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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Daly

Details

AGLC: R v Daly [2016] NZHC 2750
Case: [2016] NZHC 2750
Decision Date: 17 November 2016

CaseChat Overview and Summary

The case before the Court involved a trial against Stephen William Daly, charged with kidnapping, violence and robbery. The specific issue before the Court was the admissibility of identification evidence given by Senior Constable Hermanus Hubner, who identified Daly as the driver of a stolen black Audi motorcar. The Court heard the matter via a voir dire and reserved its decision, which was delivered on 17 November 2016. The central legal issue was whether Daly had proved, on the balance of probabilities, that Constable Hubner's identification evidence was unreliable. The admissibility of identification evidence was governed by section 45 of the Evidence Act 2006. Both parties agreed that Constable Hubner’s evidence fell under section 45(2), which requires the prosecution to prove beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification. However, the Court disagreed, finding that Constable Hubner’s familiarity with Daly, gained from multiple previous interactions and viewings of his photograph, provided good reason for not following a formal identification procedure under section 45(4)(f). The Court found that the identification was made under circumstances that produced a reliable identification and ruled the evidence to be admissible.

The Court's reasoning was based on the familiarity Constable Hubner had with Daly, which stemmed from a prior encounter and regular viewings of Daly's photograph. The identification occurred under dynamic circumstances, where the Constable had an immediate and clear view of Daly, recognised him, and reported it to superiors without delay. The Court emphasised the reliability of the identification given the Constable's familiarity with Daly and the circumstances of the identification. The Court concluded that Daly had not proved, on the balance of probabilities, that the evidence was unreliable. The identification evidence was thus deemed reliable and admissible.

Orders