Moulden v The Queen
[2017] NZCA 433
•31 August 2017 at 4 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA321/2016 [2017] NZCA 433 |
| BETWEEN | GEORGE WILLIAM MOULDEN |
| AND | THE QUEEN |
| Hearing: | 31 August 2017 |
Court: | Harrison, Duffy and Williams JJ |
Counsel: | S J Gray for Appellant |
Judgment: | 31 August 2017 at 4 pm |
Reasons: | 2 October 2017 |
JUDGMENT OF THE COURT
AThe application for leave to adduce further evidence is granted.
BThe appeal against conviction is allowed.
CThere will be no order for a retrial.
____________________________________________________________________
REASONS OF THE COURT
(Given by Williams J)
At the conclusion of the hearing in this appeal, this Court issued a results judgment allowing the appeal against conviction with no order for a retrial.[1] These are our reasons.
Introduction
[1]Moulden v R [2017] NZCA 385.
Following a trial before a jury in the Manukau District Court, the appellant George Moulden was found guilty of aggravated burglary and aggravated assault. He was convicted and sentenced to two years and 11 months’ imprisonment.[2] Mr Moulden appealed against his conviction only. By the time his appeal was heard and allowed he had served over a year of his sentence.
[2]R v Moulden [2016] NZDC 11580.
The charges related to the burglary of a house in South Auckland and a subsequent brief confrontation between the burglar and neighbours on the street a short distance from the burgled property. The key evidence at trial was visual identification evidence given by three witnesses. No other evidence connected Mr Moulden to these events. The issue in this appeal is whether admitting that evidence caused justice to miscarry.[3]
Background facts
[3]Criminal Procedure Act 2011, s 232(2)(c).
A house in South Auckland was burgled on the afternoon of 21 November 2014. The usual occupants were not at home at the time. A Pākehā male of slim build was seen leaving the immediate vicinity as the house security alarm at the property sounded. Two neighbours from across the street and a gardener from down the road confronted the man. The man presented a knife, threatened the gardener, and then ran off.
Another neighbour was driving home when she saw the same man as he was about to step out onto the road. She passed him but maintained sight of him in the rear‑view mirror. After arriving home she peered out one of the windows of her house and saw the man running down her street away from her looking backwards as he ran.
Each of those four individuals viewed a photo montage containing a photograph of Mr Moulden about a week and a half later. Three identified Mr Moulden. One could not make any identification with confidence.
Mr Moulden was represented by Mr Tait in the District Court. Despite the apparent deficiencies in the identification process undertaken by the police and the absence of other evidence implicating Mr Moulden, there was no pre-trial challenge to the admissibility of these identifications. The omission is inexplicable. And while the reliability of the identifications was put in issue at trial, Mr Moulden neither gave nor called evidence in his defence.
It is necessary then to summarise briefly the identification evidence given at trial.
The Fyns
Thea and Carl Fyn lived across the road from the subject property. Mrs Fyn said she heard an alarm sound from the house opposite and went to investigate. She phoned the owners as she went. She saw a man coming out of the subject property and approached him. She asked what he was doing and sought his name. At this point she said he was standing less than an arm’s length from her. The man responded with a dismissive comment and then pushed past her. She hung up on the owner and called the police.
In her evidence-in-chief, Mrs Fyn described the man as:
European, … fair skinned, blue eyes, probably my husband’s [height] about 5’ 9” … and fit, he was slim build, wore a hoodie, a dark coloured hoodie and dark pants and he had a backpack on his back here, and he had his hoodie over his head too, … like I could just only see his face.
Mrs Fyn said the man had no noticeable facial markings. She said the hoodie had long sleeves and she could see no tattoos.
Mrs Fyn then confirmed that she had identified Mr Moulden from the photo‑montage procedure carried out with the police nine days later. Mrs Fyn also confirmed that she told an officer that Mr Moulden “looks old without his hoodie” when asked whether she had any additional comments.
When the alarm sounded Carl Fyn had followed his wife across the road but at some distance behind her. He described the man he saw as sharing his own height of 5 feet and 9 inches. Mr Fyn said that at one point the man’s hoodie came off and he saw that he had short hair.
Mr Fyn then described a brief exchange between the three of them after which the man walked off.
When he undertook the photo montage procedure, Mr Fyn was unable to identify the offender although he initially identified a different male before crossing that selection out.
Lance Babich
Lance Babich was doing contracted gardening work at a property adjoining that of the Fyns when he too heard the alarm sound at the subject property. After a short time he saw the Fyns walking across the road to confront “a gentleman walking down the driveway” of the subject property. Mr Babich said he too crossed the road to offer support to the Fyns’ efforts.
As the Fyns challenged the man, Mr Babich said he echoed their challenges. He said he positioned himself to block the man’s intended escape path. Mr Babich described his own actions towards the man as getting “in his face”. The man then pulled a knife out and said to him “I have a knife”, before walking and then running away. Mr Babich said he chased the man but could not catch him.
Mr Babich described the man in evidence as: “European male, … fair hair, probably 40s, 50s, 5’10” slight build.” He further described the man as having tapered shoulders rather than the strong, straight shoulders of a normal man. Mr Babich affirmed that he had also described the man’s hair as “fair to salt and pepper with a wave in it”.
Mr Babich described a tattoo “going down the [man’s] left arm and stopping about 5 cm after the elbow”. He could provide no particular description of the tattoo beyond that and he acknowledged he was not focusing on that aspect at the time, but on the man’s eyes. He added that the sleeves of the man’s blue zip-up hoodie were pulled up to the elbow causing the surplus material to droop down over the elbow. This rendered the tattoo only partially visible.
When he undertook the photo montage procedure 10 days later, Mr Babich identified Mr Moulden. He noted in writing on the form that the perpetrator had shoulders with a rounded effect but that was not visible in the picture. During his examination at trial Mr Babich affirmed he had put to one side his concern about the shoulders and instead concentrated on the facial features of the men in the montage.
Melissa Snowden
Melissa Snowden lived in a nearby street and was driving home when she noticed a man about to step out onto the road. She particularly remembered the man because it was a hot day and he appeared incongruously to be wearing dark heavy clothing and boots. She said he was out and about at a time when the streets in the area were usually deserted. The man stepped onto the road without looking and nearly walked in front of her car, so she took particular notice of him.
She said she drove past the man but kept sight of him in her rear-view mirror. And when she arrived home she peered out the window of her daughter’s room to see the man running very fast down her street while looking behind him the whole time.
Ms Snowden said the man was a Caucasian with sandy‑coloured hair who stood about six feet tall. She said he was wearing a grey hoodie with an open zip‑front and a blue t-shirt with yellow writing and a yellow picture. She said she noticed no tattoos because only his face was exposed — she did not recall the sleeves of the hoodie being pulled up.
When undertaking the photo‑montage procedure with the police nine days later, Ms Snowden identified Mr Moulden: “I saw him running past my address going to the walkway. … I saw before the incident and after I got a good look at his face.”
Additional evidence
On appeal Mr Moulden sought leave to call the additional evidence of himself and that of a law clerk, Evelyn Chuk, who visited him at Auckland South Corrections Facility on Monday 24 July 2017.
Ms Chuk’s evidence related to her observations of Mr Moulden’s appearance. She said he had grey/green eyes and a tattoo on his upper left arm at shoulder level. The tattoo would be concealed if a t-shirt was worn. She deposed that Mr Moulden does not (as suggested by Mr Babich) have a tattoo on his left arm which stops about 5 cm after the elbow. Indeed he has no tattoo on his left forearm at all. It is covered in scars. She noted further that the prison officer at the Auckland South Corrections Facility measured Mr Moulden’s height while she observed the process. The measurement was 173 cm or 5 feet 6.8 inches. She described Mr Moulden as having a scar above his left eye and a scar on his upper forehead with blemishes extending the left side of his face down his neck.
Meanwhile Mr Moulden in a brief separate affidavit confirmed Ms Chuk’s observations of his height and eye colour. He confirmed further that he had a tattoo on his upper right arm and no tattoo on his left forearm.
In response, the affidavit of Constable Cockerell was filed. He deposed that he had knowledge of Mr Moulden from his general duties, whom he described as follows:
[A] European male in his 40s. He had had various hairstyles — sometimes he has a shaven head, sometimes he has short hair, and sometimes he has coloured hair. He also sometimes has facial hair and other times none. He is of slim to medium build, slightly gaunt looking, looking older than what he really is, and slightly taller than me (I am 176 cms tall).
The officer then summarised the biodata available on the National Intelligence Application (NIA). It records that Mr Moulden is a European male of medium build, 43 years old and 177 cm tall, which is about 5 feet and 8 inches. The officer explained that the height stored in the NIA is measured during processing in the custody unit against a measuring marker on the wall while shoes are removed. The officer further deposed that the NIA records that Mr Moulden has a tattoo on his upper right arm “being a wild animal or cat or panther”, another on his upper left arm “being a myth/legend or Grim Reaper type figure” and a third of a “weapon or a sickle or something similar also on his upper left arm.” According to the NIA his eyes are light green.
It cannot be said that this evidence in relation to Mr Moulden’s appearance is fresh and could not have been obtained for trial with reasonable diligence. That is a problem. Diligent counsel would have ensured that evidence in relation to Mr Moulden’s actual height, eye colour and tattoo configuration was before the jury in some form. Nonetheless, even evidence that could reasonably have been obtained at trial may be admitted if this Court considers there is a genuine risk of a miscarriage of justice if the evidence is excluded.[4]
[4]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
There are plainly important contextual inconsistencies between aspects of the descriptions given by visual identification witnesses and Mr Moulden’s actual appearance. We consider therefore that this new evidence should be admitted together with the Crown evidence in response.
Approach in this appeal
The ultimate issue for us is whether the admission of the visual identification evidence caused justice to miscarry.[5] As the visual identification evidence was the only evidence led by the Crown it must follow that justice will have miscarried if that evidence was inadmissible; without it, the prosecution had no case against Mr Moulden. Determination of that question will be the beginning and end point of our inquiry.
Section 45 of the Evidence Act 2006
[5]Savage v R [2015] NZCA 550 at [21].
There is no question that the evidence of Mrs Fyn, Mr Babich and Ms Snowden identifying Mr Moulden as the person they saw at the relevant time was visual identification evidence as defined in the Evidence Act 2006:
4 Interpretation
(1) In this Act, unless the context otherwise requires,—
…
visual identification evidence means evidence that is—
(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)
…
Section 45 therefore applies to govern the admissibility of visual identification evidence.[6]
Two standards
[6]See generally R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [129]–[140].
The admissibility standard in subs (1) of s 45 applies if a formal procedure of the kind undertaken in this case is followed provided it complies with the requirements of subs (3). Subsection (1) will also apply if there was a good reason for not following a formal procedure. In each of those two situations, visual identification evidence will be admissible unless the defendant is able to prove on the balance of probabilities that the evidence is unreliable.
In undertaking its reliability assessment, the Court is required to consider not just the circumstances of the identification itself but also any other evidence in the case relevant to the reliability of identification — that is, non-identification evidence tending to implicate or exclude the accused.[7]
[7]Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [32].
Here, there is no suggestion that there was a good reason for failing to undertake a formal procedure, so the issue is whether that which was done complied with the requirements of s 45(3).
In the event of non-compliance, the separate standard set out in subs (2) applies. Such identification evidence will be inadmissible unless the prosecution is able to prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
As this Court has consistently noted,[8] the subs (2) standard is a high one. Reliability beyond a reasonable doubt must be established but assessment is still a threshold exercise not a usurpation of the role of the jury as finder of fact. The word chosen in the subsection is “reliable”, not “accurate”.
[8]R v Edmonds, above n 6, at [107] and [137]; Ah Soon v R [2012] NZCA 48 at [29(a)].
The focus of that reliability inquiry under subs (2) is on the circumstances in which the identification was made. While this is not necessarily a narrow inquiry, recourse to the wider body of trial evidence in relation to the identity of the offender is not permitted.[9] Instead the relevant circumstances may be external (lighting or distance) or internal (for example the witness’ sobriety or eyesight). The circumstances of any non-compliant identification procedure undertaken will also be relevant. These may include factors such as delay, the quality of the montage and so forth, even though these matters will also have been relevant to the preliminary issue of compliance.
[9]Ah Soon v R, above n 8, at [29(c)].
As this Court noted in Ah Soon v R, the confidence of the witness in making the identification will be relevant but undue weight should not be given to it where the suspect is a stranger.[10]
A compliant procedure?
[10]At [29(d)].
The procedural requirements are as follows:
45Admissibility of visual identification evidence
...
(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 suspect is compared to no fewer than 7 other persons who are similar in appearance to the suspect; 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 suspect; and
(d) in which the person making the identification is informed that the suspect 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.
…
The standard challenged in this appeal is that contained in s 45(3)(b), which we have emphasised above. Ms Gray for Mr Moulden submitted that the other seven individuals in the montage were not sufficiently similar to him because he was the only person (a) with fair hair, (b) with noticeable facial hair and (c) who is illuminated. Ms Gray argued that these features made Mr Moulden stand out because the seven other images were of men who had dark hair, no visible facial hair and were not illuminated.
Mr Carruthers for the Crown submitted that the similarities in the images were more than sufficient to comply with the relevant requirement and that each male (a) was Pākehā and of a similar age, (b) had chin stubble, (c) was of a similarly slim build and (d) occupied a similar area of the frame. Mr Carruthers argued that, although five of the images had darker backgrounds, three images (including that of Mr Moulden) were against a light background. He disputed the submission that Mr Moulden’s hair was lighter in shade than others, and further argued that hair colour was not a particularly significant factor in the witnesses’ descriptions. Mr Carruthers argued that, taken overall, Mr Moulden did not stand out at all in the montage.
As this Court noted in Ah Soon, the similarity-in-appearance standard requires “a fact-dependent evaluative exercise”.[11] It will always involve a question of degree. The images need only be similar — not identical — and the police are not required to go to extraordinary or impractical lengths to achieve the perfect line-up. The guiding principle, as the Court noted, must be whether the photo montage successfully avoids any material risk of predisposing the witness to select the accused from the group of photographs.
[11]At [23].
In that case, Mr Ah Soon was a young Polynesian man. He had dark hair with distinctive blond tips. Each of the eight photographs included a young Polynesian man with dark hair in broadly similar style.[12] Two of the other images in the montage had blond elements in their otherwise dark hair, but none had the tips. This Court concluded that the images were too dissimilar to meet the standard in s 45(3)(b).[13]
[12]At [24].
[13]At [26].
We have viewed carefully the montage employed in the present appeal, considering at the same time Ms Gray’s criticisms and the Crown’s responses. We agree that the images contained in it are all of Pākehā males of slim build and roughly similar age. We also agree with the Crown that Mr Moulden is not the only one with facial stubble. There appear to be at least three others with obvious regrowth. Indeed one image (not that of Mr Moulden) depicts a male whose regrowth could properly be described as having advanced beyond mere stubble. We also agree with Mr Carruthers that five of the photographs have been taken against relatively dark backgrounds while three (including that of Mr Moulden) have light backgrounds.
But Ms Gray is correct to suggest that there is a sheen across Mr Moulden’s face that is not present even in the other two light‑background images. Mr Moulden’s face does unavoidably appear to stand out from the others. More significantly in our view, he is the only one with obviously fair hair. It might properly be described as a mix of fair or sandy and grey hair. None of the other images depict individuals with that hair colour. The other images are of men with significantly darker hair in our view.
Taking all of these factors into account, and considering the overall impression left, we find it difficult to avoid the conclusion that Mr Moulden’s image is materially dissimilar to that of the other seven images in the montage. We accept this is a question of degree, but the two elements of prominence and hair colour are too important in static visual images to be ignored.
We conclude that the formal procedure undertaken in this case did not comply with the requirements of s 45(3)(b).
Reliability
That conclusion means the standard in s 45(2) applies and it is for the prosecution to prove beyond a reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
Mr Carruthers submitted that the Court can be so satisfied. He referred to Ms Snowden’s evidence and said she took particular notice of the man because he nearly stepped out in front of her car and was wearing unusual clothing. She continued to view him in the rear‑view mirror even as she drove past. Further, Mr Babich confronted the man at close quarters and spoke to him. The man drew a knife and threatened him with it. Mrs Fyn also confronted the man at close quarters and spoke to him. These were not fleeting glances, but intense, close and focused observations. Further, Mr Carruthers submitted the montages were viewed within a short time — nine and 10 days later.
Despite these submissions, we are left with a reasonable doubt about reliability even as a threshold question. Mr Babich’s description of the individual having a tattoo on his left forearm is a significant departure from Mr Moulden’s actual appearance, even if Mr Babich accepted that he was not fully focused on the male’s forearm. Further, Mr Fyn who was involved in the same confrontation as his wife and Mr Babich, was unable to positively identify Mr Moulden.
Ms Snowden’s identification was confident, but undue weight ought not to be given to witness confidence in stranger identification. Indeed, common to all witnesses, was the fact that Mr Moulden was a stranger and the period of contact brief.
There was also some confusion in height estimates: Mr Moulden’s height was measured recently by a prison officer at 5 feet and 7 inches, while the Fyns both assessed the perpetrator’s height to be two inches taller, and Mr Moulden’s NIA biodata recited by Constable Cockerell recorded an intermediate height of 5 feet and 8 inches. Ms Snowden was an outlier in deposing her estimation of the man’s height to be 6 feet. These are not major variations, but they too are in the mix.
When these factors are combined with the suggestive effect of the montage, we are satisfied there is a reasonable doubt as to the reliability of the identifications. There is, in our judgment, a reasonable risk that the witnesses identified the wrong culprit and it was therefore unsafe for their evidence to go to the jury.
It follows that the identifications were inadmissible and the evidence should not have been led at trial.
While this ground was not raised on appeal, we add that our concerns about a miscarriage of justice are compounded by the way Mr Moulden’s defence was conducted at trial. Apart from the failure to apply for a pre-trial ruling on admissibility, trial counsel did not take the effective steps which were available to him to place before the jury either through an agreed statement of focussed facts or through the officer-in-charge all the objective and uncontestable evidence given by Constable Cockrell in this court of the dissimilarities between Mr Moulden’s physical characteristics and the identifying features highlighted by the Crown’s witnesses. Instead some of this evidence was elicited in fragmented and argumentative way which was likely to have confused rather than assisted the jury. And trial counsel’s closing address left much to be desired.
We conclude therefore that in this case Mr Moulden has established a miscarriage of justice.
Result
The application for leave to adduce further evidence is granted.
The appeal against conviction is allowed.
We make no order for a retrial.
Solicitors:
Crown Law Office, Wellington for Respondent
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