R v Soleymani - [2014] NZHC 1406

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-018458 [2014] NZHC 1406

THE QUEEN

v

HOSSEIN SOLEYMANI

Hearing: 5-6, 8 and 13-16 May 2014

Counsel:

S L McColgan for the Crown
M E Goodwin and G Ghahraman for the Defendant

Judgment:

20 June 2014

JUDGMENT OF DUFFY J

[Reasons re Ruling s 345 Identification Evidence]

This judgment was delivered by Justice Duffy on 20 June 2014 at 4.00 pm, pursuant to
r 11.5 of the High Court Rules

Registrar/Deputy Registrar
Date:

Counsel: M E Goodwin, Auckland Solicitors: Meredith Connell, Auckland Copy To: G Ghahraman, Auckland

R v SOLEYMANI [2014] NZHC 1406 [20 June 2014]

[1] On 18 May 2014 during the course of Mr Soleymani’s trial, and after a voir dire hearing taking approximately one and a half days of trial hearing time, I delivered a result ruling on the admissibility of visual identification evidence. I did so to enable the trial to proceed expeditiously.

[2] The Crown had sought to lead evidence from its witness, Mr da Silva that the man whom he met on two occasions in March 2012 and two occasions in April 2012 was the defendant, Mr Soleymani. Mr da Silva had no prior dealings with Mr Soleymani. There had been no formal procedure, as defined in s 45(3) of the Evidence Act 2006. The Crown argued that in terms of s 45(1), no formal procedure was required. The defence opposed the admission of this evidence on the ground that it did not comply with s 45. I allowed its admission. My reasons now follow.

Facts

[3] Mr Soleymani was on trial facing three counts of possession of methamphetamine for supply and one count of possession of pseudoephedrine for supply.

[4] Mr da Silva is someone who came to New Zealand from Japan on two occasions for the purpose of accepting deliveries of suitcases containing methamphetamine, extracting the drug from the suitcases, repackaging it and delivering it to a New Zealand based recipient. He was acting under the direction of a man based in the Netherlands whom the New Zealand Police (“police”) referred to as Michael O’Connor.

[5] Mr da Silva first came to New Zealand for the purpose of delivering methamphetamine in February 2012. On that occasion he made the first delivery on or about 10 March 2012 and the second delivery on or about 1 April 2012. A few days after each delivery there was another meeting at which he received a payment of $20,000.

[6] The second time that Mr da Silva came to New Zealand he was apprehended by the police in October 2012. He agreed to assist the police with their enquiries

into the importation and distribution of methamphetamine in New Zealand. He became a protected witness for the Crown. He carried out one further delivery of methamphetamine, on 15 November 2012, under police supervision. On this occasion, the methamphetamine was delivered to Mr Soleymani.

[7] After his arrest, Mr da Silva was first interviewed by the…

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 Soleymani

Details

AGLC: R v Soleymani [2014] NZHC 1406
Case: [2014] NZHC 1406
Decision Date: 20 June 2014

CaseChat Overview and Summary

The case of R v Soleymani involved a voir dire hearing on the admissibility of visual identification evidence against Hossein Soleymani, who was on trial for possession of methamphetamine for supply and possession of pseudoephedrine for supply. The central legal issue was whether the Crown could rely on the identification evidence of Mr da Silva, a protected witness, who identified Soleymani as the recipient of multiple methamphetamine deliveries. The Crown argued that the identification could be admitted under s 45(1) and (2) of the Evidence Act 2006, while the defence opposed the admission on the grounds that it did not comply with s 45. Justice Duffy allowed the admission of the identification evidence, finding that the Crown had shown good reasons for not conducting a formal identification procedure and that the identification was reliable under s 45(1). The court rejected the admission under s 45(2) as the reliability of the identification could not be established beyond reasonable doubt. The decision hinged on the strength of circumstantial evidence linking Soleymani to the methamphetamine deliveries and the reliability of Mr da Silva's identification, despite the limited opportunities he had to view Soleymani during the brief meetings.

Orders