R v Havea
[2017] NZHC 545
•23 March 2017
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 DefendantJudgment:
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 picture of Panepasa Havea. Mr Khammanivong also said that: “I think is the guy that took Nui” and “this guy look a little bit like the guy that took Nui”.
[7] The defence oppose the admissibility of the identification evidence on the grounds that the identification by Mr Khammanivong is not visual identification evidence within the meaning of the Evidence Act 2006. Rather it is resemblance evidence and that the photo montage evidence and associated comments by Mr Khammanivong ought to be excluded pursuant to s 8 of the Evidence Act as the probative value of the evidence is outweighed by its unfairly prejudicial effect on the proceeding.
[8] Mr Cassidy has confirmed that no challenge is taken to the procedure adopted itself. Also, if his primary submission failed, he does not seek to argue the evidence is inadmissible under s 45 as unreliable.
Discussion
[9] Section 4 of the Evidence Act defines visual identification evidence:
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).
[10] Mr Cassidy submitted that the statements by Mr Khammanivong of likeness and similarity in the present case fall short of the assertion required by the s 4 definition of visual identification evidence, and were more in the nature of resemblance evidence as discussed by the Court of Appeal in R v Turaki.1 Evidence that simply describes a defendant is resemblance evidence and does not come within the section for definition. He also relied on Young v R where the Court of Appeal held that a statement by a witness in relation to the identification of a defendant from a photo montage board: “… the main one I picked was number 2, although I picked 2 and 6 but I stated at the time that 2 was most likely” was not categorical enough to be evidence of identification but rather amounted only to evidence of resemblance.2
[11] Mr Cassidy submitted that as a consequence the evidence was not admissible under s 45 of the Evidence Act and as its probative value was limited or modest and the risk of unfair prejudice was significant, it should be excluded under s 8 of the Evidence Act. It ran the risk of wrongly leading a jury to rely on it to identify Panepasa Havea as one of the two men involved in the kidnapping.
[12] The argument Mr Cassidy developed in oral submissions was based on relativity, and was essentially that the evidence in the present case was not sufficiently certain to be evidence of an assertion by the witness of Panepasa Havea’s identity and involvement in the initial kidnapping.
[13] Both cases relied on by Mr Cassidy can in my judgment be distinguished from the facts of the present case. In R v Turaki the Court of Appeal discussed the distinction between positive identification evidence (that the accused was a person at or near the scene) and resemblance evidence (that a person shares certain features or attributes in common with the accused). Resemblance evidence is circumstantial evidence.3
[14] However the focus in the Turaki decision was on the Judge’s direction to the jury regarding identification rather than on the admissibility of identification evidence.
1 R v Turaki [2009] NZCA 310.
2 Young v R [2009] NZCA 453 at [34].
3 R v Turaki, above n 1, at [57].
The evidence in issue in that case was clearly resemblance evidence. The various witnesses had given a general description of a person resembling the defendant rather than identifying him via the photo board procedure. Mr Turaki had been identified to one of the witnesses by her husband, who knew him from school. The real issue was whether he had been the attacker in the assault, the extent of his involvement in the assault and the Judge’s direction in relation to that.
[15] As the Court said:4
[58] In this case, the evidence of Mrs Ulukita, Ms Taie and Ms Graham was description evidence and thus a type of resemblance evidence forming circumstantial evidence of identification. It was not direct visual identification of Mr Turaki.
And later the Court noted:
[65] … the real issue in this case was not the identification of Mr Turaki. The evidence of Mr and Mrs Packer placing Mr Turaki at the scene shortly before the attack was not challenged (see at [60]–[61]). The real issue was whether Mrs Ulukita was mistaken in her observations of what Mr Turaki did in the course of the attack on Mr Fonoti. Her evidence in this regard can be classed as observation (rather than identification) evidence.
[16] In Young the question before the Court of Appeal was not so much evidence of identification, but rather the Judge’s direction and also the significance of a dock identification. The case was dealt with under the law before the Evidence Act was passed. The comment that the evidence of the witness was of resemblance only was a passing comment in the context of the decision as a whole.5
[17] The point taken on appeal related not so much to the evidence of the identification as to the Judge’s directions.6 The focus in relation to the evidence of identification was on what the Judge was required to address in his summing up to say about the evidence, noting that there had not been a positive identification.
[18] Similar points were made about those cases by the Court of Appeal in Ahomiro v R.7 In that case the witness Mr Winders had given evidence that a man shown in the
4 R v Turaki, above n 1.
5 At [10] above.
6 Young v R, above n 2.
7 Ahomiro v R [2016] NZCA 353.
photograph shown to him looked “similar” to the man at his father’s home. In discussing the issue of the admissibility of that evidence the Court noted that:8
[34] This case can be contrasted with R v Turaki and R v Young, which the appellant relied on to support the proposition Mr Winders’ evidence should have been treated as resemblance evidence. In Turaki, the Court was dealing with the submission an identification warning under s 126 of the Evidence Act should have been given. The Court said no identification warning was required for the three witnesses who gave “description evidence and thus a type of resemblance evidence forming circumstantial evidence of identification”.
And:
[36] Similarly in Young, the witness did not make a positive identification from the photo montage. She said that “the main one I picked was number 2,
2 and 6 but I stated at the time that 2 was most likely”. The Court said that
was evidence of resemblance, not of identification. It was a “significant circumstantial factor” but not “positive identification evidence”. Although
Mr Winders at times expressed himself in an equivocal way, read overall, his
was a positive identification.
[19] The present case has more in common with the Court of Appeal decision in Williams & Barakat v R.9 In that case a formal identification procedure was carried out as in the present. On the police identification form the witness responded “yes” to the question “do you see anyone you recognize?” and identified photo 7. The male in photo 7 was the defendant Mr Barakat. In answer to the question: “From where do you recognize the person(s) identified?” the witness answered “He kind of looks like the guy but I am not sure. The guy that came to my house the other day”. When asked if she had any additional comments the witness wrote: “Hard to recognise because he was also wearing a red bandana”.
[20] The Court accepted that the statement by the witness she recognised the male in photo 7, together with the statements that followed amounted to an assertion as to his identity in terms of the definition of visual identification evidence. The witness’ lack of certainty went to reliability, not to the fact of identification.
[21] Mr Cassidy argued strongly that there was a distinction between the identification in Barakat where the witness had said “He kind of looks like the guy but
I am not sure” and the present case submitting that the identification in Barakat was more positive. He also argued that in Bassett v R the witness’s statement she was “85% sure” was more positive than the statements by the witness in the present case. He submitted that it was a relativity argument but the evidence of identification in this case could not properly be seen as an assertion by the witness to the effect that Panepasa Havea was present at the kidnapping.10
[22] I am not able to accept that submission. It seems clear from the authorities I have discussed above and in particular the Court of Appeal authority of Williams & Barakat that the Court should take a rather more broad approach to whether the identification process has led to an assertion of involvement of a person in the offending when considering whether the requirements for visual identification evidence are satisfied.
[23] I also note that in the Williams case leave was sought to appeal to the Supreme
Court but the Supreme Court declined leave noting:11
[12] In the present case, in contrast to Meaker v R relied on by the applicant, the complainant has singled out an individual, albeit expressing her view tentatively. The jury can assess the evidence of the complainant in light of that tentative nature. There is also other evidence of the surrounding circumstances. Finally, these matters can all be assessed on any conviction appeal against the evidence as it develops at trial.
There is no suggestion that the Supreme Court considered there was merit in the submission there was no assertion of the defendants’ involvement in the alleged offence in that case, even though the identification was tentative.
[24] In the present case Mr Khammanivong has confirmed that he recognised the male in photograph 5 on the photo board. Photo 5 identifies Panepasa Havea. Apart from that, in response to the question of “From where do you recognize the person(s) identified” he stated: “I think is the guy that took Nui”. That is in my judgment a clear assertion by him based on what he saw on the night of 29 February to the effect that Panepasa Havea was present at and involved in the kidnapping of the victim. That was followed by the further comment in response: “Do you have any additional
comments?” “This guy look a little bit like the guy that took Nui” which of course is the statement Mr Cassidy has latched onto. While I understand Mr Cassidy’s submission in my judgment the identification exercise has to be considered in its context and the responses considered together.
[25] In context and taken overall, I am satisfied that Mr Khammanivong’s confirmation that he recognised Panepasa Havea and did so on the basis 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 Panepasa Havea was present at the initial kidnapping of Ms Prutsiriporn.
[26] As such the evidence is admissible under s 45 of the Evidence Act unless the defendant proves on the balance of probabilities the evidence is unreliable.12 As noted Mr Cassidy did not seek to argue that it was unreliable and therefore inadmissible but to the extent that aspects of his argument raise the issue of relativity and challenge the identification because of the wording used by Mr Khammanivong in his identification I briefly deal with the admissibility under s 45 generally.
[27] The Court of Appeal in Bassett v R said in relation to such an exercise:13
All 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 need to be taken into account.
[28] In the present case the following factors are relevant overall:
(a) Mr Khammanivong says he saw the person identified as Panepasa Havea on two occasions on the evening, about 10 minutes before Ms Prutsiriporn was taken. He saw the person walk past his car in the direction of the service station. Following this Mr Khammanivong saw him again when he returned to the car and was involved in the taking of Ms Prutsiriporn.
(b)Panepasa Havea then stayed with the car for a period of time, but less than five minutes while they waited for another vehicle to collect them.
(c) During the incident and while waiting for the car Mr Khammanivong was within a short distance, one or two metres of the person he identified as Panepasa Havea. He was in the driver’s seat and the person, Panepasa Havea, opened one of the rear passenger doors.
(d)In addition Mr Khammanivong was able to give a detailed description, including that the person:
(i) was a Pacific Islander;
(ii) was solidly built, but fit not overweight;
(iii)had short black hair, with a beaded strand of hair (with three or four orange beads), like a small ponytail which almost touched the shoulder;
(iv) was around 30 but not over 35;
(v) was around 175 cm tall;
(vi) was wearing a black t-shirt with writing;
(vii) was wearing light blue jeans;
(e) there was no suggestion that Mr Khammanivong had consumed alcohol or was otherwise affected in his identification.
[29] For the reasons given above I do not consider the equivocal nature of the comments accompanying the identification in itself make the evidence unreliable. They must be considered in context and with all the other evidence and they are, as the Court of Appeal noted in Williams & Barakat properly a matter for the jury to
assess following cross-examination of the witness. They do not affect its admissibility under s 45.
[30] Finally, and for completeness I note the Crown also point to further aspects of the evidence which independently support the reliability of Mr Khammanivong’s identification. Still images of Panepasa Havea from a police interview on 11 March and 17 May 2016 show he has a thin shoulder length ponytail corresponding with Mr Khammanivong’s description.
[31] Also Panepasa Havea’s cell phone was polling to a similar tower between 9.21 pm and 9.27 pm on 29 February 2016 as the cellphones of Ms Prutsiriporn and Mr Khammanivong were polling during the same period. During that time a call was lodged from Panepasa Havea’s phone to a Mr Liev. Mr Khammanivong gave evidence in his statement that when Ms Prutsiriporn was grabbed the male he identified as Panepasa Havea called someone and said “Uso I got her now, tell the bro to bring the car around”.
[32] As noted no points were taken in relation to the formal process of identification. There is no basis for the evidence to be ruled inadmissible.
[33] I confirm that the identification evidence of Mr Khammanivong is admissible against Panepasa Havea at his trial.
Venning J
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