R v Cori Beavon Hewett

[2003] NZCA 291

IN THE COURT OF APPEAL OF NEW ZEALAND

CA350/03

THE QUEEN

v

CORI BEAVON HEWETT

Hearing:27 November 2003

Coram:Gault P
Goddard J
Rodney Hansen J

Appearances:  A S Greig for Appellant

T A Simmonds for Crown

Judgment:12 December 2003 

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

[1]       The appellant was convicted at trial on counts of injuring with intent to injure (s189(2) Crimes Act 1961) and wilful damage (s298(4) Crimes Act 1961).  He has appealed against his conviction on both of those counts on three grounds: first, that the verdict of the jury was against the weight of evidence; secondly, that the trial Judge erred in allowing evidence of identification of him to go before the jury; and thirdly, that the trial Judge had failed to warn the jury in sufficiently strong terms about the dangers of convicting on identification evidence in the particular circumstances of this case.  These grounds were somewhat inter-related, the sole issue at trial being that of identification.  The essential contest between the Crown and defence concerned the reliability of an eye witness’s evidence of the appellant as one of three men who participated in the offending.

The facts

[2]       Aside from the issue of identification, the facts are not in dispute.  At about 4am on 2 December 2001 the three men were in Shaw Avenue, Christchurch, with two women.  An argument developed between the three men and the women which resulted in the women seeking refuge from the men in a nearby bar.  At that time the victim of the assault was sitting in a car outside the bar.  He saw the two woman run past and then hammer on the door of the bar calling out to be let in.  Although the bar was closed there were staff inside cleaning up and the two women were let inside.  The bar is apparently situated on the first floor of building in question, above a shop.  Once inside the women went upstairs and the entrance door through which they had entered was relocked by the bar owner.  Meantime, the three men had followed the women to the entrance door and stood outside in the street shouting up at the bar for the women to come down.  When the women did not oblige they began kicking and banging on the door.  One of the men broke a narrow window set in the door and reached through it to try to unlock the door.  He was however unsuccessful in gaining entry in this manner.  His efforts were observed by the bar owner, who had come to the top of the stairs and was standing there, looking down at the door.

[3]       While this was going on the victim got out of his car and remonstrated with the three men.  As he did so, one of the men grabbed him from behind and the other two punched him numerous times about the body.  He fell to the ground and was then kicked in the head until he lost consciousness.  As a result of the assault he suffered a fractured eye socket, severe bruising, swelling to his left eye and head, and a swollen mouth and loose teeth.  There is no dispute that he suffered injury in the assault.

[4]       His three assailants then ran away and the Police were called.  A short while later the appellant and two other men were located about half a kilometre from the scene and were placed in the back of a police car and driven back to the scene.  Back at the scene the appellant was removed from the police car and escorted across the road to another police car.  During this manoeuvre, the owner of the bar, who was standing close by, told a police officer that he recognised the appellant as the person who he had seen reaching in through the broken window.  The appellant and his associates were subsequently arrested and charged.  The third man was however found unfit to stand trial and Mr Walker was acquitted at trial.  The appellant was the only one convicted by the jury.

The identification evidence

[5]       The sole identification evidence at trial was that of the bar owner.  The assault victim was unable to identify any of his attackers, except to state that they were the three men who he had seen chasing the women and trying to break into the bar.

[6]       In his evidence, the bar owner said that he was upstairs in his bar with his staff after closing time when his attention was drawn to some trouble that appeared to be occurring outside on Shaw Avenue.  He looked out of the window onto Shaw Avenue and saw three males and two females standing slightly back from a lamppost and arguing.  He said that one of the women was “screaming out”.  One of his staff members yelled out to the women to come over to the bar.  He then went down and let the women inside and locked the door.  They all went upstairs.  The three males came over to the entrance door and began yelling up at the bar.  The situation did not quieten down as he had hoped, but got worse.  One of the men tried to throw something up at the window and they started kicking and banging on the door.  The bar owner went back to the top of the stairs and kept an eye on the door to make sure the three men did not gain entry.  While he was watching, one of the men used an object to smash the window in the door in order to try and gain entry.  The bar owner said he saw a hand come through the broken glass on the door and also saw the face of the person concerned, who was calling “hey babe, come on out”.  He identified this person as the appellant.  He said he had never seen this person before but could see his face through the window.  He said the light was on at the time.  He did not get a decent look at the other two men, although he was able to ascertain that all three were Maori.  Shortly after everything went quiet and he went back upstairs and looked out of the windows into the street to make sure that all was clear.  He then went downstairs to check on the situation and on opening the door saw the victim lying in the gutter in front of his car.  His staff had already telephoned the Police but the bar owner telephoned them again to report his discovery of the victim on the ground.

[7]       Under cross-examination the bar owner agreed that he was not able to give a detailed description of the man whose face he had seen at the broken window with his arm thrust through the window trying to open the door.  He described a police car arriving shortly back at the scene after the event with three men in it, one of whom was the appellant.  He said he saw the appellant taken from the police car and escorted across his line of vision to another police car into which he was placed.  At that time, or later, he told the police that this was the person whose face he had seen at the window.  He also told the police that the person whose face he had seen at the window was the tallest and most solid of the three men.  Although he could not remember having given that descriptive detail at the time, he agreed that he had done so when shown his statement by defence counsel.

[8]       Later in the trial, a police officer gave evidence that Mr Walker is in fact the tallest of the three men, being 1.85m tall, whereas the appellant is 1.8m tall.

[9]       Following their arrest, the clothing worn by all three men was scientifically analysed.  Blood from the victim was identified on the pants worn by Mr Walker.  It appears that the presence of this blood on his pants was explained at trial by the reasonable possibility of it having been transferred from the appellant or the third man when they were being transported in the police car.  There was no identification of Mr Walker at the scene.  He made a statement to police, in which he denied being in the area at the time.  The appellant however refused to make any statement to police about his movements or whereabouts at the time.

The competing cases

[10]     The Crown relied on the following combination of factors to link the appellant to the offending:

·     three men were seen across the road from the bar with the two women who later sought refuge in the bar;

·     the appellant was identified by the bar owner … as being the person who stuck his arm through the bar window and also had his face at the window;

·     the people who attacked the victim came from the group of three men who were trying to get into the bar;

·     the appellant and his two friends were found shortly after the assault in an area near the bar;

·     when they were stopped by police officers they were puffing as if they had been running; and

·     Mr Walker, the co-accused, had the victim’s blood on his pants.

[11]     The defence case was that the bar owner did not have a good opportunity of observing the face that he saw at the narrow window in the entrance door, as he was standing above the door at a distance of about 8m or so; that he had mis-described the man he saw at the window as the “taller or stockier” of the three men; that he had mistakenly assumed that the person at the window was the same person whom he saw police subsequently transfer from one police car to another; and that the dock identification of the appellant at trial was tainted by the earlier mistaken assumption.  Further matters relied on by the defence as raising the reasonable possibility that the bar owner’s identification was mistaken, were the absence of any identification by the victim of his assailants and the fact that the appellant and his associates were not the only people in the area at the time of their arrest.

The appeal

[12]     Essentially three limbs of argument were advanced by Mr Greig.  The first was that in the absence of the co-accused Mr Walker being convicted, the evidence did not support guilty verdicts in relation to the appellant.  Mr Greig submitted that if Mr Walker had been convicted, that would have provided the necessary evidential link with the appellant, but Mr Walker’s acquittal meant that the only real evidence against the appellant was the identification evidence of the bar manager.  Apart from that identification evidence, the only other evidence was proximity of time and place.  Although blood had been found on the appellant’s clothing, and on that of the third man, that blood was not the victim’s blood.

[13]     The second limb of the argument was that the identification evidence by the bar manager was unsafe and should not have been admitted by the trial Judge: first, because the bar owner only had a fleeting glimpse of the face looking through the broken window in the door; secondly, because the bar owner described this person as the tallest of the three men he had observed in the street below and the appellant was not the tallest of the three arrested; thirdly, because his evidence was contaminated by the appellant having been ‘paraded’ across his line of vision by police officers when brought back to the scene shortly afterwards.

[14]     The third limb of argument was that the trial Judge had compounded his error in allowing the identification evidence to be adduced at the trial by failing to direct the jury appropriately in terms of s344D Crimes Act 1961.  Mr Greig submitted that the Judge had in fact exacerbated the police’ breach of procedure in parading the appellant on his own in front of the bar owner, and by directing the jury in terms that actually enhanced that identification evidence to the advantage of the Crown, rather than by urging caution in relation to it.  The particular passage in the summing up singled out for this aspect of criticism was as follows:

Was [the bar owner] paying attention?  Well I think it is a matter for you but you might think that he was paying attention because someone is trying to break into his bar.  And that may have been a special reason why he has to remember what he saw and indeed he says that he saw the same man when that man walked from one police car to another in the company of one, at least, policeman and the Crown says well these events obviously concentrated his attention on what he was seeing.

[15]     Mr Greig emphasised that the effect of the above passage was to use the police breach of procedure as a means of enhancing the bar owner’s evidence, rather than as a warning to the jury of the significant danger raised by such a confrontation.

[16]     A further point raised on appeal was that the trial Judge’s style of delivery was unusually quick and that the pace at which he directed the jury on the need for caution was such that the warning would have been lost on the jury.  That point was not however pursued with any real vigour and we are satisfied that it has no substance.

Discussion

[17]     It is convenient to deal with the second and third limbs of argument first.

[18]     There are several aspects to the second limb of argument.  First, it must be accepted that the identification evidence given by the bar owner was of the fleeting glimpse variety with which the Court in R v Turnbull & ors (1976) 3 All ER 549 was concerned. However, although the encounter between the bar owner and the man who broke the window in the door was brief, it was essentially a face-to-face encounter for its duration, albeit from a distance apart. In addition, the light was on. That the bar owner’s attention was focussed, if not riveted, on the assault on the entrance door to his bar goes without saying. The Crown’s description of events as “obviously concentrating the bar owner’s attention on what he was seeing”, was apt in the circumstances. The Judge’s criticised direction, in which he asked the jury to consider the bar owner’s evidence in the context of what he was paying attention to, was also quite appropriate and innocuous. In essence, it did no more than reflect commonsense.

[19]     Insofar as the description of height and build given by the bar owner to the police did not accurately describe the appellant is concerned, that was a matter for the jury to weigh in the context of all the evidence.  It was not given as part of the bar owner’s evidence in chief, but was a matter elicited in cross-examination by Mr Greig.  It was for the jury to make of that mis-description what they might, bearing in mind that the bar owner’s assessment of height was made at a time when he was standing above the appellant and his two companions looking down on them.

[20]     The other aspect of criticism was that the police officers who apprehended the appellant and his two associates had breached the Police General Instructions in relation to identity parades, by walking the appellant from one police car to another on his own and at a time when the bar owner had an opportunity to observe him.  One of the police officers concerned accepted that the General Instructions relating to identification parades require a line-up of at least eight persons, and that a direct confrontation between a witness and a suspect is to be avoided if at all possible.  However, the situation that night was not that of an identity parade and there was nothing improper about the transfer of the appellant from one police car to another in the manner in which that occurred.  At the time the police were not aware of who might be a witness and who might not.  There was no intentional exposure of the appellant and no risk of a displacement effect, such as was contended for in R v Tamihere [1991] 1 NZLR 195.

[21]     The bar owner’s identification of the appellant at trial was based on his sighting of the appellant’s face in the window of the door, as the view that he had of the appellant as he was being transferred from one police car to another, was of his back only.  The relevant passage from the cross-examination of the bar owner was as follows:

Q.And that person who the police led across the road in your full view?

A.Back on.

Q.You saw him as he was getting out of the car?

A.Yes and no.  There was a lot going on at the time.  All I saw was the police take one away and put him in the other car.

[22]     The identification evidence given by the bar owner, although based on a relatively short encounter, was not so unreliable that it should have been kept from the jury.  The assessment of that evidence and of the bar owner as a witness was very much a jury matter and properly left to the jury to assess with the assistance of appropriate direction. 

[23]     Furthermore, there was accompanying circumstantial evidence that supported the identification evidence.  This came from the evidence of the appellant and his two associates being found shortly after in the general area of the bar, in a breathless state as if they had been running.  There was also the ethnicity of the group which accorded with the description of the men who had been trying to break into the bar.  These pieces of circumstantial evidence were supportive of the identification evidence given by the bar owner.  There is also the evidence of the complainant’s blood on the clothing of one of the group of three.  Although the jury must have considered that, by itself, it did not warrant a finding of guilt beyond reasonable doubt in respect of that associate, it is a strand of circumstantial evidence tending to link the appellant with the offending.

[24]     Turning to the second limb of appeal, the s344D Crimes Act 1961 warning required in a trial where there is identification evidence of a stranger of the fleeting variety does not specify the use of any particular words or formula.  The provisions of s344D followed the statements of the English Court of Appeal in Turnbull, which made clear that the form in which a warning is to be given is a matter for the trial Judge.  So long as the trial Judge warns of the special need for caution before convicting in reliance on the correctness of identification evidence, and advises the reasons for that warning in terms of the possibility that a mistaken witness can be a convincing witness, the direction will comply with s344D.  As the Court said (at p552), “provided this is done in clear terms the Judge need not use any particular form of words”.

[25]     In the summing up at this trial the Judge alerted the jury early to the need for special caution and advised them of the possibility that a mistaken witness can be a convincing witness.  He then proceeded to outline the reliability issues arising from the bar owner’s identification evidence in the context of the competing cases for the Crown and defence.  This not unusual approach served to conveniently tailor the issues to the different interpretation put on the facts by the Crown and defence.

[26]     The initial passages in the summing up in which the Judge gave the jury general advice about the special need for caution in relation to the bar owner’s evidence were as follows:

… Questions of identification of Mr Hewett at the scene depend wholly on your accepting the evidence of [the bar owner] and rejecting the criticisms which Mr Greig has made of the Crown evidence. Acceptance of the evidence of identification depends on the honesty and accuracy or reliability of the [bar owner] in making the identification and, as counsel have foreseen, I have to tell you that there is a need for special caution in considering identification evidence.

The reason why there is need for special caution is that honest people are sometimes wrong. For example, you are walking down the street and you see a friend whom you have not seen for a while and indeed you recall as you were passing him that you saw him in Armagh Street yesterday. You stop him and you pass the time of day and say "What were you doing in Armagh Street yesterday?" - just as an enquiry to pass the time of day - and the man says "I wasn't in Armagh Street yesterday I was in Wellington" and you say "Well I could have sworn it was you". Now this is the circumstance that you have got to guard against.

In relation to this question of identification if you find that [the bar owner] is not honest there is an end of it. If you find that he is honest you have to go on to consider, as I have already said in relation to witnesses generally, whether what the honest witness is saying is accurate and reliable and an honest person who is wrong may still be a convincing witness because that person may have convinced himself that he is correct in making his identification.

Well now, in considering [the bar owner’s] evidence you will be considering matters which you bring to your own minds but I suggest there are a number of questions which you can ask yourselves and which may help. Is the bar owner honest? Well, of course, it is not suggested that he is not being honest and indeed Mr Greig accepts that he is an honest witness. Is the witness … an intelligent man and a good observer? Well, of course, he does not recall what any of the men were wearing but he does recall what the man at the window said "Come on down here babe" or words to that effect. What was the opportunity for [the bar owner] to see what he was seeing? Well he saw a face, well first of all he saw an arm and a hand attached and then a face through a narrow window in a door. He was standing above that window at a distance of about eight metres or so. There was a light immediately above that window. Where there any other people present? Well there were not any other people present at the window when [the bar owner] saw the face there. Was [the bar owner] paying attention? Well I think it is a matter for you but you might think that he was paying attention because someone is trying to break into his bar. And that may have been a special reason why he has to remember what he saw and indeed he says that he saw the same man when that man walked from one police car to another in the company of one, at least, policeman and the Crown say well these events obviously concentrated his attention on what he was seeing. I will come back to [the bar owner’s] evidence when I deal with a summary of the case for the defence.

If in relation to Mr Hewett you are not satisfied that he has been correctly identified or if you think that it is reasonably possible that [the bar owner] was wrong, he must be acquitted of both charges.

[27]     In terms of how the Crown had put its case on the issue of identification of the appellant, the Judge directed the jury as follows:

Ms Farish says that obviously this was a joint enterprise, three men were frustrated at not being able to continue the company of these young women, they took out their anger on the door and then when [the victim] approached with his umbrella they took it out on him. She said that it is perfectly clear that [the victim] was attacked by three men. She said that there were a number of common features, a number of features which applied to each of the three men. Firstly, [the bar owner] and [the victim] say there were three men, that they were seen together at points two and three on that photograph that you have got there, that they were puffing, indicating that they had been running or at least walking very briskly, that three men were angry and that three men were involved in an assault.

[34] As to Mr Hewett, Ms Farish drew your attention to those matters of fact that I have mentioned to you, the face was framed in the window, there was a light above it and so on and that, as Ms Farish said, [the bar owner] had a concentrated view of a man whom he would have been anxious to remember because he was trying to break into his bar.

[35] As to the evidence that [the bar owner] had told the police that the man he saw at the window was the taller or stockier of the three men, she submitted that there is room for error here because [the bar owner] never saw the three men together on the ground, he only saw them from a first story window and judging height from that angle is notoriously difficult. But at all events, she said that when he saw a man walking from one car to another and said "that's the man that I saw at the window" that was sound identification.

You will remember, of course, that [the bar owner] pointed to Mr Hewett in the dock and said "that's the man I saw". Now of course a dock identification you have got to treat with some circumspection, to say the least of it. There are only two people accused here, one of them is Mr Hewett and one of them is the other man and you might take the view that dock identification does not help a heck of a lot when the whole purpose of the trial and the whole focus I should say of the trial is on the two men, one of whom [the bar owner] knows is Mr Hewett who he has identified before.

[28]     In relation to the defence case, the Judge commenced his summary of this by once more orienting the jury to the possibility that an identification witness, such as the bar owner, could be an honest but mistaken witness.  He said:

Well, Mr Greig focussed on this question of identification and said to you that [the bar owner] was an honest but mistaken witness. He was mistaken in saying that the face at the window was the face of the tallest of the three men and Mr Hewett is not the tallest of the three men. He had never seen Mr Hewett before and therefore did not know Mr Hewett. The lighting was artificial, the window was narrow, the face was viewed under alarming circumstances when it was an angry face and that [the bar owner] could not describe the clothing worn by the men and Mr Greig says what the police did inadvertently was to induce [the bar owner] to identify Mr Hewett by leading him from one car to another. Mr Greig does not suggest the police did that on purpose to achieve that end because they did not know what the situation was at the time, did not know that [the bar owner] was a material witness but the effect of what they did, says Mr Greig, is to focus [the bar owner’s] attention on one man and thereby promote in [the bar owner’s] mind the identification of that man as being the man at the window.

So those are the competing cases, Mr Greig I should say is suggesting to you that you could not conclude beyond reasonable doubt that Mr Hewett was the face at the window and saying that even if Mr Hewett was found by you to have been present you have then to be satisfied that he was one of the men who participated in the assault on [the victim] and there is none of [the victim]'s blood on Mr Hewett's clothing and either that or that he was helping or encouraging those who were attacking [the victim] and he draws your attention to the fact that there was no eye-witnesses which place Mr Hewett at the point of attack on [the victim].

[29]     When read as a whole, we are satisfied that the Judge’s summing up fully complied with the requirements of s344D, notwithstanding that the only reference he made to the identification of the appellant in the street when he was being transferred from one police car to another was during his summary of the case for the defence.  The fact that this event was referred to immediately after a reminder to the jury that an honest witness can nevertheless be a mistaken witness, sufficiently linked the special need for caution with that event.  The jury could have been in no doubt both the identification of the appellant as the man looking through the window in the door of the bar, and the bar owner’s subsequent recognition of him when being escorted by police officers in the street, had to be assessed against the possibility that the bar owner was an honest but mistaken witness.

[30]     Turning to the first limb of the appeal; that is, whether the verdicts were against the weight of evidence, Mr Greig conceded that if the identification evidence of the bar owner was properly admissible there was a sufficient evidential basis upon which to convict the appellant of the wilful damage charge.  However, he refuted that the evidence was sufficient to identify the appellant as one of the men who had assaulted the victim.

[31]     We are satisfied however that the combination of circumstances, including the identification of the appellant at the door of the bar, even in the absence of the victim’s blood on his clothing, was sufficient to link him to the assault on the victim.  Although the victim was unable to identify his assailants, he gave clear evidence that the three men whom he had confronted outside the door of the bar had all joined in the attack upon him.  These could only have been the same three men who had followed the two women and beaten on the door of the bar.

Result

[32]     The appeal is dismissed.

Solicitors:

Crown Solicitor, Auckland