R v Peters
[2018] NZHC 855
•30 April 2018
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I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-092-008415
[2018] NZHC 855
THE QUEEN v
PAUL PETERS
Hearing: 30 April 2018 Appearances:
G R Kayes and H Benson-Pope for Crown B T Vaili and S D Cassidy for Defendant
Judgment:
30 April 2018
ORAL JUDGMENT OF JAGOSE J
Solicitors:
Kayes Fletcher Walker Limited, Auckland Public Defence Service, Manukau
R v PETERS [2018] NZHC 855 [30 April 2018]
Introduction
[1] Paul Henry Ngamara Peters faces charges for aggravated robbery,1 and receiving over $1000.2 His trial is scheduled to begin on 8 October 2018 in the Auckland High Court.
[2] One of the victims of the aggravated robbery, Jagjit Singh, encountered Mr Peters by chance some two months after the robbery, and immediately identified him (rightly or wrongly) as one of the offenders. Mr Singh’s friend took a photo of Mr Peters as they walked past him.
[3] The Crown now seeks an order under s 101 of the Criminal Procedure Act 2011 this visual identification evidence be admitted at trial. Defence counsel opposes on grounds the evidence is on the balance of probabilities unreliable, and its probative value outweighed by its unfair prejudice to Mr Peters.
Background
[4] On the evening of 28 June 2017, an aggravated robbery occurred at an address on Franklin Avenue, Papatoetoe. This incident was part of a wider spree of four aggravated robberies in June and July 2017, targeting the addresses of Indian students.
—the Crown case
[5] The Crown’s case is these robberies were organised by co-defendants Hakeke Nuku and Gagandeep Dhillon, the Indian students all being associated with Mr Dhillon in some way.
[6] It is alleged Mr Peters was engaged by Mr Nuku to take part in the burglary at Franklin Avenue. (Mr Peters is also charged with receiving property after a burglary at Galilee Avenue, but this pre-trial application does not concern that charge.) Mr Peters is alleged to have assisted Mr Nuku in taking the property from the address, and then on-selling it.
1 Crimes Act 1961, s 235(b). Maximum penalty 14 years’ imprisonment.
2 Section 246 and 247. Maximum penalty 7 years’ imprisonment.
[7]The summary of facts describes the offending as follows:
(a)Mr Peters arrived at the address with his co-offenders – Mr Nuku, Pounamu Kinghazel and an unknown associate – at approximately 8.40pm. Mr Nuku was armed with a knife;
(b)they asked for Harpreet Singh. When he appeared, they confronted him. Mr Nuku presented a knife at him and demanded $20,000;
(c)the ten people at the address at the time were directed into the lounge;
(d)Mr Nuku took Harpreet Singh out of the lounge into other rooms. The house was searched, and various items (electronic items and bank card) were taken; and
(e)eventually, Harpreet Singh re-joined his flatmates in the lounge, and money was again demanded from him. When he denied having money, Mr Nuku punched him in the face.
[8] I mention at this point Mr Dhillon and Mr Nuku have pleaded guilty to all charges facing them, including the aggravated robbery of the Franklin Avenue address.
—Jagjit Singh’s first statement (12 July 2017)
[9] Jagjit Singh gave a statement to the Police on 12 July 2017 in which he describes the events of the robbery, referring to the four male offenders as “male one” to “male four”.
[10] Much of the defence opposition to this application accuses Jagjit Singh of confusing “male one” (who the Crown takes to be Mr Nuku) and “male three” (who the Crown takes to be Mr Peters). Mr Singh identified:
(a)“male one” as holding a knife to Harprett Singh’s neck and punching him in the face;
(b)“male three” remaining in the lounge with Jagjit Singh and the others, after “male one” had left with Harprett Singh, until they returned about 4-5 minutes later; and
(c)“male three” telling the victims not to call the Police and saying they would come back to the address.
[11] Jagjit Singh’s statement also provides visual descriptions of both male offenders. “Male one” is described:
(a)looking half Samoan and half Maori, aged about 28-29 years and being of medium build and about 5 feet 7 inches tall;
(b)looking like a gang member and like he was on drugs;
(c)wearing a jacket and sports shoes, and holding a small knife with a 3-5 inch blade.
[12]“Male three” is described:
(a)looking Samoan and about 28 to 29 years of age, being of medium build and a bit shorter than the others, around 5 foot 5 inches tall;
(b)having a round face and light facial hair;
(c)having a tattoo on the side of his neck (but Mr Singh could not remember the specifics), and also a swastika or something on his hand; and
(d)wearing a grey jacket and sports shoes.
—Jagit Singh’s second statement (3 November 2017)
[13] On 26 October 2017 Mr Singh advised the officer in charge of the investigation into the burglary he recently had seen one of the men involved in the aggravated robbery, and had taken a photograph of him.
[14]Mr Singh provided a statement on 3 November 2017 explaining:
(a)he had seen “male three” at approximately 4.15pm on 25 August 2017 at the Onehunga Mall standing outside the Bakehouse near the Police station;
(b)when he first saw “male three” he was not wearing sunglasses and was only a couple of meters away from Mr Singh, who recognised him straight away;
(c)he quickly told his friend to take a photograph as they walked past him, and this photograph is attached to the statement; and
(d)he remembers “male three” very well as he had spoken to him for two or three minutes during the robbery.
The last assertion, as defence counsel is at pains to point out, was not made in his earlier statement of 12 July. (But Mr Singh explained in the earlier statement “the men just keep asking Harpreet for the money. This was just happening the whole time” and then set out a number of specific statements he attributed to “Man three”).
[15] At no point have the Police conducted a formal identification procedure with respect to Mr Peters as such is defined in s 45(3) of the Evidence Act.
Legal framework
[16] This is an application now for a pre-trial order relating to the admissibility of evidence in a jury trial, pursuant to s 101 of the Criminal Procedure Act 2011.
[17] It is accepted the evidence is “visual identification evidence” as defined in s 4 of the Evidence Act 2006:
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).
[18] The Evidence Act recognises dangers inherent in the reliability of visual identification evidence. The Act provides for its management in two ways: ss 45 and
126.3Section 45 is the subject of this application. It provides a gate-keeping
mechanism, whereby a Judge determines as a question of law whether the impugned evidence passes one of two admissibility thresholds at either subs (1) or (2). Those subsections provide:
45 Admissibility of visual identification evidence
(1)If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(2)If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
[19]The following issues emerge from this legal framework:
(a)first, whether there was ‘good reason’ for not following a formal procedure for obtaining visual identification evidence as specified in subs (3);
(b)then, the threshold for the second issue of reliability:
(i)if ‘good reason’ is established, the evidence is presumed to be sufficiently reliable to be considered by the judge or jury, but it remains open for the defendant to prove on the balance of probabilities it is in fact unreliable;4 and
(ii)conversely, if ‘good reason’ is not established, the evidence is not automatically excluded, but the prosecution faces a much
3 Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Thomson Reuters, Wellington, 2014) at [EV45.01].
4 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [18], [21].
higher hurdle: the evidence will be inadmissible unless the prosecution can prove beyond reasonable doubt the circumstances in which the identification was made produced an identification sufficiently reliable to be admitted as part of the case and assessed by the fact finder.5
[20]In Aramoana v R, the Court of Appeal cautions as to the limits of my role:6
… the role of the Judge is to determine the threshold question whether the [identification] evidence can be legitimately relied on by the jury. It is not for the Judge to usurp the function of the jury by determining whether the identification was in fact accurate.
[21]I now turn to the first issue.
Issue 1: was there ‘good reason’ for not following a formal procedure?
[22] Section 45(4) enumerates a (non-exhaustive)7 list of circumstances providing “good reasons for not following a formal procedure”, including at paragraph (f):
if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.
Mr Singh’s encounter with Mr Peters near the Onehunga Mall falls squarely within that paragraph’s “chance meeting”.8 Indeed, defence counsel, Ms Vaili, accepts s 45(1) is applicable.
[23] She raises qualms about the delay that the identification was not made to the police until almost two months after the chance meeting and suggests, although she walks away from that in her oral submissions, the police should have conducted a formal identification procedure immediately after being notified.
5 At [22].
6 Aramoana v R [2010] NZCA 315 at [13].
7 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [25].
8 Lord v R [2011] NZCA 117. See also Law Commission Evidence: Code of Commentary [Report 55 Vol 2] at 133, cited in Robertson (ed) Adams on Criminal Law (Evidence) (Online Looselead edition) at [EA45.13(7)].
[24] I do not share these qualms. The rationale behind subsection (4)(f) is the chance encounter reduces or entirely removes the utility of a formal procedure:9
… if a formal procedure were to be held there would be no way of knowing if any resulting identification was due to the witness recognising the offender, or merely recognising the person who was present at the later encounter with the witness.
Despite the delay between the chance encounter and the statement, from the time the police were notified of the encounter there was little utility in conducting a formal procedure. The formal procedure could not have distinguished between Mr Singh’s recognition of Mr Peters at Franklin Avenue or at the Onehunga Mall.
[25] I find the “good reason” test is made out here, and the onus is therefore on the defendant to establish on the balance of probabilities the evidence is unreliable.
Issue 2: is the evidence unreliable on the balance of probabilities?
[26] The leading case on reliability is the Supreme Court’s decision in Harney v Police. Recent decisions of the Court of Appeal confirm, in determining reliability under s 45(1), a Judge should consider:10
(a)all the circumstances in which the identification was made enhancing or detracting from the quality of the recognition. These include:
(i)internal factors – such as eyesight, state of sobriety, prior knowledge of the alleged offender, and opportunities for memory distortion;
(ii)external factors – such as the state of the lighting, distance, duration of observation and any obstructions to the view and the means of collecting the identification evidence; and
(iii)the confidence of the witness in his or her identification, especially where that confidence manifests at the time of the identification;
9 R v Soleymani [2014] NZHC 1406.
10 P v R [2016] NZCA 637 at [22]; R v Edmonds [2009] NZCA 315 at [105] affirmed in R v Howard
[2017] NZCA 159 at [41] and [42].
(b)the fact, although recognition evidence may be more reliable, witnesses can make mistakes, even where the identification involves the witness recognising the accused as someone he or she knows;
(c)whether the identification has been contaminated in some way either at the time of the offending or at a later date; and
(d)any other evidence in the case which supports or raises concerns about the accuracy of the identification.
[27] It is worth clarifying the nature of the reliability issue on the present application. There is no dispute the man depicted in the photographs is Mr Peters – he accepts as much in his DVD interview with the Police. The two (inter-related) questions are: does Mr Singh reliably identify Mr Peters as one of the offenders in the Franklin Avenue burglary?; and then, can Mr Peters reliably be associated with “male three” described in the first statement of 12 July?
—Crown submissions
[28] The Crown contends there is much to commend the reliability of the identification evidence in response to both questions.
[29] Mr Singh was in the same room as “male three” during much of the burglary, and according to his later (though not earlier) statement, they had a conversation lasting two or three minutes. There is no suggestion Mr Singh was intoxicated or that his eye-sight or cognition was otherwise impaired.
[30] During the chance encounter, Mr Singh initially saw Mr Peters without his sunglasses, and came within “about 1 and a half meters” of him. Mr Singh says he “recognised him straight away” because he “remember[s] male 3 very well”.
[31] Mr Singh’s confidence is germane to the present analysis. Though mindful of the Court’s warning in Harney against placing too much weight on this factor – as “the confidence level of the witness cannot, in itself, satisfy a reliability test”11 – I note
11 Harney (n 7 above) at [33].
expressions of confidence at the time the identification was first made should be afforded greater weight.12 It is also significant Mr Singh had the benefit of a photograph to confirm his initial impressions on further reflection.
[32] Finally, the Crown invites the Court to consider the strong circumstantial evidence supporting Mr Peter’s identification with “male three” in Mr Singh’s account. This is relevant because, in some cases, the strength of such circumstantial evidence has been held to outweigh other significant deficiencies in the identification evidence.13 This evidence includes:
(a)Mr Peter’s admissions in his police interview he knew Mr Nuku, and spent time at Mr Nuku’s personal address (bearing in mind that Mr Nuku had pleaded guilty to the aggravated robbery of the Franklin Avenue address);
(b)text messaging evidence, including a text message from Mr Peters at 5.12pm the evening of the robbery, indicating he was at Mr Nuku’s address in Manurewa, and a further message at 8.42pm saying, “met at 21 got heaps of gears”.
(c)cell-phone polling evidence placing Mr Peters in the Papatoetoe area four minutes before the burglary began; and
(d)further text message exchanges between Mr Peters and associates in the days following the burglary, referring to property consistent with the items stolen. In particular, there are text messages to Mr Nuku the day after the burglary in which Mr Peters asks “Did you try cards yet?” and later “Cus wot gig is it and imac air? ?’
Cumulatively, the Crown contends these factors all point towards the patent reliability of the identification evidence.
12 Harney (n 4 above) at [33]; see also Edmonds (n 10 above) at [117].
13 Boote v R [2013] NZCA 122 at [40]-[46].
—defence submissions
[33] Against that, counsel for Mr Peters raises various challenges. She notes Mr Peters and Mr Singh were unknown to each other. She stresses the lapse of time – some two months between the chance encounter, and the alleged offending – and calls the Court’s attention to the words of the Court of Appeal in Malone v R:14
Among other things, the Law Commission identified that the lapse of time [has] the obvious potential to distort the original memory of a witness and that “recall and recognition accuracy are at their best immediately after encoding the information, and that both decline at first rapidly and then gradually over time”.
I observe that such a distortion may explain the discrepancy between Mr Singh’s first and second statements as to statements attributed to “male three” and the ‘conversation”’.
[34] Ms Vaili also identifies material discrepancies between Mr Singh’s 12 July description of “male three” and Mr Peter’s actual appearance. This culminates in her submission Mr Singh has confused and conflated “male three” with “male one”, rendering his identification evidence unreliable on the balance of probabilities. She relies on Aramoana v R, where the Court rejected evidence as inadmissible in circumstances where the witness appeared to have mistaken one co-offender for another.15
[35]Ms Vaili points out:
(a)Mr Singh’s 12 July statement claimed “male 3” had a tattoo on the side of his neck and swastika tattoo on his left hand. It is true Mr Peters has tattooing on his neck, but there are no tattoos visible in his photograph of Mr Peters, so presumably there was no way for Mr Singh to identify him by those characteristics. Otherwise, Mr Singh’s identifying characteristics of “male three” are too vague to reliably pinpoint him out of a crowd; and
14 Malone v R [2010] NZCA 59 at [11].
15 Aramoana (n 6 above) at [16].
(b)in fact, Mr Nuku has extensive tattooing on his neck and (unlike Mr Peters) a swastika tattoo on his hand. It appears Mr Singh has conflated these features of “male one” with his description of “male three”.
[36] I accept this has bearing on the reliability of Mr Singh’s identification evidence, but only to a point. This is not a case where “male one” is unidentified and still at large, and so there is a legitimate fear Mr Singh is misremembering or fuzzy in his recollection of events. Mr Nuku has pleaded guilty, and we know for a fact he bears the neck tattoos and swastika identified (wrongly, at least with respect to the swastika) by Mr Singh. The Crown concedes Mr Singh has confused “male one” and “male three” by conflating some characteristics. Such is not surprising following a high- stress event like a burglary. But such minor confusions with an identified co-offender who has already pleaded guilty does not seriously impugn the reliability of Mr Singh’s identification evidence.
[37] I note Mr Singh’s description of “male 3” (round face, light facial hair, 5 foot 5 inches) is otherwise consistent with Mr Peters and with the photograph. The description is not precise but neither is it vague and it provides some indication of reliability. I also consider significant Mr Singh’s clear distinction between “male one” and “male three” in his earlier statement. The former wielded the knife and left the room; the latter stayed and made specific statements to the people in the room. This adds to the reliability of Mr Singh identifying the man in the photo with the person described as “male three” in his account.
[38] In my assessment, Mr Peters has not established on the balance of probabilities the evidence is unreliable.
Section 8 of the Evidence Act
[39] Visual identification evidence is also subject to the controls in the Act’s ss 7- 8, and ss 23-25.16
16 Keil v Police [2017] NZCA 430 at [24].
[40] The issue is whether the visual identification evidence should be excluded under s 8 because the unfair prejudice its admission will cause outweighs its probative value. I consider any such prejudice minimal. In any case reliability concerns can be put to the jury in a judicial warning about precaution requiring in assessing this type of evidence is available under s 126 of the Act.
[41] What minimal prejudice there may be is outweighed by the high probative value of the visual identification evidence. If accepted by the jury, the evidence establishes Mr Peters played an active role in the aggravated robbery of the Franklin Avenue address. It provides an important piece of linking evidence to supplement the more circumstantial cell phone polling and text message evidence I have outlined.
Result
[42] The visual identification evidence is admissible under s 101 of the Criminal Procedure Act 2011.
—Jagose J
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