R v Daly

[2016] NZHC 2750

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-063-731 [2016] NZHC 2750

THE QUEEN

v

STEPHEN WILLIAM DALY

Hearing:	15 November 2016
Counsel:	N Tahana for Crown M N Pecotic for Defendant
Judgment:	17 November 2016

JUDGMENT OF BREWER J

This judgment was delivered by me on 17 November 2016 at 9:30 am pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Gordon Pilditch, Rotorua, for Crown

Maria Pecotic, Auckland, for Defendant

R v DALY [2016] NZHC 2750 [17 November 2016]

Introduction

[1]      In the fourth week of his trial on charges of kidnapping, violence and robbery,

Mr Daly has decided to object to the identification evidence of Senior Constable Hermanus Hubner.  I heard Constable Hubner’s evidence on 15 November 2016 by way of voir dire.  I reserved my decision.

Background

[2]      It is alleged that in the course of offending against Mr Guy Perry by Mr Daly and  seven  others  of  his  co-defendants,  Mr Perry  was  robbed  of  his  black Audi motorcar, registration number ALF668.   This took place in the Tauranga area on

17 February 2015.

[3]      Constable Hubner’s evidence is that on 23 February 2015 he saw the Audi driving north on State Highway 1 near Whangarei.  He checked the number plate and found it to be reported stolen.  He followed it until it turned down a rural road which has no exit.

[4]      By then, Constable Hubner had confirmed with Police Control that the Audi was connected to a reported kidnapping and that the occupants might be armed.  He waited across the intersection with the no exit rural road for another constable to arrive as backup.

[5]      The other constable arrived and parked near Constable Hubner’s vehicle. While standing at the back of his vehicle, Constable Hubner realised that the black Audi was approaching, was crossing the intersection and was going to drive onto the road where he was standing.

[6]      Constable Hubner ran to the other side of the road and indicated, by raising his arm, that the Audi should stop.  It did not.  It passed within a metre or so of him, at about 40 km/h, with the driver’s side closest to him. The Constable said he recognised

Mr Daly as the driver.

[7]      The next day, Constable Hubner picked Mr Daly’s photograph from a montage of photographs.

[8]      The black Audi was found about a year later at an address in Northland.

The law

[9]      The admissibility of visual identification evidence is governed by s 45 of the

Evidence Act 2006 (the Act). This provides, relevantly:

(1)       If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.

(2)       If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.

[10]     Both  the  Crown  and  Ms Pecotic  for  Mr Daly  submitted  that  Constable Hubner’s evidence falls within s 45(2) and so the prosecution must prove beyond reasonable doubt that the circumstances in which he made the identification have produced a reliable identification.  I disagree.

[11]     As I will come to, Constable Hubner and Mr Daly were not strangers.  The Constable had dealt with Mr Daly personally on 3 June 2013, and had seen his photograph on many occasions both before and after that contact.

[12]     I take the identification of Mr Daly by Constable Hubner to have been made at the time he tried to stop the Audi, but it passed him by. That is when he saw the driver and, in his mind, identified the driver as Mr Daly.  There was good reason for not, under those circumstances, following a formal procedure.   It is among the circumstances  recognised  in  s 45(4)  as  good  reason  for  not  following  a  formal procedure:

(f)       if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence,

[13]   Constable Hubner, after his chance meeting, immediately reported his identification of Mr Daly to his superiors.

[14]     It is also arguable, on the basis of R v Edmonds and Harney v R, that there was good reason to dispense with a formal procedure because Constable Hubner, familiar with Mr Daly, was giving recognition evidence.1

[15]     In  Harney,  the  Supreme  Court  ruled  that  merely  because  identification evidence takes the form of recognition, that factor will not necessarily provide a good reason for dispending with a formal procedure.  It will only do so if the appearance of the alleged offender was sufficiently known to the witness before the time of the alleged identification that a formal procedure would be of no utility.2

[16]     The facts  in  Harney are similar to  the present  case.    But  the degree  of knowledge of the appearance of Mr Daly possessed by Constable Hubner was so much greater than that of the police officer in Harney in relation to the alleged offender there that I would rule that no formal procedure was necessary.

[17]     But the point is moot because a formal procedure was followed and Constable Hubner,  not  surprisingly,  identified  Mr Daly  by  his  photograph.     I  say  “not surprisingly” because of his past dealing with Mr Daly and his repeated previous viewings of Mr Daly’s photograph.

[18]     I conclude that Mr Daly’s challenge to Constable Hubner’s identification falls to be determined under s 45(1).

Issue

[19]     The issue, therefore, is:

1      R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762; Harney v R [2011] NZSC 107, [2012] 1

NZLR 725.

2 At [27].

Has Mr Daly proved, on the balance of probabilities, that Constable Hubner’s evidence is unreliable?

The evidence

[20]     Constable Hubner’s evidence, summarised, is:

(a)      He met Mr Daly on 3 June 2013 when he stopped a car Mr Daly was driving. He went through the process of suspending Mr Daly’s licence to drive.   The Constable spent about 10 to 15 minutes talking to

Mr Daly.

(b)However, Constable Hubner already knew who Mr Daly was.   He recognised him from photographs of Mr Daly which featured regularly on Police bulletins – an information system which informs Police of people currently “of interest”.

(c)       After 3 June 2013, Constable Hubner continued to view photographs of

Mr Daly every few months.

(d)On 17 February 2015, the black Audi approached Constable Hubner at about  40 km/h.    The  Constable  saw  the  driver  through  the  front windscreen and at once recognised him as Mr Daly.  The car passed within about a metre of him and he was standing on the driver’s side of the car.

(e)       The Constable was sure of his identification.

(f)      The Constable reported to his superiors immediately afterwards that he recognised the driver and it was Mr Daly.

(g)The next day, Constable Hubner picked Mr Daly’s photograph from a montage board.

[21]     In cross-examination, Ms Pecotic, relevantly, challenged Constable Hubner as follows:

(a)      The Audi had tinted windows.  The Constable’s response was that the front windscreen was not tinted.

(b)The opportunity to observe was very limited.  A couple of seconds or so. The Constable’s response was that he nevertheless got a good look at the driver and recognised him.

(c)      The Constable knew from the inquiries he made about the Audi before the identification that Mr Daly was associated with it. Accordingly, he identified the man he expected to be driving the car. Constable Hubner said he could not remember whether he had learned that Mr Daly was associated with the Audi.  He conceded that he might have.  However, he  confirmed  that  he  recognised  Mr Daly  and  said  he  had  not anticipated that Mr Daly might be the driver.

(d)When the Constable picked Mr Daly’s photograph in the montage he did not in his comments relate it to the previous day’s incident but to the June 2013 incident. I note that he said “previous dealings”, and that the reason for him viewing the montage was to respond to the previous day’s incident.

Discussion

[22]     Police officers are treated no differently than other witnesses when it comes to admitting evidence of identification.  The focus is on circumstances which go to the reliability of the evidence. That is because caution is required. Honest, but mistaken, evidence of identification is notorious for resulting in injustice.

[23]     In this case, the identification comes from recognition. Constable Hubner had a familiarity with Mr Daly’s appearance gained from years of viewing his photographs and from his June 2013 encounter. This gives greater confidence in the identification than if Mr Daly were a stranger.

[24]     The Constable got a clear view of the driver of the black Audi through the front windscreen.  He immediately recognised the driver as Mr Daly. He did not have long

to make the identification, but in the circumstances I infer he was focused on the driver, it was daylight and a clear day.  He saw the driver first full face on, and then from the side as the car passed.

[25]     The Constable was sure of his identification.  He did not anticipate Mr Daly being the driver, and he at once reported to his superiors that he had recognised

Mr Daly as the driver.  He demonstrated his ability to recognise Mr Daly when he picked his photograph from the montage the next day.

[26]     There is other evidence in the trial that as at 17 February 2015 Mr Daly was driving the black Audi.

Decision

[27]     I find that Mr Daly has not proved on the balance of probabilities that the evidence is unreliable.  Indeed, I am sure that it is reliable.

[28]     I rule the evidence to be admissible.

Brewer J