Morgan v Police

[2013] NZHC 2305

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000190 [2013] NZHC 2305

BETWEEN  CHASE SHERIDON MORGAN Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:                   5 August 2013

Counsel:                  D M George for the Appellant

W N Fotherby for the Respondent

Judgment:                5 September 2013

JUDGMENT OF DUFFY J

[Re Appeal Against Conviction and Sentence]

This judgment was delivered by Justice Duffy on 5 September 2013 at 3.00 pm, pursuant to

r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Solicitors:    Ministry of Justice (Public Defence Service), Auckland

Meredith Connell, Auckland

MORGAN v POLICE [2013] NZHC 2305 [5 September 2013]

[1]      The appellant, Chase Sheridon Morgan, appeals against his conviction and sentence on the ground that his conviction is founded on identification evidence that did not comply with the requirements for visual identification evidence in s 45 of the Evidence Act 2006. The appeal is opposed.

Background

[2]      Mr Morgan was charged with the offences of dishonestly getting into a motor vehicle, impersonating a Police Officer and demanding with intent to steal.   He pleaded not guilty to these offences and there was a defended hearing on 18 and

22 February 2013.   The charge of dishonestly getting into a motor vehicle was dismissed but he was convicted on the other two charges.  He was sentenced to six months’ home detention (the sentence was deferred until 7 July 2013, the date on which the sentence he was already serving for an unrelated matter terminated).

[3]      The  respondent’s  case  against  Mr  Morgan  was  that  after  sunset  on

8 May 2012,  he  together  with  another  offender  went  to  a  massage  parlour  on Mt Albert  Road,  Auckland.    They  drove  there  in  a  stolen  red  Honda  vehicle, registration number FWC567.  The principal offender, allegedly Mr Morgan, went to the door of the massage parlour, knocked on it and said “I’m Police”.   The identification witness (the witness) opened the door.   When the witness asked for some Police identification, the principal offender stated that he was a “hood” and mentioned the gang “Black Power”.   The principal offender then stated that he wanted $100 every week and that he looks after the area.   When the witness threatened to call the Police, the principal offender stated that she should pay him the money or he would come back, burn down the house and kill her.

[4]      The witness phoned the Police and informed the principal offender that she had done so.  The two offenders then ran out the door, and told the witness that they would be back.  They then drove off.  The witness was able to record the registration number of the vehicle, and she gave this to the Police.

[5]      Approximately three hours later, the same vehicle as was identified by the witness was found crashed and abandoned in Avondale.  The vehicle had been stolen

some time in April 2013 and the Police had recorded a stolen alert against the registration.  In the centre console of the vehicle, the Police found a partially full can of an alcoholic drink from which DNA of Mr Morgan was later identified.

[6]      The witness’s first interview and initial information pertaining to identity was given to the Police on the evening of 8 May 2012.

[7]      The drink can with the DNA was uplifted from the vehicle, which by then was in Police storage, on 9 May 2012.  On 28 May 2012, the swabs from the drink can were delivered to the ESR laboratory for analysis.   On 5 June 2012, DNA analysis concluded that the DNA from the can was Mr Morgan’s.

[8]      For unexplained reasons, the inquiry relating to the vehicle and the witness’s complaint about the impersonation of a Police Officer and demand for money was not picked up again until 19 June 2012 by Constable Skelton.   On 8 July 2012, Constable Skelton took a photo board montage, which included a photograph of Mr Morgan, to the witness’s address.  She pointed out Mr Morgan.

District Court decision

[9]      At the close of the respondent’s case, the defence made a “no case to answer” submission.   The defence also advised the Court that Mr Morgan would not be calling evidence.  The Judge dealt first with the no case to answer submission and then proceeded to determine whether the respondent had proved the charges.

[10]     The witness was a Thai national.  Although in giving evidence she had the assistance of a Thai interpreter, she was able to make use of the English language; the Judge described her understanding of English and ability to respond in that language as reasonably adequate.

[11]     The Judge recorded her description of the principal offender as being “a big man”, in her words “fat” and “not white”.   She gave his age as between 25 to 30 years old.  She recalled smelling alcohol on his breath.  She described the principal offender  as  wearing  a  hat  and  a  jacket,  which  the  Judge  concluded  (after  her

descriptions were given) was a typical patched gang member’s jacket.   The Judge noted that when the witness had queried the principal offender regarding identification, he turned around and showed her the patch on his jacket.   He then demanded protection money.

[12]     The Judge recorded at [16] that the witness acknowledged that she “could not observe or remember any particulars about the man’s face”, agreeing that his face was not easy to see.   The Judge also noted that on 8 July 2012, the witness had identified Mr Morgan from a photo board montage, which contained a photograph of him bearded.   She could not recall whether the man on the night in question was bearded.

[13]     The  Police prosecutor  invited  the witness  to  see whether she recognised anybody in the courtroom as the man in question.  Before defence counsel had an opportunity to object to this ordinarily impermissible form of identification evidence, the witness stated that she did not recognise anybody, saying that she “could not remember”.

[14]     At [21], the Judge noted that when cross-examined about the identification process, the witness admitted that she was not 100 per cent sure if that would be the person,  saying  that  she  could  not  tell  “…exactly  that  was  the  exact  guy…”. However, the Judge went on to say at [21] that:

... the reality is that it was the defendant that she did single out from the montage and that he is the person whose DNA was lifted from the can of drink in the car which was crashed and abandoned, perhaps three hours after the incident.

[15]     At [22], the Judge noted the various delays in the process of identification that defence counsel had identified, which were:

(a)      At or about 5 June 2012, Mr Morgan became a suspect when the ESR DNA match  was  made  almost  exactly  a  month  after  the  alleged incident;

(b)The Police had taken a DNA swab from the drinks can on 9 May 2012 and delivered it for analysis on 28 May 2012, which was some 19 days after the alleged incident;

(c)      Between 5 June 2012, the date of the DNA match being confirmed, and 8 July 2012 when the photograph montage was first placed before the victim, there was just over a one month delay.

[16]     The Judge noted at [23] that there were no explanations from the Police for the delays.   He acknowledged defence counsel’s argument that the identification procedure was not carried out “as soon as practicable” as required by s 45(3)(a) of the Evidence Act, and thus there was a failure to adopt a formal procedure as is provided for in s 45.  He also acknowledged, at [24], that proof of identification was the “sole factor for determination”, and reminded himself of the warning about the potential for identification witnesses to be mistaken that trial Judges are required by s 126 to give to juries.

[17]     The Judge directed himself to the test for admissibility of visual identification evidence in s 45 (which I will return to later), and found that the time delays were not so drawn out as to not comply with the “as soon as practicable” requirement for a formal identification procedure.  Having decided that the evidence had been properly obtained under a formal identification procedure, he found, at [31], that there was a case to answer whether the identification evidence was admissible.

[18]     At [32] and [33], the Judge identified the two remaining matters that he needed to consider to dispose of the case; namely: (a) was the identification evidence admissible; and (b) if so, did it prove identification beyond reasonable doubt.

[19]     The  Judge  noted  the  imprecise  nature  of  the  victim’s  description  of  the principal offender.   She could not describe any facial features of the principal offender.  Nor was she able to recognise Mr Morgan in Court as the person she saw on the night in question. The Judge also noted that a search of Mr Morgan’s property some time later did not produce any garments that conformed with the description of

the jacket typical of a patched gang member.  The Judge acknowledged that all of this did little to establish identification.

[20]     However, the Judge also noted at [35] that on 8 July 2012, the witness had chosen Mr Morgan from the photo montage board.  The Judge noted the witness was candid enough to tell the Court that she was not sure of her choice, “and so her choosing of Mr Morgan from the montage would be a singling out by resemblance more so than a firm and confident declaration of identification”.   The Judge considered that in such cases,  this evidence takes its place alongside  any other circumstantial evidence which may entitle the finder of fact to infer as pointing to the person charged; such other evidence here being the DNA match from the drink can: see R v Ismail [2010] NZCA 569.

[21]     At [36], the Judge set out his reasons for concluding that the respondent’s evidence satisfied him that Mr Morgan was the offender.   His summation was as follows:

(a)       The  witness  gives  a  description  which  is  consistent  with  the defendant (although not unique to him) in that he is a large man who is not Caucasian.

(b)       The Court accepts that the red Honda car that was found abandoned and crashed three hours after the incident at Mt Albert Road, was indeed the car that was at Mt Albert Road used by the suspects.

(c)       The witness described a large non-Caucasian man as the driver when the car left the address.

(d)      The defendant’s DNA on the can links him with the car that night.

(e)       The inference that gives rise to the observation above is strengthened by the defendant’s own admissions about being in the car and the drink can being his.

[22]     This all led the Judge to conclude that the defence had not shown on the balance of probabilities that the witness’s identification was unreliable.  He found, therefore, that the identification evidence was admissible and concluded that the combination of the identification evidence and the circumstantial evidence (presumably of the DNA on the drink can) was sufficient to support an inference that the issue of identity was proven, and thus the two charges were proven.

Approach to appeal

Appeal against conviction

[23]     An appeal against conviction is by way of rehearing.  Section 121(2) of the Summary Proceedings Act 1957 allows the High Court to confirm the conviction, set it aside, or amend it.

[24]     In coming to its own judgment, the appeal court should pay appropriate deference to findings made by a Judge who had the advantage of hearing the witnesses on questions of credibility, but it must nevertheless review the evidential basis for factual findings carefully: see O’Neill v Police HC Auckland CRI-2007-

404-405, 9 October 2008 at [5].

Appellant’s submissions

[25]     Mr Morgan appeals on two grounds:

(a)      Mr  Morgan  submits  that  the  Judge  erred  in  finding,  pursuant  to s 45(2)  of  the  Evidence  Act  2006,  that  a  formal  procedure  was followed and, therefore, the identification evidence was admissible. A formal   procedure   was   not   followed   because   the   attempted identification was not undertaken “as soon as practicable after the alleged offence [was] reported” and there was no good reason given for not following formal procedure.

(i)       Mr Morgan became a suspect on 5 June 2012, due to the DNA

evidence.   The  identification  procedure was  carried out  on

8 July 2012, just over a month after it first became practicable to undertake the procedure.  In cross-examination, the victim gave evidence that she had not changed address since 8 May

2012  when  she  gave  her  details.    She  would  have  been available   at   any   time   after   that   to   participate   in   the identification procedure.

(ii)The  suspect  could  have  been  identified  even  earlier  if  the Police had arranged for the DNA sample to be delivered to the laboratory more quickly after it was obtained on 8 May 2012. This delay was unexplained and contributed to the formal procedure not being carried out “as soon as practicable”.  As it was, the delay from the date of offence to the formal identification procedure was two months.

(b)Mr Morgan further submits that the Judge erred in finding that the prosecution had proved, beyond reasonable doubt, that Mr Morgan was the offender.

(i)The incident occurred at around 5.30 pm.  The victim stated in her examination in chief that the evening was “very heavy rain there and dark”, and confirmed in cross-examination that it was dark, raining, the offender’s face was not easy to see.  She could not remember whether he had facial hair.  She stated that she could not really remember what his face looked like because she was worrying about her friend.

(ii)      Even  at  the time of the identification  procedure on  8  July

2012, the victim was not sure about the identification.   She told the Police:

I’m not sure because a similar was high or tall or big, was similar.  But I told the Police I’m not sure because that day dark and being scary and being worried the friend” [sic].

(iii)     The victim was not able to identify the offender in Court on

18 February 2013 when asked to do so.

Respondent’s submissions

[26]     The respondent submits that:

(a)       The formal procedure was carried out “as soon as practicable” after

the offending was reported.

(i)It  was  not  directly  put  to  Constable  Skelton  in  cross- examination that it would have been practicable to act  any earlier.  Given this, the Court should be slow to draw negative inferences of the conduct of Constable Skelton.

(ii)The focus of the “as soon as practicable” requirement is to ensure that the recollection of the witness is reliable.  It is not an invitation to criticise the steps taken by the Police in investigating the offending, or to argue that certain steps could have been done earlier with the benefit of hindsight.

(iii)The two month gap between the reporting and the formal procedure in this case is not outside the range of timeframes in analogous cases.

(b)The evidence is properly treated as “resemblance evidence” and not “identification evidence”, so a formal identification process was not actually required.

(i)As the District Court Judge accepted, because the witness here admitted that she was not sure if the picture she selected was the offender, she singled out the photo by resemblance, rather than as a confident declaration of identification.

(c)      The Judge was correct to come to a finding of guilt.  As well as the resemblance evidence, there was sufficient evidence adduced at trial to be added to the body of circumstantial evidence.

(i)       The victim described the offender as being “approximately 25

years of age and up”. The offender was 31 years old.

(ii)The victim advised that the offender was tall/around 185 cm tall.  Mr Morgan is 178 cm tall.

(iii)The can of “Cody’s” from which Mr Morgan’s DNA was taken was still one-third full when found by the Police, suggesting that the can and Mr Morgan were in the vehicle at the time the vehicle crashed and was abandoned, or shortly before.

(iv)The victim described the offender as smelling of alcohol at the time of offending.

(v)In his DVD interview, Mr Morgan admitted to knowing that the address at which the offending occurred was a massage parlour, having been to it previously,  and seemed to know individual members of staff.

Was the evidence of identification from the photo montage “visual identification evidence”?

[27]     Section 4 of the Act defines “visual identification evidence” as:

(a)       an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or

(b)       an account (whether oral or in writing) of an assertion of the kind described in paragraph (a).

[28]     In  Mahoney  et  al  The  Evidence  Act  2006:  Act  &  Analysis  (2nd  ed, Thomson Reuters, Wellington, 2010) at 28, the authors point out that the words “to the effect that a defendant was present …” in the definition of “visual identification evidence” may have been intended to include cases where the person making the assertion admits to some uncertainty about the identification. This seems reasonable, especially given that the courts have held that the confidence of the witness is a relevant factor to be taken into account when considering whether the circumstances of the identification are reliable: see Harney v Police [2011] NZSC 107, [2012] 1

NZLR 725 at [33]. The choice of Mr Morgan’s photograph from the photo montage, albeit with some expression of uncertainty as to whether he was the principal offender, amounts to a qualified assertion that he was the person the witness saw in this role. Thus, this evidence is clearly within the definition of visual identification evidence in s 4.

[29]     The admissibility of visual identification evidence is governed by s 45, which imposes statutory criteria for the admission of this evidence.  Mr Morgan argues that the witness’s identification of him from the photo montage is visual identification evidence that did not comply with s 45 and, therefore, the Judge was wrong to admit it.  The respondent argues that this evidence meets the requirements of s 45, but that in any event, it was really resemblance evidence and not visual identification evidence, so no formal procedure was necessary.  The presentation of this aspect of the witness’s evidence as resemblance evidence is a new approach from that taken in the lower Court.   If accepted, this argument would mean that the evidence of the identification from the photo montage board could be admitted as resemblance evidence, without any need to satisfy the requirements of s 45.

[30]     The new argument based on resemblance evidence raises an interesting issue. The idea of treating the uncertain visual identification as no more than a further description of the principal offender, which is, therefore, more properly characterised as resemblance evidence is novel.  I doubt that the uncertain visual identification can be used in this way.  The first step, however, is to assess whether the evidence of the witness regarding identification from the photo montage board does satisfy the statutory tests for admission of visual identification evidence.  For if it does, there is no need to consider the respondent’s new argument.

Was the formal procedure observed “as soon as practicable” after the alleged

offence was reported?

[31]     Under s 45(1), if a formal procedure is followed by officers in obtaining the evidence of the alleged offender, or there was a good reason for not following it, the evidence  is  admissible,  unless  the  defendant  can  prove  on  the  balance  of probabilities that the evidence is unreliable.

[32]     Under s 45(3)(a), one of the requirements of a formal procedure is that the procedure “is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency”:

(3)      For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—

(a)       that  is  observed  as  soon  as  practicable  after  the  alleged offence is reported to an officer of an enforcement agency; and

(b)       in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and

(c)       in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and

(d)       in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and

(e)       that  is  the  subject  of  a  written  record  of  the  procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

(f)       that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

(g)       that complies with any further requirements provided for in regulations made under section 201. (emphasis added)

[33]     In the District Court, the Judge found (at [28]) that the significant date for the assessment under s 45(3)(a) was 5 June 2012, being the date on which the there was identification of a suspect via the DNA match.  He acknowledged that the 19 days that it took to deliver the swab to the laboratory could have been shortened, but that, in the circumstances, the delay was not “outside the realms of the reasonable and feasible”.  In saying this, he relied on Malone v R [2010] NZCA 59.

[34]   The Judge noted that there was no explanation for the delay between identification by DNA on 5 June 2012 and the presentation of the photo montage on

8 July 2012.  However, because the delay of just over a month was not outside the

periods allowed in what he considered to be analogous cases, he concluded that the procedure had been carried out properly.  He stated at [30]:

The  delays  do  not  lie  distinctively  outside  of  the  periods  which  were assessed in the cases mentioned and alongside those cases the delays in this case really attract little attention in my view, and I concluded a formal procedure has been embarked upon properly.

Relevant cases

[35]     In Malone v R, there was a delay of over two months between the date the alleged offence was reported to the Police and the date on which investigations focused on a particular subject.  A security guard observed the suspects on 8 March

2009 and their images were captured on CCTV footage.   On 14 May 2009, their images  were  posted  on  internal  Police  bulletin  boards.    On  15  May  2009,  a Police Officer recognised one suspect as Mr Malone.  On 20 May 2009, the formal identification procedure was carried out.

[36]     Mr Malone argued that as soon as the Police received the CCTV footage, they should have sent it to the Police photography section for extraction of still photographs.   The Police said that the delay had been caused by difficulties in obtaining a correctly formatted disc of the photography from the camera.

[37]     The Court considered that the expression “as soon as practicable” means that

(at [19]):

the formal procedure must be carried out as soon as it is feasible to do so in the circumstances. This involves issues of practicality and may involve consideration of available means and resources.  (emphasis added)

[38]     The Court held that s 45(3) had been complied with by the Police.  The Court found that it is the date at which the suspect is first identified by name that will usually be the point when the time starts to run when it comes to making the “as soon as practicable” assessment:

[13]     ... the scheme of s 45 proceeds on the assumption that there is a person identified as a suspect. In the absence of an identified suspect, there would, at least in most cases, be no photograph available for the purposes of a photo montage and no person available for an identity parade. The section is consistent in its use of the expression “visual identification evidence of a

person alleged to have committed an offence” in s 45(1) and (2) and the expression “the person to be identified” in s 45(3). It follows that, although the period of time referred to in s 45(3)(a) runs from the date the alleged offence is reported to the police, the date at which the person is identified by name as a suspect will often be the first time at which it will be practically possible to carry out the formal procedure under s 45(3).  (emphasis added)

[39]     However,  the  Court  recognised  that  where  Police  enquiries  could  have resulted in them learning of the suspect’s identity sooner, this may affect the assessment’s start time:

[17]    ... There may be exceptional cases where it is obvious that straightforward inquiries by the police could have revealed the name of the suspect  earlier  but,  in  general,  the  assessment  of  practicability  under s 45(3)(a) should not require detailed examination of the steps taken by the police to identify a suspect by name.  (emphasis added)

[40]     In Malone, the Court was satisfied that this was not a case where the Police could have identified the suspect earlier on, and so the Court found that the procedure was undertaken as soon as practicable after the offence was reported (at [20]):

Viewed in hindsight, it might be said that the CCTV footage should have been referred to the police photography section soon after it was received on

18 March... However, given the difficulties experienced initially in downloading  the  material  and  the  decision  to  obtain  further  technical

assistance through the school, we do not consider that the delay in that period was unacceptable or unreasonable. A key fact is that the applicant was not identified as the suspect until 15 May and the formal procedure could not
have been carried out before that time. In the event, it was carried out five days after that point and we are satisfied it was carried out as soon as

practicable in terms of s 45(3)(a).

[41]     In Ah Soon v R [2012] NZCA 48, the Court held that a breach of s 45(3)(a) had occurred where there had been respective delays of six weeks and three months before the two identification witnesses were shown a photo montage. At [19], the Court rejected the submission that there was a lack of Police resources:

The investigation of this matter was not unusually complex and the identification issue required the resources of only one officer. The delay of six weeks until Ms R carried out the identification was not adequately explained and no adequate foundation laid for the suggestion that lack of resources caused the delay. Practicalities are a relevant consideration, but the excuse of lack of resources cannot be taken too far having regard to the purpose of the safeguards in s 45(3).

[42]     In Fukofuka v R [2012] NZCA 510, there was a five month delay between the offence and the formal identification procedure. At the interview on the day of the offending, the victim only gave a description of an offender; the Police did not have a name. The Court accepted that they were, therefore, not in a position to make a photo montage. Four months after the offence, the first attempt at a montage was made. It was unsuccessful, but at that point the victim mentioned that the offender had attended a tertiary education institute with him some time ago. The Police made “relatively speedy enquiries” (at [16]) and, a month later, were able to present a second montage, which was successful. Relying on Malone, the Court was satisfied that  the  Police  had  complied  with  s  45(3).    This  decision  has  recently  been overturned by the Supreme Court, but on the basis of the trial Judge’s summing up to the jury: see Fukofuka v R [2013] NZSC 77.

[43]     In Tahitangatatarei v R [2013] NZCA 293, the Court stated (at [28]):

We see no need for the Courts to interpret the words in s 45(3)(a)“as soon as practicable”. They are ordinary, readily understood words. It is best that they be left unvarnished, to be applied in the circumstances of each case. Yet at least two cases have sought to explain these words. In one, Harney v Police, the Supreme Court said the formal identification procedure “should take place during the investigation or soon after an arrest”.

[44]     In Tahitangatatarei, there was a delay of three and a half weeks between the offence and the formal identification procedure.  The Court held that s 45(3) had not been breached.   First, the Police were continuing their investigations into the appellant’s involvement in the offending up to the date when they obtained the texting data from the appellant’s cellphone, which implicated her in the incident (see [28]).   Secondly, the case was distinguishable from the three month and six week delays in Ah Soon, for which the Police had provided no reasonable explanation (at [30]). Thirdly, the contention that the identification procedure was not carried out as soon as practicable had not been put to the officer in charge.

[45]     In Soon v Police [2013] NZHC 198, the defendant was not a nominated suspect until over two months after the fraud. The usual identification procedure was carried out just eight days later. Asher J stated that the defendant had not pointed to any evidence that showed the identification should reasonably have taken

place at an earlier date.   He held that the eight day delay after identification of

Mr Soon as a suspect was not excessive.

Analysis

[46]     The two key periods of delay here are:

(a)      The 28 day (one month) delay between the offending on 8 May 2012 and the identification of Mr Morgan as a suspect on 5 June 2012; and

(b)The 33 day (over one  month) delay between the identification of Mr Morgan as a suspect on 5 June 2012 and the formal identification procedure on 8 July 2012.

[47]     In my view, the formal identification procedure did not take place “as soon as practicable” after the alleged  offence on  8  May 2012  was  reported.    Unlike in Malone, no good reason has been offered for the delay in the investigations.  Here, in terms of what was said in Malone at [17], it is “obvious that straightforward inquiries by the Police could have revealed” Mr Morgan’s name earlier.

[48]     First, the DNA swab was gathered just one day after the offending.  There is no reason why it could not have been immediately handed into the ESR for testing. There is no explanation from the Police as to why it took 20 days before the swab was delivered to the ESR for testing on 28 May 2012.  The results were available by

5 June 2012, which shows how quickly the presence of Mr Morgan’s DNA could

have been discovered, if prompt action were taken.

[49]     The circumstances of this case are unlike those in Fukofuka, where it was accepted that immediately after the offending, the Police were not in a position to identify the suspect.  Here, the raw data was available to the Police shortly after the incident occurred.

[50]     As the vehicle used in the incident had been stolen, there was a stolen alert registered against it.  Since the witness at the massage parlour incident had given the Police the registration number of the vehicle, it should have been relatively easy for

the Police to connect the vehicle at the incident with the stolen vehicle recovered later  that  evening  in Avondale.    The  Police  Officer  who  gave  evidence  at  the defended  hearing  acknowledged  there  was  a  stolen  alert  recorded  against  the vehicle’s registration number and that it would have been obvious to the Police who recovered the crashed vehicle that it had a stolen alert on it.   The Police gave no evidence regarding the time that it took for them to link the recovered stolen vehicle with the incident at the massage parlour in Mt Albert.  Thus, there is no explanation for any delay in connecting the vehicle with the two incidents that day, if there was such delay in the first place.

[51]     Furthermore, no explanation was offered for the delay that followed the DNA identification of Mr Morgan.  In Tahitangatatarei and Soon, although there had been significant delays between the time of offending and identification of the appellant as a suspect, once such identification had taken place, the formal procedure was carried out relatively swiftly (on the same day in Tahitangatatarei and eight days later in Soon).   Here, there is the additional delay between 5 June 2012 and 8 July 2012. This case is analogous to Ah Soon.  The delay has not been adequately explained and a lack of resources cannot be blamed for the delay.  The information that identified Mr Morgan as a suspect was easily and readily available to the Police.

[52]     It  needs  to  be  remembered  that  there  is  a  good  reason  for  Parliament stipulating that the formal procedure is to be carried out as soon as practicable.  That is because memory recall is more likely to be accurate if fresh.  The longer the delay between the time of the offence and the formal procedure, the greater the likelihood that a witness’s memory is less accurate.   Obviously, the closer the connection in time between when a witness views an offender at the incident and then identifies him or her from a photo montage, the better.  At times, insufficient information will mean the Police cannot know enough about the offender to identify him or her in order to prepare a photo montage.  But when the Police have the means of obtaining this information readily available to them, they should act promptly to ensure the identification procedure happens as close as possible in time to the incident.

[53]     Here, the delay between obtaining the DNA results on 5 June 2012 and the visual identification from the photograph montage on 8 July 2012 is borderline.  But

when it is added to: (a) the delay between the taking of the swab on 9 May 2012 and its delivery to the ESR on 28 May 2012, and (b) the absence of any explanation as to why the connection between the registration number of the vehicle used in the incident and the stolen vehicle the Police found later that same night (and from which the DNA swab was taken) was not readily made, it becomes clearly apparent that the overall delay was excessive.  This means that the formal procedure was not carried out as soon as practicable, and the requirement in s 45(3)(a) has not been satisfied.

Was there a good reason for not following the formal procedure?

[54]     Under s 45(2), if a formal procedure is not followed, the next question is

whether there was a “good reason” for not doing so.

[55]     Section 45(4) sets out a list of “good reasons” for not following a formal procedure:

(a)       a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):

(b)       the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):

(c)       a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure:

(d)       no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:

(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 was reported and in the course of that officer’s initial investigation:

(f)       if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.

[56]     This list is non-exhaustive: Harney v Police at [25].

[57]     None of the reasons listed in s 45(4) are applicable to this case.   From the facts given, it does not appear that the Police had any good reason for not carrying out a formal procedure “as soon as practicable” after the offence was reported.  Nor did they attempt to argue to the contrary.

Did the circumstances in which the identification was made produce a reliable identification?

[58]     I have found that the formal procedure was not followed and that there was no good reason for not following it.  Under s 45(2), the effect of these findings is that the visual identification evidence is inadmissible, unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced  a reliable identification.    I now  turn  to  consider this  proviso  in s 45(2).

Relevant cases

[59]     In R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [112], the Court of Appeal held that the factors to be considered in this inquiry include both factors internal to the witness (such as eyesight, state of sobriety, prior knowledge of the alleged offenders and opportunities for memory distortion) and external factors (such as the state of the lighting, distance and any obstructions to the view).

[60]     The  Court  in  Harney  v  Police  confirmed  that  the  factors  identified  by Lord Widgery CJ in R v Turnbull [1977] 1 QB 224 (CA) at 228 (now known as the Turnbull factors) are also relevant:

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?

[61]     The confidence with which the witness made the identification must also be treated as a circumstance under s 45(2).  In Harney, at [33], the Court stated:

A judge should naturally be cautious about placing weight on this factor, even where the witness is someone accustomed to making observations like a police officer, but confidence cannot be completely disregarded. After all, the defence may want to have the judge take note of any hesitation by the witness concerning his or her identification of the defendant. If that is permissible, as it surely must be, then equally an expression of some degree of confidence cannot simply be put to one side. The reality is that they are opposite sides of the same coin and fine distinctions cannot be made in assessing the credibility of the witness depending upon the way in which the witness happens to indicate confidence or otherwise about the identification. The confidence with which the witness made the identification must accordingly be treated as one of the circumstances under both subss (1) and (2).

Analysis

[62]     In the District Court, the Judge considered the question of reliability of the identification within the broader question of whether identity was proved beyond reasonable doubt.  However, this was done in the context where, unlike in this Court, the Judge had found there was a formal procedure under s 45(1).  This is the correct approach to take under s 45(1), when the Court has held that a formal procedure was followed.

[63]     However,   corroborating   evidence   going   to   identity   is   irrelevant   in determining reliability when s 45(2) is engaged.  In that subsection, the focus is on the reliability of the circumstances of the identification.  Therefore, when deciding if the prosecution has discharged its burden under s 45(2), the Court cannot take into account the strength of the other evidence in the case: R v Edmonds at [115].

[64]     On the circumstances of the identification, the Judge in the District Court acknowledged that there was “little to establish identification” (at [35]).  At [34], the Judge noted that:

[t]he identification witness could do no more than describe in broad terms features of appearance that could apply to any number of men in the community – such as a big man (fat).  – not white – wearing a hat, might or might not have had a beard -.  wearing a jacket which was clearly displayed as a gang jacket.

[65]     Further, at the time of the incident, it was dark.  The witness had never seen the principal offender before.   She said that the principal offender’s face was not easy to see, and she could not observe or remember details about his face.   The photograph montage had a photograph of Mr Morgan, which showed him with a beard.  The witness’s description of the principal offender did not describe him as bearded.   She said she could not see his hair, as he was wearing a hat.   In her evidence to the Court, the witness expressed some reservations about the identification  of  the  principal  offender.    This  shows  that  her  confidence  in  her memory was low.

[66]     Accordingly, I am not persuaded that the prosecution has proved beyond reasonable doubt that the circumstances in which the identification was made are reliable.  Thus, the visual identification evidence is inadmissible pursuant to s 45(2). It should, therefore, be put to the side.

Should the visual identification evidence be excluded altogether?

[67]     The findings I have made regarding non-compliance with s 45 mean that the visual identification evidence is not admissible under that provision.  Ordinarily, this would be enough to have this evidence excluded altogether.   However, here, the respondent argues that it can be admitted under the cover of resemblance evidence.

[68]     As  the  respondent  noted  in  its  submissions,  there  is  now  an  accepted distinction between identification evidence and resemblance evidence.  In R v Turaki [2009] NZCA 310, the Court of Appeal held that description evidence (how a witness describes the defendant) is a form of “resemblance evidence” forming circumstantial evidence of identification, rather than direct visual identification evidence. It is merely evidence that a person shares certain features or attributes in common with the defendant. It does not come within the definition of “visual identification evidence” in s 4 and, therefore, the s 45 procedure is not required.

[69]   In R v Ismail, the Court confirmed that when the Crown is offering “resemblance” evidence (in the form of an eyewitness’s description to the Police of the characteristics of the offender), admissibility does not depend on s 45’s controls

on visual identification evidence.  This is because resemblance evidence “is merely circumstantial evidence; a description that the finder of fact may or may not infer matches the person charged” (at [16]).

[70]     This distinction was also applied in Deo v R [2012] NZCA 484, [2013] 1

NZLR 45. At [18] and [23] the Court stated:

The  difficulty  facing  Mr  Speed  on  this  aspect  of  the  case  is  that Mr Williams-Spiers did not purport to identify Mr Deo at any stage. Rather, he described the driver of the van as best he could. The Crown submitted that the description that Mr Williams-Spiers gave was consistent with the driver being Mr Deo. Accordingly … Mr Williams-Spiers' evidence was description or resemblance evidence and was circumstantial evidence of identification rather than direct visual identification evidence.

...

As we have said, Mr Williams-Spiers did not purport to identify Mr Deo as the person he saw from the  driver's  seat  of the van.  Rather, he  gave  a description of the driver and the Crown invited the jury to conclude that it was Mr Deo on the basis of that and other circumstantial evidence. The jury was told that Mr Williams-Spiers had been unable to identify Mr Deo from a photo montage, and defence counsel made much in his cross-examination and closing address of the discrepancies between Mr Williams-Spiers' description and the appearance of Mr Deo and of the limited opportunity for observation   that   Mr   Williams-Spiers   had,   given   the   circumstances. (emphasis added), (footnotes omitted)

[71]     Here, the witness gave a description of the characteristics of the offender to the Police on the day of the incident, which is clearly resemblance evidence. However, unlike in Turaki, Ismail and Deo, the witness here also chose a photograph from the montage and identified that person as the offender, although she qualified her  choice  with  comments  that  she  was  not  sure.    The  issue  is  whether  this photograph can also be admitted under the cover of resemblance evidence.

[72]     That the identifier of Mr Morgan from the photo montage has failed the s 45 criteria for admission must mean that this evidence is unreliable.   The purpose of s 45 is to ensure that evidence that is advanced as visual identification evidence is reliable.  Ordinarily, reliability of evidence is left to the finder of fact to determine. But visual identification evidence is somewhat unique.  The inherent problems with identification evidence by persons who are strangers to a defendant, and the risk that it may lead to a miscarriage of justice has long been recognised: see R v Turnbull.

So in enacting s 45, Parliament has provided a series of statutory tests and considerations to wean out the more doubtful forms of visual identification evidence before the finder of fact comes to consider it.

[73]     Further  recognition  of  the  potential  unreliability  of  visual  identification evidence and the risks that it carries can be seen from the requirements imposed by s 126.  This provision requires a judge to warn a jury of the special need for caution before finding the defendant guilty in reliance on the correctness of visual identification evidence.  The warning must include references to the fact that: (a) a mistaken  identification  can  result  in  a  serious  miscarriage  of  justice;  (b)  the possibility that a mistaken witness may be convincing; and (c) where there is more than one identification witness, there is the possibility they are all mistaken.

[74]     It is of course still open to the finder of fact to reject visual identification evidence  that  is  admitted  under  s  45  because  he  or  she  is  not  satisfied  of  its reliability.  In this regard, s 45 provides no more than a primary safeguard when it comes to assessing the reliability of visual identification evidence.  Of course, with summary prosecution, as was the case here, the Judge has to perform two roles: first, as the gatekeeper under s 45; and secondly, as the finder of fact.  So, it is necessary for him or her to bear in mind the two roles, and to ensure that each is performed in accordance with the law.

[75]     The approach that the respondent advocates is for evidence that has failed to meet the safeguards for reliability under s 45 to be nonetheless admissible as resemblance  evidence,  which  is  then  woven  together  with  other  resemblance evidence to support the inference that the defendant was the offender.   I consider that, in principle, to do this is wrong.   First, because there is too great a risk that unreliable evidence leading to identification, which carries all the risks that such evidence  has  been  recognised  to  bear,  will  be  used  to  strengthen  the  other resemblance evidence to secure what could only result in an unsafe conviction. Secondly, it undermines the protections that Parliament has been so careful to enact so as to avoid this outcome.   Therefore, if visual identification evidence cannot satisfy the requirements of s 45, the inherent unreliability of such evidence means it

has very low probative value but, on the other hand, it its unfairly prejudicial effect on the proceeding is so high that it should be excluded altogether, pursuant to s 8.

Remaining evidence

[76]   Once the visual identification evidence is excluded, there remains the resemblance evidence and the DNA evidence.

[77]     The resemblance evidence is the general description of the principal offender that the witness gave to the Police on the day of the incident.  There are many large non-European men aged between 25 and 30 years in Auckland.   There is nothing remarkable about these characteristics.   That Mr Morgan satisfies this general description does little to advance the respondent’s case against him.

[78]     The Police made a search of Mr Morgan’s premises, but did not find the distinctive gang patch jacket that the witness described.   Nor did they adduce evidence of Mr Morgan being seen wearing such a jacket on another occasion. Thus, there is nothing to link him with the only distinctive aspect that the witness described about the principal offender.

[79]     There is also the evidence of Mr Morgan’s DNA on the can of alcoholic drink that was found in the stolen vehicle connected with the incident, and his admission that he was  in this vehicle.    In  addition, there is  the evidence of the principal offender’s breath smelling of alcohol.

[80]     When the available circumstantial evidence is taken together, the picture it presents certainly makes one highly suspicious about Mr Morgan being involved in the incident.  But that is all; it does not provide proof of Mr Morgan’s guilt beyond reasonable doubt.

[81]     The  vehicle  was  found  approximately  three  hours  later  in  Avondale,  a different suburb from Mt Albert where the incident occurred.  The can of drink was one-third  full.    These  circumstances  support  the  inference  that  Mr  Morgan  had

recently been in the vehicle, and he has admitted that.  But he denies association with the incident at the massage parlour.

[82]     Had the vehicle and the drink can been located shortly after the incident and in the same locality as the incident, it may have been reasonably open to infer that this showed that Mr Morgan was in the vehicle around the time of the incident. Taken together with his build, age and skin colour fitting the general description of the principal offender and the presence of alcohol being a common factor, these circumstances may have been enough to support the inference that Mr Morgan was the principal offender.

[83]     But  the  three  hour  gap  between  the  incident  and  the  Police  finding  the vehicle, as well as it being found in a different suburb, leaves open the reasonable possibility that Mr Morgan got into the vehicle some time after the incident, and that there was more than one large non-European man aged between 25 and 30 years old, who had consumed alcohol, in the vehicle that day.   These are general, non- distinctive characteristics that could be applied to many persons in Auckland.

[84]     Judges regularly direct juries that where there are two inferences of equal weight available to them, they should draw the inference most favourable to the defendant.   They are also directed not to speculate and not to fill in gaps in circumstantial evidence in order to arrive at their verdict.  If I were to conclude that the  general  resemblance  evidence,  coupled  with  the  DNA evidence  proved  that Mr Morgan was the principal offender, I could only do so by speculating that he and the can of drink must have been in the vehicle around the time of the incident.    I would have to disregard the reasonable possibility that at some later time when the vehicle had  left  Mt Albert,  he  entered  it  either with  a partly consumed  can  of alcoholic  drink  in  his  possession,  or  that  a  can  of  alcoholic  drink  was  readily available to him while he was in the vehicle and that he had opened the can and consumed some of the contents.   I can see no logical basis in the evidence for disregarding this possibility.

[85]     Moreover, given that the vehicle had been stolen since April 2013, there was opportunity for Mr Morgan to get into this vehicle before the incident.   It is not

beyond the bounds of possibility that Mr Morgan got into the vehicle, then left it some time before the incident but, in doing so, left his partly consumed can of drink behind in the vehicle’s centre console.  In this regard, it needs to be remembered that the charge against Mr Morgan of getting into a stolen vehicle was dismissed, so the evidence connecting Mr Morgan with this vehicle went no further than to show that at some time, he got into the vehicle. There is no evidence to suggest that he had any control over this vehicle, or that he had possession of it for any length of time.  The respondent argued that it would be unlikely for a partly full can of drink to be left in the centre console of the vehicle for any length of time.   However,  I disagree. Persons having control of a stolen vehicle may well be less fastidious about the state of its interior than might otherwise be the case.

[86]     In conclusion, I am left in the position where, inferentially, I cannot be sure that Mr Morgan was one of the occupants of in the vehicle at all the material times and was the principal offender.   Consequently, I find that the prosecution cannot prove beyond  reasonable doubt  that  the principal  offender was  Mr Morgan.    It follows that the appeal should be allowed and the conviction set aside.

Result

[87]     The appeal is allowed. The conviction and sentence are set aside.

Duffy J