R v Taiaroa
[2015] NZHC 2401
•2 October 2015
ORDER PROHIBITING PUBLICATION OF NAMES AND IDENTIFYING PARTICULARS OF CORRECTIONS' OFFICERS REFERRED TO IN THESE REASONS FOR VERDICTS AND ANY WHOSE NAMES WERE MENTIONED DURING THE COURSE OF THE HEARING OR IN OTHER DOCUMENTATION FILED.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI 2013-004-13119 [2015] NZHC 2401
THE QUEEN
v
LEWIS HAPI TAIAROA
Hearing: 14, 15, 17 and 29 September 2015 Counsel:
D G Johnstone for Crown
K W Burroughs for DefendantJudgment:
2 October 2015
REASONS FOR VERDICTS OF HEATH J
Solicitors:
Crown Solicitor, Auckland
Counsel:K W Burroughs, Hamilton
R v TAIAROA [2015] NZHC 2401 [2 October 2015]
CONTENTS
Verdicts [1] Background [7] Mr Taiaroa’s role in the riot [22] Legal requirements
(a) Judge-alone trial – Reasons for verdicts [25] (b) Onus and standard of proof [26] (c) Accused giving evidence [28] (d) Separate trials [29] (e) Sympathy and prejudice [30]
Analysis
(a) Riotous behaviour
(i) The charge [31] (ii) Assessment of Mr Taiaroa as a witness [34] (iii) Application by Crown to call rebuttal evidence [39] (iv) The defence of compulsion [50] (b) Arson (i) The charge [62] (ii) Legal principles [64] (iii) Outcome [67] (c) Assault with a weapon (i) The charge [75] (ii) Visual identification evidence – the statutory scheme [78] (iii) The admissibility inquiry [85] (iv) Is Officer Z’s recognition evidence reliable? [100]
Verdicts
[1] Mr Taiaroa has been charged with three offences arising out of a riot that took place at Spring Hill Correctional Facility (Springhill prison) on 1 June 2013. Other participants in the riot have already been dealt with by the Court.
[2] On 14 September 2015, Mr Taiaroa pleaded not guilty to charges of arson, riotous behaviour and assault with a weapon. The trial took place before me, sitting without a jury. While, initially, Mr Taiaroa had elected trial by jury, he was permitted to change that election on 6 June 2015.1
[3] The charges of riotous behaviour and arson are brought on the basis of the
visual evidence garnered from CCTV footage. Mr Taiaroa’s defence to the riotous
1 Criminal Procedure Act 2011, s 53.
behaviour charge is compulsion.2 He denies voluntarily participating in the arson, and defends the arson charge on the basis that what he can be seen doing in the images is insufficient to prove that he assisted or encouraged another person to commit arson. Compulsion is not a defence to a charge of arson.3
[4] Mr Taiaroa denies assaulting members of the Advanced Control and Restraint team with a metal volleyball pole. Identification is in issue. A Corrections’ Officer (whom I will call Officer Z) gave evidence that he recognised Mr Taiaroa as the person wielding that weapon. Officer Z was a member of the Advanced Control and Restraint Team, and was standing next to officers who were using large shields when the assault occurred. Officer Z gave evidence that he recognised Mr Taiaroa, from prior interactions with him at the prison, as the person who used the metal volleyball pole to strike at members of the team.
[5] Earlier this morning, I returned the following verdicts:
(a) Count 1: Arson Guilty
(b) Count 2: Riotous behaviour Not guilty
(c) Count 3: Assault with a weapon Not guilty
[6] I now give my reasons for returning those verdicts.4 I do so in an order that reflects the chronological sequence of events, rather than in the order that the charges are set out in the Charge List. I also provide my reasons for dismissing a Crown
application to call further evidence after closing its case.5
2 Crimes Act 1961, s 24(1) set out at para [50] below.
3 Ibid, s 24(2)(m).
4 Criminal Procedure Act 2011, s 106(1) and (2).
5 R v Taiaroa [2015] NZHC 2310 at para [5]. See also, s 105(2)(c) of the Criminal Procedure Act
2011 and s 98 Evidence Act 2006.
Background
[7] Springhill prison is located in the Waikato province, between Auckland and Hamilton. On 1 June 2013, an incident occurred in Unit 16B. That unit houses medium to high security prisoners, most of whom have gang affiliations.
[8] Unit 16B is divided into two pods; Pod C and Pod D. The two pods sit side by side, with a common entry place and staff quarters.
[9] The pods are both hexagonal in shape. Their layout mirrors each other. Between the two pods there is an administrative area containing a number of rooms. Next to the main entry are the kitchen and dining rooms for Pod D and Pod C respectively. Activity rooms for Pod D and Pod C are adjacent to the kitchen and dining rooms of each pod.
[10] What is called a “sterile area” is situated in the area contiguous to the main entry and the two kitchen and dining rooms. This is where inmates are taken before being moved around the prison. On the opposite side of the sterile area to the main entry is the staff base. That consists of a main hub from which monitoring is undertaken, the Principal Corrections’ Officer’s office, and the staff kitchen. An interview room and a holding cell are in the area between the staff base and the two rows of cells for each pod. Storage rooms are located between some of the cells in each of the two pods.
[11] Each pod has 30 cells in which prisoners are held. In Pod C, cells 1–13 (inclusive) are situated to the left of the staff base, with cells 14–30 (inclusive) to the right. At the time of the riot, a double bunking system was in place. On 1 June
2013, there were 44 prisoners in Pod C, and 45 in Pod D. Mr Taiaroa was in cell 13 of Pod C, which he shared with another prisoner, Mr Cruz Fruean.
[12] Some inmates are designated as “cleaners”. Generally, they are released from their cells at about 8.30am each morning to undertake those duties. About half of the remaining prisoners are released at 9.00am, to exercise in the yard within the relevant pod. The balance are released in the afternoon. Generally, each prisoner is released for about one and a half hours per day to exercise.
[13] The prison officers maintain a “muster board” to monitor the whereabouts of inmates during the day. The muster board contains a photograph of each prisoner in the relevant pod, his name, whether they are “inside” or “out” and the security classification of each. On the morning of Saturday 1 June 2013, Mr Taiaroa was described as “inside” with his cellmate, Mr Fruean, “out”. Mr Fruean is one of the “cleaners”.
[14] After the first group of prisoners had been released for exercise on 1 June
2013, a Corrections’ Officer located “home brew” in one of the cells within Pod C. I heard no explanation of the ingredients from which this alcohol was brewed, but was told that such substances are not infrequently found in the prison. It is unclear what steps were taken to address the problem of intoxication immediately after the “home brew” was discovered.
[15] Some of the prisoners who had been released around 9.00am had consumed alcohol, either before the exercise regime began or afterwards. A number of them were observed to show signs of intoxication around this time. One Corrections’ Officer gave evidence that the prisoners appeared to be in a “happy go lucky” state. This created a difficult situation for the Corrections’ Officers on duty.
[16] In the days before the riot, Mr Taiaroa had been receiving medical attention for a boil on his left leg. An appointment had been made for Mr Taiaroa to see a medical officer on 1 June 2013. He was collected for that purpose at 9.49am. He was returned to Unit 16B at 10.14am, shortly before the riot began. Mr Taiaroa gave evidence that, despite his protestations about being left in the exercise yard with prisoners of whom he was fearful, he was not returned to his cell at that time.
[17] When Mr Taiaroa obtained medical treatment, a plaster was put over the boil on his leg. The placement of that plaster has assisted in identifying Mr Taiaroa in some of the CCTV evidence.
[18] At about 10.20am there was an assault in the dining room of Pod C. At
10.33am, one of the Corrections’ Officers made a “code blue” call because of an
assault on an officer. A short time afterwards, as difficulties quickly escalated, a
“code red” was called at 10.34am. When a “code red” is called prison officers throughout the prison facility are required to take steps to lock up inmates, and to make their way to help officers in the area in which an assault is occurring.
[19] On Saturday 1 June 2013, there were five officers on duty in Unit 16B. Two were responsible for those prisoners released into Pod C for exercise. Two others were responsible for inmates exercising in Pod D. One other was in the staff base to monitor (through CCTV) what was happening in both pods. By the time the “code red” was called, both officers in Pod C were under attack.
[20] The riot began. Many of the prisoners in Pod C were participating, although some stayed in their cells to distance themselves from what was occurring. Others remained locked in their cells, as their exercise time had not begun. Among other things, the rioting prisoners broke up furniture, made makeshift weapons from wood and other available items (including the metal volleyball pole), and started a fire. The New Zealand Fire Service was called. Firemen arrived at about 12 midday. Power to Unit 16B was cut for safety reasons around 4.05pm. No CCTV footage is available after that time.
[21] While the fire continued to burn, a special squad, known as the Advanced Control and Restraint Team, was deployed at about 4.30pm, to quell the riot. Members of that team are trained officers, equipped with protective equipment, including large shields. They had arrived earlier in the day for a briefing. They were given the task of locating, restraining and extracting rioting prisoners from Unit 16B.
Mr Taiaroa’s role in the riot
[22] Because of the large number of security cameras in a prison facility, CCTV footage is available to identify those parts of the riot in which Mr Taiaroa is said to have participated. With one exception (the assault with a weapon charge, in respect of which there is no CCTV footage) no questions of identification arise.
[23] In the period between his return from the medical office to the yard (at about
10.14am) and 1.00pm there are a number of images that show Mr Taiaroa’s
involvement in the riot:
(a) At about 11.10am Mr Taiaroa is one of three prisoners who place the metal volleyball pole against the staff base window. It is used as a “battering ram”. Two prisoners appear to be wielding the pole, one of whom is Mr Taiaroa.
(b)Between 11.11am and 11.59am Mr Taiaroa is seen, at various times (but not continuously) striking the staff base window and surrounds with lengths of wood and a metal object.
(c) Carrying property from rooms in the staff base into the prison yard.
(d)Picking up toilet rolls and carrying them towards a fellow prisoner, who is in the process of fuelling a fire in a room identified as the seat of the fire.
(e) Using a telephone in close proximity to a prisoner who is lighting or fanning the fire.
[24] There are few occasions on which Mr Taiaroa can be observed acting alone, or without another prisoner in close proximity to him. There are some difficulties in reaching conclusions about continuous behaviour due to the jerky nature of some of the pictures6 and the lack of any audio record of what was being said to Mr Taiaroa (or more generally) at the time various actions were recorded.
Legal requirements
(a) Judge-alone trial – Reasons for verdicts
[25] I conducted this trial without a jury. I am required to give reasons for my verdicts.7 In R v Connell, the Court of Appeal explained the extent of the reasons that should be given for a trial Judge’s verdicts.8 Generally, all that is required is a statement of the ingredients of each charge, any relevant rules of law or practice, a
concise account of the facts, and a plain statement of the essential reasons why the
6 I did not hear any evidence about the number of frames per second recorded.
7 Criminal Procedure Act 2011, s 106(2).
8 R v Connell [1985] 2 NZLR 233 (CA).
verdicts have been returned. When the credibility of witnesses is involved and important evidence is either accepted or rejected, that too should be stated explicitly.9
(b) Onus and standard of proof
[26] The Crown bears the onus of proving each charge beyond reasonable doubt. Mr Taiaroa is not required to prove anything. Once an evidential foundation has been laid for a defence of compulsion, the Crown must exclude the reasonable possibility that it existed.10
[27] Proof beyond reasonable doubt is a very high standard of proof. It is not enough for the Crown to persuade me that an accused was probably guilty, or even that he was very likely guilty, of a charge brought against him. I must be sure that all elements of a particular charge have been proved before entering a guilty verdict. If I were left, after giving careful and impartial consideration to all relevant evidence,
with an honest and reasonable uncertainty as to guilt, I must acquit.11
(c) Accused giving evidence
[28] Mr Taiaroa elected to give evidence and to call one witness on his behalf. That evidence goes into the pool available to me. Three possibilities might arise. These are summarised for juries in what is known as the “tripartite” direction. I must reach a verdict of not guilty if the defence evidence is credible, reliable and a convincing answer to the Crown’s case, or if I were left with a reasonable doubt as to its correctness. In cases where defence evidence is rejected, it is necessary to determine, on the balance of the admissible evidence, whether the elements of the
relevant offence have been proved beyond reasonable doubt.
9 Ibid, at 237. Having explained this, I accept that these reasons are far too long. The lack of time to compress them into a shorter form is my only excuse.
10 IA v R [2014] 1 NZLR 17 (SC) at para [15](c).
11 R v Wanhalla [2007] 2 NZLR 573 (CA) at para [49].
(d) Separate trials
[29] I must consider Mr Taiaroa’s position separately by reference to each of the charges brought against him. In effect, I am conducting three separate trials. This is important given the unavailability of the compulsion defence on the arson charge.12
(e) Sympathy and prejudice
[30] I am required to determine the charges solely on the basis of the evidence adduced during trial. I must weigh the evidence dispassionately and not allow my judgment to be influenced by either sympathy or prejudice.
Analysis
(a) Riotous behaviour
(i) The charge
[31] Mr Taiaroa is charged with being a member of a riot in Unit 16B who unlawfully damaged property belonging to the Department of Corrections. The charge is brought under s 90 of the Crimes Act 1961:
90 Riotous damage
Every one is liable to imprisonment for a term not exceeding 7 years who, being a member of a riot, unlawfully damages any property.
[32] The term “riot” is defined by s 87(1) of the Crimes Act:
87 Riot
(1) A riot is a group of 6 or more persons who, acting together, are using violence against persons or property to the alarm of persons in the neighbourhood of that group.
…
[33] I am satisfied beyond reasonable doubt that Mr Taiaroa was one of a group of more than six people who unlawfully damaged property owned by the Department of
Corrections. A guilty verdict must follow, unless the Crown has failed to exclude the
12 Crimes Act 1961, s 24(2)(m).
reasonable possibility that Mr Taiaroa involved himself in the riot through compulsion.
(ii) Assessment of Mr Taiaroa as a witness
[34] When giving evidence, Mr Taiaroa struck me as nervous and fidgety. That behaviour is consistent with evidence given by a psychiatrist, Dr Dean, who has interviewed Mr Taiaroa on a number of occasions and prepared reports for the Court. Dr Dean described Mr Taiaroa as requiring treatment for marked symptoms of anxiety. This medical condition, and the impact of the medication that he was taking, supports my conclusion that Mr Taiaroa has no real sense of the timing or sequence of events that he was endeavouring to explain.
[35] In my view, Mr Taiaroa tried to give honest evidence but, because of his medical state and his real fear of some of the inmates in Unit 16B at Springhill prison on the day of the riot, only a frightened recollection was possible. An example is his response of “no comment” when it was put to him that his cell-mate had not “beaten him up” while in Unit 16B. I have no doubt that he responded in that way out of a fear of retribution, if he were to confirm that an assault of that type occurred.
[36] I treat Mr Taiaroa’s memory of events on the day as imperfect. Where possible, I have looked for corroborating evidence to support the descriptions he has given.
[37] Mr Taiaroa gave evidence that he had been threatened during the course of the day to participate in the riot. He gave evidence of incidents in which other inmates gave him a “tune-up” and told him to “get involved or else”. He referred to being “jumped” by other prisoners. In cross-examination, Mr Taiaroa went further. He referred to an incident in Cell 1 in which he was allegedly “stomped on”, smashed “in the ribs” and told that other prisoners would take him out and kill him “and stuff”.
[38] Mr Taiaroa referred to various remarks made by other inmates in the yard while the riot was in progress. Words were said, he deposed, to “encourage” him to participate. On at least one occasion, he was “shoulder barged” by another prisoner. Mr Taiaroa’s position was that this type of continuing conduct constituted relevant threats. He said that he was scared, and had no choice other than to involve himself in the riot.
(iii) Application by Crown to call rebuttal evidence
[39] After all evidence had been given and the defence had closed its case, the trial was adjourned for closing addresses to be made on 17 September 2015. On that day, Mr Johnstone, for the Crown, made an oral application to call rebuttal evidence.13 The application to call rebuttal evidence was opposed by Mr Burroughs, for Mr Taiaroa. In a judgment given on 23 September 2015, I dismissed that application.14 My reasons for doing so follow.
[40] The Crown wished to rebut certain parts of Mr Taiaroa’s evidence; principally in relation to whether he had been subjected to a relevant “threat” for the purposes of the compulsion defence15 and his denial that he wielded a volleyball pole as a weapon to assault members of the Advanced Control and Restraint Team who were deployed around 4.30pm to quell the disturbance.
[41] Mr Johnstone sought to call evidence from a Receiving Officer at Waikeria prison, where Mr Taiaroa was taken after the riot. The point of that evidence was to demonstrate that Mr Taiaroa had no injuries consistent with the type of attack in Cell
1 that he had described. The purpose of that evidence was two-fold. The first was to
undermine Mr Taiaroa’s credibility. The second was to rebut any suggestion that a
“threat” had been made of the type to which s 24(1) of the Crimes Act refers.16
13 Evidence Act 2006, s 98(3)(b) and (d) and Criminal Procedure Act 2011, s 106(2)(c). The relevant provisions are set out at para [42] below.
14 R v Taiaroa [2015] NZHC 2310 at para [2].
15 Crimes Act 1961, s 24(1). See also, IA v R [2014] 1 NZLR 17 (SC).
16 Section 24 of the Crimes Act is set out at para [50] above.
[42] I deal first with the circumstances in which rebuttal evidence may be called. Section 105(2)(c) of the Criminal Procedure Act 2011 and s 98(1), (3), (4) and (5) of the Evidence Act 2006 provide:
(a) Criminal Procedure Act 2011:
105 Conduct of Judge-alone trial
…
(2) Unless the court directs otherwise, the prosecutor and the defendant must call evidence in the following sequence:
…
(c) subject to section 98 of the Evidence Act 2006, the prosecutor may adduce evidence in rebuttal of evidence given by or on behalf of the defendant.
….
(b) Evidence Act 2006:
98 Further evidence after closure of case
(1) In any proceeding, a party may not offer further evidence after closing
that party’s case, except with the permission of the Judge.
…
(3) In a criminal proceeding, the Judge may grant permission to the prosecution under subsection (1) if—
(a) the further evidence relates to a purely formal matter; or
(b) the further evidence relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen; or
(c) the further evidence was not available or admissible before
the prosecution’s case was closed; or
(d) for any other reason the interests of justice require the further evidence to be admitted.
(4) In a criminal proceeding, the Judge may grant permission to a defendant under subsection (1) if the interests of justice require the further evidence to be admitted.
(5) The Judge may grant permission under subsection (1),—
(a) if there is a jury, at any time until the jury retires to consider its verdict:
(b) in any other proceeding, at any time until judgment is delivered.
[43] Section 106(2)(c) makes it clear that s 98 of the Evidence Act governs the circumstances in which rebuttal evidence may be permitted. The non-exhaustive way in which the factors listed in s 98(3) have been listed emphasises the importance of the “interest of justice” criterion in s 98(3)(d). That form of drafting reflects the flexible approach required when an application of this type is made. The circumstances in which it might be necessary for the Crown (or the defendant, under s 98(4)) to seek permission to call additional evidence are so varied that it would be impracticable for a statutory draftsperson to take a prescriptive approach.
[44] The policy underlying s 98 was explained by the Law Commission when it recommended the provision in its report proposing an Evidence Code.17 Taking as its starting point the desirability of both prosecution and defence offering all evidence before closing their respective cases, the Commission considered the circumstances in which it anticipated a Judge may grant permission to a prosecutor in a criminal case to depart from that rule:
C360 Section 98(3) sets out the circumstances in which a judge may allow the prosecution in a criminal case to offer further evidence in the interests of justice. Paragraph (a) would allow, for example, formal evidence that the Attorney-General has given the necessary consent to a prosecution under s 144A of the crimes Act 1961 (sexual conduct with children outside New Zealand). Paragraph (b) confirms that it is no longer necessary for rebuttal evidence to deal with a matter no human ingenuity could have foreseen. As well as evidence that was not previously available, para (c) allows further evidence that would not have been admissible and therefore could not have been led in chief. An example would be evidence of a prosecution witness’s previous consistent statement that is introduced to rebut an allegation of recent fabrication made by the defence after the prosecution has closed its case – s 37(a).
(Emphasis added)
17 New Zealand Law Commission, Evidence: Evidence Code and Commentary (NZLC R 55, Vol 2,
1999) at paras C358–361. Section 98(3) of the Commission’s proposed Evidence Code reflects the terms of the section as enacted.
[45] A further factor arises when the defence of compulsion is raised. While a defendant must raise evidence of a plausible narrative on which a fact-finder at trial could conclude that the defence succeeds, the burden of excluding the reasonable possibility that the defendant was compelled to act criminally rests on the Crown. The difficulty for the Crown in excluding the reasonable possibility of compulsion
was discussed in R v Hasan,18 and IA v R.19 Delivering the judgment of the Supreme
Court in IA, William Young J said:
[15] Other features of the defence of compulsion which warrant mention are reviewed in the speech of Lord Bingham in Hasan:
…
(c) Where a defence of compulsion is in play, it is for the Crown to disprove it, something which is likely to be difficult, especially when, as will often be the case, the prosecution is not on notice of the defence or its details before trial.
….
(footnotes omitted)
[46] I did not consider it is necessary, in the interests of justice, to allow this further evidence to be called. While I am sure that Mr Taiaroa has convinced himself that he was beaten in the manner he describes, on the evidence I have heard. I am not prepared to make a finding to that effect. That being so, the question whether a relevant “threat” has been made for s 24(1) purposes will turn on whether the type of general threats that I find were made against a person who had previously withdrawn from a gang are sufficient to trigger the defence. As the proposed evidence could not have materially affected the outcome on that point, I declined permission for the Crown to call it.
[47] The second area in which Mr Johnstone seeks to call further evidence was to rebut evidence given by Mr Taiaroa about seeing officers from Waikeria Prison in the frontline when the Advanced Control and Restraint Team entered Springhill prison.
Officer Z has identified Mr Taiaroa as a person who was using the volleyball pole to
18 R v Hasan [2005] 2 AC 467 (HL) at para 20, per Lord Bingham of Cornhill. Lord Steyn Lord Rodger of Earlsferry, and Lord Brown of Eaton-under-Heywood expressed agreement with Lord Bingham’s reasons.
19 IA v R [2014] 1 NZLR 17 (SC).
assault members of the team. Officer Z’s evidence is based on having previously seen Mr Taiaroa and having recognised him.
[48] I have already explained why I consider that Mr Taiaroa’s memory of events on the day is unreliable.20 None of the additional evidence that Mr Johnstone wished to call is relevant to Officer Z’s identification of Mr Taiaroa. None of the proposed witnesses can identify Mr Taiaroa as a participant. In those circumstances, the proposed rebuttal evidence could not have made any material difference to my findings on the reliability of Officer Z’s identification. Whether there is adequate
visual identification of Mr Taiaroa will turn on my acceptance or otherwise of
Officer Z’s evidence.
[49] For those reasons, the Crown’s application to call rebuttal evidence was
dismissed.
(iv) The defence of compulsion
[50] Section 24(1) and (2) of the Crimes Act provides:
24 Compulsion
(1) Subject to the provisions of this section, a person who commits an offence under compulsion by threats of immediate death or grievous bodily harm from a person who is present when the offence is committed is protected from criminal responsibility if he or she believes that the threats will be carried out and if he or she is not a party to any association or conspiracy whereby he or she is subject to compulsion.
(2) Nothing in subsection (1) shall apply where the offence committed is an offence specified in any of the following provisions of this Act, namely:
…
(m) section 267 (Arson).
…
[51] Three questions arise from the way in which the defence is worded in s 24(1)
of the Crimes Act:21
20 See paras [35] and [36] above.
21 Section 24 of the Crimes Act i1961 is set out at para [50] above.
(a) At the time he participated in the riot, was Mr Taiaroa under threat of immediate grievous bodily harm?
(b)If so, did that threat emanate from a person who was present at the scene when the offence was committed?
(c) If so, did Mr Taiaroa believe the threats would be carried out?
[52] The terms of s 24(1) “reflect a policy decision that in those limited circumstances (and where the offence is not in the gravest category excluded from the application of the defence under s 24(2)) a person faced with the threat of immediate death or grievous bodily harm may properly be excused if he chooses the
lesser evil of committing the offence”.22 In R v Teichelman, after discussing the
elements of s 24(1), Richardson J, delivering the judgment of the Court of Appeal, observed that it was the “belief in the inevitability of immediate and violent retribution for failure on [the part of an accused] to comply with the threatening demand which provides the justification for exculpation from criminal responsibility”.23
[53] Mr Johnstone referred me to R v Raroa.24 In referring to the need for a threat of immediate death or grievous bodily harm, the Court of Appeal considered its earlier decision in Teichelman,25 and a more recent decision of the House of Lords in R v Howe.26 The latter was referable to the common law defence of duress, which is no longer available in New Zealand.27 Delivering the judgment of the Court of Appeal in Raroa, Bisson J said:28
Although an objective test is not open in New Zealand where the wording of s 24 specifically refers to the belief of the accused thereby requiring a
22 R v Teichelman [1981] 2 NZLR 64 (CA) at 66.
23 Ibid, at 67. The Court of Appeal added that s 24(1) was directed at what were “colloquially called standover situations where the accused fears that instance death or grievous bodily harm will ensue if he does not do what he is told”.
24 R v Raroa [1987] 2 NZLR 486 (CA).
25 R v Teichelman [1981] 2 NZLR 64 (CA).
26 R v Howe [1987] 1 All ER 771 (HL).
27 Crimes Act 1961, s 20. The reasons why the defence is now unavailable is discussed by the Supreme Court in IA v R [2014] 1 NZLR 17 (SC) at paras [25]–[30]. While the door to the use of that defence in New Zealand had been left ajar in R v Hutchinson [2004] NZAR 303 (CA) at para [43], it was firmly shut in IA v R.
28 R v Raroa [1987] 2 NZLR 486 (CA) at 492 and 494.
subjective test nevertheless a question of fact does arise whether such belief is genuinely held which the prosecution must negate beyond reasonable doubt. Whether such a belief was reasonable or well grounded would be relevant to the issue whether it was genuinely held.
…
. . . mere apprehension on the part of this accused was not enough to provide a defence. We agree with the trial Judge that fear is not enough in the absence of the particular kind of threat set out in s 24 in respect of which the Judge held that there was no evidence in this case. . . .
[54] Context is important. There is evidence that Mr Taiaroa removed himself from the Black Power gang as long ago as 2002. In the course of an interview with Dr Peter Dean, a psychiatrist who gave evidence before me, Mr Taiaroa reported considerable anxiety and stress as a result of his withdrawal from membership of his former gang. He was concerned that members of Black Power and other gangs represented in Pod C would cause harm to him. Mr Taiaroa held a perception of likely persecution. These are factors that all bear on the “belief” of harm that he had on 1 June 2013.
[55] The reports recounted by Dr Dean are consistent with the way in which Mr Taiaroa described the events of 1 June 2013 in evidence. He explained that when he was returned to the yard from the medical unit he was not placed in his cell immediately, and was concerned about being “unlocked” with the prisoners who were then in the yard for exercise. Mr Taiaroa said that he did not “know any of [those] inmates”, “felt a bit unsafe around [them] because they were unpredictable” and they were “a different breed of inmate”.
[56] When asked about “trouble” with other inmates after he left Black Power in
2002, Mr Taiaroa said:
A. … Um, I have troubles because I've left the Black Power back in
2002, there’s always a word out there to give me the bash and stuff
like that, that’s already in place in prison and that’s what's happened,
because I've – yeah, basically um, yeah.
Q. Have you ever complained about – well about your feelings of un- safety or safety or anything?
A. Um, I tried doing that with one officer once, then I never done it again.
Q. Why is that?
A. Um, because he let it out and then I got another hiding. Q. How long had you been in this unit?
A. Which unit’s that sorry?
Q. The unit where you were on the 1st of June 2013?
A. Um, I think that was my first week there. I just come from 16B and I asked for a reclassification ‘cos I’d just finished doing a drug treatment unit in Paremoremo and so I was doing all these programmes prior to me getting out, so that’s something. Um, yeah, something that I could, you know, that I’ve achieved in there.
Q. When were you due for release?
A. On the 4th of June I think it was. Yeah on the 4th of June I was, um
–
Q. Did you choose to go into this unit that you were in?
A. No I didn’t want to go to that unit. I’d just left unit 15 and I asked the officer there if I could be OTP back to there when I come back from Paremoremo ‘cos they told me that I was gonna come back to Springhill after I finished doing the DTU unit. And they s – um, the mister down in unit 15 told me yeah ‘cos I got on with him and that’s where [Officer J] worked and that’s how I got to know that officer down there and when I got back, um, they chucked me in 16A, stayed there for about a week and I asked for a reclassification due to the fact that I’ve just done a DTU programme and that mister said, “Oh no you’re out soon, just go down there, we’re gonna put you down there, we’re gonna put you in, um, 16C.” And I told him, “I don’t wanna go to that unit Mr, far out,” ‘cos I knew that’s where all
– the whole prison knows that this is where all the bad fullas are, this is where all the worst kinds of inmates are, is in this unit and I’d just finished using – leaving unit 15, I was telling them that, I was just, oh I left here three months ago from unit 15, come back, I asked [him] if he could put me back down in 15. He lied to me, told me that there’s no room down there and harden up and get down to unit
16. “And that’s what’s going to happen and that’s what’s happening, so get your gears, you’re outta here.” And oh, I couldn’t argue with
that, it was…
Q. So who was your cell mate? A. Where?
Q. On the 1st of June? A. Cruz Fruean.
Q. Did you know him very well?
A. Um, he was one of the ones that attacked me down in Waikeria at
one stage. Yeah I’d known – knew him throughout this sentence yes.
Q. Well let’s go back to this day then. So you’d come back from the
medical centre, so what do you do when you get back to the unit?
A. I asked that [Officer J] if he could lock me up ‘cos I wanted to get locked up, I didn’t want to be unlocked with these fullas and he just told me to wait, “Just wait, we’re busy, we’re doing something.”
[57] A sense of realism has to be brought to the situation in which Mr Taiaroa found himself. Although there is no audio track on the CCTV footage, I accept Mr Taiaroa’s evidence that things were being said to him throughout the day by other inmates, and that they were of a threatening nature. Viewed in the context of what was happening in the prison at the time, continuing threats of the type described by Mr Taiaroa were sufficient to amount to threats of immediate grievous bodily harm, for the purposes of s 24(1).
[58] The next question is temporal in nature. Were the threats sufficiently proximate to Mr Taiaroa’s participation in the riot to excuse him from criminal liability for riotous behaviour? I find that threats were made both expressly and in more subtle behavioural ways. The threats were made by other prisoners who were present while the riot proceeded, and who were participating in it. In the context of a former gang member who faces antagonism both from those who remain members of his old gang and those who belong to others, I consider that what was said and done during the period while Mr Taiaroa was participating in the riot constituted “threats” made by other people who were present as the riot progressed.
[59] Although the language of s 24(1) is directed at a single offence and the need for any threat (or threats) to be from a person present when the offence is committed, the offence with which Mr Taiaroa is charged was a continuing offence in respect of which various forms of threats were made throughout, and by different people. The continuing and compounding nature of the threats are likely to have led Mr Taiaroa to offend against his free will. Such offending within a confined area is sufficient to establish a relevant presence for the purposes of s 24(1).
[60] I am satisfied that Mr Taiaroa believed that, if he were not to participate in the riot, some of those prisoners would (colloquially, speaking) “give him the bash”.
I find that he harboured a genuine belief that threats of immediate grievous bodily harm were being made against him and would be carried out.
[61] In those circumstances, I cannot exclude the reasonable possibility that Mr Taiaroa participated in the riot under compulsion. The Crown has not proved beyond reasonable doubt that the defence does not apply. A verdict of not guilty was returned on the riotous damage charge.
(b) Arson
(i) The charge
[62] Mr Taiaroa is charged with intentionally damaging property by fire when he knew or ought to have known that danger to life was likely to ensue. The charge is brought under s 267(1)(a) of the Crimes Act:
267 Arson
(1) Every one commits arson and is liable to imprisonment for a term not exceeding 14 years who—
(a) intentionally or recklessly damages by fire or by means of any explosive any property if he or she knows or ought to know that danger to life is likely to ensue; or
…
[63] There is no evidence that Mr Taiaroa either lit a fire or put something on to one to fuel it. Rather, the CCTV evidence shows Mr Taiaroa, on one occasion, picking up some toilet rolls and throwing (or placing) them in close proximity to another inmate, Mr Hohoia, who is seen fuelling a fire that has already been lit. The question is whether Mr Taiaroa’s act of putting the toilet rolls in the vicinity of the other inmate makes him a party to the crime of arson.
(ii) Legal principles
[64] Party liability will be established if the Crown can prove beyond reasonable doubt that Mr Taiaroa intentionally assisted or encouraged Mr Hohoia to damage property by fire, and knew or ought to have known that danger to life was likely to
ensue.29 Although, at the time that Mr Taiaroa dropped the toilet rolls, he says he was acting under compulsion, that is not a defence to a charge of arson.30
[65] Apart from one judgment of this Court, in which a decision of a Youth Court Judge that a person could be a party to arson by stoking an existing fire was implicitly approved,31 there is no New Zealand decision directly on point. Mr Johnstone referred me to R v Joinbee,32 a decision of the Court of Appeal of Queensland.
[66] In Joinbee, the question was whether the expression “sets fire to” in s 461 of the (Queensland) Criminal Code extended “beyond actual ignition to embrace conduct causing a building to burn”.33 Unanimously, the Court of Appeal held that it did. The reasons given by Philippides and Boddice JJ, with whom Holmes JA agreed,34 turned on the interpretation to be given to the expression “sets fire to” in s 461. Those words are not used in the New Zealand statute. Section 267(1)(a) uses the words “damages by fire”.35 In my view, the fuelling of an existing fire, if done intentionally or recklessly, can come within s 267(1)(a) of the Crimes Act 1961. The expression “damages by fire” is not limited to ignition.
(iii) Outcome
[67] The question is whether the Crown has proved beyond reasonable doubt that Mr Taiaroa intentionally assisted his fellow inmate to damage property by fire in circumstances where he knew (or ought to have known) that danger to life was likely to ensue. In the absence of a defence of “compulsion” I am satisfied beyond reasonable doubt that Mr Taiaroa intentionally dropped the toilet rolls in proximity to
the prisoner fuelling the fire, to assist him to damage property by fire.
29 Crimes Act 1961, s 66(1)(b) and (c), read in conjunction with s 267(1)(a) of that Act.
30 Ibid, s 24(2)(m).
31 Fielding v Police HC Nelson CRI-2007-442-7, 23 August 2007, Wild J at para [21], implicitly
approving passages from paras [69] and [70] of Judge Zohrab’s judgment, set out at para [6] of
Fielding.
32 R v Joinbee [2013] QCA 246.
33 Ibid, at para [1] (Holmes JA).
34 Ibid, at para [14] (Philippides J), [76] (Boddice J) and [2] (Holmes JA).
35 Crimes Act 1961, s 267(1)(a) set out at para [62] above.
[68] I am not satisfied beyond reasonable doubt that Mr Taiaroa knew that danger to life was likely to ensue. The fire was in its early stages and there is nothing to suggest that Mr Taiaroa was made aware of any intention on the part of other inmates to use the fire to put lives at risk. The nature of his diagnosed anxiety militates against a view that he knew danger to life would ensue. I doubt whether he turned his mind to the point.
[69] What is less clear, on the evidence, is whether the Crown has proved beyond reasonable doubt that, in the circumstances, Mr Taiaroa ought to have known that danger to life was likely to ensue. The danger is to a person other than Mr Taiaroa.36
That is an objective test. In my view, it is necessary to answer the question by reference to an ordinary prudent individual placed in the circumstances in which the fire was burning.
[70] I summarise the evidence of Mr Taiaroa’s involvement with the fire. The CCTV footage shows that the fire was lit and fuelled near the sterile zone grill to Pod D:
(a) At 12.42.34pm, another prisoner, Mr Vakapuna running towards the grill with an item on fire in his right hand.
(b)At 12.42.54pm, Mr Vakapuna is kneeling down and setting some toilet rolls alight.
(c) At 12.45.02pm, flames begin to appear among the toilet rolls.
(d)At 12.45.06pm, Mr Taiaroa walks from the staff base towards the sterile zone of Pod D.
(e) At 12.45.08pm, Mr Taiaroa walks towards a telephone on the side of the wall opposite the staff base and next to Mr Hohoia and appears to
use that telephone at around 12.45.09pm.
36 R v Arthur [1968] 1 QB 810 (Kent Assizes) at 813, followed in R v Smith [1995] DCR 379 (DC), at 381..
(f) At 12.45.55pm, Mr Taiaroa walks behind another inmate, Mr Hohoia, who is standing at the sterile zone grill with the fire going.
(g)At 12.46.03pm, Mr Taiaroa bends over, picks up a large bag of toilet rolls and walks towards the fire.
(h)At 12.46.12pm, Mr Taiaroa throws the toilet rolls in the direction of Mr Hohoia, begins to move in the direction of two upright wheelie bins but abruptly turns and walks away in the other direction towards the staff base.
(i)At 12.46.13pm, Mr Taiaroa stops in front of the two wheelie bins, bends down to the ground and gets up again.
(j) At 12.46.19pm, Mr Taiaroa walks past the sterile zone, while Mr
Hohoia remains at the grill.
(k)At 12.46.20pm, Mr Taiaroa is outside the sterile zone with a white object in his left hand, moving towards a BBQ table.
(l) At 12.46.24pm, Mr Taiaroa turns and walks towards the staff base.
He is out of view from 12.46.30pm.
[71] From 12.46.19pm until 12.46.49pm, Mr Hohoia remains at the grill fuelling the fire. When he leaves the sterile zone the fire is burning and no other inmate is present.
[72] On the basis of the CCTV evidence, Mr Taiaroa’s involvement in the fire lasts from 12.45.06pm until 12.46.30pm, a little less than 1 minute 30 seconds. Viewed from the fixed cameras showing activity in the sterile zone, there appears to be little in the way of smoke emanating from the fire during the time Mr Taiaroa is involved. However, a swivel camera operating from outside that area shows (from the entry to the staff base from the yard) large quantities of smoke coming from that area. At one point, Mr Taiaroa is seen wearing a scarf or hood of some type over his head and mouth. I infer that was to protect him from the effects of the smoke.
[73] Viewed from the perspective of an ordinary prudent person standing in Mr Taiaroa’s shoes at the time of the fire, I am satisfied that he ought to have known that once the fire took hold there was likely to be danger to life. The fire was within a confined area from which many people (for example, prisoners in their cells) might not be able to escape. There is no evidence that any of the prisoners responsible for lighting and fuelling the fire intended to extinguish it before it spread and put other property and people at risk. A reasonable and prudent person would have extinguished the fire to avoid such a risk. I am satisfied to the criminal standard of proof that Mr Taiaroa ought to have known that danger to life was likely to ensue.
[74] For those reasons, I found Mr Taiaroa guilty on the arson charge.
(c) Assault with a weapon
(i) The charge
[75] Mr Taiaroa is charged with assaulting members of the Advanced Control and Restraint Team using a weapon. The charge is brought under s 202C(1) of the Crimes Act 1961:
202C Assault with weapon
(1) Every one is liable to imprisonment for a term not exceeding 5 years who,—
(a) in assaulting any person, uses any thing as a weapon; or
(b) while assaulting any person, has any thing with him or her in circumstances that prima facie show an intention to use it as a weapon.
…
[76] Officer Z has given evidence of someone (whom he identifies as Mr Taiaroa) attacking members of the Advanced Control and Restraint Team by wielding a volleyball pole and thrusting it (on a number of occasions) in the direction of members of the team. Mr Taiaroa denies that he was the assailant. Because Mr Taiaroa denies involvement in the assault, the charge falls to be determined by reference to the reliability of the identification, rather than compulsion.
[77] The evidence from Officer Z raises questions of both admissibility and reliability. Although no point was taken as to the admissibility of the evidence at trial, I raised the issue after reserving my judgment. Further evidence was heard on
29 September 2015 to establish either a “good reason” for not following a “formal procedure” or the reliability of the identification having regard to the circumstances in which it was made. After that evidence had been completed, counsel agreed that I could use it both for the purpose of determining whether the visual identification evidence was admissible and, if admitted, whether reliance should be placed on it to prove that Mr Taiaroa was the assailant.
(ii) Visual identification evidence – the statutory scheme
[78] The Evidence Act recognises the dangers inherent in relying on visual identification evidence. For the first time in New Zealand law, a statutory requirement for a “formal procedure” was prescribed in order to ameliorate the risks of unreliable visual identification evidence being given.
[79] The statute deals with the problem at two levels. In jury trials, the first is to provide a gate-keeping mechanism whereby the trial Judge determines as a question of law whether the evidence passes specified admissibility thresholds.37 The second is to require a strong judicial direction to the jury about the special need for caution before finding a defendant guilty in reliance on such identification.38 Those safeguards have their origins in the guidelines for reliance on identification evidence discussed in the seminal judgment of the Court of Appeal of England and Wales, in R v Turnbull.39 The risk of miscarriages of justice through incorrect identification is at the heart of the problem.
[80] Both the gate-keeping and evaluative aspects of the Evidence Act apply to all
forms of “visual identification evidence”, as defined by s 4(1) of that Act:
37 Evidence Act 2006, s 45, set out at para [81] below.
38 Ibid, s 126, set out at para [83] below.
39 R v Turnbull [1977] 1 QB 224 (CA).
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)
[81] The admissibility of visual identification evidence is governed by s 45 of the
Evidence Act 2006. Section 45 provides:
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.
(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—
(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and
(b) in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and
(c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and
(d) in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and
(e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(g) that complies with any further requirements provided for in regulations made under section 201.
(4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:
(a) a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):
(b) the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):
(c) a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure:
(d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:
(e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation:
(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.
[82] In summary:
(a) Section 45(1) of the Evidence Act provides that, if a “formal procedure” (as defined by s 45(3)) has been followed or there is “good reason” for not following a formal procedure (in terms of s 45(4)), visual identification evidence of a person alleged to have committed
an offence is admissible in criminal proceedings unless the defendant proves on a balance of probabilities that the evidence is unreliable.
(b)Section 45(2) provides that where no formal procedure has been followed and there is no good reason for not following a formal procedure, visual identification evidence of a person alleged to have committed an offence 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.
[83] If visual identification evidence were admitted, the risks of mistaken identification are mitigated (in a jury trial) by directions that the Judge must give to the jury on the question of reliability. The directions focus on the risk of a miscarriage of justice arising through mistaken identification, even by a confident and apparently convincing witness. Section 126 of the Evidence Act provides:
126 Judicial warnings about identification evidence
(1) In a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant or any other person, 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) 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.
[84] Although s 126 is applicable only in a trial by jury, a Judge sitting alone must have regard to its underlying tenets.40
40 In Harney v R CA194/2010, 1 July 2010, the Court of Appeal considered s 45 in the context of a
Judge-alone trial.
(iii) The admissibility inquiry
[85] At trial, Mr Burroughs did not object to admissibility of the visual identification evidence from Officer Z. In closing addresses, on 17 September 2015, both Mr Johnstone and Mr Burroughs asked me to approach the issue as one of sufficiency (or reliability) of the evidence given, rather than on the basis of admissibility. That submission was made after counsel had had an opportunity to consider a Minute that I had issued on 16 September 2015. In essence, I asked for
assistance on the question of admissibility.41
[86] Having reserved my judgment, I reflected further on this issue. On
18 September 2015, I invited Mr Johnstone to file and serve a memorandum to explain what evidence could have been called by the Crown to establish a foundation for the admissibility of the visual identification evidence and whether such evidence could provide a “good reason” for not following a formal procedure, for the purposes
of s 45(2) of the Evidence Act.42 My concerns were three-fold: (a) notwithstanding
my ability to admit evidence that is otherwise inadmissible by oral agreement of all parties, there may be circumstances in which the discretion to admit should not be exercised;43 (b) notwithstanding counsel’s agreement, it is the duty of a trial Judge to ensure that a conviction is not based on materially inadmissible evidence;44 and (c) the possibility of an appeal being brought on advice from new counsel if the view
was taken that Mr Burroughs had been wrong to make a concession on admissibility.45
[87] Mr Johnstone filed a memorandum attaching a statement from Officer Z and documentary exhibits, to address the admissibility issue. When I gave judgment on Mr Johnstone’s application to call further evidence on the riotous behaviour charge, I reserved the question of admissibility of the visual identification evidence. Initially, I had intended to deal with that point in these reasons, without seeking further
assistance from counsel. However, following a telephone conference that I convened
41 R v Taiaroa (Minute 7) HC Auckland CRI 2013-004-13119, 16 September 2015 at paras [4]–[7].
42 R v Taiaroa (Minute 9) HC Auckland CRI 2013-004-13119, 18 September 2015 at paras [1]–[5].
43 Generally, see Mahoney et al Evidence Act 2006: Act and Analysis (Thomson Reuters 3rd ed,
2014) at para EV 9.01.
44 Generally, see R v Tavete [1988] 1 NZLR 428 (CA) at 431.
45 R v Sungsuwan [2006] 1 NZLR 730 (SC).
on 28 September 2015, a further hearing took place the next day at which I heard evidence and submissions on the admissibility of the visual identification evidence of Officer Z.46
[88] Officer Z gave evidence about processing Mr Taiaroa at the Receiving Office of Springhill prison on three occasions; one in November 2012, another in December
2012, and a third in April 2013. He was confident that he could identify Mr Taiaroa as a participant in the assault of members of the Advanced Control and Restraint Team on 1 June 2013. Officer Z gave evidence about having been involved in a strip search of Mr Taiaroa on at least one occasion. Although Mr Taiaroa denied having dealt with Officer Z, I am satisfied he is mistaken.
[89] Although, in the statement that Mr Johnstone made available to me in response to my Minute of 18 September 2015, Officer Z said that he saw Mr Taiaroa standing in the doorway of the dining room of Pod C when he arrived at the prison, in his additional evidence on 29 September 2015, he accepted that he was unsure whether it was Mr Taiaroa or not. Nevertheless, Officer Z maintains that he saw Mr Taiaroa swinging a metal volleyball pole at team members holding shields, after entering the yard of Pod C. At that stage, Officer Z says that Mr Taiaroa’s face was not covered. He was within two metres of Officer Z when he saw him.
[90] Officer Z says that he recognised the distinctive tattoo of a Black Power fist on Mr Taiaroa’s throat, his build and his face from the encounters they had had at the Receiving Office. Officer Z says that he identified Mr Taiaroa by name and outlined his actions in swinging the volleyball pole when his statement was made to the Police a few days after the riot.
[91] Officer Z made his first statement to the Police on 12 June 2013, some 11 days after the riot. The statement was taken at 3.10pm but the interview concluded at 3.50pm, owing to a prior commitment on the part of Officer Z. The interview did
not resume until 10.10am on 3 July 2013, concluding at 2.50pm that day.
46 See para [77] above.
[92] There is no identification of Mr Taiaroa in that part of the statement that was taken on 12 June 2013. In the second statement, Officer Z described seeing smoke “billowing” from the fire when in the staff base before entering Pod C. He described the conditions as “dusk and pretty dark”, when the Advanced Control and Restraint Team entered Pod D at about 4.30pm.
[93] After the Advanced Control and Restraint Team had suppressed the riot and extracted those responsible from Unit 16B, the rioting prisoners were transported to Auckland Prison, at Paremoremo. Mr Taiaroa was taken to Waikeria Prison. I infer that those responsible for making a decision about the involvement of particular prisoners as rioters did not consider Mr Taiaroa to have been involved following completion of the Advanced Control and Restraint Team’s tasks.
[94] Officer Z gave evidence about the circumstances in which Mr Taiaroa was moved to Waikeria prison. In the course of evidence in chief, he said that he was “very surprised” that Mr Taiaroa was taken to Waikeria and that, at the time, he had said: “What the heck, how did he go to Waikeria? He was on the end of the volleyball pole, what the heck’s going on?” Later, in answer to a question from me, Officer Z said he was not asked anything about identification before the decision was made to take Mr Taiaroa to Waikeria.
[95] At the time the identification of Mr Taiaroa was made, it was between
4.30pm and 5.00pm on 1 June 2013. Officer Z accepted that there was smoke permeating the area in which the Advanced Control and Restraint Team was operating, there were many prisoners involved in the attacks that the team was attempting to repel and, on the first day of winter, it was getting dark. Although Officer Z gave evidence that he saw Mr Taiaroa’s distinctive tattoo, he also accepted that he recognised Mr Taiaroa’s face, rather than identifying him by reference to the tattoo on his neck.
[96] Officer Z’s evidence may properly be described as based on “recognition”. Such evidence falls within the scope of the definition of “visual identification evidence”. In Harney v Police the Supreme Court held that “visual identification
evidence” as defined,47 included recognition evidence, where a witness purports to identify an offender as someone with whose appearance the witness is already acquainted.48 Harney was also a case in which the only “good reason” for not following a formal procedure was that listed in s 45(4)(d), relating to “singular appearance”.49
[97] Mr Johnstone submitted that there were three “good reasons” to explain why a formal procedure was not followed. They were the “singular appearance” of Mr Taiaroa,50 no officer involved in the investigation or prosecution could
reasonably have anticipated that identification would be in issue51 and an
identification of Mr Taiaroa was made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation.52
[98] I am not satisfied that “singular appearance” can qualify as a “good reason” under s 45(4) of the Evidence Act. Although Mr Taiaroa has a distinctive tattoo on his neck, there were a number of prisoners housed in Pod C who have similar tattoos in and around the face. Nor do I accept that an enforcement officer could reasonably have thought that identification would not be in issue at trial. Mr Taiaroa has always denied he was the assailant. A generous interpretation of the circumstances in which the initial identification by Officer Z was made would be need to bring it within the ambit of a “good reason”, under s 45(4)(e). Accepting that the police officer to whom Officer Z spoke when giving his statement can be treated as the “officer of an enforcement agency” to whom s 45(4)(e) refers, the identification was not made until more than one month had elapsed from the riot. An earlier opportunity was available, on 12 June 2013, for an identification to be made; but one was not.
[99] The remaining question is whether I am satisfied beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable
47 See para [80] above.
48 Harney v Police [2012] 1 NZLR 725 (SC) at para [16].
49 Ibid, at para [23].
50 Evidence Act 2006, s 45(4)(b), set out at para [81] above.
51 Ibid, s 4(d).
52 Ibid, s 45(4)(e).
identification.53 I remind myself that, at this stage, I am exercising a gate-keeping function designed to determine whether there is sufficient evidence on which a fact- finder could rely to find identification proved. I am satisfied that threshold has been crossed because:
(a) Recognition evidence is of a different ilk to identification of a stranger.54
(b)Officer Z had had previous interactions with Mr Taiaroa, at least one of which involved a strip search.55
(c) The distance from which Officer Z saw his assailant was about two metres.56
(d) Mr Taiaroa has a distinctive tattoo on his neck. The assailant’s face
was uncovered at the time of identification.57
(e) There is some evidence that Officer Z indicated that Mr Taiaroa was the assailant at the time the latter was taken to Waikeria prison, after the riot.58
(iv) Is Officer Z’s recognition evidence reliable?
[100] I have no doubt that Officer Z is an honest witness. He honestly believes that the person whom he saw wielding the volleyball pole on 1 June 2013 was Mr Taiaroa. The question is whether, viewed objectively, Officer Z’s evidence is sufficiently reliable to establish to the criminal standard of proof that Mr Taiaroa assaulted members of the Advanced Control and Restraint team with a weapon.
[101] I apply s 126 of the Evidence Act to this part of my inquiry.59 I am alive to the fact that Officer Z, a convincing witness, may be mistaken. I also acknowledge
53 Evidence Act 2006, s 45(2) set out at para [81] above.
54 Harney v Police [2012] 1 NZLR 725 (SC) at para [26].
55 See para [88] above.
56 See para [89] above.
57 See paras [89] and [90] above.
58 See para [94] above.
the possibility that mistaken identification can result in a serious miscarriage of justice. In this case, the visual identification evidence given by Officer Z is the only evidence that can implicate Mr Taiaroa as the assailant.
[102] I take as my starting point observations made by Lord Lane CJ in R v Bentley.60 The Lord Chief Justice referred to a common situation in which a person “recognises” someone in the street, only to find that they are mistaken as to that person’s identity. Often, the identifier may be heard to say something to the effect of: “I could have sworn it was X”. That commonplace example demonstrates the risks inherent in relying on visual identification evidence based on recognition.
[103] In addition to that fundamental risk, there are a number of circumstances in the context of Officer Z’s identification that raise real doubts about its reliability. They are:
(a) While Officer Z has interacted with Mr Taiaroa at the Receiving Office of Springhill prison, two of those interactions were not in close proximity to the events of 1 June 2013. One was in November 2012; another was December 2012. The most recent interaction occurred in April 2013. Those are the only three occasions on which Officer Z has seen Mr Taiaroa in circumstances that would enable him to give recognition evidence.
(b)The circumstances with which the Advanced Control and Restraint Team were faced on 1 June 2013 included the need to repel attacks from a number of prisoners with weapons. The need to concentrate on the physical dimension gives rise to a risk that the identification was based on no more than a fleeting glance in the fog of battle.
(c) The conditions in which the attack occurred were not conducive to a reliable identification. It was getting dark, and there was considerable
smoke permeating the area in which the attack was occurring.
59 Section 126 is set out at para [83] above.
60 R v Bentley (1994) 99 Cr App R 342 at 344.
(d)The fact that Mr Taiaroa was not transported to Paremoremo Prison suggests that he was not located with those prisoners who were. That too places some doubt on his involvement in this phase of the riot, for which there is no CCTV evidence available to put him in the midst of the brutal attack on the team.
(e) Earlier in the day, Mr Taiaroa is seen using the volleyball pole as a battering ram against property. But, he is doing that with the assistance of one or two others. My assessment is that a man of Mr Taiaroa’s build is unlikely to have been able to pick up and use the volleyball pole in the manner described by Officer Z, even allowing for the adrenalin fuelled nature of the attack.
[104] In those circumstances, I cannot exclude the reasonable possibility that Officer Z is mistaken in his identification of Mr Taiaroa as the perpetrator of the attack with the volleyball pole. I found Mr Taiaroa not guilty on the charge of
assault with a weapon.
P R Heath J
Delivered at 10am on 2 October 2015
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