P v Police HC Tauranga CRI 2009-470-33

[2009] NZHC 2198

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI 2009-470-33

BETWEEN  P

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         7 December 2009

Appearances: Douglas Hall for Appellant

Hayley Booth for Respondent

Judgment:      7 December 2009

JUDGMENT OF HARRISON J

SOLICITORS

Douglas Hall (Hamilton) for Appellant

Ronayne Hollister-Jones Lellman (Tauranga) for Respondent

P V POLICE HC TAU CRI 2009-470-33  7 December 2009

Introduction

[1]      Mr P   appeals against conviction following his summary trial before Judge Geoghegan in the District Court at Tauranga on 8 April 2009 on one charge of intentional damage.

[2]      The material facts of the offence are not in issue.   The only question on appeal,  as  it  was  in  the  District  Court,  is  whether  the  prosecution  had  proven Mr P  's identity beyond reasonable doubt.

[3]      That issue is not complex and having heard counsel this afternoon I am in a position to deliver judgment orally.

District Court

[4]      At about 3 am on 9 January 2009 Mr Paul McDowell was sitting inside a residential  property  in  Pilot  Bay,  Mount  Maunganui.    His  view  through  wide windows encompassed the roadway in front.   He had earlier consumed alcohol. However, Mr McDowell had not drunk since about 10 pm the previous evening.

[5]      Mr McDowell's attention was drawn to two young men.  They walked along the roadway in front of his property and went to a toilet block on the other side of the road.  He saw one of them spray painting or tagging the clean east facing white wall of the block.  They were at a distance of about 25-30 metres.

[6]      Mr   McDowell   went   outside.      He   challenged   the   two   young   men. Mr McDowell  was  about  five  metres  away.    A  verbal  exchange,  lasting  about

30 seconds, took place.  By then the two had moved to a footpath outside the block. In Mr McDowell's words, he "eyeballed" the two young men.   The lighting was good, even though it was in the hours of darkness.  He saw the tagger stuff a spray can down the front of his trousers.

[7]      One of Mr McDowell's friends called the police.  She relayed a description given by Mr McDowell.  He saw the two young men walk along Salisbury Avenue. He lost sight of them after they went round the corner towards the Police Station.

[8]      Critically Mr McDowell gave a description of the two young men.   Both were tall, athletic looking, and reasonably slim.  They were in their early 20s.  The person who carried out the tagging was wearing red shorts, a white top, and a red cap.  His companion was wearing jeans.

[9]    Constable  Jason  Carswell  answered  a  call  from  the  Northern Communications Centre.  While he was driving along Maunganui Road, just before Salisbury Avenue, he noticed two young men walk through Coronation Park from the direction of Pilot Bay.    In  cross-examination the officer confirmed that the distance was no more than 500 or 600 metres from the toilet block.  He spoke to both of the men.  One of them, Mr P  , denied any involvement in tagging the toilet wall.  The officer did not find any signs of paint residue on Mr P  .

[10]     Constable Carswell took a photograph of both young men and of the word sprayed on the side of the toilet block.  Both photographs were produced as exhibits at trial.  One shows Mr P   standing.  He was wearing red shorts, a white top, and a red cap.  His companion was also wearing a red cap and was seated nearby. Mr P   is tall, slim and athletic looking.

[11]     Judge Geoghegan had the benefit of seeing and hearing both Mr McDowell and Constable Carswell.  They were the only two witnesses.  Mr P  , despite the apparent strength of the prosecution case, did not give evidence.

[12]     Mr McDowell identified Mr P   in Court.  As noted, about four months had elapsed since the incident.  His identification of Mr P   was not challenged in cross-examination, which was relatively brief.   Questioning was limited to the description given to the police officer by the person who called form Mr McDowell's property, whether or not he was affected by alcohol, and whether others were present on the roadway.  On the last point Mr McDowell was unequivocal.  He said nobody else was around.

[13] Judge Geoghegan accepted Mr McDowell's evidence. He noted that it was "carefully given, was fairly given and was very detailed": at [11]. The Judge was in no doubt at all that Mr P was the person seen by Mr McDowell to be tagging the toilets. He found the charge proved and imposed a term of 120 hours community work on Mr P .

Appeal

[14]     On appeal Mr Hall, who also appeared in the District Court, relies on s 67A Summary Proceedings Act 1957 which provides as follows:

Where any evidence of identity is given against the defendant and the defendant disputes that evidence, the Court shall bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, the possibility that the witness may be mistaken.

[15]     Mr  Hall  identifies  two  specific  grounds  in  support.    First,  he  refers  to Mr McDowell's  evidence-in-chief  that  he  was  "90%  sure"  about  identification. When asked for the reason for "a bit of doubt for the last 10%", Mr McDowell said this:

As you say it's, it was late in the evening and he had a cap on, his build is certainly the same and the same cheekbones and definitely the same nose but I wouldn’t want to get a guy in trouble if he didn’t do it either.

[16]     Mr Hall submits that this evidence of itself is sufficient to raise a reasonable doubt, especially where caution is needed before convicting a defendant in reliance on the correctness of identification and in particular where a mistake is possible. Mr Hall accepts that the Crown is not required to prove its case to a mathematical certainty of 100%.  The Judge was satisfied that Mr McDowell's evidence taken as a whole met the statutory threshold of proof beyond reasonable doubt.

[17]     I construe Mr McDowell's answer, as I assume did Judge Geoghegan, that he was allowing for a possibility that he may have been mistaken.   But by using a relatively   small   fraction   I   am   satisfied   that   Mr   McDowell   was   himself acknowledging a remote possibility of error.  I construe this answer as the foundation of the Judge's observation that Mr McDowell's evidence was fairly given.

[18]     Second, Mr Hall relies on Constable Carswell's acknowledgement that he found no paint residue on Mr P   or a spray can.  Some perspective is necessary. The officer said that he found residue on those who tagged in less than half of the cases,  and  plainly  Mr P    had  an  opportunity  to  dispose  of  the  can  before apprehended by the police officer.

[19]     When the evidence is considered objectively and in totality, the prosecution case  was  overwhelming.    Mr Hall's  arguments  ignore  the  coincidence  of  two undeniable factors.  One is Mr McDowell's unchallenged description of the tagger by reference both to his age and build and, more particularly, very distinctive clothing. The other is that within a few minutes and 500-600 metres away a police officer encountered a young man who was wearing the same distinctive clothing described by Mr McDowell, who matched his physical description, and who was Mr P  . Furthermore,  despite  Mr Hall's  attempts  to  submit  to  the  contrary,  Ms Booth  is correct that the evidence establishes the area was virtually deserted at the time.  The juxtaposition of these factors or circumstances leads irresistibly to the inference of guilt drawn by Judge Geoghegan.

[20]     The appeal is dismissed.

Costs

[21]     Ms Booth has instructions to seek costs under the Costs in Criminal Cases Act.  I agree with her that the appeal was hopeless; as Judge Geoghegan observed at trial, the defence "completely lacked any merit".

[22]     In the normal course I would have made an award.  However, Mr P   is said to be in receipt of legal aid and, moreover, Mr Hall has been unable to obtain instructions at short notice before today's hearing.  While Mr P   may have been in receipt of legal aid at trial, I assume that that is not to be granted in this Court. Any objective assessment of the evidence would not have led to a recommendation to the Legal Services Agency that the appeal should be pursued.

[23]     For completeness I note that the notice of appeal was filed out of time and in incorrect form.   Mr Hall accepts that he would require leave.   It follows from my

conclusion on the substance of the appeal that leave is refused.

Rhys Harrison J