Johnson v The Queen
[2021] NZCA 233
•3 June 2021 at 4.00 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA765/2018 [2021] NZCA 233 |
| BETWEEN | PAUL JOHNSON |
| AND | THE QUEEN |
| Hearing: | 13 May 2021 |
Court: | Miller, Venning and Peters JJ |
Counsel: | JEL Carruthers for Appellant |
Judgment: | 3 June 2021 at 4.00 pm |
JUDGMENT OF THE COURT
The appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Venning J)
Paul Johnson was found guilty on a charge of wounding with intent to cause grievous bodily harm and was sentenced to seven years’ imprisonment.[1] He has appealed against his conviction and sentence.
[1]R v Johnson [2018] NZDC 24332. Mr Johnson was found guilty at his second trial on the charge. The jury were unable to agree at the first trial.
The issue in the case was identification. The Crown relied on the victim’s recognition of Mr Johnson, which was confirmed by the victim’s identification of him in a photo montage. Mr Johnson’s palm print was also present on the car the victim was in when attacked.
Mr Johnson says there was a miscarriage of justice because:
(a)trial counsel, Mr Leader, erred in not adducing evidence that Mr Johnson had prominent tattoos to his neck and face at the time of the offending which the victim did not refer to; and
(b)the victim’s identification of him from the photograph was unreliable as it was an old photograph and did not show the tattoos.
Background
Sometime after 7.00 pm on 7 February 2017 the victim drove his partner’s car from their home towards his father’s address in Hikurangi. He parked the car in Valley Road and began texting on his phone. The driver’s window was down.
The appellant and two others came out of Mr Frank Rota’s driveway. The appellant and one of the other two (the co-accused) came over to the victim. The appellant and his co-accused became aggressive, yelled at the victim and asked him what he was doing being parked there.
The appellant then pulled a dark coloured metal weapon that had the shape of a pistol from his shorts. He set about attacking the victim with the weapon and his fists. The co-accused held the door shut to stop the victim leaving. While holding the weapon, the appellant hit the victim about the head a number of times. One of the blows was aimed directly at the victim’s right eye. The victim tried to block the punches to his head and face by putting his arms over his head, but he was continually punched about the head and chest area.
The appellant also raised the weapon and fired it at the victim’s head. Two metal probes were shot from it into the victim’s right arm. The puncture wounds were consistent with wounds caused by a taser.
The attackers then ran off. A passer-by called Police.
As a result of the assault, the victim sustained multiple injuries, including cuts to his forehead, a wound to his right eye, bruising to his ribs, as well as the two puncture wounds in his right upper arm. The floor of his eye was fractured as was his nose and right cheekbone.
The identification of Mr Johnson
Police and an ambulance were called to the scene. Detective Hamilton spoke to the victim in the ambulance. He described the victim as having blood around his face and torso. The victim was distraught, and concerned that he had lost sight in one eye. The Detective also recovered a metal probe that had been in the victim’s arm.
When spoken to by Detective Hamilton in the ambulance the victim named the appellant and Mr Rota as his attackers.
The appellant was spoken to later that night at his mother’s address by Constable Rawiri. He denied any involvement in the attack. He said he had been at home all day and all night. His mother and others at the property confirmed that.
Ten days later, on 17 February 2017, Police conducted an evidential video interview with the victim. The victim gave a more detailed account of the incident. He said when he looked up he saw three men walking out of Mr Rota’s driveway. One was Paul Johnson, the appellant. The last name of the other attacker was Wedge. While Mr Rota was also present, he just stood in the road.
The victim consistently referred to Mr Johnson as the principal attacker throughout his statement. He recognised Mr Johnson because he had: “seen Paul Johnson before around Hikurangi but … I don’t associate with him, he’s not a friend”; “I’ve never actually been his friend though but I have met him in different circles of, of people”. He described the appellant as a “skinhead” having no hair and wearing a red t-shirt, red shorts and bare feet on the night.
Police also produced a photo montage board. The victim initially narrowed his selection down to two photographs before identifying a photograph of the appellant as being a photograph of the person who attacked him.
The appeal
The trial issue was whether the victim’s identification of Mr Johnson as the attacker was correct. Mr Carruthers for Mr Johnson submitted that trial counsel, Mr Leader, erred in not adducing evidence of Mr Johnson’s facial tattoo. He submitted that if that evidence had been before the Court, the victim’s identification of Mr Johnson as his attacker would have been open to challenge on the basis that he had made no mention of what was arguably Mr Johnson’s most distinguishing feature.
Mr Carruthers submitted that Mr Leader could have cross-examined the victim as to his failure to refer to the tattoo. Then, in closing to the jury, he could have pointed out the victim did not mention Mr Johnson’s tattoos when describing him to Police, nor did he mention their absence from the photographs Police included in the montage.
Mr Carruthers noted that evidence Mr Johnson had the tattoos at the time could also have countered the evidence of Constable Rawiri who had spoken to Mr Johnson at his mother’s house several hours after the incident. Evidence was led from Constable Rawiri that he did not think the appellant had tattoos on his face at that time.
The Crown accepts that at the time of the assault in February 2017 the appellant had a tattoo on the left side of his face and on the right side of his neck.
Both Mr Johnson and Mr Leader provided affidavit evidence for the appeal and were cross-examined. The upshot of that exercise is that we accept, for whatever reason, Mr Leader mistakenly did not consider the tattoo was a live issue. Mr Leader believed Mr Johnson had told him that he did not have the side face tattoo at the time. As a result, Mr Leader did not lead that evidence and did not cross-examine the victim about that.
Discussion
The issue is what effect Mr Leader’s failure to lead evidence about the appellant’s tattoo, or to cross-examine the victim on it, has on the conviction. Section 232(2)(c) of the Criminal Procedure Act 2011 applies. Mr Leader’s misunderstanding of the position as to the appellant’s facial tattoo, and his failure to cross-examine the victim on it, was an error in relation to the trial process.[2] The question is whether that error has created a real risk the outcome was affected.
[2]Criminal Procedure Act 2011, s 232(4).
In Haunui v R the Supreme Court confirmed the correct approach as:[3]
The question under s 232(4)(a) is “whether the error, irregularity or occurrence in or in relation to or affecting [the] trial has created a real risk the outcome was affected”.That question “requires consideration of whether there is a reasonable possibility another verdict would have been reached”.If the answer to that question is “no”, that is the end of the matter and the appeal will be dismissed. If the answer to that question is “yes”, we consider the effect of the Criminal Procedure Act is that the appeal court then asks whether it is sure of guilt. If the answer 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.
[3]Haunui v R [2020] NZSC 153 at [67] (footnotes omitted); see also Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.
The first issue is whether there is a reasonable possibility another verdict would have been reached if evidence of Mr Johnson’s facial tattoo had been before the jury. We bear in mind that identity is a fertile source of error, against which juries must be (and were in this case) warned.
However, this was a recognition case, as opposed to an identification case. The victim knew and recognised the appellant. The victim used to live in Valley Road. He saw three people come out of Mr Rota’s home. He knew all three. He recognised Mr Johnson as the principal attacker and knew the other attacker’s surname was Wedge although he did not know his first name.[4]
[4]Mr Wedge pleaded guilty prior to trial.
Given it was a recognition case, the victim’s identification of Mr Johnson as his attacker did not depend on a description of Mr Johnson’s features. He did not describe Mr Johnson to Police, other than to tell them what he was wearing on the night and that he was a skinhead.
Detective Hamilton swore an affidavit for the appeal annexing before and after photographs comparing the appearance of the appellant with and without the tattoo in issue. The photographs show front-on views of the appellant. The photograph of the appellant as at 21 April 2017 does not support the appellant’s argument that the facial tattoo was a significant identifying feature. The tattoo is on the left side of Mr Johnson’s face. When the appellant is looked at from left side on it is distinctive, but that is not the case when the appellant is looked at face-on. From a front-on view the tattoo on the left-hand side of the appellant’s face is not particularly noticeable at all. In the circumstances of the assault as described by the victim, where he was trying to fend off blows to his head, his right eye was injured and filling with blood, and he was covering his head with his hands, it is not surprising he failed to notice or mention the tattoo.
The challenge to the further identification from the photo montage is also based on the change in Mr Johnson’s appearance. The arrest photo used in the photo montage was taken in 2014 when he did not have the side facial tattoo. However, that point is again answered by the comparison of the photographs attached to Detective Hamilton’s affidavit. There is no significant difference in appearance front‑on as the photographs in the montage were presented.
Further, there was strictly no requirement for Police to have carried out a formal procedure under s 45 of the Evidence Act 2006 to have the victim identify Mr Johnson in this case, given the victim’s recognition of Mr Johnson. In Harney v Police,[5] the Supreme Court agreed with this Court’s decision in R v Edmonds[6] that the fact a witness recognises an offender can constitute a good reason not to carry out a formal identification procedure. In the present case, the victim had seen the appellant around Hikurangi on previous occasions and, while he was not a friend, he had met him in different circles with other people. The victim was able to identify Mr Johnson as his attacker from their past contact.
[5]Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [17].
[6]At [26], citing R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [65].
In some cases the Court has expressed caution about the use of a formal identification procedure where the identification is based on recognition.[7] However, as this Court held in Galloway v R, the fact a witness recognises an offender does not automatically mean a formal identification procedure should not be followed.[8] It will depend on the circumstances of the case. In this case, it was prudent to conduct a formal identification process. The victim knew the appellant, but not well.[9]
[7]Harney v Police, above n 5, at [17].
[8]Galloway v R [2018] NZCA 211 at [35].
[9]Brown v The State [2003] UKPC 10 at [16].
As to the reliability of the further identification from the photo montage, it is relevant that the victim obviously took some care about his identification of the appellant, initially narrowing the possibilities to two, before finally settling on the photograph of the appellant. That underscored the careful approach he took to the process and the reliability of his identification of the appellant as his attacker.
Quite apart from the above, a principal problem for the appellant is that he had to explain the presence of his palm print on the A pillar (the pillar running from the roof to the bonnet of the car) of the driver’s door of the car the victim was in when attacked. To explain that, the defence theory was that the victim and the appellant had met earlier in the day. To advance the theory, Mr Leader put to the victim that he knew Mr Johnson and had seen him earlier that day. The victim denied that, so there was no evidential basis to explain the palm print, other than the appellant was the attacker. The appellant’s approach to this issue was difficult for him. If there had been evidence the two had been in contact earlier in the day, that would have provided further support for the victim’s ability to recognise the appellant. It would have increased the likelihood of the victim remembering and recognising the appellant.
The defence theory that the two were known to each other and had met earlier that day did mean that the focus of Mr Leader’s cross-examination was on the reliability of the victim’s account of the incident rather than suggesting he did not know and could not have recognised Mr Johnson as his attacker. Mr Carruthers accepted that Mr Leader cross-examined the victim thoroughly about his account of the incident. Mr Leader put the discrepancies in the victim’s account to the victim, including that he had first identified Mr Rota rather than Mr Wedge as the second person involved in the assault on him. Mr Leader also confirmed that the victim was concussed and may have lost consciousness as part of the incident and put to him that he had been drinking. In the circumstances, the issue of Mr Johnson’s facial tattoo was not material.
There is another point that undermines the significance the appellant seeks to place on his facial tattoo. Constable Rawiri spoke to the appellant later on the night of the incident. He obviously did not notice the tattoo as he said he did not think the appellant had the facial tattoo at the time. If the victim had been challenged about his failure to notice the tattoo, the Crown would have been able to make the strong submission that it was hardly likely the victim did not comment on it in the circumstances he faced during the assault when an experienced constable, who was under no duress had not noticed it while speaking directly to the appellant.
For the above reasons we are satisfied that, even if evidence of Mr Johnson’s tattoo was before the Court and Mr Leader had cross-examined the victim about it, there is no reasonable possibility of a different verdict. Apart from the victim’s recognition of the appellant, the presence of his palm print on the car confirmed his presence at the assault.
Result
The appeal against conviction is dismissed.
The appellant did not pursue the appeal against sentence. It is also dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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