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 upset after attending a party. Paris is said to have complained to Mr Eruera and his partner, Mrs Eruera (her mother), that she had been physically assaulted by Mr Takena Tiepa-Ranapia (“Tarks”) and told them that Brooklyn Ormsby-Ratahi and Guy Wikeepa tried to rape her. This enraged Mr Eruera who got a hunting knife and together with Mrs Eruera and his friend, Mr Taki travelled to the location of the party. On the way there Mr Ormsby-Ratahi and Mr Wikeepa were seen walking along Ohauiti Road at which point Mr Eruera exited the car and stabbed Mr Ormsby-Ratahi while Mr Taki assaulted Mr Wikeepa with a metal bar. Throughout this Mrs Eruera is said to have encouraged both Mr Eruera and Mr Taki.

[6]    Mr Eruera, Mr Taki and Mrs Eruera then drove to the location of the party at Mansfield Road. At that location Mr Eruera confronted the occupants of the home and then on departing the premises found Tarks and stabbed him in the neck, severing a vein. Tarks then died from the loss of blood.

Jurisdiction

[7]    The defence contend that a proper basis has not been established for me to revisit the identification application. The threshold test was restated by the Court of Appeal in M v R:4

Although it is strictly not necessary for us to decide the point, we express our view that one District Court judge, prior to the trial, does not have power to formally depart from a pre-trial ruling made by another District Court judge, absent a relevant change of circumstances (either factual or legal).

2      R v Eruera, Taki & Eruera, above n 1 at [9] – [23].

3       At [96] – [98].

4      M v R [2015] NZCA 413 at [13].

[8]    While the Court refers to District Court judges, I will assume that it applies to trial judges generally.

[9] For my part, there has been a change in circumstances. I am satisfied that the Crown tabled the wrong photo montage with Brewer J and that the correct montage shown to the witnesses is materially superior.5 That does not resolve the matter, as I explain below at [34]. But it is sufficient to trigger re-examination of the application to adduce identification evidence.

[10]   I also accept that Dr Brunton’s new evidence dealing with disguising singular appearance is a material change in circumstances insofar as there was no evidence of this nature before Brewer J. I acknowledge Mr Fairbrother QC’s complaint that this is not fresh evidence in the true sense – it could have been produced at the first application.6 But I think this is outweighed by the risk of miscarriage if proper identification evidence is excluded on a scientifically misinformed basis.

[11]I am therefore satisfied that I may consider the application.

The evidence

[12]   The four proposed identity witnesses gave evidence in support of the application. This is a summary of it.

Mr Guy Wikeepa

[13]   Mr Wikeepa stayed at Paris’s house for a night in the two months prior to 29 November 2014. The following morning he spent about 20 minutes in conversation with Mr Eruera in the lounge of Paris’ home. He was sitting about 5 metres away from

5      It appears that the Crown provided PDF versions to the Court which were then presented to the Judge in black and white. At the pre-trial hearing Mr Fairbrother QC handed up a colour version. I have viewed this version in print and electronic form. As noted, the original is materially superior.

6      Mr Fairbrother submitted that I should apply the threshold test for new evidence indentified by the Privy Council in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273. But that authority is not concerned with appeals after trial, not pre-trial rulings. In any event, the Privy Council noted that the requirement for freshness may yield to the requirement to ensure that proper scientific evidence at [119] and [120].

him at the time and was sober. He also met Mrs Hyacin Eruera while he was there – “she was like just walking around”.

[14]   On the night of 29 November 2014 Mr Wikeepa was walking along Ohauiti Road and he saw a car pull up. He recognised Mr Eruera “because he had met him before”. He noticed that he was “tattooed and stuff” with “Maori patterns” and “faded–ish” on “half a side”. He said that Mr Eruera spoke to him, saying “come here”, and at that point he was only about a metre away from him. He saw Mr Eruera punch Brooklyn, knocking him “two to three metres away”. He saw Mr Eruera stab Brooklyn and then another guy tried to attack Mr Wikeepa. The assailants then jumped in the car and left. A short while later Mr Wikeepa said that Mr Eruera and two others, including Mrs Eruera, drove back past them, yelling. He again recognised Mr Eruera in the driver’s passenger seat.

[15]   Mr Wikeepa conceded under cross examination that he was highly intoxicated at the time and that he did not identify Mr Eruera in his first interview with the police. He explained that he was fearful at the time. In a subsequent interview he identified Mr Eruera as the assailant who he described a large man with tattoos all over his face and then subsequently identified him in a formal interview process.

Mr Devon Williams

[16]   Mr Williams was at the party at Alex Waititi’s house on 29 November 2014. He had drunk at least two boxes of Cody’s cans throughout the afternoon and night. He saw a large man with tā moko on one side of face storm the Mansfield address brandishing a knife. He was within a metre of so from him but the man was only in the room for a minute or two. He reported these basic facts in his second interview with the police. He conceded that he was highly intoxicated at the time he saw him. He identified Mr Eruera at the formal identification, but otherwise did not know him. He had not seen the man before or since that evening.

Mr Alex Waititi

[17]   Mr Waititi gave evidence that he had been drinking throughout the evening of the 29 of November 2014 and had gone to bed, before being woken by his partner who

told him people had arrived. He says he was confronted by man wielding a knife in his lounge for about a minute. The lights were on. He says the man came within a metre of him. He initially described the man as having a tattoo of a bull dog on one side of his face, but later gave a detailed description of a large man with a tā moko on one side of his face. He said he recognised Mr Eruera from a Facebook page he had seen about three weeks prior to the incident. The photo was only part of the screen, it was an old photo and it only showed Mr Eruera wearing a chrome helmet. Mr Waititi said he did not look the Facebook profile again after the confrontation.

Mr Steven Jobbitt

[18]   Mr Jobbitt met Mr Eruera at work on 1 December 2014 for about five minutes and then later in day when Mr Eruera said he had to leave. The first conversation was an informal introduction, and the second meeting involved just a few sentences of conversation where Mr Eruera said he needed to leave. Mr Jobbitt identified him at formal identification process, and said he recognised him from their previous meeting.

Formal identification process

[19]   The evidence about the formal identification process for each of the witnesses was admitted by consent.

Dr Brunton

[20]   An affidavit of Dr Brunton was also tabled without objection. Dr Brunton works as the Photo Manager Office for New Zealand Police. She has been in this role for 15 years. She describes in some detail the process followed to generate a photo montage generally and in relation specifically to Mr Eruera.

[21]Dr Brunton explains:

[21]      The image of Mr Eruera displays extensive facial tattoos that cover his forehead, nose, both cheeks and end at his chin. Tattoos are not visible on his neck, ears, lips and area surrounding his eyes. The tattoos on the left side of his face have been largely filled in with colour.

[22]        This would be a difficult line-up for any user of Photo Manager Application to create, as there as so few images showing a combination of

outlined as well as in-filled tattoos. It is likely that there are less than five images in the entire database showing this variation.

[22]              She describes that she attempted to digitally enhance one image, in a way that was suggested by Brewer J (at [89] and [90]), by fading out the tattoos on the right side of the faces. She observed that the fading was still darker than wished for and any further fading had an undesirable cloudy effect. Attempts then at removing the ink was unsuccessful as the underlying skin tone was difficult to clone. Dr Brunton also tried an alternative technique, namely by copying Mr Eruera’s tattoo onto a man with no facial tattoos. She said that this enhancement appeared natural but that the image took two and half hours to achieve and all three methods were time consuming and difficult.

The photo montages

[23]              Brewer J identified two primary concerns with the photo montages shown to him:

(a)There were material differences between the tattoos of the other men and Mr Eruera; and

(b)Mr Eruera’s picture was brighter than all the other photos, other than the man in photo five.

[24]              I have viewed the corrected montages. Mr Eruera’s image is still lighter than four of the other photos and substantially lighter than two of them. For my part I do not consider than these differences draw undue attention to his image.

[25]              I am, however, in agreement with the conclusion reached by Brewer J about the marked difference between Mr Eruera’s tattoos and the tattoos of the other men. In short, Mr Eruera’s tattoos stand out on one side of his face, while the others are clearly symmetrical, except for small part of the tattoo on the face of the man in photo five.

[26]In the result, the men in the photos are, in my view, dissimilar in appearance.

The statutory frame

[27]              “Visual identification evidence” is defined in s 4 of the Evidence Act 2006 (the Act) as 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).

[28]For present purposes I proceed, like Brewer J, on the basis that:

(a)Recognition evidence is evidence where “the witness purports to identify the offender as someone whose appearance the witness is already acquainted;7 and

(b)Observation evidence is evidence that the offender was observed at the scene of the alleged offending.8

[29]              Section 45 of the Act governs the admissibility of visual identification evidence. In particular s 45(3) sets out the formal identification process in relation to visual identification evidence, namely:

(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

7      R v R [2011] NZSC 107, [2012] 1 NZLR 725 at [16].

8      R v Peato [2009] NZCA 333, [2010] 1 NZLR 788 and E (CA113/09) v R (No 2) [2010] NZCA 280

at [65].

(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.

[30]              Evidence which does not follow this formal procedure is not admissible unless there was good reason not to follow it, or the Crown proves beyond reasonable doubt that the circumstances on which that identification was made have produced reliable identification.9 If there is good reason not to follow it then the defence must show on the balance of probabilities that the identification evidence is not reliable. Good reasons include a s 45(4)(b):

(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):

[31]              As the Supreme Court stated in Harney v Police, judges must be astute to ensure that what s 45 requires is strictly followed and that identification evidence is not admitted except in accordance with the section.10

Assessment

Similar

[32]              For the reasons expressed at [25] – [27] the formal requirements of s 45(1) were not met insofar as the formal identification process did not include seven men of similar appearance.

Singular appearance

[33]I am however satisfied that:

9      See Evidence Act 2006, s 45(2).

10     Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [15].

(a)Mr Eruera is a man of singular appearance.

(b)Mr Eruera’s singular appearance cannot be disguised without undermining the integrity of the identification process and therefore the purpose of s 45.

[34]Both points require elaboration as to legal principle and fact.

[35]              As stated by the Court of Appeal in Ah Soon v R the guiding principle must be whether the photo montage or other formal procedure is such as to avoid any material risk of predisposing the witness to identify the defendant.11 In Ah Soon, only the defendant had blond tips, and only two of the others had blond or bleached patches in their hair. The Court observed that “the larger patches shown in the hair of the other two could not be described as blond tips.”12 The Court also found that it would not have been a difficult matter for the Police to have included in the montage photographs of young men with blond tips of a similar nature to the appellants.13 The formal identification process was therefore flawed.

[36]              Like the blond tips in Ah Soon, Mr Eruera’s tattoo predisposed the witnesses to identify him. But unlike “blond tips”, Mr Eruera’s facial tattoo is, in fact, an inherent point of facial distinction. It is not a cosmetic addition that can be easily disguised. Mr Hollister Jones advises that of the million or so images available to the Crown, the seven men used in the montage are said to be the closest they could get in terms of facial tattoos. Yet they are starkly different in terms of coverage and symmetry.

[37]              I accept that there may be cases where distinctive facial tattoos might be disguised by fading. But Dr Brunton’s expert evidence is that this cannot be achieved satisfactorily, or without undesirable effects, in this case. Alternative methods, for example replicating Mr Eruera’s tattoos exactly onto filler images are problematic. As the Crown submits this will likely result in an unrealistically difficult and artificial

11     Ah Soon v R [2012] NZCA 48 at [23].

12 At [24].

13 At [25].

identification task for the witness to complete and will not achieve the object of s 45, namely reliable identification.

[38]              I am therefore satisfied that on the evidence before me, that Mr Eruera’s singular appearance provides a good reason not to follow the formal identification process and qualifies as a specified exception to s 45(1).

Outcome for each witness

[39]              I must now assess whether the defendants have shown on the balance of probabilities that direct identification evidence from the witnesses is unreliable.

[40]              I can dispose of the application in relation to Mr Williams summarily. His exposure to Mr Eruera was too brief, and his condition too intoxicated, to be reliable.

[41]              I am also not satisfied that Mr Waititi’s brief exposure to a Facebook photo of Mr Eruera was sufficient to safely qualify as recognition. While his exposure to Mr Eruera’s face on the night in question was direct and in good light, Mr Waititi’s highly charged, intoxicated state at the time creates sufficient doubt in my mind to require exclusion of direct evidence from him as to identity.

[42]              By contrast, I am satisfied that both Mr Wikeepa and Mr Jobbitt were sufficiently acquainted with Mr Eruera to provide identification evidence and that the circumstances of their identification are not such as to render it unreliable on the balance of probabilities. As Brewer J said, it is very likely that they recognised Mr Eruera.

[43]More specifically, based on the voir dire evidence:

(a)Mr Wikeepa had engaged in a conversation with Mr Eruera for about 20 minutes in the two months before the day of the alleged assault;

(b)Mr Wikeepa had stayed at Paris’ house and had observed her mother, Mr Eruera’s partner, Hyacin, walking around the house;

(c)Mr Wikeepa was only a couple of meters away from the assailant when he exited the car on Ohauiti Street, moved to within a metre from him and he saw him attack Mr Ormsby-Ratahi at about a three metre distance; and

(d)Mr Wikeepa also recognised Mr Eruera’s partner in the car when it passed again later that evening (and his formal identification of Mrs Eruera is not disputed).

[44]              There is also strong circumstantial evidence placing both Mr and Mrs Eruera on Ohauiti Road at the time – including evidence from Paris (Mr Eruera’s step- daughter) that she reported to them that she was assaulted by Tarks and that two men on Ohauiti Road had tried to rape her, that Mr Eruera was going to exact retribution for this and that Paris warned the occupants of the Mansfield address (accessed via Ohauiti Road) that Mr Eruera was on his way.14

[45]              Overall, the evidence of prior meaningful face-to-face association, the very close proximity of his contact with the assailant on the night of the assault, together with the circumstantial evidence satisfies me that there is a credible and plausible basis for Mr Wikeepa’s identity evidence. I accept Mr Wikeepa’s intoxication on the night and inconsistent statements to the police raise reliability concerns. But I am not satisfied on the balance of probabilities that the evidence is unreliable.

[46]              As to Mr Jobbitt, he had direct contact with Mr Eruera at his place of work. There is nothing to suggest his recognition of Mr Eruera is unreliable.

Result

[47]Mr Wikeepa and Mr Jobbitt may identify Mr Eruera.

14     As to the relevance of circumstantial evidence refer Boote v R [2013] NZCA 122 at [40] – [41].

Addendum

[48]              Immediately prior to Mr Wikeepa giving his evidence Mr Balme raised an objection to the following observation contained with Mr Wikeepa’s interview statement:

“Paris’s Mum was yelling out the car window, she was yelling things like, “kill him Babe”, “Fuck him up”.

[49]              The Crown responded with an application pursuant to s 46 dealing with voice identification evidence. Section 46 states:

46       Admissibility of voice identification evidence

Voice identification evidence offered by the prosecution in a criminal proceeding is inadmissible unless the prosecution proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification.

[50]              The Court of Appeal has recently set out the frame for addressing the reliability of voice identification in Hohipa, in particular:15

The standard is the balance of probabilities. It is sometimes described as flexible, meaning not that the standard itself varies but that the evidence it demands may be more or less extensive, depending on the context and the nature of the allegation. Notably, the nature of an allegation may determine the process by which its proof is attained. So far as the present context is concerned, three points may be made about the standard of proof. First, s 46 presumes that voice identification evidence may be unreliable and a mistaken identification may have grave consequences: it follows that the court must be alert to that risk. Second, the section also presumes that voice identification evidence may be accurate and a conviction founded upon it secure: it follows that, all other prerequisites having been met, the court should admit such evidence so long as it is reliable. Third, the section holds that reliability may be established through the circumstances of the identification, leaving it to the court to identify and evaluate those circumstances: it is by this means that the statutory objectives are to be reconciled. These three points together indicate not that proof is invariably difficult but rather that the court should bear the evidential burden and risk of error in mind and scrutinise the circumstances as closely as may be necessary to satisfy itself of the identification’s reliability before ruling it admissible .

[51]              The Court also identifies the circumstances that ought to be taken into account, to the extent relevant in any given case, when assessing voice recognition evidence:16

15     Hohipa v R [2015] NZCA 73 at [71] (citations omitted).

16     At [73] (citations omitted).

(a)the witness’s degree of familiarity with the person identified. As noted earlier, there is evidence that familiar voices can be identified with a high degree of accuracy;

(b)any identifiable properties of the voice that distinguish it from others;

(c)the duration of the speech to be identified and anything about it that might affect recognition, such as the manner in which the voice was being used and its clarity for the witness;

(d)any delay between hearing the speech to be identified and making the identification, and anything else that might affect the memory of the witness;

(e)the characteristics of any recorded speech used to make the identification and the quality of the recording;

(f)anything about the circumstances of the identification that may create a psychological predisposition to identify a person selected by an investigator;

(g)whether any police procedure used to make the identification has been adequately documented;

(h)the witness’s ability to distinguish among voices;

(i)any hesitation in making the initial identification;

(j)anything else about the circumstances that bears upon reliability.

Procedure

[52]              Having heard Mr Wikeepa’s voir dire account, including of his prior knowledge of Mrs Eruera,17 I resolved to proceed on the basis that Mr Hollister Jones would be invited to commence his questioning of Mr Wikeepa for the purpose of laying the foundation for the foreshadowed voice identification evidence. If the proper foundation was laid, then I would invite submissions in the absence of the jury on whether it can still be adduced.

The foundation evidence

[53]Mr Wikeepa gave evidence that:

(a)He had previously spent time with or near Mrs Hyacin Eruera, having stayed at her home and observed her “walking around talking”. He said he had a brief conversation with her where she “asked me where I was from and all that”. After that he travelled in her car (a maroon Ford) with her and Paris back to his home address;

17     Refer [15] above.

(b)The car that pulled over on 29 November 2014 was like Hyacin’s car and it pulled over a few metres away from him. He identified three people inside it and then “George and some other fulla” got out;

(c)The driver of the car was a “blonde lady”;

(d)The driver was Hyacin and he recognised her face; and

(e)Mr Eruera got out of the car, called him over, and attacked Brooklyn.

[54]              In response to a general question and prior to consideration of whether a proper foundation had been laid, Mr Wikeepa also offered evidence that Mrs Eruera said something. But the content of that was not explored at that point, so there was no serious prejudice to Mrs Eruera.

Assessment

[55]              Given the visual identification evidence, it may be that voice identification is not strictly in issue as a separate consideration. Indeed it is somewhat artificial to separately assess the reliability of the voice identification. I note that Mr Balme did not pursue his objection with full vigour. In any event, having heard the foundation evidence I was satisfied that to the extent it was necessary to resolve the point the voice identification evidence was reliable and admissible. Mr Hollinger-Jones requested that I recorded this outcome together with my reasons.

[56]              Mr Wikeepa’s voice identification is based on a relatively weak prior association and the exposure to the voice was short. But it was contemporaneous with his visual identification of both Mr and Mrs Eruera, which has a clear and proper foundation, based on evidence of recent prior association and, in respect of Hyacin, a compliant formal identification pursuant to s 45.18 Furthermore, the female occupant of the car was reasonably proximate to Mr Wikeepa at the time he saw her in the driver’s seat of the car (which was similar to Hyacin’s car), and he also recalled a distinctive feature about her – the blond hair. He saw her on at least two occasions.

18     Mr Balme advised the Court that the admissibility of Mr Wikeepa’s formal identification of Hyacin was not challenged.

The circumstantial evidence noted at [45], also places Mr Erueara and Hyacin in the car and on Ohauiti road at the time. The probability of two different people fitting both Mr and Mrs Eruera’s description, driving a car like hers, with cause to do harm to two men walking along Ohauiti street at 11.30 pm on 29 November 2014 must be small.

[57]              Overall therefore, in terms of the surety envisaged by the Court of Appeal in Hohipa, I am satisfied on the balance of probabilities that the voice identification evidence is sufficiently reliable for admissibility purposes, given the combination of visual recognition and circumstantial evidence. Whether that is in fact so, based on Mr Wikeepa’s full testimony and the other Crown evidence is, of course, a matter for the jury.