R v T HC Wellington CRI 2004-032-2457

[2005] NZHC 1257

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2004-032-2457

THE QUEEN

v

[W         T    ]

Hearing:  14 February 2005 Appearances:      C L Mander for Crown

L Ord for Accused T

Ruling:  17 February 2005

RULING NO. 4 OF MILLER J

1. This ruling concerns the admissibility of evidence of an identification parade at the Lower Hutt Police Station on 30 April 2004, during which an eyewitness to the robbery identified Mr T  . Ms Ord also seeks a consequential direction that the witness be precluded from making a dock identification of Mr T  , because of the risk of a displacement effect. I have ruled that the parade is admissible and these are my reasons.

1. The sequence of events is that the accused was found at a Lower Hutt address when a search warrant was executed on the morning of 30 April. He was cautioned and spoke by phone to his solicitor, Ms Earl. He then agreed to attend the Lower Hutt Police Station for an interview. Before doing so he was cautioned again and given his Bill of Rights.

1. At the Police Station, T   asked to speak to his solicitor again, and did  so.  She came to the Police Station and attended while he made a statement, in written question and answer format but not video, in which he denied involvement in the robbery.

1. The interview began at 10.45 am and Ms Earl left at 11.45 to attend a Court hearing. She advised that she would return. She was aware that the interview would continue for a short time after she left. It did conclude shortly afterwards, with Mr  T   continuing to deny involvement.

1. The interviewing officer, Constable Gifford, on instructions from Detective Sergeant Sears then asked T   if he would agree to participate in an identity parade. He was not advised at that time of any right to refuse or to have a solicitor present, but I accept the officer’s evidence that the identification parade was raised in the form of a request. T      agreed.

1. Ms Earl returned and was told that T    had agreed to take part in a parade. Arrangements were already under way to procure other men for the line up. She saw Mr T    in private, and there is no dispute that he understood participation in the parade was voluntary. He instructed her that he wished to proceed.

1. Detective Sergeant Sears was the officer in charge of the parade. He spoke to T    and Ms Earl together. Reading from his copy of the Police Manual of Best Practice, he advised them that T    did not have to take part in the parade and had the right to have his solicitor present. He was also told that the parade would be photographed and that he could stand in any position in the parade that he wished. Detective Sergeant Sears then left T     and Ms Earl alone for a few minutes, after which the accused confirmed that he would take part in the parade. It was understood that Ms Earl would be present.

1. The accused and Ms Earl then accompanied police officers to another part of the Police Station where the identity parade was to be held. En route they became separated.  When they arrived at the place where the parade was to take place, Ms  Earl saw that Mr T    ’s hair, which had been tied back in a short ponytail, was down.

She took him aside. He explained that the police had asked him to let it down. She told him to put it back up, and he did so. Police officers did not overhear this exchange.

1. Seven other men were present for the parade. Ms Earl looked at them and  took no objection. Police procedures require that there be eight or more people in addition to the accused. I am satisfied that the use of only seven men was due to a misreading of the Manual by Detective Sergeant Sears. No point was taken about it  by Ms Ord, doubtless because the Manual is only of guidance to the Court and the quality of the identification is a matter for the jury: R v Tamihere (No 2) (1990) 7 CRNZ 594, 597.

1. Ms Earl entered the parade room, where the men in the line up were standing, and observed them. She said she was ushered out before the parade began, and she stood in an adjoining room where she waited with police. Detective Sergeant Sears was inclined to dispute that she was ushered out but I accept her characterisation of what happened. Everyone apart from the men in the line up was asked to leave the parade room.

1. There is a dispute whether the door between the room where Ms Earl waited and the parade room was closed during the parade. She said that it was, while the police witnesses thought that it was not. On balance, I think that her recollection is more specific and I accept it. But little turns on the point because it is plain, first, that she was in a position where she could not see Mr T      as he was placed in the line up and second, that she took no objection to being unsighted.

1. Mr T     entered the room and initially indicated that he would stand at number seven. He then took position number eight. He was also asked to let his hair down again, and he did so. Ms Earl did not see this. I accept that she would  have  intervened had she done so. However, the police were not acting in defiance of her advice, which they had not overheard.

1. Police officers brought the witness into a room adjoining the parade room, where she could observe the line up through one way glass. Ms Earl could not see or

hear what was going on in that room from her vantage point. Accordingly, Ms Earl was not in a position to observe the identification, to ensure that nothing was said or done to influence it. She did not ask to be in the observation room so she could see  the line up or the witnesses. Apart from being ushered out of the parade room, she was not told where to stand. It was the first identification parade that she  had attended, and she had not had an opportunity to research the rules governing such parades in the time since she had learned that Mr T     had agreed to participate in it. Had she tried to insist on going into the observation room, however, Detective Sergeant Sears would have refused. He had taken the view that counsel should not know the identity of the witness, since she would obviously be obliged to disclose it to the accused.

1. Detective Sergeant Sears’ evidence was that the witness was aware that police had a suspect who was in the line up and she was being brought in to see whether she could identify that person. She was told to take her time. The  evidence does not  show that she was given any hints as to which man was the suspect. There was evidence from Mr T    that he was told where to stand, but Detective Sergeant Sears denied that, and the question whether that casts doubt on the identification is one for the jury. There is no evidence that the witness was invited to pick number 8. I am not persuaded that Mr T     was instructed where to stand, or that it had any effect on the identification if he was.

1. Ms Ord first contended that the parade was not voluntary. She contended that it ceased to be so when Mr T     was told to put his hair down on the second occasion, in the parade room.

1. I reject this submission. Mr T     knew that he was under no obligation to go through with an identity parade. He also knew that his lawyer had told him to put his hair up on the first occasion, and he must have appreciated that he was at liberty to insist on it being up. I find that he was willing to co-operate with Police, and his involvement throughout the parade remained voluntary at all times.

1. Ms Ord next contended that Mr T    ’s right to have his solicitor present was breached, in that Ms Earl was effectively excluded from the parade.

1. Ms Ord relied upon s 344B of the Crimes Act, which provides:

344B    Attendance at identification parade voluntary

(1)No person charged with an offence shall be compelled to attend an identification parade.

(2)If any person charged with an offence does attend an identification parade, he shall be entitled to have his solicitor present.

(3)Where a person charged with an offence has refused to attend an identification parade, no comment adverse to the person charged shall be made thereon.

1. I accept Mr Mander’s submission that s 344B strictly does not apply, because Mr T      had not been charged with an offence. Section 23 of the New Zealand Bill of Rights Act 1990 does not apply because Mr T      was neither arrested nor detained under any enactment.

1. Whatever, nothing turns on this because Mr T      and his solicitor were undoubtedly told that he had the right to have a solicitor present, and he agreed to participate in the parade on the basis that he exercised that right. As Mr Mander accepted, in circumstances where a suspect agreed to participate in a parade on the basis that he had a right to have a solicitor present, any denial of that right would justify the Court in excluding evidence of the parade in the exercise of its inherent power to control the trial and ensure that it is fair to the accused.

1. A right to have a solicitor present must be meaningful, in that the solicitor must have the ability to intervene and stop the parade should the parade be conducted in a way that is unfair to the suspect. That may involve examining the line up, confirming that the suspect is not directed where to stand, and observing the identification to confirm that nothing is done to indicate to the witness which of the people in the line up is the suspect that the Police have in mind. A Police desire to protect the identity of an identification witness does not supply a sufficient justification for excluding the solicitor, because s 344C envisages that the identity of an identification witness will be disclosed to the accused unless a Judge orders otherwise.

1. On the facts, however, I am satisfied that the Police did not exclude Ms Earl or mislead her. Rather, she was content to stand in a position where she could not see  the line up as Mr T     was placed in it, or the witness as she made her identification. Indeed, on her own evidence the door between the room in which she was standing and the parade room was closed while Mr T     was placed in the line up and the identification was conducted. I accept that Detective Sergeant Sears would have denied her access to the observation room had she asked, and that that might have led her to stop the parade, but she did not seek to exercise the right to observe the identification.

1. Lastly, Ms Ord submitted that evidence of the identification parade ought to be excluded because Detective Sergeant Sears told the witness that a suspect would be included in the line up. She submitted that in those circumstances, a witness is under pressure to identify one of the men in the line up.

1. I accept that a witness may feel some pressure to nominate one of the people  in the line up, but that risk is inherent in the idea of an identification parade. Manifestly the Police are not going to ask a witness to participate in one unless it is for the purpose of identifying or excluding someone whom the Police believe to be a suspect.

1. The evidence does not suggest that the witness was placed under pressure to pick out one of the people in the line up. On the contrary, she was told to take her time. Nor, as I have indicated, does the voir dire evidence establish that she was  given any hints as to which man was the suspect.

1. Finally, the question whether the identification was tainted in any way by pressure to nominate one of the men in the line up, or by hints as to which of the men was the suspect, is a matter for the jury, which will have the benefit of the usual caution regarding identification witnesses as well as cross-examination.

1. In summary, the evidence is sufficiently probative to go to the jury, with the question of weight to be dealt with in cross-examination and summing up, and

nothing about the police conduct of the parade justifies excluding it on grounds of unfairness. The Crown may lead evidence of the parade.

F Miller J

Solicitors:

Crown Solicitors Office, Wellington for Crown Sladden Cochrane & Co, Wellington for Accused