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…

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 Morgan v Police

Details

AGLC: Morgan v Police [2013] NZHC 2305
Case: [2013] NZHC 2305
Decision Date: 5 September 2013

CaseChat Overview and Summary

The appellant, Chase Sheridon Morgan, appealed against his conviction and sentence for impersonating a police officer and demanding with intent to steal, arguing that the conviction was based on identification evidence that did not comply with the requirements for visual identification evidence in s 45 of the Evidence Act 2006. The appeal was opposed by the respondent, New Zealand Police. The appeal court assessed the admissibility of the identification evidence and the reliability of the identification under s 45 of the Evidence Act 2006. The court found that the formal procedure was not followed as soon as practicable after the offence was reported, and there was no good reason for not following the formal procedure. The court also found that the prosecution had not proved beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification. The visual identification evidence was therefore inadmissible. The court held that the visual identification evidence should be excluded altogether, as it should not be admitted under the cover of resemblance evidence. Once the visual identification evidence was excluded, the remaining evidence did not prove beyond reasonable doubt that the appellant was the principal offender. The appeal was allowed, the conviction and sentence were set aside.

Orders