Moulden v The Queen - [2017] NZCA 433

IN THE COURT OF APPEAL OF NEW ZEALAND

CA321/2016
[2017] NZCA 433

BETWEEN	GEORGE WILLIAM MOULDEN Appellant
AND	THE QUEEN Respondent

Hearing:	31 August 2017
Court:	Harrison, Duffy and Williams JJ
Counsel:	S J Gray for Appellant JEL Carruthers for Respondent
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.

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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…

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 Moulden v The Queen

Details

AGLC: Moulden v The Queen [2017] NZCA 433
Case: [2017] NZCA 433
Decision Date: 31 August 2017 at 4 pm

CaseChat Overview and Summary

The appeal in Moulden v The Queen was brought by the defendant, Moulden, against the Crown, represented by the Queen. The central issue in the appeal was the admissibility of visual identification evidence obtained through a photo montage, particularly focusing on the similarity-in-appearance standard as outlined in section 45(3)(b) of the relevant legislation. Moulden contested the admissibility of the photo montage, arguing that the individuals in the montage were not sufficiently similar in appearance to him, while the Crown argued that the similarities were adequate to comply with the statutory requirements.

The legal issues before the court revolved around the interpretation and application of section 45(3)(b) of the Evidence Act, which mandates that a formal procedure for obtaining visual identification evidence must include a comparison of the suspect with at least seven other individuals who are similar in appearance. Moulden contended that the individuals in the montage lacked sufficient similarity in appearance, particularly in terms of hair colour, facial hair, and lighting conditions, making him stand out. The Crown, on the other hand, argued that the individuals shared sufficient similarities in age, build, and facial hair, and that these commonalities were adequate for the purposes of the statutory requirement.

The court examined the statutory language and previous jurisprudence to determine whether the photo montage complied with the similarity-in-appearance standard. It held that the requirement was evaluative and fact-dependent, focusing on whether the montage avoided any material risk of predisposing the witness to select the accused. The court found that the images need only be similar, not identical, and that the police were not required to achieve the perfect lineup. After reviewing the evidence, the court concluded that the individuals in the montage were sufficiently similar in appearance to Moulden, and therefore, the photo montage complied with the statutory requirements.

The court upheld the admissibility of the visual identification evidence obtained through the photo montage. The appeal was dismissed, and the conviction of the appellant was affirmed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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].

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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