R v Hohepa

[2008] NZCA 316

IN THE COURT OF APPEAL OF NEW ZEALAND

CA137/2008
[2008] NZCA 316

THE QUEEN

v

PERCY KELLY HOHEPA

Hearing:18 August 2008

Court:Robertson, Cooper and Winkelmann JJ

Counsel:W C Pyke for Appellant

N P Chisnall for Crown

Judgment:21 August 2008 at 4 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Cooper J)

[1]        Section 126(1) of the Evidence Act 2006 provides that in a criminal proceeding tried with a jury when the case against the defendant depends wholly or substantially on the correctness of one or more visual identifications of the defendant the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.

[2]        In amplification of the rule in subs (1), s 126(2) provides as follows:

(2)The warning need not be in any particular words but must –

(a)warn the jury that a mistaken identification can result in a serious miscarriage of justice;  and

(b)alert the jury to the possibility that a mistaken witness may be convincing;  and

(c)where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.

[3]        In the present case, the trial Judge, Judge P R Connell, warned the jury that there was a special need for caution before finding the accused guilty on the basis of visual identification evidence.  He said that the reason for the warning was that experience had shown that it was quite possible for a perfectly honest witness to be mistaken and that a mistaken witness may be convincing.  He did not directly warn the jury that a mistaken identification can result in a serious miscarriage of justice.

[4]        The question to be resolved on the appeal is what are the consequences of the direction in the form that it was given. 

Background

[5]        This was a case in which identification of the appellant was the central issue.  He was charged with one count of wounding with intent to cause grievous bodily harm.  The events occurred in Te Awamutu.  The appellant was a frequent visitor to the house of one Melanie Galyer, with whom he had a relationship, although their relationship came to an end a week before the attack.  On two occasions the complainant, Mr Cormack visited her when the appellant was present.  Ms Galyer observed some hostility towards the complainant on the appellant’s part.  On one occasion she heard him say “fucking mutt” while looking in the direction of the complainant’s house.  She inferred that this was a reference to the appellant having previously been a member of the Mongrel Mob, although he had not been a Mob member for about 16 years. 

[6]        The complainant and Ms Galyer became friends.  On 1 June 2007 the complainant passed the appellant in the street and they exchanged greetings.  Some time in the evening of 1 June 2007 the complainant answered his back door and found himself confronted by a masked man.  The man was wearing a grey, black and white bandanna which covered his face apart from his eyes.  He was wearing a blue “hoodie” so that the complainant could not see his hair.  Behind him stood another person. 

[7]        According to the complainant, the first person was carrying a red and white pipe crescent, about 12 inches long.  He said that he was holding it in his right hand.  The other person was holding an iron bar.  There was lighting at the back door so as to enable the complainant to make these observations.  The complainant could not remember in what hand the person had been holding the iron bar. 

[8]        The first of the two asked the complainant whether he was “Derek”.  It was a male voice.  The complainant answered that he was Derek.  He was then struck by the first person with the pipe crescent.  The first blow was to the complainant’s head.  It was his evidence that he was struck “several times”.  He then tried to shut the back door but he was unable to do so because the two visitors pushed him back into the washhouse from which the door opened. The complainant said that at some stage during the attack he had succeeded in jamming the first attacker’s hand in the back door.  During this phase of the attack the first of the two continued to hit the complainant.  He tried to defend himself with his arms and hands.  He grabbed at the bandanna and pulled it off.  As he did so he said his hand made contact with the attacker’s face.  He described it as a “ripping contact”.  Having removed the bandanna he was then able to identify the appellant. 

[9]        Further blows were struck and the complainant said he found it hard to see what was happening because blood was coming from his head down his face.  His vision had been affected in this way after he had removed the bandanna.  He described the other person as being short and “quite fat” but he could not recall what that person was wearing, if anything, on his head and his face.  Nor could he identify the second person’s gender.  Notwithstanding the trouble he was having seeing what was happening at this stage, his evidence was that he could see his wife’s car parked outside. He was then pulled out of the house as the two attackers grabbed his T-shirt and he ended up behind his wife’s car.  A blue and white denim jacket that he had been wearing was also removed in the process. 

[10]     When outside he heard the first attacker say to his accomplice “take out his knees”.  At this stage the second person hit the complainant with the iron bar that he was carrying two or three times on his right knee.  Meanwhile, the appellant continued to strike the complainant with the crescent.  Soon afterwards the complainant blacked out.  When he regained consciousness he was alone.  He stumbled across the road to Ms Galyer’s house, knowing that his wife was there.  Once he got to the back door of that house he banged on it as hard as he could.  When Ms Galyer arrived to answer the knocking he again lost consciousness.  When he recovered consciousness the police had arrived.  He was lying on the ground outside the back door step.  He could not remember ambulance staff arriving as he was going in and out of consciousness.  He did recall being in hospital and conscious the following evening. 

[11]     Under cross-examination, the complainant accepted that when speaking to his wife after the incident he had told her that two men in black had come to the door.  He had not told the police or his partner that it was the appellant who had attacked him.  His first mention of the appellant was in his statement to the police made at the hospital on 3 June.  It was his evidence that he had not been speaking to his partner or Ms Galyer prior to making the statement.  His evidence was that prior to the day in question he had never spoken to the appellant, nor had there been any animosity between himself and the appellant. 

[12]     The complainant’s identification of the appellant was crucial to the Crown’s case.  The Crown relied on the lighting, recognition by the complainant of the appellant based on prior meeting, and the close proximity between the complainant and the appellant during the attack.  There was also reference to Ms Galyer’s evidence to which we have earlier referred. 

[13]     For the defence, reference was made to the blood dripping from what must have been serious head wounds and the fact that that may well have obscured the complainant’s vision.  It was suggested that the earlier sighting of the appellant on the street on 1 June could have led him to confuse the appellant and the assailant.  Further, the defence raised a possible inference that the assailant must not have known the complainant as he asked him whether he was Derek.  It was argued that this was a frenzied attack so that the complainant’s observation of the appellant would not have been clear.  For part of the relevant period the assailant’s face had been obscured by the bandanna and it was only shortly after its removal that the blood would have been in the complainant’s eyes obscuring his vision.  There had been no identification of the appellant immediately after the attack whether to the police, or Ms Galyer.  It was not until 3 June that he had identified the appellant.  Marks on the appellant’s face were not consistent with the sorts of injuries that would have been expected and had not been on the side of the head initially pointed to by the complainant.

[14]     The appellant made a statement to the police that was read by consent at the trial.  In his statement he said that he had been in Pirongia and Hamilton on the day in question.  During the interview the police took the appellant’s shoes and sent them away for analysis by ESR.  Detective Sergeant Patterson gave evidence that while no blood was found on the shoes, there were signs that they had been recently and thoroughly cleaned.

The summing up

[15]     The Judge identified for the jury that the question of identification was of crucial importance to the outcome of the trial.  He told the jury that the Crown had to prove beyond a reasonable doubt that it was the accused who wounded the complainant and said that issue must be the “focus” of the jury’s attention. 

[16]     Later, he returned to the issue of identification and gave a detailed direction in the following terms:

You will appreciate that what Mr Borroughs is saying for the defence and his argument is that you as a jury do not have enough evidence to satisfy you beyond reasonable doubt that it was the accused, Mr Hohepa, who did the wounding.  Can I put it again to you because you should be clear about it, that is the essential issue in this case.  The defence say it was not Mr Hohepa, the defence say that he was not there and the defence say that Mr Cormack has wrongly identified Mr Hohepa as the man who wounded Mr Cormack.

With that you will understand I need to direct you on the law relating to identification evidence and there is law that I have to put to you because the Crown case depends substantially, does it not, on the correctness of the visual identification evidence of Mr Cormack.  Now in cases where there is that dependence on an identification, a visual identification, as a matter of law I am required to and I do warn you that there is a special need for caution before finding the accused guilty on the basis of visual identification evidence.  The reason for that warning is that experience has shown that it is quite possible for a perfectly honest witness to be mistaken about identification.  A mistaken witness may be convincing.

Now having warned you in that way, the direction I give you is that you need to carefully consider the evidence relating to this identification and to try and assist you with that I simply am going to bring to your attention for both Crown and for the defence the type of factors that you might consider as to whether or not the Crown have proven that Mr Cormack’s identification is such that beyond reasonable doubt you can say that it was Mr Hohepa.  Those factors are these.  The first is the evidence of Mr Cormack.  What did you make of that?  How did you find him?  What is your impression of him?  Is he a truthful witness?  Is he sincere?  Is he someone who is careful about his observations and his evidence on it?  Now that is a matter for you.  As I said to you at the start of the trial, it very much matters what your impression of witnesses is and you have to make an assessment of Mr Cormack and his evidence and what he said and how he gave it and what impression did he leave you with.  So that’s one of the factors.

You need to look at things like lighting.  Isn’t lighting important to identification because aren’t you better able to see somebody and recognise their features and be able to describe them and so on if it’s done under good light.  So what was the lighting?  You determine that.  What was the opportunity for identification?  In other words here you have to look at what you find happened over the time that there was the knock on the door and then the events that took place during that time, what were the opportunities that Mr Cormack had to make observations.  You need to consider the issue of the effect on identification of Mr Cormack on what he says were his prior meetings with Mr Hohepa.  Were those occasions where he had seen him before?  Because as it has been put to you by the Crown the fact is that this is not a case of a stranger turning up at Mr Cormack’s door.  What the Crown will say to you is, look this is someone that was known to him because he had previously seen him.  You have to consider the weight of those considerations in determining whether or not this is an identification that shows beyond reasonable doubt that it was Mr Hohepa.

You might want to consider his evidence about what happened, in other words his observations on the night, his description of what the mask was, the detail of that.  You might look at his description and observations of what he said it was that he was hit with.  Is this just a piece of metal or is he saying, no this is a pipe crescent, 12 inches long, it’s red and white and that might help you, members of the jury, in thinking, well is this a person who is observant and if he is observant to that degree could he be observant to the point where he readily has identified Mr Hohepa.

That is the way the Crown case is put to you by Ms Clark this afternoon.  Not just to confine yourself to did he get it right in pulling off the mask and spotting Mr Hohepa, but the rest of his evidence, does that help in having him as a witness who’s reliable because of what he saw.  Dependent, isn’t it, on what you make of his evidence, but that’s the way the Crown have argued that to you.  How far was the complainant away from the person with the spanner?  In other words, you would imagine at close quarters the chance of better observation, further away not such a good observation.  But that’s for you, you have to determine it on the circumstances as you find them to be.  What did he say about whether anybody said anything, what did he recall, what was his hearing in terms of what was said to him.  The issue of blood in his eyes.  What has he said about that?  Was that affected do you think in terms of blood running from the injuries?  Did that affect his eyesight?  The Crown say to you here that blood in the eyes impeding his sight happened once the bandanna had been removed and once there was a glimpse of what Mr Cormack said was Mr Hohepa or an observation is a better way of putting it.  Whereas, you know that on that argument the defence say you have to consider that there might have been an impeding of sight by the dripping blood from the wounds on the head.

Effectively those are the sort of considerations, they’re not confined to what I tell you.  You will have ideas as to what might assist or not in terms of this identification and I am going to leave that to you.  I have summarised effectively what the Crown have put to you on that issue.  The defence in terms of identification say to you that if the Crown rely on the sighting of Mr Hohepa in Rata Street and Mr Cormack saying hello to him as he went past before all this occurred, then how can you be certain that Mr Cormack is right about the identification of that man being Mr Hohepa.  I have made the point to you that the defence case on this issue of ID says, look surely his eyesight was impeded by the flow of blood and Mr Burroughs asked you to consider that this is not a case of Mr Cormack standing still, this is a case of him grappling with this person, defending himself and asking you to then accept that that might make it difficult to make a clear observation of the person who was attacking him and he asks you to also consider how long do you think that Mr Cormack had this person under observation.  He is saying to you, look these factors cast a doubt on what the Crown have said is overwhelming evidence that the identification is correct and he’s asking you to consider those for the defence.  That is all I need to say about the main issue in this trial, that issue of identification.

The appeal

[17]     Mr Pyke submitted that the failure to warn the jury that a mistaken identification can result in a serious miscarriage of justice, required by s 126(2)(a) amounted to an error of law.  He argued that it was not simply a question of the Judge using other words having the same meaning;  there had been a complete absence of a direction on the potential consequence of a mistaken identification. 

[18]     He referred to this Court’s decision in R v Munro [2008] 2 NZLR 87 at [62] where the Court had noted the major risks that exist with respect to eye witness evidence. Mr Pyke relied on the contrast between s 126(2) of the Evidence Act 2006 and the now repealed s 344D(2) of the Crimes Act 1961. The latter provided:

(2)The warning need not be in any particular words but shall –

(a)       include the reason for the warning;  and

(b)alert the jury to the possibility that a mistaken witness may be convincing;  and

(c)where there is more than 1 identification witness, advert to the possibility that all of them may be mistaken.

[19]     He argued that the express reference to the possibility of a serious miscarriage of justice in s 126(2)(a), replacing the more general reference to the “reason for the warning” in the Crimes Act, required that the words used in the Act form part of the direction to the jury.

[20]     The fact that the words had not been used, and that nor had there been any equivalent component of the summing up using different words but to similar effect, meant that there had been an error or law within s 385(1)(b) of the Crimes Act.  The Court must allow an appeal under that provision if it is of opinion that the judgment of the Court before which the appellant was convicted should be set aside “on the ground of a wrong decision on any question of law”.  In putting the matter that way Mr Pyke deliberately avoided any reliance on s 385(1)(a) which requires the Court to allow an appeal if of the opinion that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence.  In that respect Mr Pyke frankly conceded that there was sufficient evidence upon which the jury could have accepted that the complainant had properly identified the appellant and found him guilty accordingly. 

[21]     In arguing the matter in that way Mr Pyke was mindful of the wording of the proviso to s 385(1):

Provided that the Court of Appeal or the Supreme Court may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.

[22]     Once it had been established that s 385(1)(b) applies it is for the Crown to establish that no substantial miscarriage of justice has actually occurred.  Mr Pyke referred to Sungsuwan v R [2006] 1 NZLR 730 in which Tipping J at [114] said that the operation of the proviso is likely to be focused primarily on cases falling within s 385(1)(b), observing:

In that context it is relatively easy to contemplate an erroneous legal decision which cannot sensibly have given rise to any real risk from an unsafe verdict and hence cannot have led to a substantial miscarriage of justice. 

Later, in [115], Tipping J referred to the Court asking itself whether what had gone wrong deprived the appellant of the reasonable possibility of a not guilty or more favourable verdict. 

[23]     Here, Mr Pyke submitted the question to be asked was whether the error in the summing up gave rise to a risk of an unsafe verdict or whether the jury, even with the proper direction, would have without doubt convicted.  Another way of putting this was to ask whether the case was unanswerable on the evidence, notwithstanding the misdirection.  Approaching the matter in that way, he argued that the case was not so clear cut for the Crown because of the serious issues about the identification, the absence of any suggestion of a serious motive for the appellant attacking the complainant, the failure to identify the appellant immediately after the attack and the possibility that the complainant had confused the appellant with someone who looked like the appellant.  Added to this was the fact that in the statement he made to the police the appellant had said that he was elsewhere at the time. 

[24]     For the respondent, Mr Chisnall argued, although somewhat faintly, that the failure to refer to the possibility of a mistaken identification resulting in a serious miscarriage of justice or to give any similar statement of why the s 126 caution was necessary had not resulted in an error of law.  He placed his main emphasis, however, on the application of the proviso to s 385(1) arguing that the effect of the summing up as a whole was to alert the jury to the importance of the identification issue and to bring to its attention the rival arguments about the reliability of the evidence.  Given the Judge’s otherwise thorough approach, Mr Chisnall argued that even if the jury had been specifically warned about the possibility of a miscarriage of justice resulting from a mistaken identification, they would nevertheless have found the appellant guilty. 

Discussion

[25]     We accept that there has been an error of law falling within s 385(1)(b) of the Crimes Act with the consequence that the appeal should be allowed unless there has been no substantial miscarriage of justice.

[26]     We consider that Mr Pyke was right to draw attention to the contrast between s 344D(2) of the Crimes Act and s 126(2) of the Evidence Act.  By referring to a warning that a mistaken identification can result in a serious miscarriage of justice instead of the more general reference in the previous law to the “need for the warning”, Parliament now requires Judges to make reference to the possibility of miscarriage of justice arising from a mistaken identification.  Although the opening words of s 126(2) specifically say that “the warning” need not be in any particular words the safest course to follow will be to use the words in subs (2)(a). 

[27]     In context, the words “the warning” at the outset of subs (2) refer both to the warning mentioned in s 126(1) and to the particulars of that warning which are then set out in subs (2)(a) to (c).  That is, the warning must be as to the special need for caution before finding the defendant guilty in reliance on the correction of identification evidence and it must include the matters referred to in paragraphs (a), (b) and, where applicable, (c).  Although the subsection then deals with specific aspects of the warning, those specific matters need not be expressed in the particular words used in the subsection.  Nevertheless, we consider that it would be better for Judges to follow closely the words in subs (2) and avoid later arguments about the adequacy of what has been said. 

[28]     Here, however, the problem was that the Judge simply referred to the special need for caution (i.e. he gave the subs (1) warning) without covering the ground required by s 126(2)(a).  It was not just that he did not make specific reference to the possibility of a miscarriage of justice, but that he used no other words to convey the gist of s 126(2)(a).

[29]     The legislature has required that juries be told why there is a special need for caution:  that is to avoid the serious miscarriage of justice that would result from convicting an innocent person as a result of accepting mistaken identification evidence. 

[30]     In this case it is not necessary to consider the possibility of alternative formulations of the direction, because the Judge did not deal with the reason for the warning at all.  A finding that he failed to comply with s 126(2)(a) inevitably follows, together with the conclusion that he made an error of law. 

[31]     But for that omission the summing up on identification was appropriate.  In fact it was commendably detailed and no doubt helpful to the jury for that reason.  Mr Pyke had no criticism to make of it other than the non-compliance with s 126(2)(a). 

[32]     The result of the Judge’s detailed approach is that the relevant points for and against the accuracy of the complainant’s identification of the appellant were all laid before the jury.  That included the issues raised by the defence as to why the identification might have been made in error.  There was also a warning of the special need for care in relation to the evidence.  There is no reason to doubt that the jury would have adopted the careful approach that the Judge told them was required.  Further, since identification was clearly put to them in the summing up as the central issue in the case, they would have appreciated the possibility of miscarriage arising from wrongful conviction. 

[33]     Given that the judge carefully put before jury all the relevant issues that they needed to consider in the course of their deliberations on the identification issue, there can be confidence that the jury would have properly weighed the strength of the relevant evidence.  They must have accepted that the Crown had proved the identity of the assailant beyond reasonable doubt. 

[34]     In the circumstances of this case, we do not consider that there was a reasonable possibility of a not guilty verdict even if the Judge had given a direction in compliance with s 126(2)(a) of the Evidence Act.  Accordingly, we are of the opinion that no substantial miscarriage of justice has occurred.

Result

[35]     Although satisfied that the point raised in the appeal about the failure to comply with s 126(2)(a) of the Evidence Act is correct, we apply the proviso to s 385(1) and dismiss the appeal.

Solicitors:

Crown Law Office, Wellington