Linton v Police - [2019] NZHC 1696

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2018-485-78

[2019] NZHC 1696

BETWEEN
JACOB FREDRICK LINTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 12 June 2019

Appearances:

S J Iorns for the Appellant

R M A Kos for the Respondent

Judgment:

18 July 2019

JUDGMENT OF CULL J

[1] This is an appeal challenging the admissibility at trial of the visual identification of Mr Linton under s 45 of the Evidence Act 2006, when no formal procedure of identification was undertaken by the police. On 27 August 2018, Mr Linton was convicted of one charge of assault with intent to injure following a judge- alone trial.1 He was later sentenced on 3 October 2018 to 100 hours’ community work, nine months’ supervision and ordered to pay $750 as emotional harm reparation payment to the complainant.2

[2] Mr Linton appeals his conviction on the grounds that the District Court erred in fact and in law in convicting him on the basis of one eyewitness, the complainant, who was under attack, having just been struck with sufficient force to render him unconscious with severe concussion and who gave conflicting statements on the visual

1 New Zealand Police v Linton [2018] NZDC 26154; Crimes Act 1962, s 193. The maximum penalty for this offence is three years’ imprisonment.
2 New Zealand Police v Linton [2018] NZDC 24335.

LINTON v NEW ZEALAND POLICE [2019] NZHC 1696 [18 July 2019]

identification of Mr Linton. Mr Linton submits the Judge erred in failing to caution himself on the possibility of a mistaken assertion as to identity, and in allowing in evidence that was inadmissible under s 45 of the Evidence Act 2006 (the Act).

[3]The police oppose the appeal.

[4] The issue on appeal is whether the Judge was in error in finding the police had good reason not to follow a formal identification procedure and/or that the visual identification of Mr Linton by the complainant was proved beyond reasonable doubt to be reliable.3

Factual background

[5] The following facts are taken largely from the summary in the District Court judgment.4 On 24 June 2017, the complainant was at the tavern in Rimutaka where a wake was underway. The bar was very full. The complainant had had two beers and was just pouring his third when something caught his eye which he described as a flash of movement. He then woke up on the floor of the bar being stomped on his right knee, ankle and hip. He said in his evidence before the District Court that he saw Mr Linton’s aggressive face looking down at him. The police were called and Constable Middleton attended.

[6] By the time the Constable arrived, the complainant was sitting in a back storeroom area with ice, or something similar, on his head and with a large red lump on his forehead. The Constable described him as being “dizzy and shaken up”. However, the complainant identified Mr Linton as his…

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 Linton v Police

Details

AGLC: Linton v Police [2019] NZHC 1696
Case: [2019] NZHC 1696
Decision Date: 18 July 2019

CaseChat Overview and Summary

This is an appeal against conviction by Jacob Fredrick Linton, the appellant, who was convicted of assault with intent to injure. The appeal challenges the admissibility of the visual identification of the appellant under s 45 of the Evidence Act 2006, on the basis that the District Court erred in fact and in law in convicting him on the basis of the visual identification of the appellant by the complainant. The issue on appeal is whether the District Court was in error in finding the police had good reason not to follow a formal identification procedure and/or that the visual identification of the appellant by the complainant was proved beyond reasonable doubt to be reliable. The High Court found that there was good reason for the police not to follow a formal identification procedure because the complainant identified the appellant as his assailant at the time of the offending when he was interviewed by Constable Middleton at the scene, and the complainant both knew and recognised the appellant personally. The High Court further found that the appellant has not proved, on the balance of probabilities, that the evidence is unreliable. The Court also found that the District Court Judge considered whether the identification had been reliable and was clearly alive to the issue that the identification may not be reliable as that was the basis of the defence case at trial. The appeal was dismissed.

Orders