R v Morrison

[2016] NZHC 3140

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2016-096-931 [2016] NZHC 3140

THE QUEEN

v

PAORA HAROLD MORRISON

Hearing:	13 December 2016
Counsel:	D LaHood for Crown E Hall for Defence
Judgment:	13 December 2016

JUDGMENT OF CULL J

Application under s 147 of the Criminal Procedure Act 2011

[1]      The application is brought on the basis that there is insufficient evidence to establish that Mr Morrison has been identified as being involved in the alleged robbery.  The application is based on the lack of evidence from the principal Crown witness, Ms du Toit, who has told the Police she does not know the name of the second male that came to her house on 12 December 2015.  She has described him as:

Male 2 – not known, Paora maybe, Nomads patch on back, maybe 30 years, big and stocky.

[2]      She has further stated that:

I have never seen him before but Sunshine knew him, I think his name is

Paora.

[3]      At the end of her statement to the police, Ms du Toit states:

THE QUEEN v PAORA HAROLD MORRISON [2016] NZHC 3140 [13 December 2016]

I would describe Paora as being Maori, stocky build, late 20s early 30s, he was wearing dark pants and a “Nomads” patch, I know he has a skull tattoo on his left calve (sic), he showed it to me when he saw my tattoos.

[4]      Another Crown witness, Jordyn Chase says in her formal written statement that Ms du Toit had told her she did not know who the men were.  She had denied knowing the men.

[5]      Another person who was at the house that night and made a 111 call to the police with Ms du Toit, a person known as Sunshine Julius, told the police that she knew one of the males as Dustin, referring to the co-offender Mr Thomas and the other one was “Poly”.  She too did not know the other man.  However, Ms Julius told Ms du Toit  that  the  defendant’s  name  was  Paora.    Ms du Toit  has  said  that  the identification of the defendant is “possibly Paora”.   Ms Hall submits that this is a hearsay statement and is inadmissible.

[6]      In addition, Ms Hall points to the finding of Nike shoes at the house of Mr Morrison’s mother does not assist the Crown, in that they are the wrong size and they did not belong to Ms du Toit and had no connection with the alleged robbery.

[7]      The defence submits there is no other evidence that the Crown can lead that

will assist in the identification of “the second man”, namely the defendant.

[8]      The  Crown  has  filed  submissions  in  opposition  to  the  application.    The Crown has identified the evidence that it relies on to prove the defendant was one of the two men involved in the alleged robbery. This includes:

(a)      The formal written statement of Ms du Toit, where she states that she did not know the second person who was in the house but that Sunshine Julius knew him and “I think is name is Paora”.  The Crown says that although there has been no formal objection made about the hearsay statement, the Crown proposes to call Sunshine Julius and if she is unavailable, the Crown will seek to adduce her statement under s 18 of the Evidence Act 2006.  If Ms Julius is available, the statement is no longer hearsay.

(b)The  logical  inference  to  be  drawn  is  that  someone  has  used Mr Morrison’s  name  in  front  of  Ms du Toit.    If  this  was  his  co- offender Mr Thomas  or  Ms Julius  during the alleged  robbery,  the statement would be part of the resgestae and therefore not hearsay.

(c)      Depending on Ms du Toit’s evidence, if she knows Mr Morrison’s first name without recalling when or who she has been told it by, her evidence is not hearsay but her belief that that was his name.  This would be admissible evidence.

(d)The description of the defendant in the last paragraph of Ms du Toit’s statement, including his general description and the distinctive skull tattoo on his left calf.

(e)       The evidence of two prison officers confirming the distinctive skull

tattoo on the defendant’s left calf.

(f)      The evidence contained in the written statement of Detective Cusins, which contains the texts on 11 December 2015 and 13 December

2015 establishing a link between the co-offender Mr Thomas  and someone named Paora.

[9]      Although objection to the text evidence has not been raised before the Court on this application, Ms Hall has confirmed there are grounds of objection to the admissibility of the texts.

[10]     Ms Hall submits that in the absence of any further evidence other than the statement of Ms du Toit, there is insufficient evidence to identify Mr Morrison and it is inappropriate for the Crown to rely on a dock identification.   The Crown has confirmed that  it  will  not  rely on  dock  identification,  but  submits  that  there is sufficient to connect the events of 12 December 2015 to Mr Morrison, by virtue of the general description given by Ms du Toit; the distinctive tattoo she describes, which was shown to her specifically by Mr Morrison; the text messages with a

reference, subsequent to the event, to “Paora”; and the fact that he is known as a

Nomad member from his photograph on the internet.

[11]     Ms Hall advises that she has not received the original notes taken from the interview with Ms du Toit, even though they have been sought to be disclosed.  Nor have the briefs been received from the two prison officers, whose proposed evidence was contained in the annexed job sheets.  If Sunshine Julius is to be called, there is no signed brief from her.   For those reasons, Ms Hall seeks a voir dire before the trial,  to  ascertain  from  Ms du Toit  the  basis  for  her  apparent  knowledge  of  Mr Morrison’s name as Paora.  The defence also seek urgent disclosure of the proposed briefs from the prison offices and Sunshine Julius.

[12]     Because the trial is to commence on 7 February, Ms Hall asks that a voir dire is held before trial, so any subsequent enquiries can be made by Mr Morrison or herself, in relation to the evidence given.   The Crown in its submissions also suggested a voir dire to resolve the issues arising from Ms du Toit’s evidence.

[13]     I have indicated to both Counsel, in the presence of Mr Morrison, that it is premature for the s 147 application to be determined, when further evidence is to be disclosed by the Crown.   The evidential issues raised by the defence should be resolved before the trial, with a voir dire hearing and pre-trial evidential trial rulings.

[14]     For those reasons, I am dismissing the s 147 application.   This does not preclude a further application being brought, if appropriate.

[15]     The application is therefore dismissed.

Cull J