R v Edmonds
[2009] NZCA 303
•14 July 2009
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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA108/2009
CA112/2009 [2009] NZCA 303
THE QUEEN
v
PATRICK SHAUN EDMONDS JOSHUA WINIATA KEIL
Hearing: 7 May 2009
Court: Glazebrook, Potter and Asher JJ Counsel: T M Petherick for Mr Edmonds
R Philip for Mr Keil
J M Jelas for Crown Judgment: 14 July 2009 at 12.30 pm Reasons for Judgment: 20 July 2009 at 4.00 pm
JUDGMENT OF THE COURT
A Leave to appeal is granted but the appeal is dismissed.
BOrder prohibiting publication of the judgment and any part of the proceedings in news media or on internet or other publicly available
R V EDMONDS And Anor CA CA108/2009 [14 July 2009]
database until final disposition of trial. Publication in law report or law
digest permitted.
REASONS OF THE COURT
(Given by Glazebrook J)
Table of Contents
Para No
An attack at a Mongrel Mob pad [1] Background [8] Before the attack [8] The attack [11] The victim’s evidence about the attack [13] After the attack [15] Police investigation [17]
Mr Biddle’s prior knowledge of the accused [20] Mrs Biddle’s evidence [25] The positions of Mr Edmonds and Mr Keil [26] The legislation [28] Some general comments on s 45 [33] Does recognition evidence fall within the scope of s 45? [37] High Court judgment [37] Our assessment [38]
Was there good reason not to conduct a formal identification
procedure in terms of any of the circumstances set out in s 45(4)? [39]
High Court judgment [39] Does s 45(4)(d) apply? [41] Does s 45(4)(e) apply? [48]
Was the fact that Mr Biddle recognised the alleged perpetrators
good reason not to conduct a formal identification procedure? [53]
The High Court decision [53] Submissions of the Crown [57] Submissions for the appellants [60] Issues [61] Is the list of factors in s 45(4) exhaustive? [62] Should recognition evidence be an added good reason under
s 45(4) for not conducting a formal identification procedure? [65]
Was there a good reason for not conducting a formal procedure
in this case? [75] Was Dobson J correct in his s 45(2) assessment? [79] The High Court judgment [80] Submissions for Mr Edmonds [85] Submissions for Mr Keil [90] Crown submissions [94] Issues [99]
Should reliability be measured by reference to the degree of
compliance with the formal identification procedures in s 43(3)? [100] What is meant by a “reliable identification” in s 45(2)? [102] What is meant by “the circumstances in which the identification
was made” in s 45(2)? [109]
Should witness confidence be taken into account in assessing
reliability? [116]
Did Dobson J err in considering that the Crown had proved
reliability in terms of s 45(2)? [121] Summary [129] The legal position [129] The law as applied to the facts [141] Identification warning under s 126 [145] Result [146]
An attack at a Mongrel Mob pad
[1] Mr Keil, Mr Edmonds and a co-accused, Mr Pritchard, are charged with causing grievous bodily harm to Mr Turanga August with intent to cause grievous bodily harm. The charge arises out of an incident at the Mongrel Mob pad in Hastings at around 8.30 am on 8 June 2008, during which Mr August was badly beaten.
[2] The police first became involved on 10 June 2008. The next day they contacted Mr Biddle who gave a statement identifying Mr Keil, Mr Edmonds and Mr Pritchard as the attackers. No formal identification procedures were undertaken.
[3] Mr Keil and Mr Edmonds challenged the admissibility of Mr Biddle’s evidence. On 23 February 2009, Dobson J ruled Mr Biddle’s evidence identifying them as the attackers admissible.
[4] Mr Keil and Mr Edmonds appeal against that decision. They maintain that a formal identification procedure, as set out in s 45(3) of the Evidence Act 2006, should have been conducted and that there was no good reason not to do so. Dobson J accepted this argument in the hearing before him. However, he held that the Crown, in terms of s 45(2), had proved beyond reasonable doubt that the circumstances in which the identification was made had produced a reliable identification.
[5] The Crown supports Dobson J’s decision with regard to s 45(2). However, while accepting that evidence that a witness recognises an alleged offender triggers s 45, the Crown maintains that the fact that a witness knows and recognises the perpetrator will nevertheless constitute good reason under s 45(4) not to undertake a formal identification procedure.
[6] The broad issues raised in this appeal are:
(a) Does recognition evidence come within s 45 of the Evidence Act?
(b)Was there good reason not to conduct a formal identification procedure in terms of any of the circumstances set out in s 45(4)?
(c) Was the fact that Mr Biddle recognised the alleged perpetrators good reason not to conduct a formal identification procedure?
(d) Was Dobson J right in his s 45(2) assessment?
[7] Before discussing those issues, we outline the background in more detail, set out the relevant provisions of the Evidence Act and make some general comments on identification procedures.
Background
Before the attack
[8] Mr Biddle is the primary eyewitness to the attack. He provided a statement to the police detailing his version of events some four days after the attack. This statement was not provided to us. The following factual narrative is therefore derived from Mr Biddle’s depositions evidence and his evidence given at the s 344A hearing.
[9] On Sunday 8 June 2008, at around 12.30 am, Mr Biddle finished work as a musician in a bar. At approximately 1.30 am, he and his wife left to go to another
bar. They arrived at approximately 1.45 am and stayed until it closed at 3.00 am. While at the bar he was introduced briefly to the victim, Mr August. After the bar closed, Mr Biddle and his wife decided to go to the Mongrel Mob’s headquarters, known as “the pad”, arriving sometime before 4.00 am. There were about 30 people there when they arrived.
[10] Mr Biddle’s evidence is that Mr Pritchard and Mr Edmonds were present when he arrived at the pad. Mr Biddle introduced his wife to both of the accused. They then had “a chit chat sort of thing”. Mr Biddle said that both Mr Edmonds and Mr Pritchard were at the pad the whole of the time he was there but that he mainly spoke to others who were present. Mr Biddle says that Mr Keil was at the pad during the evening, although he does not remember if Mr Keil was at the pad when he and his wife arrived.
The attack
[11] Mr Biddle’s evidence is that Mr August had been standing quietly by himself throughout the early hours of Sunday morning. At around 8.30 am, Mr Biddle saw Mr Keil move and stand next to Mr August. Mr Keil stood next to Mr August for about 10 to 20 seconds before he knocked Mr August down with a hard punch to his head. According to Mr Biddle, the punch was completely unprovoked. Mr Keil watched as Mr August struggled to stand up. While Mr August was struggling, Mr Edmonds and Mr Pritchard began kicking Mr August’s head and body for a prolonged period. These were hard kicks and no fewer than twenty were to the head. After the attack, Mr August was taken outside.
[12] Mr Biddle says that he was the designated “sober driver” and had drunk only about four bottles of beer in the course of the night. He had, however, also smoked some marijuana over the course of the evening. Mr Biddle’s evidence was that the lighting was quite good by the bar and the toilets, but that there was low lighting over the pool-table and that there was no direct light over the area where the attack took place. However, overall, he described the lighting as “quite good” and “quite bright”, such that he was still quite capable of seeing and recognising those people
who were in the room. Mr Biddle observed that this was aided by the fact that there was “daytime” light, as the attack occurred at approximately 8.30 am.
The victim’s evidence about the attack
[13] The victim, Mr August, in his depositions brief, said that he had gone from the Hastings bar to the pad. He was very drunk. He remembers Mr Edmonds being at the pad as Mr Edmonds is a distant relative of his, whom he has known all his life.
[14] Mr August remembers being punched in the face for no apparent reason, while he was in the bar area. He did not see who punched him. He remembers three further heavy punches and then waking up in hospital.
After the attack
[15] After the assault, Mr Biddle told his wife that they were leaving. When they went outside, however, they found Mr August in a “bad way” leaning up against a car. Mr Biddle said that Mr Keil then came out of the pad and said to get Mr August out of there. Mr Biddle then took Mr August to the hospital, leaving his wife at the party.
[16] When Mr Biddle arrived back at the pad to pick his wife up, he again saw Mr Keil who recognised him. They shook hands. He also said that when he returned he saw Mr Pritchard, with whom he embraced and “shared a moment”. He also saw Mr Edmonds.
Police investigation
[17] The police were first alerted to the attack on 10 June 2008 when called by Mr August’s mother. They had not been alerted by the hospital. Detective Yule and Detective Sergeant Foster went to the hospital and spoke to Mr August in intensive care that day. Detective Yule says that Mr August originally said that his attacker was “George”.
[18] The following day, the police made some further inquiries at the hospital and were given Mr Biddle’s name. Detective Yule then contacted Mr Biddle and took his statement on 11 June 2008. He took a statement from Mr Biddle’s wife on
16 June 2008.
[19] Detective Yule’s evidence was that a formal identification parade had not been conducted because of Mr Biddle’s prior familiarity with all of the accused and his confidence in identifying them as the attackers.
Mr Biddle’s prior knowledge of the accused
[20] Mr Biddle claims to have known Mr Pritchard and Mr Edmonds because they all attended the same Hastings gym in the late 1980s. He recalled having frequent contact with Mr Edmonds at that time. He also had contact with Mr Edmonds’ sister when they worked together on an outdoor pursuit course and he also knew Mr Edmonds’ brother and other sister too.
[21] Mr Biddle says that he used to see Mr Edmonds in town or in Flaxmere and “have a quick catch up”. He says that he had last seen Mr Edmonds at the pad probably two months before the incident in question.
[22] There are some issues over the dates provided by Mr Biddle in light of the fact that Mr Edmonds was in prison during 1988 and 1989, being released on
13 December 1989. In 2008, Mr Edmonds had also been in prison, up to 7 May
2008.
[23] Mr Biddle acknowledged not knowing Mr Keil as well as Mr Pritchard or Mr Edmonds. He recalled having met him “previously”, possibly at a party in Napier. He described him as “quite a friendly talkative sort of young fella”.
[24] Mr Biddle has had more contact with other members of the Keil family. Mr Keil’s uncle, Mr Dale Keil, is married to Mrs Biddle’s cousin. Mr Biddle also knows Mr Dale Keil’s brother, Mr Lewis Keil. Mr Biddle was cross-examined as to
whether he saw a familial likeness among the various members of the Keil family. Mr Biddle said that he did.
Mrs Biddle’s evidence
[25] Mrs Biddle confirmed that she had been introduced to Mr Edmonds and Mr Pritchard by her husband. She had later observed about nine people gathering towards the entrance of the pad and thought that there might be a fight. She did not watch what followed, but, after a time, realised that the room had emptied and her husband was not present. She went outside and saw her husband and Mr August, whom she did not know. When Mr Biddle said he was taking Mr August to the hospital she returned inside, but did not recall seeing either Mr Edmonds or Mr Pritchard again during the evening. Her evidence was that she does not know Mr Keil and she does not recall meeting him that evening. Mrs Biddle had consumed significantly more alcohol than Mr Biddle over the course of the night.
The positions of Mr Edmonds and Mr Keil
[26] Mr Edmonds denies assaulting Mr August. On 16 June 2008, Mr Edmonds was interviewed by a Detective Buckley. According to Detective Buckley’s depositions evidence, Mr Edmonds said that he was not at the pad at the time of Mr August’s assault, but rather was in Flaxmere. On 19 February 2009, Mr Edmonds was given leave to file an alibi notice out of time and so presumably he still intends to deny his presence at the pad, at least at the time of the assault.
[27] Mr Keil also says that he was not at the pad and did not assault Mr August. Mr Keil initially said that he had been picked up for work before the assault took place. According to Detective Yule’s depositions evidence, at a subsequent police interview on 24 July 2009, Mr Keil acknowledged that this was incorrect. However, Mr Keil claimed in this interview that on the day of Mr August’s assault he was asleep at a family member’s house.
The legislation
[28] Section 45 of the Evidence Act governs the admissibility of “visual identification evidence”, which is defined in s 4 as:
Visual identification evidence means evidence that is—
(a)an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or
(b)an account (whether oral or in writing) of an assertion of the kind described in paragraph (a).
[29] Section 45(1) governs the position where a formal identification procedure is followed or where there is good reason not to follow such a procedure:
(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.
[30] Section 45(2) relates to the situation where there is no good reason for a formal identification procedure not being followed. It provides:
(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.
[31] Section 45(3) sets out the requirements for a formal identification procedure. It is common ground that such a procedure was not undertaken in this case. Section 45(3) provides:
(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—
(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and
(b) in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and
(c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and
(d) in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and
(e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(g) that complies with any further requirements provided for in regulations made under section 201.
[32] Section 45(4) deals with circumstance constituting “good reasons” for not following a formal procedure. It provides:
(4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:
(a) a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):
(b) the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):
(c) a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure:
(d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:
(e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation:
(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.
Some general comments on s 45
[33] The expanded procedures in s 45 of the Evidence Act were introduced because of the increasing body of evidence showing that inaccurate identification evidence has been responsible for a number of miscarriages of justice. As noted by the New Zealand Law Commission in its Miscellaneous Paper on eyewitness identification, in research on wrongful convictions in the United States from the year
1900, eyewitness misidentification was a factor in 52 percent of these cases: Total Recall?: The Reliability of Witness Testimony (NZLC MP13 1999) at [28]. With the advent of DNA technology, it has also been established that approximately three- quarters of the convictions that have been proved wrongful by DNA evidence in the United States were based on faulty eyewitness testimony: see Fraser and others “The Police Line-up and Its Impact on the Justice System” [2009] Crim L Q 333 at
334.
[34] The concern is that identification evidence, particularly of strangers after a “fleeting glance”, is notoriously unreliable but that juries put inordinate weight on it and have difficulty assessing the reliability of such evidence. The Law Commission noted that the factors juries used to assess reliability, such as witness confidence, memory for peripheral details and consistency of description, are not necessarily indicative of reliability: Evidence: Reform of the Law (NZLC R55-Volume 1 1999) at [199]. Research has also shown that traditional means of helping juries to assess such evidence, such as judicial directions and cross-examination of identification witnesses, are of limited assistance in helping juries distinguish between accurate and inaccurate identifications: see R v Turaki [2009] NZCA 310 at [47].
[35] That identification evidence is unreliable is partly because of distortions arising throughout the investigation and collection processes of such evidence and partly because of the inherent unreliability of perception and memory.
[36] Much work has been done in recent years on attempting to improve investigation and collection processes but, because of the inherent difficulties with identification, such improvements do not necessarily lead to accurate identifications. As noted by the British Psychological Society, several surveys have established that, even with the use of properly constituted identification parades, there is an approximate error rate of 20 percent: Guidelines on Memory and the Law: Recommendations from the Scientific Study of Human Memory (2008) at 34.
Does recognition evidence fall within the scope of s 45?
High Court judgment
[37] Mr Biddle’s evidence is that he recognised Mr Edmonds and Mr Keil from past acquaintance with them. While acknowledging that the unreliability inherent in stranger identifications is readily distinguishable from situations in which the identification is reliant on prior familiarity, Dobson J considered that this distinction is only relative and not absolute. In his view, s 45 applies to all identification evidence, including recognition evidence.
Our assessment
[38] We agree with Dobson J on this point (as do both parties). On a basic reading of the s 4 definition of “visual identification evidence”, the section clearly covers recognition evidence. This means that recognition evidence falls within the parameters of s 45. See also on this point (in the context of s 126 of the Evidence Act) R v Uasi [2009] NZCA 236 at [21] and R v Turaki at [62].
Was there good reason not to conduct a formal identification procedure in terms of any of the circumstances set out in s 45(4)?
High Court judgment
[39] The Crown conceded in the High Court hearing that s 45(4)(d) did not apply in this instance, as the police should have been aware that in a case against senior
gang members all elements of an offence would be at issue, including identification. The Crown did, however, rely on s 45(4)(e), arguing that the identification provided by Mr Biddle was “soon after the offence was reported and in the course of [the] officer’s initial investigation”.
[40] Dobson J rejected this submission. He considered that there was force in the defence submissions that s 45(4)(e) contemplates some degree of immediacy before the quality of the witness’s recollection has any opportunity to fade or be distorted by any intervening events. Dobson J held that a lapse of four days must afford opportunities for the distortion of the recollection of a witness. He held that the notion of “soon after” was very unlikely to include a lapse in time of four days.
Does s 45(4)(d) apply?
[41] It is questionable whether the Crown was right to concede that s 45(4)(d) was not applicable. While the police could not assume that the alleged perpetrators of the attack on Mr August were going to admit their involvement, the question to be asked in terms of s 45(4)(d) is whether or not it could be anticipated that identity would be an issue at trial (an objective test, given the use of the word “reasonably”).
[42] There is a difference between observation and identification evidence. Identification evidence involves identifying an individual as being present at the scene of the offence – see the definition of visual identification evidence in s 4. By contrast, observation evidence concerns the actions of a person, including an offender’s alleged participation in the offence. It is different from identification evidence, and there may be instances where it stands alone because the presence of the offender at the scene is not in dispute. For further discussion, see R v Turaki at [65] - [73].
[43] We also refer to R v Chen [2001] EWCA Crim 885 at [40] where the Court accepted that an identification parade is not required where an individual suspect disputes participatory acts, but accepts that he or she was present at the scene of the criminal activity. In such cases, identification of the suspect is not an issue.
[44] Taking into account the distinction between observation and identification evidence, a reasonable police officer should certainly have anticipated that there would be a challenge to Mr Biddle’s testimony about his observations of who was actually involved in the attack. Such observation evidence must, however, be distinguished from identification evidence. Mr Biddle’s identification evidence (ie his evidence placing all three accused at the pad on the night in question) was based on his conversations over the course of the evening with people whom he named with confidence and whom he appeared to know relatively well, at least in the case of Mr Pritchard and Mr Edmonds.
[45] In such circumstances, a police officer investigating the alleged offence could reasonably have thought that identification (ie merely placing the alleged perpetrators at the pad on the night in question) would not be an issue at the trial. The fact that the police were dealing with senior gang members should not change that analysis.
[46] Having said this, as soon as Detective Buckley spoke with Mr Edmonds on
16 June 2008, it would have been clear that Mr Edmonds was disputing his presence at the pad: see above at [26]. When Detective Yule spoke with Mr Keil on 19 June
2008, it would also have been clear that Mr Keil was disputing his presence at the pad: see above at [27]. By this time, however, Detective Yule may have been in breach of the requirement in s 45(3)(a) that a formal identification procedure be conducted as soon as practical after the offence was reported.
[47] We note further that, at the s 344A hearing, the defence did not put to Mr Biddle that neither Mr Keil nor Mr Edmonds was there at the pad. Mr Biddle was just asked, by Mr Keil’s counsel, if he could recall whether Mr Keil was there at the time he arrived at the pad. Mr Biddle’s evidence that, after the assault, he saw Mr Keil outside the pad and that it was Mr Keil who said that the victim should be taken away, was also not challenged at the s 344A hearing. Similarly, the evidence that Mr Edmonds was introduced to Mrs Biddle and that they had a conversation together was also not challenged. However, as noted at [26], as Mr Edmonds has filed an alibi notice, he presumably intends to dispute his presence at the pad at trial.
Does s 45(4)(e) apply?
[48] As noted above at [40], Dobson J considered that a gap of four days between the offence and the identification took this case outside s 45(4)(e). Dobson J was, however, measuring the wrong timeframe. Section 45(4)(e) takes as its base point the time the offence was reported and not when the offence was committed. In this case, the offence was reported on 10 June and there was a lapse of only one day before Mr Biddle was interviewed.
[49] Given that the investigation had been underway for only one day, that only Mr August had been spoken to and that the police were undoubtedly working on other matters, it would be fair to consider that Mr Biddle had been spoken to in the course of the officer’s initial investigation “soon after” the offence had been reported. We also note that the officer had not been given the names of the current appellants by Mr August and thus there can be no suggestion that the officer tainted Mr Biddle’s identification.
[50] It appears that the Law Commission had originally intended s 45(4)(e) to apply in situations where identification had taken place soon after the offence itself had occurred: Evidence: Reform of the Law (NZLC R55-Volume 1 1999) at [210]. However, the original intent was not carried through into the statutory wording of s 45(4)(e). The phrase “soon after the offence was reported” cannot, in our view, be interpreted to mean soon after the offence was committed. It may be that s 45(4)(e) takes as its starting point the time of the reporting and the initial police investigation so as to avoid any tainting of the identification evidence by the course of the police investigation. While, of course, there can be tainting of evidence from other sources, particularly where there is a gap between the offence and identification, any formal identification procedure would not eliminate any resulting errors.
[51] In any event, it would not seem in this case that any tainting that might have occurred with regard to Mr Biddle’s evidence came from other witnesses. Mrs Biddle, while she remembers being introduced to Mr Edmonds and Mr Pritchard, did not see the offending and does not know Mr Keil at all. No one else identified the appellants or Mr Pritchard as the attackers.
[52] We thus consider that Dobson J was wrong to reject the Crown’s submission that there was good reason, in terms of s 45(4)(e), not to undertake a formal identification procedure. This means that the case should have been considered under s 45(1) and not s 45(2).
Was the fact that Mr Biddle recognised the alleged perpetrators good reason not to conduct a formal identification procedure?
The High Court decision
[53] Dobson J rejected the argument that the six specific circumstances outlined by s 45(4) as good reasons for non-compliance with the formal procedure provide an exhaustive list. He considered that the language used in the opening sentence of s 45(4) was indicative of the reasons being inclusive or illustrative. Moreover, he said that, given the infinite variety of situations in which the police may obtain potential evidence of identification, it may be reasonable to expect that the Legislature would not have explicitly excluded the prospect of there being additional “good reasons” to allow the admissibility of such evidence that had been obtained without following a formal procedure.
[54] Dobson J pointed out that in the Law Commission’s draft Evidence Code and Commentary the proposed wording of the provisions was significantly different in that it stated:
The circumstances referred to in the following paragraphs and no others are good reasons for not following a formal procedure. (Emphasis added)
[55] Dobson J noted that the wording, and implicitly the expectation of an exhaustive list, did not survive the legislative process, and therefore concluded that it was not intended to be exhaustive. However, Dobson J considered that the Crown would have a heavy burden to persuade the Court that some reason not specified in s 45(4), but relevant because of “idiosyncratic circumstances” surrounding the identification, should be treated as a good reason under s 45(4) in a particular case.
[56] However, Dobson J did not deal further with this point, as the Crown did not seek to advance any additional good reasons under s 45(4) at the s 344A hearing.
Submissions of the Crown
[57] The Crown’s primary submission is that a witness’s recognition of the offender should be another “good reason” for not undertaking a formal identification procedure under s 45(4). The Crown submits that the formal identification procedures in s 45(3) are primarily directed towards identification of strangers and the risk factors differ with identifications of persons previously unknown to the witness. Accordingly, the Crown submits that, in light of the difference between recognition evidence and stranger identification evidence, undertaking a formal identification procedure would be redundant. It would reduce the real force of the witness’s identification, which derives from its spontaneity, and it would not identify any error in the witness’s recognition.
[58] In terms of the parameters of this additional category, the Crown submits that it must be shown that the witness can prove some former relationship or encounter which would allow him or her to “recognise the accused”. While it would be at the Court’s discretion to specify what pre-existing relationships would be satisfactory, the Crown points out that the common law suggests that very brief recent relationships will suffice: R v Taite (1998) 16 CRNZ 10 (CA).
[59] In the Crown’s submission, considerations of reliability of recognition evidence should be addressed under s 45(1). The balance of probabilities test under s 45(1) is a relatively low threshold, and this provision provides a mechanism through which the defence has ample opportunity to address all the factors which can affect the reliability of the evidence, such as the brevity of the pre-existing relationship, the fact that at the time of recognition the area was dark and/or crowded, that the witness obtained only a “fleeting glance” of the accused, or that the witness was influenced by alcohol or drugs.
Submissions for the appellants
[60] Mr Petherick, for Mr Edmonds, submits that s 45(4)(d) of the Act already caters for recognition evidence in certain circumstances. In his submission, there is no justification for extending the categories set out by the Legislature in s 45(4), as such a category would be superfluous and would duplicate the statutory exceptions. Further, the creation of an additional “good reason” is not an application of the common law as the statutory regime is totally different from the common law position. Even if this were not the case, the courts have taken a cautious approach in interpreting the Evidence Act when having regard to the common law. Any such interpretation can only have regard to the common law to the extent that the common law is consistent with the Evidence Act’s provisions. Mr Philip, counsel for Mr Keil, did not make submissions on this point.
Issues
[61] The specific issues arising from these submissions therefore are: (a) Is the list of factors in s 45(4) exhaustive?
(b)Should recognition evidence be an added good reason under s 45(4) for not conducting a formal identification procedure?
(c) Was there a good reason for not conducting a formal procedure in this case?
Is the list of factors in s 45(4) exhaustive?
[62] There is no doubt that the Law Commission intended s 45(4) to provide an exhaustive list of good reasons for not following the formal identification procedures. For example, at [211] Evidence: Reform of the Law (NZLC R55- Volume 1 1999), the Law Commission noted that it was of the view that the list reflected sound policy considerations and that, because the existence of a “good reason” assures admission, the list should be exhaustive. The Commission noted
that, in the absence of a good reason, the evidence may still be admissible, as long as it was reliable. See also New Zealand Law Commission Evidence Code and Commentary (NZLC R55-Volume 1 1999) at C226.
[63] In light of the Law Commission’s indications that s 45(4) was intended to be exhaustive, the New Zealand texts on the Evidence Act all state that s 45(4) provides an exhaustive list of good reasons: Gallavin Evidence (2008) at 248, Mathieson Cross on Evidence (looseleaf edition) at EVA45.4 and Mahoney and others The Evidence Act 2006: Act and Analysis (2007) at 200. We respectfully disagree.
[64] While it is clear that the Law Commission believed that the factors specified in s 45(4) should provide an exhaustive list, we consider that Dobson J was correct for the reasons he gave, to hold that the current wording of s 45(4) does allow scope for the judicial creation of additional “good reasons” for failing to follow a formal procedure.
Should recognition evidence be an added good reason under s 45(4) for not conducting a formal identification procedure?
[65] For the reasons given by the Crown (summarised at [57] above), we consider that the fact that a witness recognises an alleged offender could constitute a good reason not to conduct a formal identification procedure. We add that conducting such a procedure in circumstances where a suspect is known to the witness could even be positively harmful as it could wrongly be perceived as reinforcing the strength of the recognition evidence. This is, of course, dependent upon evidence of the procedure conducted being admissible: see a discussion of the issues in that regard in R v Barlien [2009] 1 NZLR 170 at [72] (CA).
[66] We agree with the Crown submission that it would be consistent with the common law position to regard recognition as good reason for dispensing with a formal identification procedure. In England and Wales, identification parades are seen as unnecessary, and indeed undesirable, for cases involving recognition evidence, at least in situations where the accused was well known to the witness.
This reflects the common law position with regard to recognition evidence: see discussion below at [121]
[67] The Crown referred in this regard to R v Caldwell & Dixon (1994) 99
Cr App R 73 (EWCA), where the recognition evidence of police officers who had viewed video footage of a robbery was challenged on appeal. The Court held that recognition is generally more reliable than identification of a stranger and accordingly ordinarily deserved greater evidential weight. When making general comments about procedural issues, the Court went on to state at 78:
Ordinarily recognition evidence is quite different from identification evidence. Generally speaking, photographs are shown and identification parades are held to see whether an eye witness who does not know the suspect can identify him – recognise him that is, by reference only to the most limited previous experience of him, usually a single criminal incident. If, however, the witness knows the accused from extensive past association and is therefore giving recognition evidence, ordinarily there would be no showing of photographs or identification parades at all. (Emphasis added)
[68] We also refer to R v Forbes [2001] 1 AC 473 where the House of Lords noted, at [21], that “if a case is one of pure recognition of someone well known to the eyewitness, it may again be futile to hold an identification parade”.
[69] These comments were echoed by Lord Hoffman in Brown and Isaac v The
State [2003] UKPC 10. At [16] Lord Hoffman noted that:
An identification parade is not necessary, and may indeed be positively undesirable, when it is accepted that the accused is a person well known to the identifying witness. In such a case, a parade will establish the uncontroversial fact that the accused is able to identify the person he knows, but will not advance the question of whether that person committed the offence: see Goldson v The Queen [2000] UKPC 9 (23 March 2000).
[70] However, Lord Hoffman went on to say at [16] that, if the witness claims only slight acquaintance with the accused or the accused denies that he is the person whom the witness claims to know, an identification parade may serve a useful purpose and should be held. See also R v Harris [2003] EWCA Crim 174 at [32].
[71] While we accept, as Mr Petherick submits, that the Evidence Act has made some important changes to the common law with regard to identification evidence,
we consider that the new regime is nevertheless broadly consistent with the common law position. Therefore, it would be appropriate to find some assistance from the common law, and from the jurisprudence in England and Wales, in deciding whether, in a particular category of case, there is good reason not to conduct a formal identification procedure.
[72] Although we would accept the Crown submission that the fact that an accused recognises an alleged offender can provide good reason not to conduct a formal identification procedure, we do not consider that this should always be the case. This aligns with the position in England and Wales. We do not, for example, accept the Crown submission, outlined above at [58], that even slight acquaintance should always suffice to provide good reason not to conduct a formal identification procedure. If a formal identification procedure would serve a useful purpose then such a procedure should be conducted.
[73] We thus consider that there would be good reason not to conduct a formal identification procedure where the witness recognises an accused, except where such a procedure would serve a useful purpose, such as would likely be the case where there is slight acquaintance only or in a case where the accused denies that he is the person whom the witness claims to know, as referred to by Lord Hoffman at [70].
[74] It is true that, as pointed out by the Crown, even if there is good reason not to conduct a formal identification procedure, the identification evidence can still be excluded under s 45(1) if it is shown on the balance of probabilities to be unreliable. However, we do not see this as a sufficient safeguard for the defence in circumstances where a formal identification procedure would have served a useful purpose. The burden on the defence under s 45(1) is not a light one, given that it can be invoked even if a formal identification procedure has occurred.
Was there a good reason for not conducting a formal procedure in this case?
[75] Turning to the facts of this case, we consider that an identification parade would have served no useful purpose. Dobson J accepted that Mr Biddle had had reasonably extensive contact with Mr Pritchard and Mr Edmonds before the evening
in question. He spoke to them over the course of the evening and introduced them to his wife. Thus, before the relevant offending took place, his acquaintance with them was rekindled in a social setting. In such circumstances, to adapt the words of Lord Hoffman, as outlined at [69], a formal identification procedure would only have established the uncontroversial fact that Mr Biddle was able to identify the people he knew, but would not advance the question of whether those persons committed the offence.
[76] The position with regard to Mr Keil is less clear because of the slight nature of any prior contact between him and Mr Biddle. However, Mr Biddle’s evidence was that he also spoke to Mr Keil after the attack and so his slight acquaintance with Mr Keil was re-activated, albeit, after rather than before the attack. Further, Mr Biddle’s evidence is that there is a strong family likeness among members of the Keil family and he is clearly very familiar with other members of that family. In our view, all this would have meant that Mr Biddle would inevitably have picked out Mr Keil in any formal procedure and therefore an identification procedure would have served no useful purpose.
[77] We accept that it might have served some purpose to conduct some kind of exercise to see whether Mr Biddle could differentiate between Mr Keil and other members of his family, particularly as the Mr Keil’s uncle was present at the pad on the night in question. However, the formal identification procedures set out in s 45(3) are not designed for this purpose and it does not seem to have been suggested that it was Mr Keil’s uncle and not Mr Keil who committed the offence.
[78] In both cases, therefore, a formal identification procedure would have served no useful purpose and could have been counter-productive in that it could have wrongly reinforced Mr Biddle’s evidence. This means that, even if we are wrong in our view (outlined at [52]) that s 45(4)(e) applied in this case, we would nevertheless have accepted the Crown submission that there was good reason not to have conducted a formal identification procedure and thus that s 45(1) and not s 45(2) applied.
Was Dobson J correct in his s 45(2) assessment?
[79] If we are wrong in our conclusions at [52] and [78], we must decide whether Dobson J was correct to hold, in terms of s 45(2), that the Crown had proved beyond reasonable doubt that the circumstances in which Mr Biddle’s identification was made had produced a reliable identification.
The High Court judgment
[80] While Dobson J acknowledged that there was a degree of inaccuracy in Mr Biddle’s recollections as to the periods in which he knew Mr Edmonds, the Judge did not consider that there was any doubt that Mr Edmonds was well known to Mr Biddle. Dobson J stated that the inconsistencies in detail did not “alter the overall impression [he] had of the very solid reliability of Mr Biddle’s evidence identifying Mr Edmonds”.
[81] With regard to Mr Keil, Dobson J held that the concerns raised regarding the age gap between Mr Biddle and Mr Keil, the limited extent of prior contact between Mr Biddle and Mr Keil and Mr Biddle’s reliance on family likeness between other members of the Keil family could not be seen to raise reasonable doubt about the reliability of Mr Biddle’s identification.
[82] Dobson J stated that, although Mr Biddle admitted to having consumed alcohol and cannabis, Mr Biddle was firm that it did not impair his senses. Mr Biddle’s position in the room gave him a clear line of sight to the location of the attack. The area would have been well lit for, in addition to any lights that may have been on, it would have been naturally lit with the benefit of a large skylight, given the fact that the attack occurred at 8.30 am.
[83] Moreover, Dobson J stated that Mr Biddle was “clear and confident” in his recollections. The Judge held that Mr Biddle:
…thoroughly established a more than sufficient level of familiarity with each of the accused to justify evidence on the basis that they were previously
known to him and readily recognisable by him, at the time of the events in question.
[84] Dobson J was therefore satisfied that the onus on the Crown under s 45(2) was discharged in the present case. He noted, however, that his ruling was solely for the purpose of rendering that evidence admissible. He said that his view on the matter should not in any circumstances be referred to during the trial. Nor could it have any influence on whether the Crown can discharge the onus on it at trial on this or any other element of the charge against the accused.
Submissions for Mr Edmonds
[85] Mr Petherick, on behalf of Mr Edmonds, submits that the proper approach to be taken in interpreting s 45(2) is to align reliability with the degree of compliance with the requirements for the formal identification procedure outlined by s 45(3). Mr Petherick submits that where none of the requirements of the formal procedure have been met, the evidence must be deemed to be unreliable. If that argument is not accepted by the Court, Mr Petherick submits that how many of the formal identification requirements have been met will still be a relevant factor in the determination of reliability under s 45(2).
[86] Mr Petherick also submits that the term “circumstances of the identification” under s 45 (2) should be given a wide interpretation. A narrow interpretation of the phrase would be inconsistent with the purpose of removing unreliable identification evidence from the jury, but will also result in cogent evidence being ruled inadmissible. Accordingly, the inquiry should not only include matters that go to the quality of identification evidence, such as the length of time a witness had the accused under observation, the distance, the light, any lapse of time between the offending and the identification and matters of that kind, but also the strength of other evidence.
[87] Here, Mr Petherick places reliance on the fact that no other individual at the party identified Mr Edmonds as the assailant; that, according to Detective Yule’s evidence, the complainant originally identified a “George” as the initial assailant;
and that there is no forensic evidence linking Mr Edmonds to the assault. Mr Petherick submits that the previous common law position required a judge to consider other evidence in ascertaining whether identification evidence was reliable and it would be an absurd result to weaken an accused’s position by interpreting s 45(2) narrowly.
[88] Even if a narrow interpretation of the phrase is taken, Mr Petherick submits that Dobson J erred in finding that the Crown had proved beyond reasonable doubt that Mr Biddle’s evidence was reliable. Dobson J was in error when he relied on the fact that Mr Biddle was a “clear and confident” witness.
[89] Further, in his submission, Mr Biddle’s evidence was unreliable for a number of reasons, including: that he had been up all night; he had consumed alcohol and marijuana; he did not make a statement to the police until 11 June 2009; he never provided a description of Mr Edmonds; and the complainant had originally identified a “George” who punched him. Additionally, Mr Petherick submits that Mr Biddle’s evidence about his knowledge of Mr Edmonds is poor because of the inconsistencies in the dates provided by Mr Biddle; the inconsistency between the evidence provided at the 344A hearing that he would have a “catch-up” with Mr Edmond and his evidence at depositions; and that Mr Biddle’s knowledge of members of Mr Edmonds’ family cannot be equated with knowledge of Mr Edmonds himself.
Submissions for Mr Keil
[90] Mr Philip submits that Dobson J erred by determining the circumstances surrounding the identification of Mr Keil by Mr Biddle were such that no reasonable doubt existed as to the reliability of Mr Biddle’s evidence.
[91] Mr Philip submits that both internal and external circumstances should be considered in the Court’s assessment. Mr Philip submits that the facts relevant to Mr Biddle’s identification were that: Mr Biddle had consumed cannabis and alcohol; Mr Biddle had been awake all night; the identification occurred inside a gang clubroom with limited lighting which was congested with people; the foundation for Mr Biddle’s claim to have recognised Mr Keil as an assailant is based
on a chance meeting sometime in the past at a location he can not recall and
Mr Keil’s features being common amongst the Keil family.
[92] Mr Philip submits that the extent of prior familiarity that the observer has had with the accused should be considered in the reliability assessment under s 45(2). The greater the extent of familiarity with the accused, the greater is the probative value of the recognition that is claimed. Mr Philip submits that Mr Biddle’s evidence reveals that his prior familiarity with Mr Keil is extremely limited. It is submitted that the Court could not be sure it was Mr Keil himself and not another member of the Keil family that Mr Biddle saw.
[93] Mr Philip also submits that Dobson J placed too much reliance on the “clear and confident” recollections of Mr Biddle when giving evidence. Witness confidence is malleable and can be affected by factors separate from the quality of the witness’s actual memory of the event.
Crown submissions
[94] The Crown first submits that reliability under s 45(2) is not determined by the number of requirements that are followed under s 45(3). The whole point of s 45(2) is that a formal identification procedure was not followed and there was no good reason not to do so. If it was intended that non-compliance with formal procedures must always result in the unreliability of evidence, s 45(2) would not be required.
[95] The Crown then submits that the Court in assessing reliability is limited to the circumstances of the identification. Under the s 45(2) test, it is not the truth of the identification that is being assessed but the circumstances that may affect its reliability. In assessing reliability, the shortcomings of stranger identification evidence do not apply, or do not apply to the same degree, to offender recognition situations.
[96] The Crown submits that Mr Biddle’s identification evidence of Mr Edmonds was reliable. Mr Biddle was adamant that he first met Mr Edmonds in the gym when Mr Edmonds was in his early 20s. In regard to the inconsistencies in dates,
Mr Biddle was never exact as to the precise time that he met him. It is submitted that the prison dates for Mr Edmonds are only evidence as to when Mr Biddle could not have first met Mr Edmonds, not that he did not previously know him. Moreover, Mrs Biddle’s depositions evidence confirms that Mr Biddle introduced her to Mr Edmonds. Mr Biddle further stated that, after he returned to the headquarters to collect his wife, he again saw Mr Edmonds.
[97] The Crown submits that it is difficult to judge independently the level of Mr Biddle’s sobriety and the influence that drugs and alcohol may have had on him. On his evidence, the level of drugs and alcohol consumed was not great and Mr Biddle’s decision to take the victim to hospital was indicative of his sobriety. Further, the assault occurred a very short distance from Mr Biddle and he did not describe any physical impediment of his view. No estimate of time was given in the evidence for the duration of the assault, but the description suggests it was not a fleeting, brief episode. Mr Biddle noted at the pre-trial hearing that from memory there was not “any direct light over that area”. While there were no ceiling lights over the area of the assault, the area would appear from the photographs of the pad to be well lit naturally from skylights and the attack took place during daylight hours.
[98] With regard to Mr Biddle’s identification of Mr Keil, the Crown submits an inability to recall the circumstances of the first meeting simply suggests that those circumstances of themselves were not particularly memorable. The Crown also submits that in regards to the event factors of distance, view, lighting and duration apply to the same degree with Mr Keil, and thus it was open to the Court to determine that Mr Biddle reliably recognised Mr Keil as an offender.
Issues
[99] The issues arising from these submissions are:
(a)Should reliability be measured by reference to the degree of compliance with the formal identification procedures in s 45(3)?
(b) What is meant by a “reliable identification” in s 45(2)?
(c) What is meant by “the circumstances in which the identification was made” in s 45(2)?
(d)Should witness confidence be taken into account in assessing reliability?
(e) Did Dobson J err in considering that the Crown had proved reliability in terms of s 45(2)?
Should reliability be measured by reference to the degree of compliance with the formal identification procedures in s 45(3)?
[100] We do not accept Mr Petherick’s submission that total failure to follow any formal procedure would automatically lead to the evidence being deemed unreliable. We accept the Crown submission that, if it had been intended that non-compliance with formal procedures must result in the unreliability of evidence, s 45(2) would not have been required. While the Law Commission did note that the number of steps in a formal procedure that had been followed could be an important factor in the determination of reliability (New Zealand Law Commission Evidence Code and Commentary (NZLC R55-Volume 1 1999) at C223), it did not state that this would be the only factor that could be taken into account. Thus, while this is a factor for a trial judge to consider, it should not be the sole factor taken into account.
[101] Having said this, there are unlikely to be many instances where the identification is made after a fleeting glance of a stranger where the high standard of s 45(2) could be met by the Crown in the absence of at least some aspects of a formal procedure having been conducted. After all, the formal procedures were introduced specifically to counter the dangers of identification evidence in such circumstances: see discussion at [34].
What is meant by a “reliable identification” in s 45(2)?
[102] If s 45(2) applies, the Crown is required to prove beyond reasonable doubt that the “circumstances in which the identification was made have produced a
reliable identification”. The issue is what this entails. On the one hand, it could mean that the Crown is required to prove the correctness of the identification. On the other hand, it could be argued that all the Crown is required to prove is that the identification is sufficiently reliable that it could safely be relied on by the jury.
[103] The commentators are divided on this issue. For example, in Adams on Criminal Law at EA45.11(1) it is argued that, where the defendant’s identity is in issue, proof of the reliability of the defendant’s identity as the offender under s 45(2) will be equivalent to proving his or her guilt.
[104] By contrast, it is argued in Mathieson Cross on Evidence, at EVA45.2, that the focus should be on the circumstances of the identification and the impact they have on its reliability. Mathieson notes that the Law Commission’s draft wording differed from what was enacted. The Law Commission’s wording was that the court had to be satisfied that the “circumstances in which the identification was made were likely to have produced a reliable identification”. Mathieson acknowledges that it is possible to interpret the enacted wording as meaning that the Crown must prove that the identification produced can be relied upon (ie that is correct) which can only be done by proving the case against the defendant. However, it is argued that this could not have been what was intended and it is difficult to interpret s 45(2) in any other way than if the words “were likely to” were present.
[105] We agree with the comments in Mathieson. The emphasis in s 45(2) (and indeed in s 45(1) also) is on whether the evidence is such that it would be legitimate for the jury to rely on it. This is a threshold question and it was not intended that the judge usurp the function of the jury by determining whether the identification was in fact accurate.
[106] As submitted by the Crown, the test specified in s 45(2) is not dissimilar to the test for determining the admissibility of challenged statements of a defendant under s 28(2). This Court, in R v Cameron [2007] NZCA 564 at [60], stated that it is not the truth of the statement being assessed, but the impact of the surrounding circumstances on its reliability. The same could be said for the s 45(2) test, as it is
not the truth of the identification that is being assessed but the circumstances that may affect its reliability.
[107] It is important to remember, however, as Mr Petherick submits, that the legislation has deliberately set a high standard of beyond reasonable doubt when assessing reliability under s 45(2). This means that the Judge has to be sure that the evidence (if believed by the jury) is sufficiently reliable for the jury to rely on.
[108] Finally on this topic, we specifically endorse Dobson J’s comment at [84] that the reliability assessment under s 45(2) is a threshold inquiry, which is undertaken solely for the purpose of rendering evidence admissible. The judge’s assessment under s 45(2) does not affect the jury’s role and is not to be referred to at trial. In this case, the jury will still be required to evaluate both the reliability and credibility of Mr Biddle’s evidence at trial.
What is meant by “the circumstances in which the identification was made” in s 45(2)?
[109] The next issue is the factors the courts may take into account in deciding whether the Crown has proved under s 45(2) that identification evidence can legitimately be relied upon by the jury. This relates to the proper interpretation of the phrase “circumstances in which the identification was made”.
[110] The first thing to note is that there is a significant difference in wording between s 45(1) and 45(2), aside from the obvious difference in the onus and standard of proof. Section 45(1) talks of the defendant proving that the “evidence is unreliable”, while s 45(2) talks of the Crown proving that “the circumstances in which the identification was made have produced a reliable identification.” This difference in wording must have significance.
[111] In our view, the inquiry under s 45(1) is a broad inquiry that can take into account all relevant circumstances. We refer in this regard to the type of considerations outlined by Lord Widgery CJ in R v Turnbull [1977] 1 QB 224 at
229-230:
When, in the judgment of the trial judge, the quality of the identifying evidence is poor, as for example when it depends solely on a fleeting glance or on a longer observation made in difficult conditions, the situation is very different. The judge should then withdraw the case from the jury and direct an acquittal unless there is other evidence which goes to support the correctness of the identification. This may be corroboration in the sense lawyers use that word; but it need not be so if its effect is to make the jury sure that there has been no mistaken identification : for example, X sees the accused snatch a woman’s handbag; he gets only a fleeting glance of the thief’s face as he runs off but he does see him entering a nearby house. Later he picks out the accused on an identity parade. If there was no more evidence than this, the poor quality of the identification would require the judge to withdraw the case from the jury; but this would not be so if there was evidence that the house into which the accused was alleged by X to have run was his father’s. Another example of supporting evidence not amounting to corroboration in a technical sense is to be found in Reg. v. Long (1973) 57
Cr.App.R. 871. The accused, who was charged with robbery, had been identified by three witnesses in different places on different occasions but
each had only a momentary opportunity for observation. Immediately after the robbery the accused had left his home and could not be found by thepolice. When later he was seen by them he claimed to know who had done the robbery and offered to help find the robbers. At his trial he put forward an alibi which the jury rejected. It was an odd coincidence that the witnesses
should have identified a man who had behaved in this way. In our judgment odd coincidences can, if unexplained, be supporting evidence.
…
Care should be taken by the judge when directing the jury about the support for an identification which may be derived from the fact that they have rejected an alibi. False alibis may be put forward for many reasons: an accused, for example, who has only his own truthful evidence to rely on may stupidly fabricate an alibi and get lying witnesses to support it out of fear that his own evidence will not be enough. Further, alibi witnesses can make genuine mistakes about dates and occasions like any other witnesses can. It is only when the jury are satisfied that the sole reason for the fabrication was to deceive them and there is no other explanation for its being put forward, that fabrication can provide any support for identification evidence. The jury should be reminded that proving the accused has told lies about where he was at the material time does not by itself prove that he was where the identifying witness says he was.
[112] By contrast, we consider that s 45(2) mandates a more limited inquiry than s 45(1). The phrase “circumstances of the identification” in that subsection should be given its ordinary meaning. We do, however, accept the appellants’ submission that this phrase should not be construed too narrowly. We thus consider that it would cover both factors internal to the witness (such as eyesight, state of sobriety, prior knowledge of the alleged offenders and opportunities for memory distortion) and external factors (such as the state of the lighting, distance and any obstructions to the view). It should also, in our view, extend to cover the means of collecting the
identification evidence, including any possible distortions to the evidence that may have occurred during that process.
[113] While the phrase, “circumstances of the identification”, should not be given a restricted meaning, we do not consider that it can stretch to allowing a general consideration of all the other evidence. It cannot have been envisaged that the Crown would have to run two full trials – one to prove evidence admissible under s 45(2) and another to prove the charges against the defendant.
[114] Mr Petherick submits that this could mean that evidence that would have been excluded at common law may now be admissible. We do not think that this is likely to be the case but, if it arises, there would remain the possibility of exclusion under s 8.
[115] Mr Petherick also submits that limiting consideration to the circumstances of the identification might mean that evidence could be excluded that might have been seen as reliable if other evidence is taken into account. However, if the identification evidence, viewed alone, could not be proved to be reliable under s 45(2) where that applies, we consider that it would be quite wrong to allow it to bolster that other evidence, given the high standard of proof in s 45(2) and its concentration on the circumstances of the identification. Section 45(2) only arises, after all, when the police have failed to follow the mandatory formal identification procedures without good reason. These mandatory procedures are designed to try to minimise as far as possible erroneous identifications and are thus important in attempting to avoid miscarriages of justice arising from such false identifications.
Should witness confidence be taken into account in assessing reliability?
[116] Both Mr Petherick and Mr Philip submit that Dobson J erred in relying on the manner in which Mr Biddle presented his evidence. We do not accept this submission.
[117] While it has in the past been thought that witness confidence in identification is a poor predictor of accuracy, it is now thought that this is not correct, provided
confidence is assessed at the time of first identification: Sporer and others “Choosing, Confidence and Accuracy: A Meta-Analysis of the Confidence- Accuracy Relation in Eyewitness Identification Studies” (1995) 118 Psychological Bulletin 315, Brewer and Wells “The Confidence-Accuracy Relationship in Eyewitness Identification: Effects of Line-up Instructions, Foil Similarity and Target-Absence Base Rates” (2006) 12 Journal of Experimental Psychology Applied
11, and Wright and Skagerberg, “Postidentification Feedback Affects Real
Eyewitnesses” (2007) 18 Psychological Science 172.
[118] The British Psychological Society at 35 says that the reason for ensuring that witness confidence is assessed at the time of the first identification is that telling a witness that he or she has identified the subject changes many aspects of memory. Telling a person that he or she chose the suspect increases confidence both when the identification is accurate and when it is inaccurate.
[119] Douglas and Stablay “Memory Distortion in Eyewitnesses: A Meta-Analysis of the Post-identification Feedback Effect” (2006) 20 Appl Cognit Psychol 859 at
860 note that post-identification feedback can have an effect not just on witnesses’ confidence in their identification but also on their reports of the quality of their view of the perpetrator, how much attention was paid and the basis for the identification.
[120] In this case, Detective Yule’s evidence was that Mr Biddle’s original identification was a confident one. Further, as noted above, there does not seem to have been any likelihood of subsequent distortion of his evidence: see discussion above at [51]. It also must be noted that the concerns that arise with witness confidence are more pertinent in situations involving stranger identifications rather than with the type of identification in this case which came both from prior acquaintance and from allegedly talking to the accused on the evening in question.
Did Dobson J err in considering that the Crown had proved reliability in terms of s 45(2)?
[121] In this case, we are dealing with identification of persons known to
Mr Biddle, both personally and from family connections. We are also dealing with
the identification of people he spoke to in the course of the evening. Significantly, in R v Turnbull, it was recognised that recognition evidence will render an eyewitness’s evidence more reliable. At 228-229 Lord Widgery CJ stated that:
If the quality [of the identification evidence] is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger.
In our judgment, when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate warning has been given about the special need for caution. Were the courts to adjudge otherwise, affronts to justice would frequently occur. (Emphasis added)
[122] A similar approach was taken by the Privy Council in Freemantle v R [1994]
3 All ER 225 at 229 where it was noted that the fact a conversation had taken place between the eyewitness and the accused considerably enhanced the quality of the eyewitness’s visual identification.
[123] We accept the Crown submission that, despite the inconsistencies in dates, the Judge was justified in holding that there was a relatively extensive prior acquaintance between Mr Biddle and Mr Edmonds. Further, in our view, the Judge could discount as a reasonable possibility any suggestion that Mr Biddle was mistaken when he identified Mr Edmonds and Mr Pritchard as the persons he spoke to, and shared a moment with, after arriving at the pad. One would have to assume that Mr Biddle had talked to people, who presumably resembled Mr Edmonds and Mr Pritchard, and that these people allowed themselves to be introduced by Mr Biddle to his wife as Mr Edmonds and Mr Pritchard and then had a “chit chat sort of thing” with her, without alerting either Mr Biddle or his wife to the mistaken identification.
[124] The position with regards to Mr Keil is not as clear cut. However, Mr Biddle was clearly familiar with Mr Keil’s family and had met Mr Keil on a previous occasion. He also spoke to Mr Keil after the attack, both before and after taking Mr August to the hospital.
[125] There is a distinction, as we note above at [42], between observation and identification evidence. As to Mr Biddle’s observations of the actual attack (to the extent they might be relevant), we accept the Crown submission that it does not appear that Mr Biddle was so affected by alcohol and drugs that this would have affected his perception. We also accept the Crown submission that the external circumstances all point towards a reliable identification, such as lighting, duration of the attack and angle of view, particularly taking into account the fact that the alleged attackers were people Mr Biddle had spoken to before the attack (Mr Edmonds) or spoke to just after the attack (Mr Keil).
[126] Dobson J was also entitled to have regard to his perception of Mr Biddle’s confidence when giving his recognition evidence, as outlined at [117] - [120]. We repeat, however, that whether or not Mr Biddle is telling the truth about the events of the evening (including whether or not he spoke to Mr Edmonds and Mr Keil) will be for the jury. In that regard, any inconsistencies in Mr Biddle’s evidence at depositions and the s 344A hearing (and indeed at trial) will no doubt be put before the jury: see [108] above.
[127] We would add that, even if we are wrong in our conclusions set out above at [113], and other evidence has to be taken into account in assessing reliability, we do not consider that the factors pointed to by Mr Petherick at [87] would diminish the reliability of Mr Biddle’s evidence. Mr Petherick points to a lack of other evidence but this in itself does not diminish the force of Mr Biddle’s evidence. For example, we do not consider this is a type of case where we would necessarily expect to have forensic evidence, particularly after a time lapse of some four days before the offending was reported to the police.
[128] We have not been convinced that Dobson J erred in his assessment that the Crown had proved to the requisite standard that the jury would be entitled to rely on Mr Biddle’s evidence.
Summary
The legal position
[129] Under s 45, the formal identification procedure described in s 45(3) must be conducted, unless there is a good reason not to do so. Section 45(4) sets out a number of circumstances which constitute good reasons.
[130] Under s 45(4)(d), a good reason for not following a formal procedure is that no officer involved could reasonably anticipate that identification would be an issue at trial.
[131] There is a distinction between identification evidence (whether or not someone was present at the scene) and observation evidence (what the person was observed to have been doing). In some circumstances, officers may reasonably believe that, while the observation evidence would be challenged, identification (ie presence at the scene) would not be: see above at [42] - [43].
[132] Under s 45(4)(e), a good reason not to conduct a formal identification procedure is that the identification occurred soon after the offence was reported and in the course of the initial police investigation.
[133] While the original Law Commission proposal was for this exception to apply only where the identification took place soon after the commission of the offence took place, this was not carried through into the legislation. Under s 45(4)(e), time runs from the time the offence is reported: see above at [50].
[134] Section 45(4) does not provide an exhaustive list of good reasons for not following a formal procedure. The proposed wording of the Law Commission’s draft code, intended to render the list provided by the subsection exhaustive, did not survive the legislative process: see above at [64].
[135] A further good reason for not following a formal identification procedure is that the witness recognised the accused, unless a formal identification procedure
would serve a useful purpose, such as where the prior acquaintance is very slight:
see above at [73].
[136] If a formal procedure was not followed without good reason, s 45(2) requires the Crown to prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
[137] Accordingly, the Crown must prove under s 45(2) is that the identification evidence is such that the jury can rely on it. The threshold is a high one and the judge must be sure the evidence is sufficiently reliable to be used by the jury.
[138] Reliability is not measured solely by reference to the degree of compliance with the formal identification procedures under s 45(3), although that will be one relevant factor: see above at [100].
[139] While the phrase “circumstances of the identification” in s 45(2) should not be construed narrowly, the wording does not extend to allow consideration of all the other evidence. The phrase does extend to both external (e.g. lighting, distance) and internal (eg state of sobriety) factors relating to the witness and to the circumstances of any identification procedure followed: see above at [112]
[140] An eyewitness’s confidence is one factor that can be used to gauge reliability, as long as it is measured at the time the identification evidence is obtained: see above at [120].
The law as applied to the facts
[141] The Crown may have been wrong to concede s 45(4)(d) did not apply in this case. We accept that it could reasonably have been anticipated that the observation evidence of Mr Biddle (describing the offence he allegedly saw the accused commit) would be contested. However, given that he knew all of the accused reasonably well (at least through family connections), had talked to them in the course of the evening and had seen them just after the attack, it might have reasonably been thought that his evidence placing them at the scene would not have been challenged.
[142] There was good reason in terms of s 45(4)(e) for not following a formal identification procedure. In the circumstances of this case, Mr Biddle’s identification took place shortly after the offence was reported and in the course of the initial investigation by the police,
[143] In any event, there was an additional good reason in this case for not conducting a formal identification procedure. Mr Biddle recognised both appellants and had talked to them in the course of the night. An identification parade in those circumstances would only have served to show that Mr Biddle could pick out the people he knew. Thus, it would have served no good purpose and could even have been counterproductive.
[144] Even if we are wrong in the above conclusions, Dobson J did not err in his assessment under s 45(2) that the Crown had proved beyond reasonable doubt that the circumstances in which Mr Biddle’s identification was made had produced a reliable identification.
Identification warning under s 126
[145] It is likely that identification will remain an issue at trial, even bearing in mind the distinction between identification and observation evidence (see R v Turaki at [65] - [73]). A full s 126 warning should be given by the judge, including the mandatory matters in s 126(2)(a) and (b). Section 126(2)(c) is inapplicable as Mr Biddle is the sole identification witness. As noted in R v Turaki at [90], a s 126 warning should include, as appropriate, directions beyond those prescribed by s 126(2), including, for example, a warning about the ways in which events surrounding the witness’s observation of the defendant, or the ways in which any factors particular to the individual witness, may have influenced the quality of the identification evidence.
Result
[146] Leave to appeal is granted but the appeal is dismissed.
[147] Mr Petherick submitted that, if this Court holds that the test under s 45(2) is not applicable in this case, the matter should be referred back to the High Court for determination under s 45(1). In his submission, the test in that subsection is quite different to that under s 45(2).
[148] We agree that, as a result of our findings, the matter now falls to be determined under s 45(1) and not s 45(2). While the tests are differently worded, it is difficult to conceive of many situations where the defence would be able to prove unreliability under s 45(1) in a situation where, as here, the Crown has met its burden under s 45(2). We do not consider this a case, therefore, where there should be a formal remission to the High Court to decide this point, although this does not of course prevent the appellants raising the issue with the trial judge.
[149] We prohibit publication of the judgment and any part of the proceedings in news media or on the internet or other publicly available database until final disposition of the trial. Publication in law report or law digest is permitted.
Solicitors:
Crown Law Office, Wellington
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