Lelei v Police - [2015] NZHC 2110

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-404-163 [2015] NZHC 2110

BETWEEN
HOPE LELEI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing: 31 August 2015

Counsel:

K Hamblin and G Harvey for Appellant
E T Fletcher for Respondent

Judgment:

2 September 2015

JUDGMENT OF ANDREWS J

This judgment was delivered by me on 2 September 2015 at 10.15 am pursuant to
Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar

Solicitors:
Public Defence Service, Manukau
Crown Solicitor, Manukau

LELEI v NEW ZEALAND POLICE [2015] NZHC 2110 [2 September 2015]

Introduction

[1] Ms Lelei was convicted in the Manakau District Court on 8 May 2015, following a Judge alone trial before Judge H M Simpson, on one charge of theft, relating to an incident where she and an associate are said to have taken property valued at more than $4000.1

[2] Ms Lelei has appealed against her conviction. The appeal requires consideration of the conviction decision, and a pre-trial decision delivered by Judge G Andrée-Wiltens on 19 April 2015, to admit identity evidence.2

Relevant Facts

[3] On 23 October 2013 at about 2:30pm, two women went to the AMAX Laser Clinic. While the employees were distracted, the two women took a cell phone, a digital camera and cash. These facts are not disputed. The only issue is the identity of the women, one of whom was alleged to be Ms Lelei.

[4] After the items were taken, an employee of the clinic came out to see a car driving away and noted down the number plate. That car is registered in the name of Ms Lelei.

[5] In addition, there was CCTV footage of the clinic showing the two women. Sergeant Grant, of the Manurewa Police, showed an acquaintance of Ms Lelei, Mr Hussein, still photographs from the footage, then the CCTV footage itself. Mr Hussein was asked if he could identify either of the women. He said that one of them was Ms Lelei. When shown the still photographs, he said that he could not be certain, as the photographs were blurry. Later, after viewing the CCTV footage,
Mr Hussein said he was 100 per cent certain that it was Ms Lelei.

1 Police v Lelei [2015] NZDC 8560 (“the conviction decision”).
2 Police v Lelei [2015] NZDC 7005 (“the pre-trial decision”).

District Court Decisions

Pre-trial decision

[6] In the pre-trial decision, Judge Andrée-Wiltens referred to the judgments of the Court of Appeal in R v Tipene,3 and the Supreme Court in Harney v Police.4 The Judge accepted that Mr Hussein’s evidence was visual identification evidence5 and that as Mr Hussein knew Ms Lelei (as she had previously been in a relationship with the brother of Mr Hussein’s partner), there was good reason not to follow a formal
identification procedure under s 45 of the Evidence Act 2006. He further held that the evidence was highly relevant and not unduly prejudicial. He noted that, at trial, the defence would have the opportunity to challenge the…

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 Lelei v Police

Details

AGLC: Lelei v Police [2015] NZHC 2110
Case: [2015] NZHC 2110
Decision Date: 2 September 2015

CaseChat Overview and Summary

Ms Lelei appealed against her conviction for theft by the Manukau District Court, contending that the District Court Judge erred in her assessment of the evidence to the extent that a miscarriage of justice occurred. The appeal was based on three grounds: that the Judge was wrong to admit the identification evidence of Mr Hussein; that there was a real risk that Mr Hussein's evidence was tainted by prejudice against Ms Lelei, leading to a real risk of a miscarriage of justice having occurred; and that Judge Simpson failed to direct herself properly as to identification evidence and did not correctly apply the onus and standard of proof. The court held that the Judge was not wrong in admitting Mr Hussein's visual identification evidence, as there was a good reason for not following a formal procedure and the appellant failed to prove on the balance of probabilities that the evidence was unreliable. The court also held that there was no real risk that Mr Hussein's evidence was tainted by prejudice against Ms Lelei, and that the Judge had properly considered the risk of a mistaken identity and applied the law correctly. Accordingly, the appeal was dismissed.

The court's reasoning was based on a careful analysis of the evidence and the relevant legal principles. The court held that Mr Hussein's evidence was visual identification evidence, and that the Judge was correct to admit it under s 45 of the Evidence Act. The court also held that the Judge was not wrong to find that it was not established that Mr Hussein's evidence was unreliable. The court further held that there was no real risk that Mr Hussein's evidence was tainted by prejudice against Ms Lelei, and that the Judge had properly considered the risk of a mistaken identity and applied the law correctly. The court's conclusion was that the appeal was dismissed, but time was extended for the appeal to be brought.

Orders