Peneha v Police
[2012] NZHC 2554
•2 October 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2012-485-70 [2012] NZHC 2554
BETWEEN SHANNON PENEHA Appellant
ANDNEW ZEALAND POLICE Respondent
Hearing: 2 October 2012
Counsel: C J Tennet for Appellant
E M Light for Respondent
Judgment: 2 October 2012
ORAL JUDGMENT OF THE HON JUSTICE KÓS
[1] Shannon Peneha, an 18 year old youth, was convicted in the Lower Hutt District Court on one charge of assault on Sian Graham, a 16 year old youth, and on a second charge of stealing Mr Graham’s cap. He defended the charges. Both Mr Graham and Mr Peneha gave evidence. The Judge believed Mr Graham. He did not believe Mr Peneha. On each charge Mr Peneha was sentenced to 100 hours community work, reparation of $50 and witness expenses of $50. Mr Peneha now appeals his conviction.
Background
[2] The police case was that on the afternoon of Thursday, 3 November 2011
Mr Peneha was at the Taita railway station in the Hutt Valley. There is a subway tunnel beneath the station platform and tracks. Mr Peneha stood in the middle of the subway and blocked Mr Graham’s path. He swung his right fist, punching Mr Graham on the left side of his face near his mouth. This punch knocked Mr
Graham’s cap off his head. Mr Graham received a cut on the inside of his mouth.
PENEHA v NEW ZEALAND POLICE HC WN CRI 2012-485-70 [2 October 2012]
Mr Peneha then picked up the cap from the ground before Mr Graham could and said: “fuck you, c’s up” (whatever that means) and ran away. That was the basis of the stealing conviction. The cap was worth $49.99.
[3] After these events Mr Graham met his girlfriend at the local library and walked to her house. There her mother called the police. At around 2.00 pm that day a constable went down to the railway station to check if any person matching the description of Mr Peneha had been seen. Mr Peneha was spoken to by the police about three weeks later. He was arrested and taken to the police station.
[4] I note that Mr Peneha had not previously appeared before the Court.
District Court decision
[5] At the hearing Judge Davidson heard evidence from Mr Graham, the constable, Mr Peneha, his girlfriend and Mr Peneha’s mother. The Judge first noted that the burden of proof was beyond reasonable doubt. There were two issues for him:
(a) First, whether Mr Graham had fabricated the complaints, and
(b)Secondly, (if the allegations were true) whether Mr Graham had properly identified Mr Peneha as the assailant.
[6] On the first issue the Judge considered that Mr Graham’s allegation was made promptly and as a result it was fresh and detailed and there was nothing to suggest it had been fabricated. There was no evidence that he had an “axe to grind” with Mr Peneha. Nor was Mr Graham a serial false complainant. The Judge considered Mr Graham’s evidence to be “straight forward, detailed, prompt, credible and reliable”.
[7] Regarding the second issue, the Judge noted that Mr Peneha acknowledged on oath that he knew Mr Graham. They had had contact before and since the event. The Judge also noted that there was broad evidence that Mr Peneha was in the
railway station area that day. The Judge considered there was nothing in the evidence which might detract from Mr Graham’s recognition evidence. The Judge considered the issue came down to whether Mr Peneha’s denial on oath could be rejected. On his view on the basis of the other evidence he considered he was entitled to reject it. The Judge said:1
In the end, what the case really comes down to is whether the defendant’s denial on oath can be put to one side. If it cannot be rejected then of course the charges would need to be dismissed. However, in my view, his denial on oath of involvement can be, and is, rejected by me.
The Judge therefore found that the charges were proven to the requisite standard and he convicted Mr Peneha.
Appeal
[8] Mr Peneha challenges the conviction on a number of grounds. Essentially the arguments advanced before me today by Mr Tennet fall within these three grounds.
(a) the Judge wrongly drew inferences that were unavailable, and made credibility findings without cogent reasons;
(b)the Judge misapplied the burden of proof in relation to the evidence of both Mr Peneha and Mr Graham;
(c) the Judge failed to warn himself under s 67A of the Summary Proceedings Act 1957 as to the identification evidence, and in particular the prospect that it might be mistaken.
[9] Sections 115 and 119 of the Summary Proceedings Act 1957 provide that this is a general appeal to be heard by way of rehearing. The onus is on the appellant to
satisfy the Court that the grounds of appeal have been made out and that it should
1 At [13].
differ from the original decision. In a recent decision of this Court in Lemalu and
Marriott v Ministry of Fisheries,2 Gendall J observed as follows:3
Weight to be given to individual pieces of evidence is essentially a function of the decider of facts. An appellate court is performing a review function on matters of evidence and not one of substituting its own view of the evidence and appropriate weight is to be given to the advantage that the trier of fact has over the appellate court so weight to be given to the individual pieces of evidence is for the fact finder. The test must be whether the fact finder, be it Judge or jury, could reasonably come to the conclusion that it did, that is guilt, beyond reasonable doubt based upon the evidence that it heard and was presented to it bearing in mind that acceptance of those parts of the evidence and weight to be given to it is a matter for the fact-finder.
A. Inferences and credibility
Submissions
[10] Mr Tennet submits that inferences were drawn from the evidence that were not justified. He submits that an inference cannot be drawn from the absence of apparent motive of the complainant to make up a story. Indeed there was some evidence that there was dislike of Mr Peneha. The words “c’s up” suggest a gang involvement, although alleged to be uttered by Mr Peneha, not Mr Graham.
[11] It was submitted to me that in any case the inferences, even if available, were insufficient to write off the credibility of Mr Peneha and his girlfriend. An inference that should have been drawn from the defence evidence was that Mr Peneha was never in Taita on his own that day.
[12] Mr Peneha relies also on Tamati v Police4 where the finding of the District Court Judge that he was “not particularly impressed” with a denial was overturned on the basis that the Judge had not articulated a rational reason for discarding that
evidence. It was submitted to me that the same overall “impression” can be
2 Lemalu and Marriott v Ministry of Fisheries HC Wellington CRI 2010-485-129 & CRI 2010-
485-000122, 23 February 2011.
3 At [23].
4 Tamati v Police HC Hamilton CRI 2011-419-54, 25 August 2011.
discerned in the present oral judgment. If the evidence of all the defence witnesses were to be disregarded, then that should be done with clear and sufficient reasons.
[13] For the Crown Ms Light submits that the Judge was entitled to draw inferences from the evidence that the two protagonists knew each other, that Mr Peneha frequented the Taita area on Thursdays, and there was no motive to fabricate a story. Inferences could also be drawn from the prompt and detailed nature of the police statement.
[14] As to credibility the Crown submits that the Judge saw the witnesses give evidence and was able to assess each witness’s credibility and reliability. He thereby had an advantage over the appellate court. The Judge clearly found Mr Graham’s account credible. By contrast he did not find Mr Peneha’s account credible.
[15] As to reasons for rejecting the defendant’s evidence, the Crown submits there is no invariable rule that the Courts must give reasons for their decisions. In some cases reasons may be abbreviated.5 The Crown relies on Kane v Police6 where Chisholm J held that an absence of reasons for rejecting the defendant’s evidence did not warrant intervention on appeal. The Crown submits the Judge must approach the matter with care and is in the best position to assess credibility. Although the Judge
did not fully articulate his reasons for rejecting Mr Peneha’s evidence, it is clear that he had done so.
Analysis
[16] I do not consider the Judge erred in drawing any unjustified inferences. His primary finding on the first issue he set himself depended on his assessment of the veracity of the witness Mr Graham. It was reassessed in light of the subsequent evidence of the defence witnesses whose evidence (so far as in conflict with Mr Graham) the Judge did not accept. No essential factual finding here depended on articulated inferential reasoning for which there was no sufficient foundation. The Judge believed Mr Graham. The others he did not believe.
[17] Regarding credibility, the factors in Lemalu must be borne in mind.7 The Judge here had the advantage of seeing the witnesses give evidence and clearly detailed why he considered Mr Graham’s evidence to be credible and reliable. It must of course follow from a finding appropriately testing the evidence of the complainant Mr Graham first, that in then expressing in his judgment his belief in Mr Graham’s evidence he must in consequence have disbelieved Mr Peneha’s evidence.
[18] As to reasons, although the Judge does not express an articulated view as to why he did not consider Mr Peneha’s evidence or that of the other defence witnesses to be credible and reliable, I accept the Crown submission that the Judge was not explicitly required to set out the detailed reasons for rejecting their evidence. It is clear from the judgment that he considered Mr Graham’s evidence to be credible and reliable, and that where there were any conflicts with those other witnesses he
accepted the evidence of Mr Graham. In Kane v Police Chisholm J said:8
The absence of any comment about his reasons for rejecting the appellant’s
evidence does not warrant intervention by this Court.
I am satisfied that in this case the reasoning of the Judge, while brief, makes clear the basis on which he accepted the complainant’s version of events and why, necessarily in consequence, he did not accept the evidence given for the accused. The latter aspect was more inferential than articulated, but is nonetheless adequate.
B. Burden of proof
[19] The second ground advanced by the appellant is that the Judge failed to apply the proper burden of proof. Mr Tennet submits that the Judge reversed the burden of proof by placing too much emphasis on the fact that there was nothing to prove that Mr Graham fabricated the story. As Mr Tennet put it, the Judge should not be asking himself the question “why should he lie”?
[20] In response the Crown submits that a mere failure to refer to the burden without more does not indicate that the wrong burden or standard was applied. The Judge referred to the criminal burden in two places in his judgment. The Judge was clearly aware of the correct approach where a defendant gives evidence. After rejecting Mr Peneha’s denial on oath, the Judge turned to the remaining evidence. He considered that evidence established the charges beyond reasonable doubt. The Crown submits that where the appellant’s evidence is an outright denial of the events, then the real issue becomes simply one of credibility. As Ms Light put it, the case at trial centred on issues of credibility, in particular the credibility of the complainant Mr Graham.
Analysis
[21] I do not consider that there is merit in this ground of appeal. In the decision
Dela Paz v Police,9 which is relied on by the Crown, Ronald Young J said:
It is not a fatal error for a Judge to fail to directly mention the onus and standard of proof in a summary criminal case.
In that case Ronald Young J was satisfied that the trial Judge was aware of the onus and standard.
[22] In the present case, the Judge began his judgment at [2] by stating:
It is obviously incumbent on the informant to prove the essential ingredients of each of the two charges beyond reasonable doubt.
Likewise in the final paragraph [15] the Judge said:
I find therefore both charges proved to the requisite standard.
[23] Where an accused gives evidence there are three alternatives available: (1) if the evidence is accepted, the Judge must acquit; (2) if it might reasonably be true, the Judge must acquit; and (3) a conviction is proper only if the evidence is rejected and the Judge cannot otherwise hold a reasonable doubt as the accused’s guilt. In Dela
Paz it was sufficient that the Judge began with a consideration of the victim’s
9 Dela Paz v Police HC Wellington CRI 2010-485-76, 13 October 2010.
evidence, whom she determined to be a truthful and reliable witness. Once that conclusion had been reached by the Judge it inevitably followed that she was going to reject the appellant’s evidence.
[24] In my view the Judge here correctly applied the tripartite test where an accused gives evidence. Where the Judge accepts initially and provisionally the complainant’s evidence as credible, that witness coming first at trial, the Judge must of course throughout the trial process continue to test that initial and provisional impression against the evidence later given. The judgment ultimately given is the Judge’s reflection upon all the evidence given. In reaching an assessment at the end of trial in a judgment that the complainant’s evidence is credible, it follows, as I have already said, that the appellant’s contrary evidence must be rejected. Here the Judge said so expressly at [13]. After rejecting Mr Peneha’s denial the Judge went on at [14] to satisfy himself that the remaining evidence proved the charges beyond reasonable doubt, and in the final paragraph of the judgment the Judge applied formally the correct burden of proof.
Identification evidence
[25] On the third ground Mr Tennet submits that the Judge’s failure to caution himself on this issue was fatal, as there was reasonable doubt as to identification. Recognition, he submits, is a factor that goes to the quality of identification which can only be done after an adequate warning. It was also submitted that s 45 of the Evidence Act applied, that the admissibility of the identification evidence should have been considered under that section.
[26] For the Crown Ms Light submits that admissibility of the identification evidence was not put in issue at trial. There is no requirement to specifically cite s
67A. The identification evidence was recognition evidence. The two protagonists had known each other for some five years after attending the same school. In evidence both Mr Peneha and Mr Graham acknowledged their prior association at school. The gap between their last contact at school and the incident in the subway was about three years. The Crown submits that the Judge’s reference at [12] of the
judgment was sufficient consideration of the identification evidence. What the Judge said there was as follows:
As to the general issue of identification the complainant knows the defendant, the defendant acknowledges that. They have had contact before and since. There was nothing about the circumstances of the incident on the evidence as a whole which might detract from his recognition evidence that it was the defendant who was his assailant.
[27] Finally, in reliance on Harney v Police10 the Crown submits that the fact that an accused is already known to a witness that identifies them may constitute a “good reason” for not conducting a formal procedure under s 45.
Analysis
[28] Section 67A of the Summary Proceedings Act 1957 states:
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.
[29] That provision reflects a need for caution before an accused is convicted of an offence, based wholly or substantially on visual evidence.11 It applies in summary cases held before a District Court Judge alone.12 As to the requirements of that section Morris J in Waaka v Police said:13
[The Judge] is not required to specifically refer to the section nor indeed quote its provisions provided it is plain he has taken the provisions into account when considering the evidence before him, provided it is clear from his judgment he has done so.
In Luke v Police14 Venning J approved that approach:
Where the Judge does not refer to the section or expressly recite the relevant provisions of the section then the Court on appeal will need to be careful to ensure that the Judge has, despite that omission, properly considered the provisions of the section and applied them to the case before him or her. If
10 Harney v Police [2011] NZSC 107 at [26].
11 Tamati v Police HC Hamilton CRI 2011-491-54, 25 August 2011 per Heath J.
12 Section 126 of the Evidence Act 2006 applies when there is a jury.
13 Waaka v Police HC Rotorua AP 87/94, 11 November 1994.
14 Luke v Police HC Rotorua CRI 2003-463-56, 17 March 2004 at [23].
on appeal the Court can be satisfied that that indeed is the case then there
will be no basis to interfere with the lower Court’s decision.
This passage was also approved by Dobson J in Talbot-Maarhuis v Police.15
[30] The omission by the Judge in this instance to explicitly warn himself or refer to the section will not matter if it is clear that the Judge proceeded with caution and took the possibility of mistake into consideration. I have therefore considered carefully the judgment of Judge Davidson. There is no explicit mention of the possibility that the witness may have been mistaken. But against that is the Judge’s careful consideration of the complainant’s evidence which he found to be straightforward, detailed, prompt, reliable and credible.
[31] More importantly it is perfectly clear on the face of the judgment that the Judge is focused upon identification as the second of the two main issues. On balance, despite the fact that the Judge did not explicitly mention s 67A, and despite the fact that he does not mention explicitly the possibility of mistake, it clear that the Judge had considered the identification evidence with due care and must have contemplated the possibility of mistake.
[32] This was a case where the observation of the complainant was not fleeting. It was extended and involved an incident which on the evidence occurred between two young men in a well lit subway in the mid afternoon. There was no doubt in this case that Mr Peneha and Mr Graham knew each other. The gap between their last association and this meeting was just three years or so. The Judge considered carefully in his judgment whether the recognition evidence was credible and reliable, and found in all those circumstances that it was. I do not consider therefore in these circumstances that any substantial complaint can be made that the Judge here did not explicitly refer to s 67A or its content.
[33] Finally as to s 45, I do not consider there is any merit in that ground either. As the Supreme Court in Harney v Police16 notes, where a witness knows an
offender, the witness is likely to offer a more reliable opinion as to identity.
15 Talbot-Maarhuis v Police HC Wellington CRI 2008-485-12, 18 June 2008.
16 Harney v Police [2011] NZSC 107 at [26].
Carrying out of a formal identification procedure in that circumstance is unlikely to serve any practical utility. Where there is good reason for dispensing with formal procedure, it is still open to the defendant to question the identification evidence as unreliable. But this is not such a case. Given the degree of association between Mr Graham and Mr Peneha, the prompt identification of him and the finding that the evidence given by Mr Graham is credible and reliable, this is not a case where it can be said that the identification evidence is impaired by want of the use of a formal s
45 procedure. The police had proven beyond reasonable doubt that the identification was a reliable one.
[34] I therefore dismiss this ground of appeal.
Result
[35] For the above reasons the appeal will be dismissed. [36] I thank both counsel for their excellent submissions.
Stephen Kós J
Solicitors:
Crown Solicitor, Wellington for Respondent
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