Constable met the criteria under sections 45(4)(e) and 45(2) of the Evidence Act, specifically whether it was made soon after the offence was reported and in the course of the initial investigation, and whether it was reliable to the standard of beyond reasonable doubt. The appellant argued that the identification did not meet these criteria and should not have been admitted into evidence. The court was required to determine whether the identification process adhered to the statutory requirements and if it was reliable.

The court first addressed whether the identification met the criteria of section 45(4)(e), which provides an exemption from the formal identification procedures if the identification was made soon after the offence was reported and in the course of the initial investigation. The court noted that section 45(4)(e) appeared to be designed for situations where a witness makes the identification to an enforcement officer, not for cases where an officer identifies a person to themselves. The court found that the facts of this case did not strictly fit within section 45(4)(e), as the identification was made by the Senior Constable to himself. However, the court acknowledged that the list of "good reasons" for exemption in section 45(4) is not exhaustive and that the immediacy of the identification process might not have caused concern regarding its accuracy. Despite this, the court declined to extend the class of circumstances to cover this case, concluding that there was no "good reason" for the prosecution to have failed to comply with the formal procedure.

The court then considered whether the identification was reliable beyond reasonable doubt under section 45(2). The appellant argued that the circumstances did not support a finding of reliability, citing factors such as the brevity of the encounter, poor lighting, and the fact that the Senior Constable did not note any distinguishing features of the driver. However, the court found that the identification was made under circumstances that were reasonably reliable. The court noted the duration of the conversation, the Senior Constable's focus on the driver, the adequate lighting, and the subsequent association between the appellant and the vehicle. The court concluded that there were sufficient factors to support the Judge's finding that the identification was reliable beyond reasonable doubt.

The court dismissed the appeal, finding that the identification evidence was properly admitted. The appeal was dismissed accordingly, and the identification evidence was upheld as admissible in the trial against the appellant.

Orders