Nahu v The Queen

[2005] NZCA 181

IN THE COURT OF APPEAL OF NEW ZEALAND

CA75/05
CA89/05

THE QUEEN

v

FRIEND BENNETT NAHU
GLENDA JOAN WALSH

Hearing:23 June 2005

Court:O'Regan, Chisholm and Salmon JJ

Counsel:A M Courtney for Appellant Nahu

R B Philip for Appellant Walsh
J C Pike for Crown

Judgment:6 July 2005 

JUDGMENT OF THE COURT

A        Mr Nahu’s appeal against conviction is dismissed.

BMs Walsh’s application to appeal out of time is granted, but her appeal against conviction is dismissed.

REASONS

(Given by O’Regan J)

Introduction   

[1]        Mr Nahu and Ms Walsh were convicted after a jury trial in the District Court at Napier of one charge of injuring with intent to injure.  Both were sentenced to imprisonment for a term of two years nine months.  They appeal against their convictions.  In the case of Ms Walsh, her notice of appeal was filed a few days out of time but we grant leave to appeal out of time. 

Facts

[2]        The charges against the appellants arose from an incident which occurred in the early hours of 28 February 2004.  Prior to the incident the appellants and four others (the co-offenders Messrs Edmonds and MacNab, Mr Hudson and Mr Tolchard, a flatmate of Ms Walsh) gathered at Ms Walsh’s house.  There was a discussion of a debt owed to Ms Walsh by the victim.  Ms Walsh had provided sexual services to the victim a few weeks before, and had been paid only $80, instead of $400, which she said had been the agreed price.  The group travelled to the victim’s address.  Ms Walsh and Mr Tolchard remained in the vehicle while the other four were said to have entered the victim’s house, attacked him, and demanded payment.  They left the victim’s house with some of his property.

[3]        The appellants were charged along with Mr MacNab and Mr Edmonds.  However, Mr Edmonds pleaded guilty at the conclusion of the Crown’s evidence and Mr MacNab pleaded guilty at the conclusion of the Crown’s closing.  Both Mr MacNab and Mr Edmonds had made Police statements which incriminated Ms Walsh and Mr Nahu.  Evidence of their interviews was before the jury because their pleas of guilty came after the evidence had been given. 

Points raised on appeal

[4]        Mr Nahu appeals on the basis that there was a substantial miscarriage of justice resulting from the cumulative effect of the following matters:

(a)Non-disclosure by the Police of an interview with the complainant until during the trial;

(b)No identification parade being conducted in relation to Mr Nahu prior to the trial;

(c)Other ‘irregularities’ at the trial, including the late guilty pleas of Messrs Edmonds and MacNab and the conduct of the Crown witness Mr Tolchard which led to his being declared a hostile witness.

[5]        Ms Walsh appeals on the basis that the verdict was unreasonable, resulting in a miscarriage of justice, because of the cumulative effect of the following:

(a)The discrediting of the witness Tolchard by the trial Judge;

(b)The late guilty pleas of Messrs MacNab and Edmonds, which meant that their statements implicating Ms Walsh, which were not admissible against her, were before the jury.

The trial

[6]        Mr Tolchard was a Crown witnesss.  He had given a statement to the Police to the effect that he was at Ms Walsh’s house on the evening of 27 February and had driven Ms Walsh’s car from Ms Walsh’s house to the victim’s house in the early hours of 28 February.  He said that Messrs MacNab, Edmonds and Hudson were in the car, along with Ms Walsh and a Maori person who the Crown say was Mr Nahu.  When he gave evidence at trial, he said that the Maori gentleman had not, in fact, got into the car but had stayed at Ms Walsh’s house.  He was then declared a hostile witness by the trial Judge, Judge Rea and his earlier Police statement was put to him.  He said that he had told the Police that the Maori man had got into the car because he had wanted to get out of the Police station and had told the Police what they wanted to hear.  He acknowledged that he had told the Police officer that he had been introduced to the Maori man as “Friend”, but denied this in Court.  He accepted that he had said that a Maori man called Friend had been in the back of the car when they drove to the victim’s house, but he denied the correctness of that in his evidence in Court. 

[7]        The victim made a dock identification of Mr Nahu, having earlier given a detailed description of his attacker.  He said he recognised Mr Nahu as the person who had led the group that entered his house and assaulted him.  He described the Maori man, and also described a pendant hanging on a fine silver chain which he said the Maori man was wearing at the time.  The victim also identified Mr Edmonds and Mr MacNab in Court.

[8]        In her video interview with the Police, which was played in Court, Ms Walsh accepted that she had gone in a car with Messrs Edmonds, MacNab, Hudson, “Friend” [Mr Nahu] and Mr Tolchard to the victim’s address, that Messrs MacNab, Nahu, Edmonds and Hudson had gone into the victim’s house.  She said that she had stayed in the car with Mr Tolchard and that the four who went into the victim’s house returned 20 minutes later with a TV and a stereo.  However, she said that she had not expected them to assault the victim, and had told them not to do so.  Rather, she had simply told them to collect the debt which was owed to her and leave.

[9]        Prior to the trial the detective in charge of the case had shown to the victim the pendant which she had seized from Mr Nahu at the time of his arrest.  The victim was unable to identify the pendant: he thought that the one which he had seen on his assailant had been smaller, and attached by way of a silver chain, in contrast to the medallion  which had been seized from Mr Nahu which was on a leather thong.  The detective’s job sheet recording that exchange with the victim about the pendant had not been discovered before the trial.

Mr Nahu’s appeal

Non-disclosure of job sheet

[10]      Counsel for Mr Nahu, Ms Courtney, said that the non-disclosure of the interview relating to the pendant meant that this evidence came out unexpectedly at trial, and both the Crown and defence were caught by surprise.  She said that this was exacerbated by the fact that the detective had incorrectly said, in relation to the silver medallion being worn by Mr Nahu during the video interview:

There’s a little silver medallion there and the complainant in this matter has described that medallion to me perfectly as being worn by the person who punched him to the ground.

This was repeated later in the interview.

[11]      Ms Courtney said that non-disclosure of the statement and the fact that the medallion was not held by the Police meant that the jury was not given the opportunity of seeing the victim being shown the medallion (thus adding weight to the sketchy identification).  She said the jury may have put weight on the detective’s wrong allegation in the video interview.

[12]      Mr Pike said that the Judge had made a direction which put the whole pendant issue out of contention, and there was nothing to suggest his direction might not have been effective.

[13]      We accept Mr Pike’s submission.  The untrue statement made by the detective in the interview with Mr Nahu should not have been made.  But it did not lead to any admission being made by Mr Nahu.  The direction given by the Judge in relation to the pendant was clear in its terms.  The jury was told that the pendant “had no evidential value at all against Mr Nahu because having something that might be like something else is not good enough in the criminal law for identification purposes”.  He noted that the victim had not been able to identify the pendant and concluded that “there is no linkage between the pendant and anybody involved in this.  So again be careful of areas such as that”.

[14]      In our view the direction was unequivocal and there is no reason for us to conclude that the jury did not follow it.

No identification parade

[15]      Ms Courtney was also critical of the fact that no identification parade was conducted prior to Mr Nahu’s trial.  She said that this meant that the only identification evidence before the jury was the dock identification, and this was unreliable in the absence of strong supporting evidence.

[16]      The detective in charge of the case said in evidence that she had personally wished to conduct an identification parade but that she had been directed not to by a superior.  The victim said in evidence that he had been told not to worry about an identification parade and that he thought that the Police thought that there had been a bit of time that had gone by (since the incident) and that he may not recognise Mr Nahu.  The detective in charge also gave the length of time between the event and the time at which an identification parade could have been held as being too long as the reason for not conducting such a parade.

[17]      Mr Pike argued that the failure to hold an identification parade might in some circumstances raise an issue as to the admissibility of identification evidence, but said that it could have no bearing on any matter relevant to the trial.  He said that there was no rule against dock identifications, and that there was no reason for concern as to the reliability of the dock identification in this case because the victim had had significant physical and conversational interaction with Mr Nahu and was able to say that he recognised Mr Nahu, rather than simply making a fleeting identification.  He noted that the victim had not been challenged in cross-examination on differences between his description of his assailant to the Police, and the actual appearance of Mr Nahu, except in relation to the pendant which had been dealt with properly by the trial Judge. 

[18]      The importance of the identification evidence was greatly magnified by the failure of Mr Tolchard to come up to brief at trial.  At the time that any decision would have been made in relation to a proposed identification parade, the Police believed that Mr Tolchard’s evidence would implicate Mr Nahu as being one of the six who travelled in the car from Ms Walsh’s house to the victim’s house, and one of the four who had entered the victim’s house in pursuit of the debt owed to Ms Walsh.  It was only when Mr Tolchard did not give evidence consistent with his brief that the victim’s identification changed in nature from being evidence corroborative of Mr Tolchard’s evidence to primary evidence against Mr Nahu.

[19]      We agree with Mr Pike that the issue before us is not whether an identification parade should have been held, but whether the jury’s verdict is unreliable because it relies on a dock identification.

[20]      The Crown also relied on two other matters which it said implicated Mr Nahu.  The first was Mr Nahu’s statement to the Police that he was at Ms Walsh’s house before the group left in the car, and was there after their return.  The second was the fact that the victim had described a Maori assailant who resembled Mr Nahu who, if he was not Mr Nahu, must have joined the other members of the group after they left Ms Walsh’s house and separated from them before they returned to Ms Walsh’s house.

[21]      Judge Rea questioned the victim about the accuracy of his identification.  He put it to the victim that there was only one Maori person in court, and that meant Mr Nahu was the obvious person to choose.  The victim said that was not the reason for his identifying Mr Nahu.  Rather, he remembered seeing Mr Nahu’s face on the night of the incident and Mr Nahu was the person he had the most dealings with on that night.  He concluded the exchange with the Judge by saying he was “dead certain” Mr Nahu was the Maori man who had attacked him.

[22]      The trial Judge gave a very strong direction in relation to the identification evidence.  This direction consisted of a conventional identification warning, alerting the jury to the possibility of mistaken identification, the need for the jury to focus on the circumstances in which the victim saw his attacker at the time of the incident, the state of intoxication of the victim at the time and the like.  He followed that direction, which was in an appropriate form, with the following clear direction about a dock identification:

Now there has been an identification and that has been done in Court.  Eleven months after the event [the victim] turns up here, he is in the witness box, he knows, because he has been told, that a number of people have been arrested for beating him up and he is coming along to give evidence to tell a jury what happened.  And the people that are alleged to have been responsible, well let us face it you would hardly have to be a Rhodes Scholar would you to pick out where they were sitting because they are flanked by prison officers down the back.  They have a highlighted place in the scheme of things.  So [the victim] goes into the witness box and as always happens Mr Walker for the Crown says “and do you see this Nahu fellow in Court?”  “There he is down there”.  The only late teen, early 20’s Maori male within cooey.

Ladies and gentlemen, when you are asked to identify somebody in those circumstances in Court, the first thing you do not do is run your eye over the jury to see whether the person might be in there.  The way the Court is set up, your vision automatically goes to where the people who are charged are sitting.  It is just common sense.  So that is what we call a “dock identification”.  And that is generally pretty unreliable because it operates on what I call the “sore thumb principle”.  It sticks out a mile.  Not difficult to say “look we want you to try and identify one 19 to 22 year old Maori male and there is a hint he is in the room here somewhere, see if you can see him”.  So you have to decide in the end whether [the victim’s] identification of Mr Nahu here really takes the thing any further from an identification point of view for you.

You will have to decide whether, in the end, you are satisfied beyond reasonable doubt, you are sure that [the victim] has properly identified Mr Nahu and you have to do that making an absolutely conscious decision to put out of your mind all of that other stuff that has no bearing in the case against him where other people say he was there, because that is not evidence against him.  [The victim] represents the only evidence against him.

Now you are entitled to take into account what Mr Walker put to you.  You are entitled to take into account his proximity to the events by being at France Road, but in the end, unless you can come back in here and say “on analysing all of this, on taking special care, we are sure [the victim] has got it right” then he has got to be found not guilty.

If however, you are in a situation where you say that [the victim] did get it right, then I suggest to you that you would find him guilty, although again that is a matter for you.

[23]      In the light of that clear direction, we do not think there is any basis for concluding that the jury’s verdict is unreliable.  The Judge’s direction could not have been clearer, nor could it have been made in more emphatic terms.

Other ‘irregularities’ at trial

[24]      Ms Courtney made much of the fact that Messrs Edmonds and MacNab had pleaded guilty after their Police statements had been disclosed in evidence.  She said that it was likely that the jury did not appreciate the need to consider that one accused’s evidence is not evidence against another, though she acknowledged that the Judge had carefully warned the jury of this.  She also said there was a risk that the jury may have placed weight on the evidence of the co-accused and Mr Tolchard, and not appreciated how to separate this from their decision-making function.

[25]      In our view, that submission is unsustainable in the light of the clear directions given by the trial Judge.  The Judge specifically told the jury that they were to take absolutely no notice of anything that Mr Edmonds or Mr MacNab had to say.  Later he made it very clear that the statements of Messrs Edmonds and MacNab, and that of Ms Walsh, could not be used in evidence against Mr Nahu, and that the statements of Mr Nahu and Messrs Edmonds and MacNab could not be used against Ms Walsh.  There is no reason to believe that the jury did not abide by these very clear and correct directions by the trial Judge.

[26]      The Judge also made a very strong direction in relation to Mr Tolchard’s evidence, which clearly dispels any concern that the jury may have placed weight on the evidence of Mr Tolchard.  Ironically, that direction is the subject of criticism on behalf of Ms Walsh.  We will deal with that later.

Conclusion: Mr Nahu

[27]      We conclude that none of the grounds of appeal pursued on behalf of Mr Nahu succeeds and therefore dismiss the appeal.

Ms Walsh’s appeal

Discredit of Tolchard’s evidence

[28]      On behalf of Ms Walsh, Mr Philip said that Ms Walsh’s denial that she instructed the others to assault the victim was supported by the evidence of Mr Tolchard.  He said that this evidence had been undermined by the Judge’s direction to the jury in relation to Mr Tolchard’s evidence.

[29]      The Judge’s direction was in the following terms:

Well how do you evaluate a witness like that?  In the end it is for you.  But you do know from his own admission that he says he lied to the Police when he made the statement and he gave you all sorts of reasons why he did it and with respect to him, the reasons seemed to change with each question, so you know that on a previous occasion, he has said something to the Police that is totally different than what he has told you.  Now it is entirely a matter for you, but you are entitled to say “can we trust anything that somebody who tells us one thing on oath says, when we find out he tells the Police something totally different?”

You decide whether anything at all that he says has any evidential value for you.  You decide whether you are prepared to put any trust at all in what someone says who has the background that Mr Tolchard has been revealed to have in relation to this matter.  But the key thing that I need to tell you is this.  You do not say to yourself and you cannot say to yourself, “well he put the finger on Mr Nahu and Ms Walsh in the statement to the Police, that is what we prefer so that is evidence against each of them”.  It is not.  All it means is in the end I suggest you will find him so entirely unreliable about anything that you will not take any notice of what he has to say about anything at all.  But in the end that will be your call.

[30]      Mr Philip said that this comment unfairly assisted the Crown because it discredited the sole supporting evidence for Ms Walsh to strengthen her defence.  He did, however, concede that this complaint was not, in itself, sufficient to cause a miscarriage of justice.  However he argued that it contributed to such a miscarriage of justice.

[31]      Mr Pike submitted that the Judge was entitled to point out that the witness, having been declared hostile, could not readily be accepted as believable.  And he pointed out that the Judge had made it very clear that it was up to the jury to make up its own mind on the issue, which followed on from his conventional direction at the beginning of the summing up to the effect that it was the jury’s sole responsibility to decide factual matters.  He made it clear in that direction that, if he said anything which led the jury to believe that he had a particular view of the facts, and that view differed from that of the jury, then “it is absolutely vital you go with what you believe, not what you think I believe".

[32]      In our view the Judge was entitled to express the view that he did in the terms in which he expressed it.  There was no doubt that he left it to the jury to make up its own mind, whether it agreed with his view or not, and in those circumstances we can see no basis for criticism of his direction.

Prejudice through admission of statements of Mr MacNab and Mr Edmonds

[33]      This issue has largely been dealt with in the context of Mr Nahu’s appeal.  In essence the complaint which Mr Philip makes is that evidence from co-offenders was before the jury, which the jury was not entitled to use against Ms Walsh.  The fact that those co-offenders pleaded guilty during the trial does not alter the position: which arises in trials of more than one accused: exactly the same situation would have arisen even if Mr MacNab and Mr Edmonds had not pleaded guilty.  This is a matter for direction by the trial Judge, and the direction made by the Judge in this case cannot be faulted.  Accordingly, we see nothing in this ground of appeal.

[34]      We dismiss Ms Walsh’s appeal.

Solicitors:
Crown Law Office, Wellington