Holmes v Police
[2012] NZHC 2227
•30 August 2012
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 in the police computer for future reference.
[6] Nearly a month later, on 18 December 2011, the appellant was arrested by
Constable Spite.
The judgment under appeal
[7] Judge Neave dealt with the admissibility of Senior Constable Hansen’s photo identification of the appellant in a mid-trial ruling. The learned Judge was satisfied that the requirements of s 45(4)(e) were met. The effect of that provision is to absolve the police of compliance with the usual formal identification procedure:
if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation.
[8] The learned Judge found in effect that Senior Constable Hansen identified Mr Holmes to himself by recalling the physical appearance of the driver of the Subaru and matching that with the photo of Mr Holmes. The Judge also accepted that this identification occurred soon after the offence was reported, and in the course of Senior Constable Hansen’s initial investigation.
[9] That said, the learned Judge accepted that s 45(4)(e) may not have been designed to deal with the situation where an investigating officer is also the identifier so he went on to apply the higher admissibility test in s 45(2) anyway. The effect of s 45(2) is that if there is no “good reason” to allow evidence of an informal identification in, the prosecution must prove beyond reasonable doubt “that the circumstances in which the identification was made have produced a reliable identification”.
[10] In this case, the learned Judge was satisfied to the requisite standard. The considerations weighing with him included:
(a) The car-side conversation lasted for three to four minutes;
(b)Senior Constable Hansen was concentrating on the driver because he suspected that the driver was lying to him;
(c) Senior Constable Hansen viewed the driver from close quarters;
(d)The patrol car’s headlights and the surrounding street illumination provided sufficient light;
(e) It was too great a co-incidence that an individual shown to be associated with the car was the one identified by the Senior Constable as its driver on the relevant night.
(f) The Senior Constable was very confident in his identification of
Mr Holmes.
Good reason to avoid formal procedure (s 45(4)(e))
[11] As I have said, s 45(4)(e) says a formal procedure is not needed if the identification has been made to a constable soon after the offence was reported and in the course of the constable’s initial investigation. If this is shown, there is a “good reason” in terms of s 45(1) for not following a formal procedure.
[12] The closest leading decision to these facts is Tararo v R.[1] In that case, a detective was given a photograph of a cannabis seller prior to leading an undercover video-taping visit to the seller’s address. The detective was also given photos of other individuals likely to be at the address but only one photo of the relevant defendant. When at the address, the detective purchased cannabis from the seller while secretly recording the transaction. He later downloaded a still photo from the video record of the transaction, matched that with the photo he had earlier been given and identified the defendant as the culprit. The Court of Appeal said that s
[1] Tararo v R (2010) 24 CRNZ 888.
45(4)(e) did not apply. The Court held:[2]
[2] At [76].
[Counsel for the appellant] argued that s 45(4)(e) did not apply in this case. She said that commentators had confined the application of that provision to identifications made immediately after an offence to an officer who arrives at the scene. Ms Hunt said that in the present case the Police Officer had effectively made an identification to himself, whereas the provision
contemplates another person making an identification to an enforcement
officer in the course of the officer’s investigation.
We agree that the present circumstances do not fall strictly within s 45(4)(e), which appears to deal with a situation where a witness to an offence makes the identification to an officer who is undertaking an investigation.
[13] The starting point is therefore that paragraph (e) does not apply to situations where a police officer identifies to him or herself. That is the situation in the present case.
[14] The Court did accept that the list of “good reasons” in ss 4 is not closed. The Court accepted that “given the immediacy with which this [identification] exercise occurred, there may be nothing to cause concern that the process may have led to an inaccurate identification.”[3] But even then the Court refused to extend the class of circumstances to cover the facts in that case. The Court preferred that facts analogous to that case be put to the higher test in s 45(2) as the primary admissibility pathway. I am satisfied therefore that there is no “good reason” for the prosecution to have failed to comply with the formal procedure in this case.
Reliability beyond reasonable doubt (s 45(2))
[3] At [81].
[15] Ms Aickin argued that there was not sufficient in the circumstances of the case to satisfy the learned Judge that the identification was reliable beyond a reasonable doubt. Ms Aickin pointed to the fact that the car-side conversation lasted for only a few minutes and was untimed. The driver was wearing a black beanie pulled down low over his head and the lighting was poor. The Senior Constable pointed to no particular distinguishing characteristics of the driver. The appellant was not known to him. The appellant had facial piercings, but these were not mentioned by the Senior Constable. The identification occurred three-quarters-of- an-hour later and after two (no doubt tense) high-speed chases. Significantly, Ms Aickin argued, the car identified by Police communications as linked to the appellant was a different colour to that of the Subaru pulled over by Senior Constable Hansen, even if the registration plate was the same. Finally Ms Aickin argued, the car was
neither located at the appellant’s address nor found in his possession at any stage
after the offending.
[16] Although this is a marginal call, I am satisfied that there are sufficient factors in favour of the Judge’s view to make it inappropriate for me to disturb his conclusion on appeal. I agree it was dark and the driver was wearing a beanie low over his head. But this was not a passing view. Senior Constable Hansen was focussed on this driver, conversing with him and trying to catch him out lying in a
close verbal exchange. As Blanchard J accepted in Harney v Police,[4] the confidence
of an identification witness will be relevant. That must be particularly so if the circumstances giving rise to that confidence are rationally supportive of it. That is so here.
[4] Harney v Police [2011] NZSC 107 at [33].
[17] A second crucial point is the appellant’s clear relationship with this car (or at least its registration plates). He was the boyfriend of the registered owner. In addition two months prior to Senior Constable Hansen pulling him over, a Subaru Impreza with the same registration plates was pulled over in Dunedin. The appellant was shown to be driving on that occasion. He was arrested and charged with offences, subsequently pleading guilty. It is true, as Ms Aickin argues, that on that occasion the Subaru was black and in November the driver was driving a blue Subaru, albeit with the same plates. I do not think that difference matters. The car could have been painted, the plates swapped to another vehicle or the colour wrongly recorded. The important point is that the earlier association between the appellant and these plates corroborates the association made by Senior Constable Hansen on the night in question between the appellant and the plates.
[18] I agree with Judge Neave therefore that there was sufficient in the circumstances in which the identification was made to have proved beyond a reasonable doubt that Senior Constable Hansen’s identification was reliable.
[19] The appeal must be dismissed accordingly.
J Williams J
Solicitors:
Raymond Donnelly, PO Box 533, Christchurch 8140
T Aickin, Barrister, PO Box 25259, Christchurch
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