R v Havea - [2017] NZHC 545

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

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2016-092-005315 [2017] NZHC 545

THE QUEEN

v

PANEPASA HAVEA

Hearing: 23 March 2017

Appearances:

G R Kayes and H D Benson-Pope for Crown
S Cassidy for Defendant

Judgment:

23 March 2017

JUDGMENT OF VENNING J

ON ADMISSIBILITY OF IDENTIFICATION EVIDENCE

Solicitors: Kayes Fletcher Walker Ltd, Manukau

R v PANEPASA HAVEA [2017] NZHC 545 [23 March 2017]

Public Defence Service, Manukau

Introduction

[1] Panepasa Havea is charged with kidnapping Ms Prutsiriporn. The Crown case against him includes an eye witness identification of Panepasa Havea as one of the persons who initially kidnapped Ms Prutsiriporn. Panepasa Havea challenges the admissibility of that identification.

Factual background

[2] The Crown allege Ms Prutsiriporn was kidnapped on the evening of 29

February 2016. She was detained and ultimately suffered fatal head injuries on the evening of 1 March 2016. The injuries were sustained from an assault or assaults while she was detained and when she escaped from the boot of a moving car. Six individuals have been charged with her manslaughter and kidnapping and five others, including Panepasa Havea have been charged with her kidnapping.

[3] The Crown alleges that Panepasa Havea is a member of a group within the Head Hunters gang known as the “Ghost Unit” who were engaged by Seng Liev, Sodarith Sao and Aphichart Khorhomklang to kidnap Ms Prutsiriporn.

[4] The plan involved Mr Sao and Mr Khorhomklang using an associate of Ms Prutsiriporn to draw her out of her address on the pretence of arranging a drug deal. The associate involved was a Crown witness, Aenoi Khammanivong. Mr Khammanivong was to wait in his vehicle with his partner, Ms Ly Mounniveth. They were not aware of the plan to kidnap Ms Prutsiriporn. Members of the “Ghost Unit” including Panepasa Havea, were to wait on the street in separate vehicles ready to take and detain Ms Prutsiriporn when she left the address and got into Mr Khammanivong’s car.

[5] At about 9.30 pm on 29 February 2016 Ms Prutsiriporn left her address and got into the back of Mr Khammanivong’s car. The Crown say that a short time later Panepasa Havea and Luigi Havea approached the car and threatened Ms Prutsiriporn.
Panepasa Havea then used his cellphone to call an associate to bring a car around.

Less than five minutes later another car arrived and Ms Prutsiriporn was removed from Mr Khammanivong’s car and placed in the other car and driven away. Mr Khammanivong’s identification of Panepasa Havea resulted from that incident.

Identification process

[6] On 16 March 2016, just over two weeks later, Detective Constable Lui conducted a photo board identification procedure with Mr Khammanivong. Mr Khammanivong indicated that he recognised the person in photograph number 5. Photograph 5 was a…

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 Havea

Details

AGLC: R v Havea [2017] NZHC 545
Case: [2017] NZHC 545
Decision Date: 23 March 2017

CaseChat Overview and Summary

Panepasa Havea is charged with the kidnapping of Ms Prutsiriporn. The Crown's case includes an eyewitness identification of Panepasa Havea as one of the individuals who initially kidnapped Ms Prutsiriporn. Panepasa Havea challenges the admissibility of this identification. The Crown alleges that Ms Prutsiriporn was kidnapped on 29 February 2016 and suffered fatal head injuries on 1 March 2016. The Crown further alleges that Panepasa Havea is a member of a group within the Head Hunters gang known as the "Ghost Unit," who were engaged to kidnap Ms Prutsiriporn. The identification process involved a photo board identification procedure conducted by Detective Constable Lui with a Crown witness, Aenoi Khammanivong, on 16 March 2016. Khammanivong identified Panepasa Havea from photograph number 5, stating that he recognised the person as the one who took Ms Prutsiriporn. The defence argues that Khammanivong's identification is not visual identification evidence within the meaning of the Evidence Act 2006, but rather resemblance evidence. They further argue that the probative value of the evidence is outweighed by its unfairly prejudicial effect on the proceeding, and therefore, it should be excluded under s 8 of the Evidence Act.

The court examined the definition of visual identification evidence under s 4 of the Evidence Act, which includes an assertion by a person based on what they 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. The court noted that resemblance evidence is circumstantial evidence and is not direct visual identification of the accused. However, the court distinguished the present case from R v Turaki and Young v R, where resemblance evidence was discussed, as the focus in those cases was on the judge's direction to the jury regarding identification rather than on the admissibility of identification evidence. The court found that the present case has more in common with the Court of Appeal decision in Williams & Barakat v R, where the witness' lack of certainty went to reliability, not to the fact of identification. The court concluded that the identification evidence of Khammanivong is admissible against Panepasa Havea at his trial.

The court found that Khammanivong's confirmation that he recognised Panepasa Havea and did so on the basis that he thought that he was the guy that took Nui and that he "look a little bit like the guy that Nui" is an assertion to the effect that Panepasa Havea was present at the initial kidnapping of Ms Prutsiriporn. The court also considered the circumstances in which the witness claims to have recognised the alleged offender and which may have enhanced or detracted from the quality of the identification. The court found that the evidence is admissible under s 45 of the Evidence Act unless the defendant proves on the balance of probabilities the evidence is unreliable. The court confirmed that the identification evidence of Khammanivong is admissible against Panepasa Havea at his trial.

Panepasa Havea is charged with the kidnapping of Ms Prutsiriporn. The Crown's case includes an eyewitness identification of Panepasa Havea as one of the individuals who initially kidnapped Ms Prutsiriporn. The defence challenges the admissibility of this identification. The court found that the identification evidence of Khammanivong is admissible against Panepasa Havea at his trial.

Orders