PATRICK KITMAN CHIN AND NEW ZEALAND POLICE
[2024] NZHC 2646
•12 September 2024
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-409-186
[2024] NZHC 2646
BETWEEN PATRICK KITMAN CHIN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 11 September 2024 Appearances:
J Grainger for Appellant
W J S Mohammed for Respondent
Judgment:
12 September 2024
REASONS JUDGMENT OF EATON J
(appeal against conviction and sentence)
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
CHIN v NEW ZEALAND POLICE [2024] NZHC 2646 [12 September 2024]
[1] On 11 September 2024 I allowed Mr Chin’s appeal against his conviction for failing to remain stopped for an enforcement officer and one of his convictions for failing to answer bail. Consequently, I allowed his appeal against sentence, quashing the original sentence and substituting a sentence of two months’ imprisonment. I now set out my reasons.
Introduction
[2] At a Judge-alone trial before Judge Couch on 13 November 2023, Mr Chin was found guilty of failing to remain stopped for an enforcement officer. A charge of careless driving was dismissed.1 On 18 July 2024 he was sentenced on the charge of failing to remain stopped; two charges of failing to answer District Court bail; and one charge of breach of community work. He had pleaded guilty to the breach and to both charges of failing to appear. He was sentenced to eight and a half months’ imprisonment for the four charges.
[3] Mr Chin appeals his convictions on the charges of failing to remain stopped on the grounds of error by his trial counsel and/or the failure of the Judge to self-warn about the risks of mistaken identification. Aligned with the trial counsel error ground Mr Chin seeks to advance fresh evidence on appeal. He appeals his conviction for failing to answer bail on 24 August 2023 on the grounds he was not on bail but at large. He also appeals against sentence.
Overview of the charges
[4] In February 2022, Mr Chin was sentenced on a number of charges to sentences including intensive supervision and 100 hours community work. He repeatedly failed to report and, after two years, had only completed 40 odd hours of community work. Having breached his community work, he pleaded guilty to that charge and was sentenced to two months imprisonment.
[5] At the heart of this appeal is the charge of failing to remain stopped for the police. It was alleged that on 26 April 2022 Mr Chin was driving an Audi vehicle in
1 Police v Chin [2023] NZDC 25309; Land Transport Act 1998, s 52A(1) and (5) — maximum penalty three months’ imprisonment, and two years disqualification from driving.
Riccarton, Christchurch. Police signalled the car to stop. The driver of the Audi initially stopped, but when an officer approached the car on foot, the driver drove off at speed. It was alleged the Audi then collided with a streetlamp on Riccarton Road. Mr Chin faced a charge of careless use of a motor vehicle, but this charge was dismissed, there being no evidence to connect the Audi vehicle to the damage to the streetlamp.
[6] Mr Chin was remanded to 24 August 2023 to be sentenced for the failing to remain stopped and the breach of community work. He failed to appear. When he did appear, he was then remanded to 1 March 2024. Again, he failed to appear. He pleaded guilty to both charges of failing to appear and was sentenced to four months’ imprisonment.
The Judge-alone trial
[7] Judge Couch heard evidence that around 3 am on the morning of 26 April 2022, Constable Bush and Constable Kennedy had completed a job at an address on Riccarton Road, Christchurch. They were travelling in a marked police car. Constable Bush was driving. Constable Kennedy was in the front passenger seat. Constable Bush drove into Wharenui Road heading towards Blenheim Road and stopped at a traffic light at the intersection with Peverel Street. That is a T-intersection.
[8] Whilst stopped at the lights, the officers observed a black Audi vehicle drive slowly from Peverel Street across Wharenui Road, through the bicycle lane and mount the curb, stopping close to the fence of a residential property. Constable Bush activated his red and blue lights and drove slowly towards the Audi. As he did so, it initially reversed and then began driving slowly forward in the direction of Wharenui Road.
[9] The Audi was described by the officers as driving slowly, and at one point the two vehicles were side by side, close to each other. Constable Bush said the driver’s window of the Audi was down, and he could see the driver. He estimated the distance between himself and the driver to be less than one metre. He told the driver to pull over and stop.
[10] He described the driver as having “a very blank face on, bloodshot eyes, bleached blonde [sic] hair, Asian”. He said he had a “very good look” at the driver. In cross examination he described the intersection as being very well lit by streetlamps and said there was further light from the flashing lights of his vehicle.
[11] The driver of the Audi pulled over and stopped. Constable Bush did a U-turn and pulled in behind the Audi. He exited his vehicle. As he approached the Audi, the vehicle drove way at speed towards Riccarton Road.
[12] Police pursued the Audi but could no longer see it when they reached Riccarton Road. Constable Bush turned left and drove down Riccarton Road. The police car struck a streetlamp that had been knocked down and was lying across the road, puncturing a tyre. The officers observed a trail of fluid near the point of what was presumed to be the impact between a car and the streetlamp, heading into the driveway of the same Riccarton Road address the officers had earlier attended.
[13] The officers did not enter the address. They were focused on ensuring that no other car struck the streetlamp. A police dog handler attended but was unable to identify any useful track.
[14] The Riccarton Road address was described in evidence as a complex with a number of houses, garages, carports and other buildings. The Audi was seen up the driveway of the address, but for reasons not explained, it was not towed or examined by the police that night. When the police returned the following day to uplift the vehicle, it was no longer at the address. It was located at a different address but was locked.
[15] Constable Kennedy, who had assumed the role of officer in charge said that because the police did not have a key for the vehicle, it was never forensically examined. She confirmed that Mr Chin was not the registered owner of the vehicle.2 There was no evidence offered as to any connection between Mr Chin and the Audi or between Mr Chin and the Riccarton Road address.
2 Constable Kennedy also gave inadmissible hearsay evidence relaying a conversation she had with the registered owner.
[16] No evidence was offered as to the external appearance of the Audi. That lacuna in the evidence led Judge Couch to dismiss the charge of careless driving, a charge that relied on Mr Chin having driven the Audi that collided with the streetlamp.
[17] An unidentified police officer who was not involved in the incident heard the description of the driver over the police radio and volunteered Mr Chin’s name as a suspect. No evidence was offered at trial as to the radio description provided by Constable Bush or Constable Kennedy, but that description could not have been more detailed than Asian male with bleached blond hair.
[18] Having been given the name of Patrick Chin, Constable Kennedy says she looked him up in the police system on a phone. She told Constable Bush to “not look at anyone that I’d looked up in the police system”. She saw a photo of Mr Chin but did not show that photograph to anyone else. She said that she made sure that she did not bookmark the person she had looked up to ensure their photo did not appear.
[19] Constable Bush confirmed that having given a description of the driver over the radio, he heard another officer name a potential suspect. He did not conduct any searches for that suspect, having been told that as he was “the person who got a decent look at the driver it was determined that a photo montage would be done with me so I was told not to look anyone or any person up that maybe [sic] related to the matter so that we could do a photo montage”.
[20] Two and a half weeks later, on 13 May 2022, Constable Bush was asked by Constable Stanley to view a photo montage. The delay in undertaking a formal identification procedure was not explained at trial. Constable Stanley, in accordance with pre-formatted documents, advised Constable Bush that the suspect driver “may or may not be in the line up and that he’s just to choose who he believes the suspect is”. Constable Bush identified one of the eight persons in the montage. That person was Patrick Chin.
[21] The prosecutor asked Constable Bush how confident he was that he had picked out the person that he saw on the night. Constable Bush answered:
Well, yeah I’m pretty confident I saw, I had short interaction, it was very close so I’m pretty confident I chose the, I mean out of the eight faces there was only one face that stood out to me, really sort of, yeah, I was like oh that’s without hesitation sort of picked the person I thought was out of the montage that I saw that night.
[22] Constable Bush confirmed that the person he identified in the montage photo had black hair, but he believed that person had bleached dyed hair on the night of the offence. When asked what drew his attention to the person he identified from the montage, he said it was “the face, I recognised from his face, yeah I noticed the hair as well, but to me the face was what stood out as we were so close”. He emphasised that he was reliant on the facial features but did not offer and was not asked to detail any facial features of the person he identified.
[23] The final prosecution witness was Constable Ball. His evidence was admitted by consent. Consent had been provided by trial counsel in a case management memorandum prepared for a case review hearing. Constable Ball’s evidence was that on 16 June 2022, he was requested by another officer to transport a male, said to be wanted for interview for failing to remain stopped, to the Christchurch central custody suite. That male was the appellant. Constable Ball described the appellant as “Asian, of medium build and had bleached blonde [sic] hair”. Constable Ball attempted to question Mr Chin about the failure to stop incident to which Mr Chin responded “Na what’s the point, you will just set me up. I didn’t do it.” Constable Ball’s brief of evidence did not address what then happened with Mr Chin but it is clear he was charged and released. He was not asked whether a photograph of the appellant had been taken.
[24]No evidence was called for the defence.
The Judge’s decision
[25] In an oral decision the Judge acknowledged that it was the defence case that Mr Chin was not driving the Audi in the small hours of 26 April 2022. Having summarised the evidence, essentially as I have set out above, the Judge said:
[14] The photo montage appears to have been conducted in accordance with the appropriate procedures. When he looked at the eight photos
contained in it, Constable Bush very quickly identified photo number three, which it turns out was a photo of the defendant.
[15] I have seen the eight photos in the montage. They appear to me to have a sufficient similarity that an identification was unlikely to be made simply by generic characteristics such as age, race, gender and so on. The one significant factor was that the photo of the defendant in the montage shows him with black hair, which presumably is his natural hair colour. I note he appears in court today with hair of that colour.
[16] The description that Constable Bush gave of the person he saw in the vehicle was of a person with bleach blond hair. When this was put to Constable Bush, he said that he identified the person he had seen by the facial characteristics rather than by the colour of the hair.
[17] Of some significance then is the evidence of Constable Ball whose formal statement was handed up by consent. He assisted another officer, Sergeant Kench, with the arrest of the defendant on 16 June. His evidence, which as I say is accepted by consent, was that at that time the defendant had bleached blonde [sic] hair.
[18] In all the circumstances, and having regard to this evidence, I am satisfied beyond reasonable doubt that the identification made by Constable Bush was entirely reliable and that it was the defendant who was driver of the Audi vehicle at the time in question.
[19] I find that the charge as a whole proved beyond reasonable doubt and the defendant will be convicted.
The appeal
[26] In his original notice of appeal, Mr Grainger on behalf of Mr Chin did not particularise the grounds for a conviction appeal, recording that he was awaiting receipt of trial counsel’s file, the Judge’s decision and notes of evidence. The notice of appeal did, however, confirm that the only conviction subject to appeal was a conviction for failing to remain stopped.
[27] In submissions filed on 22 August 2024, Mr Grainger particularised three grounds of appeal against the conviction for failing to remain stopped:
(a)Trial counsel erred in consenting to the admission of Constable Ball’s evidence, when there were no instructions to do so from Mr Chin;
(b)“Fresh” evidence that Mr Chin was not the driver of the vehicle; and
(c)Failure of the District Court Judge to self-direct in relation to identification evidence — s 126(3) Evidence Act 2006.
[28] The submissions raised an appeal against the conviction for failing to answer bail on 24 August 2023, on the grounds that Mr Chin was not on bail but at large. Filed with the submissions was a waiver of privilege signed by Mr Chin, an affidavit of Mr Chin and an affidavit from a friend of Mr Chin’s, Noel Gleeson.
[29] Submissions were filed by Mr Mohammed for the police. Mr Mohammed took no issue with the informal particularisation of the trial counsel error ground of appeal or with the introduction of an appeal against the conviction for failing to answer bail. Mr Mohammed confirmed the appellant’s application to adduce fresh evidence in the form of the two affidavits was not opposed other than as to the merits. Mr Mohammed sought leave to introduce further police evidence that had not been offered at trial “to address some gaps in the narrative”. The respondent’s submissions record that contact had been made with trial counsel who had been provided with a copy of the appellant’s submissions and that comment from trial counsel was awaited.
[30] Given there was no objection from Mr Mohammed to the appeal proceeding, notwithstanding procedural shortcomings, I issued a minute on 5 September expressing my concern that the Court was being invited to determine the trial counsel error ground of appeal absent a response from trial counsel to the affidavit of the appellant. I referred the parties to r 8.7 of the Criminal Procedure Rules 2012. In response to that minute, Mr Grainger filed an amended notice of appeal, formalising an appeal against conviction for failing to answer bail, and otherwise particularising the grounds of appeal in support of the appeal against the conviction for failing to remain stopped to align with his written submissions.
[31] Mr Mohammed then filed a further memorandum confirming the relevant material had been referred to trial counsel for comment with specific questions as to the conduct of the trial and decisions made. On 10 September 2024, counsel filed a joint memorandum confirming agreement that trial counsel did not have instructions to consent to the admission of the evidence of Constable Ball and that trial counsel
was instructed by Mr Chin subsequent to case review and prior to trial as to the issue of hair colour. No affidavit has been filed by trial counsel.
Affidavit evidence
[32]Affidavits have been filed by the appellant and his friend, Noel Gleeson.
[33] Mr Chin deposes as to his dealings with trial counsel. He has waived his solicitor/client privilege. He deposes that his defence to the charge of failing to stop was that he was not driving the vehicle. More particularly he deposes that whilst he is Asian, he has not had bleach blond hair since he was in Dunedin in 2015. He describes his hair as “natural colour brown hair”. He acknowledges that he did not keep in good contact with his trial counsel. By way of explanation, he says he suffers from chronic depression and post-traumatic stress disorder and found dealings in relation to court matters to be very stressful. He annexes a medical certificate confirming the diagnosis.
[34] Mr Chin deposes that he did not complete a brief of evidence with trial counsel. Of particular significance he says “[trial counsel] was aware of my defence that it was not me, and that I did not have bleached blond hair”. Mr Chin says he was not aware his trial counsel had agreed to admit the evidence of Constable Ball by consent. He says that matter was never discussed with him and that if he had been consulted, he would have not given consent because he did not agree with the Constable’s evidence that he had bleach blond hair on his arrest. Mr Chin says he had natural colour brown hair. Finally, Mr Chin deposes that he remembers a photograph being taken on the day of his arrest in June 2022. He believes that photo would show that he had brown and not blond hair at that time.
[35] Mr Gleeson is 70 years old. He is retired. He deposes that he has known Mr Chin for about four years, meeting him around the start of 2020. He cannot be sure about dates but deposes that around the start of 2022 Mr Chin had lived with him at his Hornby Street address for three or four months. He says after that Mr Chin moved “just round the road from me”. He says he would see him every day and even when they were not living together, he would still meet him and see him once a week. Of particular significance, Mr Gleeson says he has always known the appellant to have
black or brown natural coloured hair, that he has never seen him with bleached blond hair and that if he had seen that he would remember it.
Legal principles
Appeal against conviction
[36] The Criminal Procedure Act 2011 (CPA) provides for the right of appeal against conviction.3 This Court has jurisdiction to hear an appeal against a conviction in the District Court where the convicted person pleaded guilty to the offence before the trial.4
[37] This Court must allow the appeal if satisfied that a miscarriage of justice has occurred for any reason.5 A miscarriage of justice is defined in s 232(4) as:
…
(4)In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
Trial counsel error
[38] The relevant legal principles that arise in an appeal alleging trial counsel error were helpfully summarised by the Court of Appeal in Clutterbuck v R.6 The Court said:
[13] The starting point is R v Sungsuwan where the Supreme Court emphasised that the focus must always be on whether there has been a miscarriage of justice. Counsel’s decisions may be relevant to that, but radical error by trial counsel is not required to establish a miscarriage has occurred. More recently this Court in R v Hall reviewed the topic of alleged counsel error. The Court identified three fundamental matters over which a defendant had the absolute right to decide and concerning which counsel must follow or not act — the plea, the focus of the defence and the decision to testify.
3 Criminal Procedure Act 2011, s 229(1).
4 Section 247(1)(c)(ii).
5 Section 232(2)(c).
6 Clutterbuck v R [2017] NZCA 361, cited in K v R [2020] NZCA 133 at [80]–[81].
[14] The emphasis in R v Sungsuwan on whether there has been a miscarriage had the effect of reducing the emphasis or focus on the nature of counsel’s error, and the then test of whether it was a “radical” error. The consequence of any errors was more important than assessing their gravity. R v Hall is consistent with this, but clarifies that some matters are so fundamentally tied to a defendant’s rights that errors in relation to them will almost always constitute a miscarriage.
(footnotes omitted)
[39]In R v Sungsuwan, the Supreme Court observed:7
[W]hile the ultimate question is whether justice has miscarried, consideration of whether there was in fact an error or irregularity on the part of counsel, and whether there is a real risk it affected the outcome, generally will be an appropriate approach. If the matter could not have affected the outcome any further scrutiny of counsel’s conduct will be unnecessary. But whatever approach is taken, it must remain open for an appellate court to ensure justice where there is real concern for the safety of a verdict as a result of the conduct of counsel even though, in the circumstances at the time, that conduct may have met the objectively reasonable standard of competence.
[40] The approach to be adopted in cases in which trial counsel error is alleged is to:8
[A]sk first whether there was an error on the part of counsel and, if so, whether there is a real risk that it affected the outcome by rendering the verdict unsafe. If the answer to both questions is “yes”, this will generally be sufficient to establish a miscarriage of justice, so that an appeal will be allowed.
Appeal against conviction - failing to remain stopped
Fresh evidence
[41] Mr Mohammed seeks leave to offer as fresh evidence the formal written statements of the various police officers who gave evidence at trial. Mr Mohammed submits this evidence ought to be admitted on appeal to “address some gaps in the narrative”. More particularly he submits that what was missing in the evidence offered at the Judge-alone trial was an explanation as to how the appellant came to be nominated as a suspect. He says the answer lies in the formal statements of the police officers who gave evidence at trial.
7 R v Sungsuvan [2005] NZSC 57, [2006] 1 NZLR 730 at [70].
8 R v Scurrah CA 159/06, 12 September 2006 at [17], cited in Hall v R [2015] NZCA 403, [2018] 2 NZLR 26 at [11].
[42] I have reviewed the formal written statements of the prosecution witnesses. I do not consider any material within those statements to have any particular relevance to the critical issues on appeal, namely whether any error by trial counsel has given rise to a miscarriage of justice or alternatively whether the Judge erred in failing to remind himself of the risks associated with identification evidence. Regardless I would not have considered the proposed evidence to be fresh. For those reasons, I decline the respondent’s application to admit fresh evidence on appeal.
[43] I take a similar view in relation of the evidence of Mr Gleeson. It is not suggested Mr Chin instructed trial counsel that Mr Gleeson was available to give relevant evidence at trial as to his hair colour. The Gleeson evidence falls outside the umbrella of trial counsel error. Further, I have reservations as to the cogency of Mr Gleeson’s evidence. The alleged offending was in late April 2022. At that time Mr Chin was not living with Mr Gleeson, although Mr Gleeson recalls he was seeing Mr Chin on a weekly basis. His hair colour could have changed in between the times Mr Gleeson saw Mr Chin. I decline to admit Mr Gleeson’s evidence on appeal.
Discussion – trial counsel error
[44] Trial counsel agreed to admit the evidence of Constable Ball without having consulted the appellant. Mr Grainger submits that error is significant and that there is a real risk it affected the outcome of the trial. In light of the position confirmed in the joint memorandum, Mr Grainger extends the complaint against trial counsel to an allegation that counsel failed to act on instructions. That error is premised on Mr Chin’s uncontested affidavit that he had instructed trial counsel, prior to trial that he had not had bleached hair since 2015. Mr Grainger submits that error falls within the categories identified in Hall as fundamental to the defence and operated so as to deny Mr Chin a fair trial and to cause a miscarriage of justice.
[45] Mr Mohammed, responsibly in my view, acknowledges that trial counsel, in effect, failed to follow instructions on an issue central to the trial, and that the Court might reasonably find there has been a miscarriage of justice.
[46] There is no doubt Judge Couch considered the Ball evidence to be significant. That evidence was expressly relied upon by the Judge in his finding that the identification evidence was “entirely reliable”.
[47] The sole trial issue was identification.9 Trial counsel should not have agreed to admit any evidence touching on that issue without instructions. Evidence that Mr Chin, an Asian man, had bleached hair about six weeks after being nominated as the bleached-haired Asian suspect was always going to add significant weight to the reliability of the Bush identification.
[48] Counsel would be prudent to always seek instructions before agreeing that evidence is to be admitted by consent. If the evidence touches on a factual matter that might be within the knowledge of the defendant, then instructions should always be sought. If the evidence touches on the central trial issue, instructions must be sought. Trial counsel might have considered that Mr Chin’s appearance six weeks after the alleged event was of no great moment. If he did, that was an error of judgement, as is clear from the Judge’s reasoning. But counsel was nevertheless obliged to seek instructions. If, as seems to be the case, Mr Chin was not readily available for consultation, counsel was obliged to decline the prosecutor’s request that the evidence be admitted by consent.
[49] Whether or not that error would have given rise to a miscarriage of justice is moot because it is not disputed that after the case review hearing but before trial, Mr Chin instructed trial counsel that he had not had bleached hair since 2015. That instruction should have rung alarm bells for counsel, knowing that unbeknownst to Mr Chin, trial counsel had agreed to admit evidence to the contrary. Trial counsel had options. He could have advised the prosecution that the Ball evidence was now disputed and required the prosecution to call him as a witness. What counsel could not do was nothing. Regrettably that is what counsel did. The evidence on appeal satisfies me that trial counsel was instructed that the appellant did not have bleached hair at the relevant time. This single-issue trial proceeded with highly relevant
9 Although a distinct issue arose in relation to the careless use charge.
evidence that was disputed by the appellant having been admitted without the appellant’s knowledge.
[50] That failing was, in my view, a failure to follow instructions on an essential issue. That is an error fundamentally tied to Mr Chin’s fair trial right and one that caused a miscarriage of justice.
Discussion – Judge’s failure to self-direct
[51] Independent of trial counsel error, it is submitted that the Judge failed to self-direct as to the risk of mistaken identification.
[52] The case against Mr Chin turned solely on identification evidence. Such a case calls for special care. In 1976, Lord Widgery CJ in R v Turnbull on behalf of the Court of Appeal laid down important guidelines relating to evidence of allegedly mistaken visual identification of the accused.10 Those guidelines addressed when the Judge should withdraw the case from the jury and, where the case does go to the jury, the nature of the warning required. In Turnbull it was recognised that mistaken identification of an accused and, particularly in cases of visual identification, may be regarded as the greatest cause of wrong convictions. Turnbull followed close on the heels of the Devlin Report on Evidence of Identification in Criminal Cases.11 I respectfully adopt the words of Lord Devlin:
The problem peculiar to identification is that the value of the evidence … is exceptionally to assess. The weapon of cross-examination is blunted. A witness says that he recognizes the man, and that is that or almost that. There is no story to be dissected, just a simple assertion to be accepted or rejected. If a witness thinks he has a good memory for faces when in fact he has a poor one, there is no way of detecting the failing.
[53] In New Zealand the Turnbull guidelines are reflected in s 126 of the Evidence Act which provides:
126 Judicial warnings about identification evidence
(1)In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or
10 R v Turnbull [1977] QB 224.
11 See, Lord Devlin Report to the Secretary of State for the Home Department of the Departmental Committee on Evidence of Identification in Criminal Cases (26 April 1976) at 1.24.
more visual or voice identifications of the defendant or any other person, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.
(2)The warning need not be in any particular words but must—
(a)warn the jury that a mistaken identification can result in a serious miscarriage of justice; and
(b)alert the jury to the possibility that a mistaken witness may be convincing; and
(c)where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.
(3)If evidence of identity is given against the defendant in any criminal proceeding and the defendant disputes that evidence, the court must bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, must bear in mind the possibility that the witness may be mistaken.
[54] In a Judge-alone trial, it must be clear from the trial Judge’s decision that the Judge is alive to the risks associated with identification evidence and the special need for caution.12
[55] In finding the identification evidence of Constable Bush to be reliable, the Judge did not refer to s 126. No reference was made to the risk of a mistaken identification. No reference was made to the need to proceed with caution. I have concluded that was a significant error that has given rise to a miscarriage of justice.
[56] There are a number of well-recognised factors to be considered in determining whether an honest identification witness might be mistaken. Relevant factors that arise in the present case include the length of the observation, environmental factors such as distance, obstructions and light, stress and whether the offender was of different ethnicity.13 The Judge did not discuss any of those factors.
[57] The Judge found Constable Bush’s identification evidence to be “entirely reliable”. Three reasons were advanced. First, the photo montage had been conducted
12 Peneha v Police [2012] NZHC 2554 at [29], applied in Te Heu Heu v Police [2014] NZHC 329.
13 John Yuille and Judith Cutshall “A case study of eyewitness memory of a crime” (1986) 71(2)
Journal of Applied Psychology 291.
in accordance with appropriate procedures, secondly, the officer was relying on facial characteristics rather than hair colour, and finally, the consent evidence of Constable Ball that the appellant had bleached hair on the date of his arrest.
[58] As for appropriate procedures, the Judge found that the eight photos in the montage were of generally similar looking persons, a factor the Judge considered to mean the officer’s identification of the offender was unlikely to have been made in reliance on general characteristics “such as age, race, gender and so on”. That approach is not consistent with s 45 of the Evidence Act. The formal procedure for obtaining visual identification evidence requires a procedure in which the person to be identified is compared to no fewer than seven other persons “who are similar in appearance to the suspect”.14 Compliance with s 45 is essential to the admissibility of identification evidence. The reliability of that evidence is a quite different issue.
[59] Turning to the second factor, the Judge placed reliance on the officer’s evidence that he relied on the offender’s facial characteristics to make the identification. But the Judge overlooked that Constable Bush did not, either on the morning of the offence, or when the montage identification was undertaken, describe any facial characteristics of the driver or of the person he identified. The only facial characteristic mentioned was that the person was Asian. The officer was silent as to hair length or style, to skin colour or blemishes, to facial hair, to facial markings or to facial jewellery or glasses. He offered no description of the driver’s eyes, ears, nose, mouth or jawline. I do not consider the officer’s reference to “facial characteristics” lent weight to the reliability of his identification evidence.
[60] I have addressed the third factor, the reliance on the consent evidence of Constable Ball. I observe that the Judge was quite entitled to rely on the consent evidence. Constable Bush had described the driver as an Asian with bleached hair. Mr Chin is Asian and the evidence of Constable Ball was that when he arrested Mr Chin several weeks after the alleged offence Mr Chin had bleached hair. But, as I have found, that evidence should never have been admitted by consent and was denied by Mr Chin.
14 Evidence Act 2006, s 45(3)(b).
[61] The Judge was required to consider the various factors that might have impacted on the reliability of the identification evidence. I have concluded that a review of those factors only serves to highlight the risk of mistaken identification. Constable Bush’s opportunity to identify the driver of the suspect vehicle was limited. It could have been for no more than a few seconds as the two vehicles drove slowly past each other. At that time Constable Bush was driving a motor vehicle and therefore performing other tasks. The identification took place in the very small hours of the morning. Whilst I acknowledge there was street lighting, it was otherwise the middle of the night. The observation must have taken place somewhere near the middle of the road rather than directly under a streetlight. The observation was made by the officer when seated in his police car, looking from his vehicle into the suspect’s vehicle, through an open window, to a suspect seated in the driver’s seat. It was not suggested the driver turned to look at the officer. Significantly, in my view, Constable Bush was only able to describe the offender as “possibly Asian and with bleached blonde [sic] hair”. He was unable to describe any facial characteristics or other identifying features.
[62] Constable Bush’s evidence, when asked how confident he was with his identification of Mr Chin said that out of the eight faces there was only one that stood out to him. That answer of itself points to the possibility the officer was simply picking which of the eight photos within the montage most closely resembled the driver. Surprisingly, the officer’s evidence did not elicit any questions from counsel or the Judge and was not mentioned in the decision.
[63] Further, the montage procedure did not take place until two and a half weeks after the incident. I am doubtful as to whether it was carried out as soon as reasonably practicable after the offence was reported.15 Mr Mohammed explains the delay as a consequence of rostering. That explanation is unsatisfactory. The delay created very real opportunities for Constable Bush to be unwittingly exposed to an image of Mr Chin or to have seen him out and about, raising a risk that his subsequent identification was no more than a recognition of someone he had seen before.
15 Evidence Act 2006, s 45(3)(a).
[64] The factors I have mentioned were relevant to the mandatory consideration of the risk of a mistaken identification and highlight the need for caution. I am quite satisfied this case engaged the risk of mistaken identification and that the failure of the Judge to recognise that risk and to proceed with the necessary caution in assessing the identification evidence has given rise to a miscarriage of justice.
Remedy
[65] I am satisfied that errors by trial counsel have given rise to a miscarriage of justice. I am also satisfied the Judge erred in failing to recognise the risk of mistaken identification and that failure of itself has given rise to a miscarriage of justice. That would ordinarily mean the case would be remitted for rehearing in the District Court. I have decided that the interests of justice require that I enter an acquittal. That is for three reasons.
[66] First, I have real doubt as to whether the evidence established that Constable Bush’s identification did prove beyond a reasonable doubt that Mr Chin was the driver of the vehicle. Beyond the various factors I have discussed, I observe that aside from Constable Bush’s observation, there were a number of obvious lines of inquiry that might have confirmed the identity of the offender. The police swiftly located the car that was alleged to have failed to stop, yet inexplicitly took no steps to examine the vehicle, either inside or out. The prosecution offered no evidence of any association between Mr Chin and the Audi or of Mr Chin and the Riccarton Road address. It seems that given the comparatively low level of the alleged offending that the police simply did not bother to commit the resources to establishing the identity of the driver.
[67] Secondly, the offending is low level and thirdly, Mr Chin has served the two months’ imprisonment imposed for this offence.
[68]For those reasons I quashed the conviction and directed an acquittal be entered.
Appeal against conviction - failing to answer bail
[69] Mr Chin pleaded guilty to the charge that on 24 August he failed to answer bail. It is now acknowledged that he was not in fact on bail at that time, he having earlier been remanded at large. Notwithstanding his guilty plea, that conviction is not safe and was quashed with an acquittal directed.
Appeal against sentence
[70] With the conviction appeal being allowed, it was necessary to reconsider the sentence imposed on Mr Chin. The Judge had adopted an accumulated starting point of eight and a half months’ imprisonment. That was calculated as three months’ imprisonment for failing to appear on 1 March 2024; an uplift of one-month for failing to answer bail in August 2023; two months for the breach of community work and two and a half months for the failing to remain stopped. The end sentence imposed was broken down as follows:
(a)failing to answer bail on 1 March 2024 — eight months and 14 days’ imprisonment;
(b)failing to answer bail on 24 August 2023 — two months’ imprisonment;
(c)breach of community work — two months’ imprisonment;
(d)failing to remain stopped — two months’ imprisonment.
[71] On 11 September I quashed each of the sentences of imprisonment. In substitution, I imposed a sentence of two months’ imprisonment for the breach of community work, recognising that Mr Chin had failed to complete more than half of the 100 hours of the community work sentence, and a concurrent sentence of one month’ imprisonment for failing to answer bail on 1 March 2024.
[72] The end sentence of two months’ imprisonment allowed for Mr Chin’s immediate release from custody.
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Eaton J
Solicitors:
Crown Solicitors, Christchurch
Public Defence Service, Christchurch
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