Linton v Police
[2019] NZHC 1696
•18 July 2019
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 assailant because he recognised him, and described how he knew him. This was noted in the Constable’s notebook at the time of the incident. The complainant was later taken to hospital, where he was told he had concussion. He was off work for three months as a result.
[7] The Constable was unable to obtain co-operation from any of the bar staff or any members of the public who were present in the bar that day. However, CCTV footage was obtained from behind the bar which does not show the initial punch
3 Evidence Act 2006, s 45(1) and (2).
4 Police v Linton, above n 1, at [2]–[6].
described by the complainant, but does show him crashing through the door which leads from the public area in front of the bar into the staff area behind the bar, followed closely by another male. The second male was then shown clearly stomping three times on the complainant’s lower body as he lay on the floor, before being ushered out of the door and back into the public area of the bar by bar staff.
[8]When the complainant spoke to Police a day or so later, he said the following:
I had a couple of beers and was just pouring myself a third beer when out of the corner of my eye I saw a flash of movement and the next thing I remember I was waking up on the floor of the bar.
The bar manager told me that [Mr Linton] had king hit me in the side of the head. He hit me a few times but I don’t know how many.
[9] In his evidence during the District Court trial, the complainant said that after he saw a flash of movement, he “came to” on the bar floor, where his right leg was being stomped on by a person wearing a burgundy-coloured shirt. He said he recognised this person as Mr Linton because he saw Mr Linton’s face looking down at him, and the aggression on it.
[10] When cross-examined about the apparent discrepancy in his evidence at the hearing and his statement to the police that it was the bar manager who told him who had hit him, the complainant accepted that he did not give the detail of seeing Mr Linton stomping on him when he made his statement to the police, but was “100 percent positive” that the person who was stomping on him was Mr Linton. He also heard the female bar manager mention Mr Linton’s name when he was being ushered out of the bar area.
[11]At the time of the offence, Mr Linton was 29 years of age.
District Court decision
[12] At the District Court, Mr Iorns, for Mr Linton, submitted there was insufficient evidential foundation for a clear identification of Mr Linton as the assailant.
[13] The Judge disagreed. The Judge held that despite cross-examination, the complainant was adamant that he had seen Mr Linton, whom he had previously
known, as the assailant, and his evidence also was that he saw Mr Linton’s “aggressive” face looking down on him as he lay on the floor.
[14]The Judge concluded:5
… In those circumstances and despite the absence of evidence from any other of the very many people, both working or attending at the bar that day, I am satisfied that the police have proved identity beyond reasonable doubt. That being so it is very clear from the CCTV footage that after having taken [the complainant] to the ground the defendant [Mr Linton] then stomped on his lower body area at least three times before turning and walking, and being shepherded through the door by a somewhat startled bar staff.
[15]Identity being the only issue, the Judge convicted Mr Linton.
Approach to appeal
[16] An appeal against conviction in a Judge-alone trial is a general appeal. This appeal is governed by s 232 of the Criminal Procedure Act 2011. The appellant must satisfy the Court that a miscarriage of justice has occurred, either because “the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred” or for any other reason.6 A miscarriage of justice is “any error, irregularity, or occurrence” that “has created a real risk that the outcome of the trial was affected” or “has resulted in an unfair trial or a trial that was a nullity”.7
[17] The Supreme Court has recently re-examined the role of s 232(2)(b) and the general function of an appellate court.8 In Sena v Police, the Supreme Court held that the appellate court should re-evaluate the evidence, and an appellant is entitled to the appeal court’s determination of whether the first instance Judge was right or wrong substantively on the outcome.9 The previous review function of whether a finding was open to the trial Judge therefore has no application. On this approach, if the appellate court comes to a different view on the evidence, the trial Judge necessarily will have erred in their assessment.10
5 Police v Linton, above n 1, at [10].
6 Criminal Procedure Act 2011, s 232(2).
7 Section 232(4).
8 Yusuke Sena v New Zealand Police [2019] NZSC 55.
9 At [34] and [38].
10 At [38].
[18] The Court cautioned, however, that this approach does not mean the role of the appellate court is to consider the issues de novo as if there had been no hearing at first instance.11 As it is an appeal, it is for the appellant to show that an error has been made. In assessing whether there has been an error, an appellate court must take into account any advantages a trial judge may have had.12 Where the challenge is to credibility findings based on contested oral evidence, an appellate court will exercise “customary caution”.13
[19] The onus is on the appellant, Mr Linton, to satisfy the Court that the Judge erred in his assessment of the evidence to such an extent that has created a real risk that the outcome of the trial was affected.
Applicable law
[20] The admissibility of visual identification evidence is governed by s 45 of the Evidence Act 2006, which provides:
45 Admissibility of visual identification evidence
(1)If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(2)If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
…
(4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:
...
11 Sena v New Zealand Police, above n 8, at [38].
12 At [38].
13 At [38]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] (footnote omitted).
(e) 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 occurred and in the course of that officer’s initial investigation:
…
[21]Section 126(3) of the Act adds:
If evidence of identity is given against the defendant in any criminal proceeding and the defendant disputes that evidence, the court must bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, must bear in mind the possibility that the witness may be mistaken.
[22] The first issue is whether there was a good reason for not following a formal procedure. If there was, the evidence is admissible unless Mr Linton can prove on the balance of probabilities that the evidence is unreliable.14 If there was no good reason, the evidence is inadmissible unless the police can prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.15
The parties’ positions
[23] Mr Iorns for Mr Linton submits that s 45(1) does not apply as a formal procedure was not followed and there was no “good reason” for not following a formal procedure. He submits s 45(4)(e) could not be relied upon, because the identification was made by someone in need of immediate medical attention for concussion. Even if s 45(4)(e) could be relied on and s 45(1) applied, he argues that Mr Linton established on balance that the identification evidence was not reliable and therefore it should not have been admissible. Further, he submits, it is unclear whether the Judge exercised caution before convicting Mr Linton on the identification evidence.
[24] Ms Kos for the police submits the appeal should be dismissed because the complainant’s visual identification evidence was properly admitted at trial through s 45(1). Any failure of the Judge to expressly address s 126 of the Act did not have an impact on the case, and there is no risk of a miscarriage of justice.
14 Section 45(1).
15 Section 45(2).
Was there “good reason” not to undertake a formal identification procedure?
[25] Under this limb, the focus is on the strength of the visual identification itself. Here, there is significant evidence on visual identification and recognition.
[26] Constable Middleton gave evidence in the District Court of the details of the offending that he recorded in his notebook at the scene. Leave was granted to Constable Middleton to refer to his notebook, which was not produced, and he said:
A.The first thing he said was – well, I think I asked him, “You know, who’s done this to you?” and ...
He’s said, “Jake Potter.” He said he was about 30 years old. I also covered off how many drinks he’s had because he appeared quite sort of beside himself and I guess concussed potentially.
[27] The Constable was then asked if he knew who Jacob Potter was, and he confirmed it was Jacob Linton. No issue was taken with the reference to Mr Linton being Jake or Jake Potter, as it appears both names are a reference to Mr Linton.
[28] In the hearing before me, following a discussion about the evidence of Constable Middleton’s notebook, a copy of the notebook entries was provided to me by consent. The entries made by Constable Middleton in his interview with the complainant that night records the following:
… - Was punched by Jake/POTTER, approx 30 yrs
-had two drinks beers
-Was standing near doorway
-someone ran at him
-Hit him, knock him into bar
-Blacked out/felt woozy
-Recognised male to be Jake POTTER
-He was wearing a bergendy shirt
-I remember 3 punches
-My feet left the floor
-I know Jake because my son knows him.
[29] The complainant, therefore, identified Mr Linton as his assailant straight after the offence occurred and in the course of Constable Middleton’s investigation.
[30] It is also plain from the notes taken at the time of the incident and the complainant’s evidence during the hearing that Mr Linton was known to the complainant because of his association with the complainant’s son. The complainant gave evidence, both in evidence-in-chief and in cross-examination, that he was certain that it was Mr Linton who had hit him. He says he recognised Mr Linton’s face looking down on him while Mr Linton was “stomping on” the complainant’s right leg, on his knee, his ankle, and the top of his hip, as the complainant “came to”. Throughout his evidence, the complainant referred to Mr Linton as “Jake”, which is Mr Linton’s first name. When asked how he knew it was Mr Linton when he came to that night, the complainant said, “He’s a bigger build than his brother so I knew it was definitely him.”
[31] Therefore, not only did the complainant identify Mr Linton as his assailant soon after the offence took place, thus engaging s 45(4)(e), he also knew and recognised Mr Linton personally. In Harney v Police, the Supreme Court said that, in addition to the factors under s 45(4), the recognition by the witness of someone already known to the witness can provide a further good reason for not following a formal procedure of identification.16 The Court said:
[26] We are satisfied that where the visual identification evidence takes the form of a recognition by the eyewitness of someone already known to the witness (whether through personal contact or from photograph or film and whether or not the person is known by name to the witness), that can constitute a further good reason for not following a formal procedure.
[32] In Harney, the Court held that the police officer’s previous knowledge of the defendant was not sufficiently strong to permit the officer to reliably identify the defendant while driving.17 By contrast, the Court of Appeal in Thornton v R found that a formal procedure “would have been valueless because the complainant had already concluded that Ms Thornton’s appearance was familiar to her and that she was the attacker.”18 Similarly, in R v Edmonds, the Court of Appeal held that an additional
16 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [26].
17 At [34]–[38].
18 Thornton v R [2017] NZCA 256, at [28].
reason not to conduct a formal identification procedure is where the witness identifies someone well-known to them.19
[33] The facts of this case are distinguishable from Harney. In Harney, there had been two previous occasions where the witness had dealt with the defendant seven and five years respectively before identifying him in respect of the alleged offending. Here, the complainant has known Mr Linton through his son and was sufficiently familiar with him to identify Mr Linton’s build, so as to differentiate Mr Linton from his brother. Further, in Harney, the police officer identified the defendant while he was driving in a motor vehicle. Here, the complainant was looking up directly at the person he identified as Mr Linton, who was stomping on him at the time.
[34] Because the complainant had identified Mr Linton as his assailant at the time of the incident, I consider the carrying out of a formal identification procedure would have been of no practical utility. It seems clear the complainant would have identified Mr Linton from such a process. If a formal procedure had been held, there is a danger that it may have created a false impression of the reliability of the identification, when in reality the complainant had simply pointed to a person previously known to him. Lord Hoffmann, in Goldson v R, observed that if the accused is accepted to be a person well known to the identifying witness, no formal procedure need be held:20
… The witness will naturally pick out the person whom he knows and whom he believes that he saw commit the crime. In fact, the evidence of the parade might mislead the jury into thinking that it somehow confirmed the identification, whereas all that it would confirm was the undisputed fact that the witness knew the accused. It would not in any way lessen the danger that the witness might have been mistaken in thinking that the accused was the person who committed the crime.
[35] I conclude there was good reason for the police not to conduct a formal identification procedure because the complainant identified Mr Linton 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 Mr Linton personally. I turn, then, to consider the question of reliability.
19 R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [73].
20 Goldson v R [2000] UKPC 9, [2000] 4 LRC 460 at [11].
Has Mr Linton proved on the balance of probabilities that the evidence is unreliable?
[36] Mr Linton submits the evidence is unreliable because the complainant made inconsistent statements to the police and in his evidence about the identity of his assailant, and because the complainant was incapacitated to such an extent that he required a three-month rehabilitation period to recover from the concussion he received. Other factors relied on by Mr Linton to show how unreliable the complainant’s identification evidence is include:
(a)The complainant had consumed two beers on the night of the assault.
(b)The initial strike on the complainant was with such force as to require a three-month rehabilitation period due to the concussion he received.
(c)A review of the CCTV footage shows that at the point the complainant claims to have identified the attacker, he was incapacitated on the ground where he remained immobile for some three minutes before being helped to his feet.
(d)The complainant was told by a bar staff member the name of Mr Linton.
(e)When the Constable arrived, an ambulance had already been called as the complainant was in clear need of medical attention. He was described as “dizzy and shaken up”.
[37] The starting point is the complainant’s evidence at the scene. The complainant has told Constable Middleton at the time of the incident that he knew his assailant and recognised him to be Mr Linton. This was recorded by Constable Middleton in his notebook. Several days later, the complainant made his statement to the police, omitting what he said to Constable Middleton but stating that the bar manager told him that Mr Linton had hit him in the side of the head.
[38] When the complainant was cross-examined about the inconsistency, and Mr Iorns put to the complainant that what he said in his police statement was the truth, the complainant said that he accepted that what he had said in his earlier statement was different from what he said both at the scene and in Court. It was then put to the complainant that he could not tell who his assailant was and he was simply relying on the bar manager’s advice. The complainant was firm in his response. He said:
A.Yeah, I knew it was the same person I’d seen when I walked in.
Q. But you can’t be sure who that was, can you?
A. It was Jake.
Q. You can’t be sure of that can you?
A. I’m positive, 100% positive.
When asked if he accepted he could be mistaken, the complainant was adamant that he did not accept that he could be mistaken.
[39]In Harney v R, Justice Blanchard explained the operation of s 45 as follows:21
[30] In order to assess whether the identification evidence should be admitted under subs (1), the judge will also need to determine whether the ability of the witness to recognise the defendant from prior contact has translated into a reliable identification in the particular circumstances. All the circumstances in which the witness claims to have recognised the defendant and which may have enhanced or detracted from the quality of the recognition (lighting, distance, duration of observation, eyesight of the witness, and so on) will need to be taken into account. The remarks in the leading English case of R v Turnbull, although discussing directions to a jury, are apposite to a consideration by a judge under s 45:
How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused? How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?
[40] In carrying out an assessment under s 45(1), the Judge is able to take into account not only the circumstances in which the identification was made but also any other evidence in the case which supports or raises concerns about the accuracy of the identification.22 The confidence with which the witness made the identification must accordingly be treated as one of the circumstances under s 45(1). However, too much weight should not be given to this factor, especially when it is not an expression of confidence at the time the identification was first made.23
21 Harney v Police, above n 16 (footnotes omitted).
22 At [32].
23 At [33].
[41] In Harney, the Supreme Court warned that a Judge should consider whether the identification evidence has been contaminated by someone else’s advice or opinion.24 The Judge’s mind should be turned to whether the identification may have been contaminated in some way, either at the time of the offending or later, perhaps because of an opinion as to identity expressed by someone else to the witness.25
[42] The issue of contamination of identification evidence was also discussed in the Court of Appeal decision Boote v R.26 In that case, the complainants had been told that the defendant was the assailant by “multiple sources”, and then searched him out on Facebook. The Court of Appeal considered this was contamination of the evidence.27
[43] I consider the complainant’s response in cross-examination reconciles the seemingly inconsistent statements. He had told Constable Middleton at the time who he saw and how he knew Mr Linton. Several days after, he made a police statement in which he refers to a bar manager telling him who his assailant was. He explains in cross-examination that when he came to on the floor, Mr Linton was stomping on him and he gives reasons why he was 100 percent positive that it was Mr Linton, by describing his build and what he was wearing. He also was in close proximity to Mr Linton when he looked up into his face. I do not consider the inconsistency in his two respective oral and written statements to the police to be irreconcilable.
[44] Although the complainant heard the bar staff member call Mr Linton by his name, the description that the complainant gives and his familial reference to Mr Linton distinguishes this from both Harney and Boote, and removes any doubt that the complainant’s evidence may have been contaminated. I take into account that even if the bar manager had told the complainant that his assailant was Mr Linton, this does not contaminate the complainant’s immediate response to Constable Middleton at the time, nor his positive identification of Mr Linton during the hearing and the fact that he knew and recognised Mr Linton.
24 Harney v Police, above n 16, at [31]–[33].
25 At [31].
26 Boote v R [2013] NZCA 122.
27 At [38].
[45] Further, I am not persuaded that because of his concussion, the complainant’s identification evidence is unreliable. There was no evidence that the concussion or head injury had an effect on the complainant’s ability to recognise a person. I also do not consider that the consumption of two beers, as submitted by Mr Iorns, would make any difference to the complainant’s ability to identify someone he knew, particularly when he was capable of talking to Constable Middleton at the scene.
[46] Having considered the factors above and the identification of Mr Linton at the time of the incident, I find there was good reason for the police not to undertake a formal procedure and I am satisfied that Mr Linton has not proved, on the balance of probabilities, that the evidence is unreliable.
Judge’s approach to the evidence
[47] For completeness, I now deal briefly with Mr Iorns’ submission based on the comments in the Court of Appeal decision in Harney, that the Judge in a Judge-alone trial should either take two discrete steps (concerning the screening of evidence for admissibility and then adjudication) or make clear that the finding of guilt on the strength of identification evidence is based on the totality of the evidence relevant to that issue.28 Mr Iorns submits that here, it was not clear which approach the Judge took.
[48] In his decision, the Judge made a finding of guilt on the strength of identification evidence, based on the totality of the evidence relevant to the issue. He said:
[10] Despite cross-examination [the complainant] was adamant that he had seen Mr Linton whom he had previously known as the assailant, and his evidence also was that he saw the defendant, what he described as an aggressive face looking down on him as he lay on the floor. In those circumstances and despite the absence of evidence from any other of the very many people, both working or attending at the bar that day, I am satisfied that the police have proved identity beyond reasonable doubt. That being so it is very clear from the CCTV footage that after having taken [the complainant] to the ground the defendant then stomped on his lower body area at least three times before turning and walking, and being shepherded through the door by a somewhat startled bar staff.
28 Harney v R [2010] NZCA 264 at [36]-[38].
[49] The Judge’s finding accords with the following statement in the Court of Appeal:
[37] If a Judge presiding over a summary trial is satisfied in his capacity as the ultimate decision-maker, and taking into account the totality of the evidence, that the prosecution has proved the reliability of the identification beyond reasonable doubt, it must logically follow that the more limited inquiry as to admissibility has also been satisfied. …
[50] I consider that the Judge did not simply rely on the expression of confidence by the complainant in the identification he made, but in his past association with Mr Linton and the circumstances in which he described seeing him, including the detail of what he was wearing and the expression on his face at the time of the incident.
The s 126(3) caution
[51] Although the Judge did not expressly remind himself of the considerations outlined in s 126(3) of the Act, he expressly considered whether the identification had been reliable. He noted that Mr Linton was known to the complainant, and that the complainant had described seeing his face while he lay on the floor. This is in line with Nagel v Police, where the High Court noted:29
[19] It is correct that the Judge did not explicitly refer to [the equivalent of s 126]. However, he noted Mrs M’s concessions, and he set out the evidence relied on before accepting her evidence as to whether it was Mr Nagel she saw on the motorcycle. I am not persuaded that the Judge failed to exercise the requisite care as to the identification. I therefore reject this ground of appeal.
[52] I consider that there has been no error in respect of the Judge failing to expressly state he was aware caution was required when considering visual identification evidence. He was clearly alive to the issue that the identification may not be reliable as that was the basis of the defence case at trial. There is no “real risk” that a different outcome could have eventuated had the Judge explicitly directed himself on the possibility of a mistaken identity. The Judge clearly considered and outlined the basis on which he found the identification evidence to be compelling.
29 Nagel v Police [2014] NZHC 2962.
Conclusion
[53] There are six factors which satisfy me that the visual identification of Mr Linton by the complainant was admissible. They are in summary:
(a)there was no evidence that the complainant suffered mental incapacity following the attack such that his cognition was affected to the extent that he could not explain what he saw;
(b)the complainant gave a clear identification at the time to the investigating constable at the scene;
(c)the complainant’s omission to repeat what he said at the time two to three days later in a statement to the police was satisfactorily explained by the complainant at the hearing, that he had been told the attacker’s identity by a bar staff member as well as his own identification at the time;
(d)the defendant’s identification was confirmed, albeit by hearsay, from the bar staff worker who called Mr Linton by name in the complainant’s hearing;
(e)although the complainant was knocked unconscious and did not see who hit him, he stated several times in his evidence-in-chief and under cross-examination that he knew who was stomping on him because he “came to on the floor while [Mr Linton] was stomping on [him].”
(f)the constable’s notebook provides the detail of what the complainant described and is compelling evidence of the complainant recognising Mr Linton, whom he knew;
(g)the complainant’s evidence was not impeached at the hearing and his answer “I’m positive, 100% positive” that it was Mr Linton, was elicited in cross-examination and is unassailable.
[54] On a re-evaluation of the evidence, I am satisfied the Judge was correct in finding that the visual identification evidence by the complainant was admissible. Under s 45(1) of the Act, there was a good reason for the police not to follow a formal identification procedure, because the complainant recognised Mr Linton and identified him, and his evidence was reliable.
Result
[55]The appeal is dismissed.
Cull J
Solicitors:
Luke Cunningham & Clere, Wellington for the Respondent
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