R v Turaki

[2009] NZCA 310

IN THE COURT OF APPEAL OF NEW ZEALAND

CA635/2008
[2009] NZCA 310

THE QUEEN

v

VAENGA TURAKI

Hearing:6 May 2009

Court:Glazebrook, Potter and Asher JJ

Counsel:K A N Trotter for Appellant

J M Jelas for Crown

Judgment:20 July 2009 at 4.00 pm

JUDGMENT OF THE COURT

The appeal is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Glazebrook J)

Table of Contents

Para No

A brawl outside a party  [1]

Factual background  [4]

Submissions on behalf of Mr Turaki  [19]

The Crown’s submissions  [26]

The evidence identifying Mr Turaki as the attacker  [32]

Identification direction  [41]

The law[42]

Directions given in this case  [48]

Issues[52]

Was there visual identification of Mr Turaki by Ms Taie,
Ms Graham and Mrs Ulukita?  [54]

Is a s 126 warning required for recognition evidence?  [62]

Did the case depend wholly or substantially on evidence
of visual identification?  [65]

Did any failure to give a full s 126 warning cause a
miscarriage of justice?  [75]

Summary – identification directions  [83]

Visual identification evidence  [84]

Recognition evidence  [86]

Full s 126 warning required  [87]

Contents of s 126 warning  [90]

Observation evidence  [92]

Resemblance evidence  [94]

Result  [95]

Appendix

A brawl outside a party

[1]       Mr Turaki was found guilty, after a trial before Judge Barbara Morris and a jury, of one count of causing grievous bodily harm with intent to cause such harm.  The charge arose after a brawl outside a party where the victim, Mr Fonoti, was kicked and hit while he was on the ground.  As a result, he suffered a serious brain injury caused by blunt trauma.  His rehabilitation has been lengthy.

[2]       Mr Turaki appeals against his conviction on the basis that the evidence identifying him as the principal attacker was inadequate to enable a reasonable jury to consider his guilt established beyond reasonable doubt.  He also submits that the Judge failed to give a proper direction on the identification evidence.

[3]       We attach as an appendix to this judgment a chart summarising the evidence placing Mr Turaki at the scene.  This is based on a chart helpfully supplied by Mr Trotter, counsel for Mr Turaki.  Before assessing that evidence, however, we set out the factual background in more detail and summarise the parties’ submissions.

Factual background

[4]       On Saturday 27 January 2007, a small group of friends gathered at the home of Ms Alison Graham to celebrate the birthday of a work colleague.  Ms Graham lives in a second storey flat above shops in Auckland. 

[5]       Mr Jerome Packer was a guest at the party.  He left at approximately 1.00 am to get cigarettes from his van which was parked a short distance down the road.  Along the road from his van he saw a group of six to seven men.  He recognised Mr Turaki, whom he had known from secondary school, in the group.  The conversation between Mr Packer and Mr Turaki was described in evidence as follows:

Q.Did you speak to him?

A.Yes I did.

Q.And what did you say to him?

A.Just said, asked him how he’s been.  He’s grown up from the last time I seen him, which was quite a while ago.

Q.And did he respond?

A.Uh yes, he just said he’s not a little kid any more.

Q.And did you ask him what he was doing there?

A.Yeah I asked them how come they’re all here, and they said they’d come looking for trouble.

Q.Who said that they’ve come looking for trouble?

A.Vaenga [Turaki].

[6]       After a short while Mr Packer was joined by his wife, Katalina, who had come looking for him.  Mr Packer introduced his wife to the group.In evidence, Mrs Packer described Mr Turaki as follows: 

(a)       Big Afro, five or six inches in length, dark brown;

(b)Holding a one metre long, wooden handled umbrella;

(c)Chubby, five foot five inches, quite short;

(d)Wearing a white t-shirt or long sleeve top with no collar, dark three-quarter pants or shorts.

[7]       Mr Packer and his wife returned to their van, where they were joined by three friends.  The group of five then left in the van, with Mrs Packer driving (as a sober driver).  They had only driven a short distance when it was remembered that some CDs had been left at the party.  They returned to pick them up and Mrs Packer parked the van close to Ms Graham’s flat. 

[8]       While waiting in the van outside the flat, Mrs Packer overheard “talk” among three males standing on the pavement at the bottom of the stairs leading up to Ms Graham’s apartment.  They were discussing attacking her friend who had returned to the party to collect the CDs.  She recognised one of the males as Mr Turaki to whom she had been introduced a short time earlier.  From her van, she confronted the three about their intentions.  Mrs Packer gave evidence that in reply one of the three said:

… oh is that your friend? and I said “yeah”.  And he said, “oh okay then sweet as”. And so he didn’t hit him.

[9]       After the CDs had been retrieved and Mrs Packer was driving away, Mrs Packer saw a bottle being thrown up the stairs to Ms Graham’s apartment by one of the three males (but not Mr Turaki).  The bottle smashed on the stairs. 

[10]     Ms Graham went out onto the street to investigate with her friend, Ms Shaunalee Taie, after Ms Taie heard the thud of the bottle on the stairs.  Both Ms Graham and Ms Taie described themselves as intoxicated.  They saw three males on the street outside the apartment.  Ms Graham could only describe one of the three.  Her description of this male was:

(a)       Kind of solid, big guy, big build (the other guys were smaller);

(b)He had a lot of hair, kind of like Afro style hair, about five inches long;

(c)Dark hair;

(d)White short sleeved basketball top on, no collar.

[11]     Ms Taie said that, of the three males, only one was distinctive.  She described this male as:

(a)       Afro hair, thick about seven inches long;

(b)Chubby, fat stomach;

(c)Black umbrella with a silver point that he was playing with, twirling around;

(d)Wearing basketball type top with numbers on.  She described the top as dark blue with white numbers.

[12]     Another witness, Mrs Marsha Ulukita, left the party at the same time as the Packers and their friends.  She went to her car to wait for her husband, which was parked directly outside the stairwell leading up to Ms Graham’s apartment.  Mrs Ulukita was sober.  She also gave evidence of seeing three males outside the address.  She described one as a little short male with short hair and another as a male with a good physique, short clean cut hair and wearing a basketball shirt with the number 28.  He was leaning against her car.  She described the third male in the following terms:

(a)Very thick set, chubby with fuzzy hair, the biggest of the three

(b)Six feet tall;

(c)A colour in his hair of a reddy ginger colour;

(d)Afro hair, very thick;

(e)Holding a black umbrella;

(f)Green looking bomber jacket on top.

[13]     After a short while one of the three males was seen sending a text message.  Not long afterwards, a second group of males arrived.  Some of the male guests from the party then came down on the street.  A brawl broke out.  The victim, Mr Fonoti, was grabbed and thrown on the ground.  While he was on the ground he was kicked and hit.  The exact number of people involved in the attack on Mr Fonoti remains unknown.  However, witness estimates suggest there were approximately 15 people in the attacking group.  Within the general melée, witnesses described seeing one man in particular kicking and stomping on Mr Fonoti’s head.

[14]     Mrs Ulukita described Ms Graham and others coming under attack when the second group of males arrived.  With regard to Mr Fonoti and his assailants, she describes the attack as follows: 

Q.Now could you see anything about the person who were or the people who were kicking him?

A.Not really there was just so many.

Q.Did you notice anything about who was kicking on him?

A.Mmm well the main ones I saw, cos there was a number 7, but he was all in blue, the 28, the big, the chubby guy, and he was using his umbrella, oh they were all in it, but there was so many. [Emphasis added.]

Q.So the guy with the umbrella was he kicking him?

A.Yes.

Q.And whereabouts was he kicking him?

A.Oh they were just – it was just everybody, they were all booting, they were all, it wasn’t just one or two, they were all doing it, like the whole group.

Q.And did you see whereabouts the guy with the umbrella what he was doing?

A.Yeah he was using an umbrella, on the one where the hook is, he was using that, on Sam [Fonoti], but then Mana [Tuafale] too, they were just like it was just taking turns on them.

Q.And did you see the guy with the umbrella kicking Sam?

A.Yes.

Q.Did you see whereabouts in his body he was kicking him?

A.Oh most of them were doing it on his head.

Q.And whereabouts was Sam when this was happening?

A.His head was more or less, his body was half way on the footpath, and his head was closer to the edge of the footpath.

[15]     There was no cross-examination directly on Mrs Ulukita’s description of the assailant and it was not suggested to her that the chubby assailant was different from the chubby man with the Afro she earlier described.  Cross-examination of Mrs Ulukita focussed upon her view of the victim and thus by implication her ability to observe what the assailants were doing.  Throughout the incident, Mrs Ulukita was seated in her car, in the driver’s seat, looking over her left shoulder at the fight until an unidentified offender had smashed the window of her car as she sat inside.

[16]     Ms Taie did not see the assault on Mr Fonoti at any great length, as she also came under attack.  Ms Graham gave evidence of seeing part of the assault upon the victim, Mr Fonoti, before she ran up the stairs to her apartment to call the police.  She describes Mr Fonoti being grabbed by his clothes and thrown or pulled to the ground by approximately two persons.  With regard to what happened to Mr Fonoti once he was on the ground, Ms Graham said the following:

Q.What sort of actions were going on in terms of his head, what were they doing?

A.One guy was just using his foot and using all of his might to stomp on it.

Q.So there was stomping, was there any other kind of actions?

A.Not that I can remember.

[17]     Asked if she could describe the person responsible for the actions above, Ms Graham said:

Q.Did you see who was doing this?

A.I don’t remember what that person looks like.

[18]     There was also evidence from Mr Turaki’s wife, Ms Aholelei, that Mr Turaki had contacted her in the early hours of the morning.  He told her that he had been in a fight at the shops (below where Ms Graham lives) and that he was in trouble.  He said that he had kicked someone and that some of the people that he had been in a fight with were on the ground.

Submissions on behalf of Mr Turaki

[19]     Mr Turaki does not dispute that he was on the street outside Ms Graham’s apartment immediately prior to the attack, that he was wearing loose dark coloured trousers and a loose white t‑shirt, that he (at that stage) was carrying a black umbrella and that he had an “Afro” hairstyle extending approximately 20 cm from his head.  Mr Turaki is five foot five inches tall and accepts that he is accurately described as “chubby”.

[20]     Mr Trotter submits, however, that it was not open to the jury to conclude that the Crown had proved beyond reasonable doubt that Mr Turaki had attacked Mr Fonoti.  Mr Trotter points out that both Ms Graham and Ms Taie witnessed the attack on Mr Fonoti.  Despite being able accurately to describe Mr Turaki at the door immediately prior to the attack, neither Ms Graham nor Ms Taie was able to give any description of the person they watched only moments later kicking Mr Fonoti and stomping on his head.  Both Ms Graham and Ms Taie spoke of one principal attacker but they were unable to describe the physical characteristics of that person.

[21]     Mr Trotter submits that the only witness able to describe the person attacking Mr Fonoti was Mrs Ulukita.  Accordingly, the jury verdict must have been based entirely on the evidence of Mrs Ulukita.  Mrs Ulukita described the attacker as being six foot tall when Mr Turaki is only five foot five.  Further, she described a man with an orange to red coloured Afro when in fact Mr Turaki’s Afro was dark brown to black coloured.  Finally, Mrs Ulukita recalled that the attacker was wearing a green bomber jacket, when all the remaining witnesses describe Mr Turaki as wearing a white t-shirt.

[22]     Mr Trotter submits that the only consistency between Mrs Ulukita’s description of the attacker and the descriptions of Mr Turaki is that he was carrying an umbrella.  In Mr Trotter’s submission, an umbrella is a movable object that can easily be passed between members of a group.  Thus, as an identifying feature, it is an insufficient basis to link Mr Turaki to the attack on Mr Fonoti.  Further, an unidentified man carrying a stick was known to have been near Ms Graham’s front door prior to the attack.

[23]     In addition, Mr Trotter submits that a jury acting reasonably could not have been satisfied that the person seen by Mrs Ulukita was kicking or stomping on Mr Fonoti.  Mrs Ulukita observed events from the driver’s seat of her car while Mr Fonoti lay on the ground near her left-rear wheel.  To observe the attack she had to look back over her left shoulder.  Her view would have at least been partially obscured by the panels of her car.  She was also in the process of calling the police on her mobile telephone as she observed the assault and was, by her own admission, “hysterical”.  Finally, there “was hardly any light” at the scene of the attack.

[24]     Mr Trotter accepts that the jury may have, to some extent, also relied upon the evidence of Mr Turaki’s wife.  However, Mr Trotter points out that Mr Turaki did not say whom he had kicked.  He submits that, even when Ms Turaki’s evidence is considered in conjunction with Mrs Ulukita’s evidence, it is not sufficient to give rise to a reasonable belief that Mr Turaki was indeed the person seen kicking and stomping on Mr Fonoti’s head.  In this regard Mr Trotter notes that Ms Taie was also kicked as she lay on the footpath.  Further, Mr Tuafale was assaulted as he lay on the ground, although it is not clear if he was kicked as well as being attacked with a bottle.  Mr Tom Ulukita, Mrs Ulukita’s husband, was also assaulted in the course of the evening. 

[25]     In summary, Mr Trotter submits that the jury verdict is unsupported by the evidence.  Other than the evidence of Mrs Ulukita, there was simply no evidence to suggest that Mr Turaki was the man seen kicking Mr Fonoti and stomping on his head.  Despite witnessing the attack and providing descriptions of Mr Turaki immediately prior to the attack, neither Ms Graham nor Ms Taie were able to describe the attacker’s physical appearance.  Mrs Ulukita was the only witness able to describe the appearance of the man kicking and stomping on Mr Fonoti’s head.  She described a man around six feet tall, with a red to orange Afro and a green bomber jacket who carried a black umbrella.  In Mr Trotter’s submission, the only link between Mr Turaki and the person described by Mrs Ulukita is an umbrella and an Afro hairstyle.  Having regard to all the evidence, it is submitted that the jury ought to have entertained a reasonable doubt and acquitted Mr Turaki.

The Crown’s submissions

[26]     The Crown submits that it was open to the jury to conclude that the larger male with the Afro hairstyle described by Ms Graham, Ms Taie and Mrs Ulukita was Mr Turaki.  It was permissible for the jury to reach that conclusion given the timing of events and the similarities between Mrs Ulukita’s description and that of the other witnesses.  Mrs Ulukita was already in her car when Mrs Packer drove her van back to the address to retrieve the CDs.  Mrs Packer therefore identified Mr Turaki outside the address at around the same time as he was seen and described by Mrs Ulukita. 

[27]     In the Crown’s submission, it is clear on the evidence that only one of the three males outside the address was “large” and “chubby” with “Afro hair”.  Only one held an umbrella.  In addition, there were sufficient particulars of Mrs Ulukita’s description of the attacker that were consistent with those given by the other witnesses to allow the jury to conclude that the witnesses were describing the same person and that they had seen that person at the same time.

[28]     The Crown concedes that Mrs Ulukita’s description of Mr Turaki was partly mistaken.  First, the Crown submits that a possible explanation for the marked difference in the clothing description provided by Mrs Ulukita is that Mrs Ulukita was confused, as she later described seeing members of the group exchanging clothing.  Secondly, it is accepted by the Crown that the height description given by Mrs Ulukita is also out of kilter with that given by earlier witnesses.  However, it is submitted that it is not uncommon that height and weight estimates vary from witness to witness.  It is clear from Mrs Ulukita’s evidence that Mr Turaki was much larger than his two associates (and this was also Ms Graham’s evidence).  That difference in size may have inadvertently added to Mrs Ulukita’s estimate of his height.  Thirdly, while the hair description of Mrs Ulukita does not exactly match that of the other witnesses, the shade of hair described by her is not entirely inconsistent with that of other witnesses.  The Crown points out that Mrs Ulukita did not say that the man’s hair was “reddy ginger” but only that it had a “reddy ginger” colour in it.  This may have been an effect of the light.

[29]     It is submitted by the Crown that it was also well open to the jury to conclude that, when Mrs Ulukita referred to the attacker as the “big chubby guy with the umbrella”, she was referring to the person whom she had earlier described as one of the three males who had been outside the address before the attack.  While it is possible that the umbrella could have been passed amongst persons, Mrs Ulukita is specific in that she is referring to “his” umbrella (i.e. the person she had described as being in the group outside Ms Graham’s apartment).  She was not suggesting that the umbrella was being held by someone different.

[30] The Crown also submits that, in addition to Mrs Ulukita’s evidence, the jury were entitled to have regard to the general demeanour of Mr Turaki and his associates that evening. When Mr Turaki was first spoken to by Mr Packer, Mr Turaki stated that he had “come looking for trouble”. As Mr Packer left the group, he said to them “…don’t cause trouble up here”. Mr Turaki was one of the three males outside the party address whom Mrs Packer overheard speaking of assaulting her friend who had returned to the party to retrieve the forgotten CDs. Mr Turaki was part of the same group that provocatively threw a beer bottle on the stairs of the party address. All of this evidence suggests Mr Turaki and his associates were intent on causing trouble. In addition, the Crown submits that the jury were entitled to have regard to Mr Turaki’s statements to his wife made shortly after the incident described at [18] above.

[31]     In summary, it is submitted by the Crown that, if Mrs Packer’s unchallenged evidence identifying Mr Turaki as one of the three males outside the party address is utilised as a starting point, then there is sufficient evidence that it was Mr Turaki whom Mrs Ulukita, Ms Graham and Ms Taie describe standing outside the apartment.  It was also open to the jury to conclude that he was the person who very shortly afterwards was seen by Mrs Ulukita assaulting the victim, particularly when coupled with evidence of Mr Turaki’s demeanour prior to the incident and his statements to his wife.  In the Crown’s submission there was ample evidence upon which a jury could properly convict.

The evidence identifying Mr Turaki as the attacker

[32] We accept the Crown’s submissions on this issue. It is useful in this context to understand the sequence of events. The Packers leave the party at approximately 1.00 am. At that time Mrs Packer is introduced to the group, which included Mr Turaki, by her husband who knows Mr Turaki from secondary school: see at [6] above. As noted at [12], Mrs Ulukita leaves the party at about the same time to sit in her car to wait for her husband.

[33] The Packers return very shortly afterwards to pick up the CDs. Mrs Packer speaks to a group of three males outside the address, of whom Mr Turaki is one. She sees a bottle being thrown by one of the other two males as she is driving off: see at [9] above. Just after the bottle is thrown, Ms Graham and Ms Taie come down to the street from Ms Graham’s apartment. They describe a man meeting Mr Turaki’s description in a group of three males outside the apartment: see at [10] ‑ [11] above. The inference was overwhelming that this was Mr Turaki and, indeed, he accepts that it was: see at [19] above.

[34] Mrs Ulukita, who is in her car at the time of Mrs Packer’s return for the CDs and also at the time when Ms Graham and Ms Taie come down into the street, describes a group of three outside the address, only one of whom had an Afro, was chubby and was carrying an umbrella: see at [12] above. The inference is again overwhelming that this was the same person seen by Mrs Packer, Ms Graham and Ms Taie – i.e. Mr Turaki. This is the case notwithstanding the discrepancies between the description given by Mrs Ulukita and those given by the other witnesses.

[35] We accept the Crown submissions as to the possible explanation for those discrepancies: see at [28] above. We also note that Mrs Ulukita was seated in her car and this could have distorted her perception of the height of the man with the Afro. Further, it is possible that the attacker’s long Afro (five to six inches) made him appear taller than he was. We also note that, while Mrs Ulukita describes the male with the Afro in the group of three outside the apartment as wearing a green bomber jacket, she does not mention the jacket when describing the attacker. Further, Ms Taie also mistakenly describes Mr Turaki’s basketball top as dark blue, but there is no doubt that she and Ms Graham were describing the same person: see at [10] and [11] above.

[36] Given that it is clear that Mr Turaki was in the group of three males outside Ms Graham’s apartment, the only real issue is whether the jury ought to have entertained a reasonable doubt about Mrs Ulukita’s evidence that the person (by implication the male with the Afro she had earlier described) who kicked Mr Fonoti while he was on the ground was the chubby one with the umbrella, as described at [14]. This was not identification evidence. It was a question of observation. The chubby man with the Afro and the umbrella (ie Mr Turaki) had already been “identified” as one of the three males outside the apartment, by way of Mrs Ulukita’s, Ms Graham’s and Ms Taie’s descriptions being matched against Mrs Packer’s evidence of speaking to Mr Turaki just before. Further, Mr Turaki accepts that he was outside the party at the time of the assault.

[37]     The issue is whether the jury should have concluded that Mrs Ulukita may have been mistaken in her observation of the movements and actions of Mr Turaki after she saw him outside the address.  The accuracy of Mrs Ulukita’s observations were a focus of her cross-examination due to the allegedly obstructed view she had of the attack.  It was not suggested to Mrs Ulukita that the person she saw attacking Mr Fonoti was another chubby person with an umbrella who was different from the person she had observed in the group of three by the apartment.  Indeed, no-one was asked whether there was another person matching Mr Turaki’s description involved in the melée.

[38]     Mr Trotter submits that the jury should not have taken into account Mr Ulukita’s evidence relating to the umbrella.  In his submission, the umbrella could have been passed by the person originally holding it (clearly Mr Turaki) to someone else before the attack.  We do not agree that the jury had to discount the umbrella evidence.  The timeframe between the group of three being seen standing outside the apartment and the attack was very short.  While there is a possibility that Mr Turaki had passed the umbrella to someone else (presumably of similar build), this was never put to Mrs Ulukita.

[39] We also accept the Crown submission that the jury was entitled to have regard to the events beforehand (including Mr Turaki saying to Mr Packer that he was looking for trouble) and to Mr Turaki’s subsequent statements to his wife. If the jury accepted the evidence of Mr Turaki’s wife, then they could have concluded that Mr Turaki had kicked someone at the party. Although Mr Trotter points to evidence of two other people who were possibly kicked (see at [24] above), it was never put to those other victims or to any other witness that it was the chubby man with the Afro who did so.

[40] In summary, on the basis of all the above factors, we accept the Crown submission that there was sufficient evidence upon which a jury could convict. We note too that all the issues raised by Mr Trotter (including the matters set out at [23] above) were put very clearly before the jury both by counsel and the Judge in her summing up. There is no reason to think that the jury failed to consider them in reaching its verdict.

Identification direction

[41]     We now turn to the adequacy of the identification direction given by the Judge.  Mr Trotter submits that this was a case that depended wholly or substantially on the correctness of visual identification and thus a warning in terms of s 126 of the Evidence Act 2006 should have been given by the Judge. 

The law

[42]     Under s 126 of the Evidence Act, when a case depends wholly or substantially upon the correctness of visual (or voice) identification, 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.  It is mandatory for the Judge to warn the jury that a mistaken identification can result in a serious miscarriage of justice, to alert the jury to the possibility that a mistaken witness may be convincing and, where there is more than one identification witness, refer to the possibility that all of them may be mistaken.

[43]     Section 126 provides:

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.

[44] Section 4 defines “visual identification evidence” as follows:

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).

[45]     As noted in R v Uasi [2009] NZCA 236 at [34], the predecessor to s 126 of the Evidence Act, s 344D of the Crimes Act 1961, had its roots in the English Court of Appeal’s decision in R v Turnbull [1977] 1 QB 225. In Turnbull, the required warning for identification evidence was outlined by the Court at 228:

First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications.  In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken.  Provided this is done in clear terms the judge need not use any particular form of words.

Secondly, the judge should direct the jury to examine closely the circumstances in which the identification by each witness came to be made.  How long did the witness have the accused under observation? At what distance?  In what light?  Was the observation impeded in any way, as for example by passing traffic or a press of people?  Had the witness ever seen the accused before?  How often?  If only occasionally, had he any special reason for remembering the accused?  How long elapsed between the original observation and the subsequent identification to the police?  Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance?  If in any case, whether it is being dealt with summarily or on indictment, the prosecution have reason to believe that there is such a material discrepancy they should supply the accused or his legal advisers with particulars of the description the police were first given.  In all cases if the accused asks to be given particulars of such descriptions, the prosecution should supply them.  Finally, he should remind the jury of any specific weaknesses which had appeared in the identification evidence.  Recognition may be more reliable than identification of a stranger; but, even when the witness is purporting to recognise someone whom he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

[46]     In Turnbull, the Court noted, at 228, that the number of cases where mistaken visual identification had brought about miscarriages of justice necessitated steps being taken by the courts to mitigate the risk of such miscarriages occurring, including strong directions and, in some circumstances, exclusion of unreliable identification evidence.

[47]     As an aside, we note that the evidence is equivocal as to the effectiveness of judicial directions.  Research has suggested that directions by judges and traditional safeguards such as cross-examination of eyewitnesses have only a limited ability to help a jury discriminate between accurate and inaccurate eyewitness identifications.  Instead, they have a tendency to foster a generalised disbelief of all eyewitnesses among jurors.  This has led to calls for jurors to be assisted by expert testimony on human memory and guidance in the assessment of eyewitness testimony.  However, even such expert evidence has not been unequivocally shown to result in an improvement in juror performance, which is generally at a level akin to that which would be achieved by chance:  see Martire and Kemp “The Impact of Eyewitness Expert Evidence and Judicial Instruction on Juror Ability to Evaluate Eyewitness Testimony” (2009) 33 Law Hum Behav 225 at 225.

Directions given in this case

[48]     The Judge in this case gave a partial “identification” warning with regard to Mrs Ulukita’s evidence as follows:

I think it is probably helpful at this stage too to talk about the evidence surrounding the proof of identification.  This is not a case of people making identifications of Mr Turaki by pointing him out to police officers, or identification parades or anything of that nature.  Nevertheless it is the case where Mrs Ulukita says she was able to describe particular features of a person involved in this incident and was able to isolate what that particular individual was doing vis-à-vis others who were involved.  It is still important for you to look closely at the circumstances that existed when she made those observations.  Ask yourself things such as, what was the lighting like when she was looking at these events?  How far away was she from them?  How long did she have to observe what was going on?  Was there anything obscuring her view, and all those types of circumstances, to decide whether you can rely on that evidence?

[49]     If an identification warning was required under s 126, then this warning would have been incomplete.  The Judge did not specifically mention the evidence of Mr and Mrs Packer or that of Ms Taie and Ms Graham, although their evidence was mentioned in the preceding paragraphs with regard to the Crown’s suggested inference that Mr Packer and Mrs Ulukita had seen the same person.  The Judge did not warn the jury that they should exercise special caution in relying on the evidence and she did not indicate that a mistaken identification can result in a serious miscarriage of justice.  She also did not alert the jury that a mistaken witness may be convincing or that multiple witnesses may be mistaken.

[50]     In Uasi, the Judge had also given a partial identification warning, which did not include the mandatory direction under s 126(2)(a) that a mistaken identification can result in a serious miscarriage of justice. This Court, at [39], held that to be an error of law. In Uasi, both the accused’s presence at the scene and what he allegedly did were at issue. The witness in that case, Ms Cotterell, identified “Willie” (Mr Uasi) as the person with whom she had travelled to and from a party and as the person who used a metal pipe during a brawl that had occurred at the party. By contrast, Mr Uasi’s position was that he had left the party with his brother and not in the car with Ms Cotterell. There was also apparently a second person called Willie at the party, Ms Cotterell had met Mr Uasi for the first time that evening and there was conflicting evidence which did not identify Mr Uasi with the pipe. Identification was clearly an issue in that case and, in the circumstances, the Court did not consider that Mr Uasi’s conviction would have been inevitable had the full s 126 warning been given: at [42]. Mr Uasi’s conviction was therefore quashed and a retrial ordered.

[51]     The position reached in Uasi can be contrasted with that reached by this Court in R v Hohepa [2008] NZCA 316. In Hohepa, the Court held that there was no miscarriage of justice arising from a failure to give a full s 126 warning in that case. The trial Judge had carefully put before the jury all the relevant issues that they needed to consider in the course of their deliberations on the identification issue. The Court had confidence that the jury would have properly weighed the strength of the relevant evidence, and there would not have been a reasonable possibility of a not guilty verdict, even if the Judge had given a direction in compliance with s 126(2)(a) of the Act: at [33]. See the similar reasoning in R v Davis [2008] NZCA 424 at [11] ‑ [12].

Issues

[52]     The evidence in this case identifying Mr Turaki as the attacker consisted essentially of the evidence of Ms Taie, Ms Graham and Mrs Ulukita describing a man with an Afro in a group of three outside Ms Graham’s apartment, followed by Mrs Ulukita’s evidence of that man’s role in the attack.  By inference, the jury could conclude that this man was Mr Turaki because of Mr Packer’s evidence that he had, shortly before, recognised him from school and spoken to him and by Mrs Packer’s evidence that Mr Turaki, to whom she had just been introduced, was in the group of three outside the apartment.

[53]     The issues that arise are:

(a)Was there visual identification of Mr Turaki (in terms of the s 4 definition) by Ms Taie, Ms Graham and Mrs Ulukita?

(b)Is a s 126 warning required for recognition evidence?

(c)If so, did the case wholly or substantially depend on visual identification evidence?

(d)Did any failure to give a full s 126 warning cause a miscarriage of justice?

Was there visual identification of Mr Turaki by Ms Taie, Ms Graham and Mrs Ulukita?

[54]     The first question that must be asked is whether there was visual identification of Mr Turaki by Ms Taie, Ms Graham and Mrs Ulukita.

[55]     This Court in R v Adams and Hansen [2008] NZCA 171 at [20], held that a warning under s 126 of the Evidence Act is not required in cases where the Crown relies upon circumstantial evidence to identify the accused. The Court, at [20], stated that:

This Court explained that a direction under s 344D of the Crimes Act 1961 (the predecessor to s 126 of the Evidence Act) is only required where there is a direct identification of an accused and not in a situation where the Crown’s case is based on circumstantial evidence of identification. We do not consider that the Evidence Act has altered that situation. The underlying purpose of the warning is still to alert the jury to the possibility and dangers of mistaken visual (or voice) identification. There was no such identification in this case.

[56]     Similarly, in R v Henry [2008] NZCA 292 at [17] it was stated:

This is not a case where s 126 the Evidence Act 2006 applies. There was no evidence of identification as such. Evidence of identity was based on circumstantial evidence. That circumstantial evidence is quite persuasive. The appellant was wearing a sports shirt with the number “5” on it, a round red hat, the sports shirt was yellow and he was wearing khaki pants. His clothing fitted the description of two persons in the car who had no reason to manufacture it, namely the driver and the complainant.

[57]     In Australia, before the advent of the uniform Evidence Acts, a distinction was drawn between positive identification evidence (that the accused was the person at or near the scene) and resemblance evidence (that a person shares certain features or attributes in common with the accused).  Resemblance evidence was seen as circumstantial evidence.  An identification warning was required with regard to the former but not always the latter:  Festa v The Queen (2001) 208 CLR 593 at [57] (HCA) per McHugh J. This has now changed under the uniform Evidence Acts as the Australian definition of identification evidence, unlike ours, covers both positive identification evidence and resemblance evidence: Australian Law Reform Commission Uniform Evidence Law (ALRC 102 2005) at [13.11] – [13.13]. Section 4 of our Evidence Act refers only to evidence that a “defendant was present”.

[58] In this case, the evidence of Mrs Ulukita, Ms Taie and Ms Graham was description evidence and thus a type of resemblance evidence forming circumstantial evidence of identification. It was not direct visual identification of Mr Turaki. Thus, their evidence does not come within the s 4 definition of visual identification evidence and, in terms of Adams and Hansen and Henry, no identification warning was required with regard to their evidence.

[59] We remark, however, that, if a s 126 warning was required in this case with regard to Mr and Mrs Packer’s evidence (as to which see at [74] below), the jury would in our view also have had to have been cautioned about linking the evidence of Mr and Mrs Packer to the description evidence of Ms Taie, Ms Graham and Mrs Ulukita.

Is a s 126 warning required for recognition evidence?

[60]     The evidence of Mr Packer comes into a different category from the evidence of Ms Taie, Ms Graham and Mrs Ulukita; one which we loosely describe as recognition evidence.  As noted above, Mr Packer recognised Mr Turaki from school, had a conversation with him shortly before the attack and introduced him to his wife.  There was no challenge to Mr Packer’s evidence at all and so Mr Turaki must be taken to have accepted that he was the man to whom Mr Packer spoke.

[61]     Mrs Packer’s evidence is a hybrid of recognition and description evidence.  When her group returned to pick up the CDs, she recognised Mr Turaki (as a person to whom she had just been introduced) in the group of three outside Ms Graham’s apartment.  Her description of Mr Turaki in that group largely coincided with that of Ms Taie, Ms Graham and Mrs Ulukita.  Mrs Packer’s evidence on this point was also not challenged.  Thus Mr Turaki must have accepted that he was part of the group of three outside Ms Graham’s apartment. 

[62]     The evidence in Uasi could also be described as recognition evidence. In that case, this Court held, at [21], that such evidence falls within the scope of “visual identification evidence”, thus triggering the need for a s 126 warning. That conclusion is clearly correct. On a plain reading of the definition of visual identification evidence in s 4, recognition evidence must amount to an assertion, based partly on what a person saw, that an accused was at or near the place at which the act occurred.

[63]     This conclusion is also reached in Mathieson Cross on Evidence (loose-leaf) at EVA126.4 and Adams on Criminal Law at ED7.03(1)(a).  In Richardson Archbold:  Criminal Pleading Evidence and Practice (2008) the reason for including recognition evidence in identification directions is explained at [14–19] as follows:

The fact that recognition may be more reliable than identification of a stranger does not absolve a judge from reminding the jury that mistakes in recognition of close friends and relatives are sometimes made: R v Bowden [1993] Crim. L.R. 479 CA; Beckford v R [(1993) 97 Cr.App.R 409 PC].  In  R v Bentley [1991] Crim.L.R. 620 CA Lord Lane CJ observed that recognition evidence could not be regarded as trouble free…In a recognition case, the risk is not that the witness will pick out the wrong person on a parade but that at the time of the offence he mistakenly thinks he recognises the offender; this danger should be brought home to the jury: see R v Thomas [1994] Crim.L.R 128 CA.  See also R v Aurelio Pop (2003) 147 S.J. 692 PC (fact that an identification of the accused depends on a purported recognition of him by an acquaintance of several years’ standing does not diminish the need for an appropriate Turnbull direction); and  R. v. Mason and Cummins [2005] 1 Cr.App.R. 11 CA (not sufficient, even where witness and accused are well-known to each other, to warn the jury to approach the evidence of recognition with considerable care; necessary to tell them why care was needed, and in particular that a mistaken witness can be a convincing one and that mistakes in recognition are made even in a case of purported recognition of close relatives).

[64]     This means that the fact that Mr and Mrs Packer’s evidence can be characterised as recognition evidence did not relieve the Judge from giving a full s 126 warning (including warning of the possibility of a serious miscarriage of justice).  However, such a warning needs only to be given if the case depended wholly or substantially on visual identification evidence.  We now turn to that question.

Did the case depend wholly or substantially on evidence of visual identification?

[65]     As noted above at [36] – [37], the real issue in this case was not the identification of Mr Turaki.  The evidence of Mr and Mrs Packer placing Mr Turaki at the scene shortly before the attack was not challenged (see at [60] – [61]).  The real issue was whether Mrs Ulukita was mistaken in her observations of what Mr Turaki did in the course of the attack on Mr Fonoti.  Her evidence in this regard can be classed as observation (rather than identification) evidence. 

[66]     In other jurisdictions the courts have drawn a distinction between observation evidence and identification evidence.  In R v Slater [1995] 1 Cr App R. 584 (EWCA), it was stated that there is no need for a Turnbull direction where the issue is not the accused’s presence at or near the scene of the offence, but is rather as to what he or she was doing.  At 589 the Court stated:

In the judgment of this Court, the need for a Turnbull direction arises where there is the possibility of mistaken identification. Such a possibility will generally arise when the issue is whether the defendant was present and a witness claims to identify him on the basis of a previous sighting or sightings. In such a case, it is essential that the jury examine each of the relevant sightings with care and that they be directed to do so in accordance with Turnbull.  Where, however, there is no issue as to the defendant's presence at or near the scene of the offence, but the issue is as to what he was doing, it does not automatically follow, in the judgment of this Court, that a Turnbull direction must be given. Whether such a direction is necessary will depend on the circumstances of the particular case. It will be necessary where, on the evidence, the possibility exists that a witness may have mistaken one person for another, for example, because of similarities in face, build, or clothing between two or more people present.  (Emphasis added)

[67]     The Court in Slater outlined the futility of requiring a Turnbull direction in all cases where presence at the scene is admitted but conduct is disputed.  The Court stated, at 590, that the possibility of mistake as to identity is a necessary prerequisite for an identification issue requiring a Turnbull direction.  Following this reasoning, the Court held that, in light of the unique physical characteristics of the appellant and the fact that there was no one of similar height to him, there was no need for a Turnbull direction in that case. The Court said at 590:

In the present case the appellant is of a wholly unusual size: he is six feet six inches tall and very broad.  The witnesses who gave evidence in the case drew a distinction between the very tall man and the shorter man, Sulley.  There was, before the jury, no evidence at all to suggest either that the absent Sulley, or anyone else present in the MGM Club, was remotely similar in height to this appellant.  It follows that, in our judgment, there was no basis for any mistake.  The issue here, as it seems to us, as in the case of Hope, was not identification, but what the appellant did.  (Emphasis added)

[68]     Similar reasoning was employed in R v Linegar [2001] EWCA Crim 2404 where it was stated, at [19], that, when there is no question that certain persons were involved in an incident but there are differing versions as to what occurred in the incident, identification is not at issue. In that case the Court was required to deal with the submission that, as the victim was required to say who it was who had punched him and that involved an element of identification, all the warnings customarily to be given to a jury about identification evidence should have been given. At [18] ‑ [19], the Court rejected this submission, saying:

We have carefully considered that submission. We simply do not think that it is right.  This was not a case of identification.  Here was an incident involving four men all of whom by their own evidence acknowledged that they were the participants in the incident.  The witness Jacob in describing what the appellant had done to him was simply describing his version of those events.  He was not saying that suddenly someone came rushing at him and threw a punch and either then or later he recognised the person as the applicant.  He was saying that there were four people there.  One person did one thing, another person did a different thing.  Those are not the circumstances to which the case of Turnbull and related cases were directed at all.

There was no element of identification which was in issue.  There was no question that the four people were involved in the incident.  There was no question that their versions as to what had occurred were very different.  It is [sic] was for the jury to make up their mind about those differing versions.  Of course, they had to take into account factors such as the drink consumed by the alleged victim in reaching their verdict, but that did not require any special direction and the judge quite properly reminded them of the relevant evidence.  We therefore reject that ground. 

[69]     The High Court of Australia in Dhanhoa v The Queen (2003) 217 CLR 1 has made a similar distinction between observation and identification evidence. In that case, the accused had admitted in evidence that he had been at the victim’s flat with some other men. The only issue was whether he had left the flat before the assault, robbery and detention had taken place. At [18] ‑ [19], Gleeson CJ and Hayne J, delivering one of the majority judgments, said:

Although counsel for both parties to the present appeal began by accepting that the provisions of s 116 [of the Evidence Act 1995 (NSW)] are “mandatory”, upon further consideration they acknowledged that, in a context such as the present, such a description may be question-begging. It is the content of the mandate that must be decided.

If read literally, and apart from its statutory context, s 116 could be taken to mean that a judge is always required to inform the jury that there is a special need for caution before accepting identification evidence whenever identification evidence has been admitted, even if the reliability of the evidence is not in dispute. That would be absurd. If a witness claims to have seen an accused at a particular place on a particular occasion, and the truth of that assertion is not questioned or in any way put in issue, then ordinarily there is no special need for caution before accepting the evidence.  The common law principle, expressed in the passage from Domican quoted above, contains the obvious qualification that the warning is to be given where the reliability of the evidence of identification is disputed. The same qualification is implied in s 116; if it were otherwise the provision would offend common sense. (Emphasis added).

[70] Gleeson CJ and Hayne J, at [22], again emphasised that the s 116 identification warning should only be given in circumstances where the reliability of the identification evidence was disputed. The Judges stated at [22]:

To give s 116 a literal meaning would produce a consequence that is wholly unreasonable [cf MacAlister v The Queen (1990) 169 CLR 324 at 330]. The statutory requirement to give the jury certain information is to be understood in the light of the adversarial context in which the legislation operates, and the nature of the information the subject of the requirement. So understood, the provision means that the information referred to is to be given where the reliability of the identification evidence is disputed.

[71]     McHugh and Gummow JJ made a similar point in their judgment at [52] ‑ [53]:

Before Dhanhoa gave evidence, identification was a vital issue in the case. Until he gave evidence, the prosecution case depended on the jury being satisfied beyond reasonable doubt that the man in photograph No 8 was one of the men who were at the flat and who had attacked and robbed the victim. If Dhanhoa had continued to deny that he was at the victim’s flat, the judge would have been bound to direct the jury of the danger of relying on the victim’s identification of the man in photograph No 8 as one of the attackers. But after Dhanhoa gave evidence, identification was no longer an issue. Nevertheless, Dhanhoa contends that s 116 of the Evidence Act required the trial judge to warn the jury of the need to caution before accepting the victim’s identification evidence. He points out that s 116 declares that “[i]f identification evidence has been admitted, the judge is to inform the jury … that there is a special need for caution before accepting identification evidence, and … of the reasons for that need for caution.”

The obligation imposed by s 116 must be read in the context of the adversarial system of criminal justice. It is not to be supposed that, in enacting that section, the legislature intended that juries be given directions concerning identification evidence when identification was not an issue. It is not to be supposed that the legislature intended a trial judge to give a direction that was not relevant to the issues in the case. Not only would it be a waste of curial time and effort but the giving of an irrelevant direction would be likely to confuse the jury who understandably would be puzzled as to what significance the direction had.

[72] Callinan J agreed in principle that a s 116 warning was not required in circumstances where identification was not at issue (as explicitly noted by Callinan J at [92] and [94]). However, on the facts he considered that a dispute as to identification existed. Callinan J’s view was that, because of the continuing nature of the conduct of the assailants, conflicting evidence about whether the appellant was present during a later assault on a street could create doubt about his presence at the flat when the assaults were committed: see at [95].

[73] We consider that the distinction drawn between observation and identification evidence in the cases discussed above applies in New Zealand. This conclusion is supported by the definition of visual identification evidence in s 4. That definition refers to evidence that a person is at or near a place. It does not refer to evidence identifying a person as the offender.

[74]     Applying the above approach to this case, it is clear that the case against Mr Turaki did not rest, under s 126, “wholly or substantially” on the recognition evidence of Mr and Mrs Packer (which was unchallenged).  The case instead depended on the observation evidence of Mrs Ulukita.  In such circumstances, s 126 did not apply and thus the failure of the trial Judge to give a full s 126 warning cannot amount to an error of law. 

Did any failure to give a full s 126 warning cause a miscarriage of justice?

[75]     Even if (contrary to our view) a full s 126 warning, containing all the elements in s 126(2)(a) – (c), was required with regard to Mr and Mrs Packer’s identification of Mr Turaki and/or the description evidence of Ms Taie, Ms Graham and Mrs Ulukita, we do not consider that any failure to give such a warning could have led to a miscarriage of justice in this case. 

[76]     There is authority that a full Turnbull warning will not occasion a miscarriage of justice in circumstances where the identification evidence is of exceptionally good quality (and recognition evidence has been seen, depending on the circumstances, to come within that category of case):  see Freemantle v R [1994] 3 All ER 225 (PC) and Shand v R [1996] 1 All ER 511 (PC).

[77]     In Freemantle, the Privy Council held that a number of factors resulted in a finding that the identification evidence was of an exceptionally good quality in that case: at 229 – 230. These included that: the identifications were by way of recognition by eye witnesses who had known the appellant for a long period of time; the distance between the witnesses and the appellant was not great; the observations were not fleeting glances; there was bright moonlight; the witnesses had unobstructed views of the appellant; there were no material discrepancies, contradictions or other weaknesses in the evidence of identifications and there was dialogue between one of the witnesses and the appellant.

[78]     The above reasoning is also supported by a line of English cases where it has been held that a full Turnbull direction may not be required in the case of recognition evidence.  In R v Bentley (1994) 99 Cr App R 342 at 344 (EWCA) Lord Lane CJ, said, with regard to a case where there was purported recognition of a familiar face which had taken place over a considerable period of time in perfectly good conditions of lighting:

If the judge were to give that full Turnbull direction in the latter type case, the jury would rightly wonder whether he, the judge, has taken leave of his senses because most of the Turnbull direction would in those circumstances be quite unnecessary.

[79]     In R v Chaney [2009] 1 Cr App R 35 (EWCA), it was noted at [25], in the context of recognition evidence by a police officer, that a full Turnbull direction would have been inappropriate, although the Judge should have warned about the need for caution:

Although this was a case of recognition rather than identification, in our judgment it would have been appropriate for the judge, in his summing-up, to have referred to the need for caution. A full Turnbull direction …would have been inappropriate: this was a recognition case, not an identification case.  (Emphasis added)

[80]     Thus, while it has been accepted by the English courts that a caution regarding reliance on recognition evidence should be given to the jury (apart from in exceptional cases), it has also been held that there may not be a need to give a full Turnbull direction in such circumstances.  This has also been the position in Australia.  As noted in Ligertwood Australian Evidence (4 ed, 2004) at [4.62], the factor that would most likely mitigate the need for, or nature of, a full identification warning is the witness’s acquaintance with the accused before observation.  In such circumstances a cursory warning would suffice:  R v Goode [1970] SASR 69 and R v Easom (1981) 28 SASR 134.

[81]     In light of the quality of the identification evidence in this case, a full s 126 direction would not in our view have changed the result.  We consider the case to be aligned with Hohepa and Davis, rather than Uasi: see at [51] above. In our view the result in Uasi depended on the unusual combination of circumstances in that case.  A failure to mention the possibility of a serious miscarriage of justice would not normally carry the risk of a miscarriage of justice where the direction was otherwise full and appropriate.  This is particularly the case where the identification evidence is of good quality.

[82] In this case, the recognition evidence of Mr Packer was of exceptionally good quality and in any event, not contested by Mr Turaki. The inference that it was Mr Turaki in the group of three outside Ms Graham’s apartment was overwhelming: see at [33] ‑ [34] above. The real issue in this case was the accuracy of Mrs Ulukita’s observations of the attack itself. As to this, Mr Turaki accepts that he was outside the party at the time of the attack and it appears admitted some involvement in the brawl itself (see at [18] above). It was only his alleged role in attacking Mr Fonoti that was at issue. The jury’s attention was drawn to the issues they had to assess in that regard: see at [40] and [48] above. There is no reason to think that they would have ignored these directions.

Summary – identification directions

[83]     In this section we provide a summary of the different types of evidence we have talked about in this judgment and their relationship to the mandatory s 126 statutory warnings.

Visual identification evidence

[84] Visual identification evidence is where a witness identifies a particular person as being at or near the scene of an offence, such identification being based wholly or partly on what that witness saw: see s 4 of the Evidence Act.

[85]     Visual identification evidence also encompasses evidence asserting that a person was at or near a place where an act constituting circumstantial evidence of the commission of an offence was done.  For example, this would include an assertion that a person was seen fleeing the scene of a crime.  However, for brevity we refer, in the remainder of this summary, only to evidence of a person being at or near the scene of the offence.

Recognition evidence

[86] Recognition evidence is where the witness identifies a person as being at or near the scene of an offence through prior acquaintance between that person and the witness. This is a form of identification evidence and falls within the wide scope of the s 4 definition of visual identification evidence.

Full s 126 warning required

[87]     Where evidence of visual identification is given, and the case against the defendant depends wholly or substantially on the correctness of that evidence, a full s 126 warning, including all the mandatory elements in s 126(2), must be given.  This also applies to recognition evidence.  Not to give a full warning will constitute an error of law.

[88]     The mandatory warning in s 126(2)(a) that a mistaken identification can result in a serious miscarriage of justice may seem inappropriate where the evidence is recognition evidence that is of an exceptionally good quality, as outlined by Lord Lane CJ in Bentley: see above at [78]. However, even in such circumstances a full s 126 warning is required .

[89]     If a full s 126 warning is not given in the situations where it is required, the Court will be required to determine, in accordance with the proviso to s 385(1) of the Crimes Act, whether the failure to give such a warning has resulted in a miscarriage of justice in that case.  As the differing results in Uasi and Hohepa illustrate, whether the proviso will be applied will be dependent on the particular circumstances of each case.  Accordingly, trial judges should ensure that a full s 126 warning, which, of course, includes the s 126(2)(a) direction, is given in each case where s 126 is engaged.

Contents of s 126 warning

[90]     A s 126 warning must be tailored to the circumstances of the case.  This means that a trial judge should include, as appropriate, directions beyond those prescribed by s 126(2).  In this regard, a trial judge should consider whether any of the additional warnings suggested by the Law Commission in New Zealand Law Commission Evidence Code and Commentary (NZLC R55-Volume 2 1999) at C398, are appropriate for the particular circumstances of the case.  These included warnings about:

(a)The ways in which events surrounding the witness’s observation of the defendant may have influenced the quality of the identification evidence (e.g., time of observation, lighting, distance of witness from offender, weather conditions, the stress inherent in the situation, whether violence was used, or whether a weapon was involved);

(b)The ways in which any factors particular to the individual witness may have influenced the quality of the identification evidence (e.g., poor eyesight or hearing, or bias)

(c)The fact that, if the witness and defendant are of a different race/ethnicity, the identification may be less reliable;

(d)The greater the period of time between the sighting and the identification, the greater the likely deterioration of memory;

[91]     The suggested warnings outlined in Turnbull, discussed above at [45], could also provide guidance as to the factors that could be included, as appropriate, by a trial judge in a s 126 warning.

Observation evidence

[92]     Observation evidence, on the other hand, is evidence about the actions of a person, including evidence of an offender’s alleged participation in the offence.  Observation evidence differs from identification evidence, because it is not the presence of the offender at the scene of the offence that is in dispute, but rather his or her role in the offending.

[93]     Where the accused accepts that he or she was present at or near the scene of the offending and the only issue in the trial is whether or not the accused participated in the offence, then identification will be not an issue at trial.  It will only be the observation evidence of the witness (of the alleged actions of the accused) that is challenged.  In such circumstances, s 126 has no application.  Of course it may nevertheless be appropriate for the judge to direct the jury on some of the matters set out above at [90] –  [91].

Resemblance evidence

[94]     A distinction must also be drawn between “visual identification evidence” and resemblance evidence.  Resemblance evidence is a form of circumstantial evidence and refers to evidence that a person shares certain features or attributes in common with the accused.  Description evidence, by which an eyewitness describes the physical characteristics of an individual involved in an offence, thus falls within the scope of resemblance evidence.  Section 126 has no application to description or resemblance evidence, although again it may be appropriate for the judge to direct the jury on some of the matters set out above at [90] –  [91].

Result

[95]     The appeal is dismissed.

[96]     The Registry is to provide a copy of the judgment to the Ministry of Justice and the Law Commission, drawing their attention in particular to [88] as it may have relevance to their review of the Evidence Act.

Solicitors:
Crown Law Office, Wellington

APPENDIX

SUMMARY OF EVIDENCE PLACING MR TURAKI AT THE SCENE

Hair Style and Colour	Umbrella	Height and Body Shape	Clothing	Previously known to Witness	Timing of Identification	Sees Assault on Mr Fonoti
Jerome PACKER	Afro	Black, one metre long	N/A	Baggy black pants, long baggy white t‑shirt	Yes	When he spoke to Mr Turaki and introduced him to his wife before driving off	No
Katalina PACKER	Big Afro, five or six inches in length, dark brown	Holding a one metre long, wooden handled umbrella	Chubby, five foot five inches, quite short	White t‑shirt or long sleeve top no collar, dark three-quarter pants or shorts	No but had just been introduced by her husband	Speaks to Mr Turaki in group by Ms Graham’s apartment when went back to get the CDs	No
Alison GRAHAM	Afro, five inches in length, dark coloured	N/A	Big guy, big build	Short sleeve white basketball top, no collar	No	Described group outside door just before assault as including the man with the Afro	Yes but she did not see what the person stomping on the victim’s head looked like
Shaunalee TAIE	Afro, seven inches long	Black with a silver point	Quite chubby, fat stomach	Dark blue basketball style top with white numbers	No	Same as Ms Graham	No (as came under attack herself)
Marsha ULUKITA	Fuzzy hair, thick, reddy ginger colour in his hair, Afro	Holding a black umbrella	Six foot, very thick-set, quite chubby	Green bomber jacket (when describing group outside Ms Graham’s apartment but not when describing attack itself)	No	At time of attack and also while in car waiting for husband.  Had left party at same time as the Packers and described group of three males outside party just before the attack.	Yes (partially until her car is attacked)
Tom ULUKITA	N/A	N/A	N/A	N/A	No	N/A	Yes