R v Van Wakeren

[2007] NZCA 126

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN [9]) IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW

DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA391/06 [2007] NZCA 126

THE QUEEN

v

RONALD VAN WAKEREN

Hearing:         13 March 2007

Court:            Wilson, Baragwanath and Venning JJ Counsel:  M A Kennedy for Applicant

K Raftery for Crown

Judgment:      16 April 2007         at 11 am

JUDGMENT OF THE COURT

A        Leave to appeal is granted.

B        The appeal is dismissed.

R V VAN WAKEREN CA CA391/06  16 April 2007

COrder prohibiting publication of the judgment and any part of the proceedings (except the result as set out in [9]) in News Media or on Internet or other publicly available database until final disposition of trial.  Publication in law report or law digest permitted.

REASONS OF THE COURT

(Given by Wilson J)

Introduction

[1]      The applicant seeks to appeal against a pre-trial ruling of Judge Field, given in the District Court at Auckland on 22 February 2006, that the Crown may call similar fact evidence.

[2]      This evidence is sought to be called to assist in establishing four charges relating to the alleged fraudulent mortgaging by the applicant of a property which did not belong to him.

[3]      It is common ground that the applicant was convicted of similar offending in

2000 and again in 2001 and that there is a striking similarity between the facts of the offending on both those occasions and what is now alleged; what is in issue is whether  there  is  credible  evidence,  other  than  the  prior  offending,  to  link  the applicant to the present charges.

The other evidence

[4]     The Crown relied on two items of evidence to establish the link; first, photography footage from a surveillance camera and, secondly, the evidence of a handwriting expert.

[5]      At our request, we were shown the photographs from the footage.   They appeared to us to be of sufficiently good quality to permit a jury properly to conclude that they were photographs of the applicant.

[6]      The evidence of the handwriting expert goes no further than deposing that there are indications that the applicant was the author of a document used in the offending.

Decision

[7]      Although the handwriting evidence would, on its own, be insufficient to link the applicant to the offending with which he was charged, it and the photographic evidence are, when taken together, sufficient in our view to provide a basis for identification of the applicant as the offender without resort to the similar fact evidence.

[8]      It follows that we are in agreement with the Judge that the Crown may call that evidence.

[9]      Accordingly, leave to appeal is granted, but the appeal is dismissed.

[10]     We wish to make clear, however, that the applicant retains the right to make an application under s 347 of the Crimes Act 1961, should the evidence as called and tested at trial be thought to justify that course.

Solicitors:

Crown Law Office, Wellington