R v Eruera - [2015] NZHC 3004

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.

ORDER PROHIBITING PUBLICATION OF NAMES ADDRESSES OCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSES

VICTIMS AND CONNECTED PERSONS PURSUANT TO S 202 CRIMINAL

PROCEDURE ACT 2011

IN THE HIGH COURT OF NEW ZEALAND

ROTORUA REGISTRY

CRI-2014-070-4650

[2015] NZHC 3004

THE QUEEN

v

HIAKITA HORI ERUERA PAUL WILLIAM TAKI

HYACIN ERUERA

Hearing: 25 and 26 November 2015

Appearances:

G C Hollister-Jones and A J Pollett for Crown

E R Fairbrother QC and M M Dorset for Hiakita Eruera R M Adams and N M Dutch for Taki

A C Balme and T Bailey for Hyacin Eruera

Ruling:

30 November 2015

RULING (No.3) OF WHATA J

[Identification Evidence]

Solicitors/Counsel: Crown Solicitor, Tauranga
E R Fairbrother QC, Napier

This judgment was delivered by Justice Whata on 30 November 2015 at 3.00 p.m., pursuant to

r 11.5 of the High Court Rules Registrar/Deputy Registrar Date:

Adams Law, Tauranga, A C Balme, Tauranga

R v ERUERA [2015] NZHC 3004 [30 November 2015]

An application to admit identification evidence

[1] Mr Eruera, Mr Taki and Mrs Eruera, face charges of wounding with intent to cause grievous bodily harm, assault with a weapon and murder. Various witnesses for the Crown claim to have seen Mr Eruera as an assailant. The Crown sought to admit this as identification evidence. In a judgment dated 29 October 20151 Brewer J rejected the application for the following essential reasons:

(a)The photo montage created the risk of unfairly drawing attention to Mr Eruera because of the differences in Tā Moko and the brightness of Mr Eruera’s picture;

(b)There was no good reason not to follow the formal identification procedure as the images could have been digitally altered to mitigate the deficiencies; and

(c)His Honour could not be sure that the witnesses recognised Mr Eruera.

[2]Brewer J observed:

[98] … That, however, is not necessarily the end of the issue. So far as Mr Jobbitt, Mr Wikeepa and Mr Waititi are concerned, the trial Judge, on voir dire, might well conclude that the Crown has discharged its onus. …

[3]The Crown now invites me to revisit the application because (in short):

(a)Brewer J did not have the correct, superior version of the photo montage;

(b)The photo montage cannot be digitally altered without compromising the integrity of the identification exercise referring to expert evidence by Dr Brunton not before Brewer J; and

(c)The Crown has shown beyond reasonable doubt that the circumstances in which the identification was made were reliable.

1 R v Eruera, Taki & Eruera [2015] NZHC 2655.

Background

[4] This judgment should be read in conjunction with the judgment of Brewer J dealing with the background2 and the reasons for declining the Crown’s first application.3

[5] The Crown alleges the following. On 24 November 2014 Paris Taite (Mr Eruera’s stepdaughter) returned home…

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 Eruera

Details

AGLC: R v Eruera [2015] NZHC 3004
Case: [2015] NZHC 3004
Decision Date: 30 November 2015

CaseChat Overview and Summary

In the case of R v Eruera, the defendants, Hiakita Hori Eruera, Paul William Taki Hyacin Eruera, and their co-defendant, faced charges of wounding with intent to cause grievous bodily harm, assault with a weapon, and murder. The Crown sought to admit identification evidence from various witnesses who claimed to have seen Mr Eruera as an assailant. The defendants contested the admissibility of this identification evidence. The case was presided over by Justice Whata at the High Court of New Zealand Rotorua Registry.

The legal issues in this case revolved around the admissibility of identification evidence under the Evidence Act 2006 and the reliability of such evidence when the accused has a singular appearance that cannot be disguised. The Crown argued that the witnesses' identification of Mr Eruera was reliable despite the formal identification process not being followed due to the unique appearance of the accused.

Justice Whata, after examining the evidence and expert opinion, concluded that Mr Eruera's singular appearance, specifically his facial tattoos, provided a good reason not to follow the formal identification process. The court found that while the formal identification process was not strictly adhered to, the circumstances in which the identification was made produced reliable identification evidence. The court allowed the identification evidence from two witnesses, Mr Wikeepa and Mr Jobbitt, but excluded the evidence from Mr Williams and Mr Waititi due to the unreliability of their identification.

In conclusion, the court allowed the identification evidence from Mr Wikeepa and Mr Jobbitt but excluded it from Mr Williams and Mr Waititi. The admissibility of voice identification evidence from Mr Wikeepa was also considered and found to be reliable and admissible given the combination of visual recognition and circumstantial evidence. The final outcome of the case, including the verdict and sentencing, remains to be determined by the trial.

Orders