R v Zurowski - [2007] NZCA 112

NOTE: ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND THE REASONS THEREFORE IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA306/06 [2007] NZCA 112

THE QUEEN

v

CINDY ELIZABETH ZUROWSKI

Hearing: 7 March 2007
Court: Chambers, Gendall and Heath JJ Counsel: J Haigh QC and P F Wicks for Appellant
B J Horsley for Crown

Judgment: 2 April 2007 at 2 pm

JUDGMENT OF THE COURT

A Leave to appeal is granted, but the appeal is dismissed.

BAn order is made that the judgment and the reasons therefore are not to be published in the news media or on the internet or in any other publicly accessible database until final disposition of the trial.
Publication in a law report or law digest is, however, permitted.

R V ZUROWSKI CA CA306/06 2 April 2007

REASONS OF THE COURT

(Given by Gendall J)

[1] The appellant is awaiting trial on a count of importing into New Zealand the class B controlled drug MDMA (Ecstasy) jointly with Gwenda Hutson and Anthony Munnings. The last-named has pleaded guilty and the trial will proceed only in respect of the appellant and Ms Hutson. This appeal is against a ruling of Judge C J Field that identification evidence of three Crown witnesses is admissible at trial.

The Crown case

[2] The Crown case is that on 10 June 2003 the appellant, an Australian citizen, travelled to New Zealand and stayed at an Auckland city hotel for two days. Over those two days air tickets were obtained in the names of Gwenda Hutson and Anthony Munnings for return flights from New Zealand to Germany via Singapore. Ms Hutson and Mr Munnings then resided in Australia. The Crown says it was the appellant who purchased the tickets.

[3] On 10 June a female went to a Flight Centre travel consultancy in Queen Street, Auckland. She had a printout of precise flights upon which she wished to book for a friend of hers, who was in Australia. That friend was named as Gwenda Hutson. Tickets were booked under that name. The travel consultant, Leanne Dixon, dealt with the woman for a period of about 20 minutes. A cash deposit was paid and on 12 June, two days later, the woman returned and paid the balance in cash. The ticket was issued and given to her that day. So Ms Dixon saw her on two occasions. Ms Dixon was later, on 25 June, to describe the woman to whom she issued the tickets, to a Customs Officer, Helen Veysey. She described the woman as having an Australian accent and was possibly in her mid to late 20s and remembered the woman as making the booking for a friend.

[4] The following day, 11 June, a female called at another Flight Centre travel office in Ponsonby, Auckland. She was first seen by Nicola Sutton, who referred her to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NZCA 112
Decision Date: 2 April 2007

CaseChat Overview and Summary

In this case, Cindy Elizabeth Zurowski, an Australian citizen, was awaiting trial for allegedly importing the controlled substance MDMA into New Zealand. The appeal was against a ruling of Judge C J Field that identification evidence from three Crown witnesses was admissible at trial. The Crown's case involved the booking of flight tickets and hotel accommodations under different names, which were linked to the appellant. The primary legal issue before the Court of Appeal was whether the identification evidence from the three witnesses was admissible. The appellant argued that the identification evidence was unreliable and prejudicial, due to several factors including the delay in the presentation of the photo montage, the manner in which the montage was constructed, and the lack of detailed descriptions given by the witnesses prior to viewing the montage.

The Court of Appeal held that the identification evidence was admissible. The court found that while the police could have followed a more professional approach in preparing the photo montage, the montage did not fall below an acceptable standard. The court also noted that the appellant's photograph was not significantly larger than the others, nor was it the only one where the person was smiling. The court further held that the other women depicted in the montage were reasonably similar in appearance to the appellant. The court concluded that the identification evidence was not so unreliable as to justify exclusion, and the weaknesses in the evidence went to its weight rather than its admissibility.

As a result, the appeal was dismissed, and the identification evidence was deemed admissible. The Court of Appeal noted that if the Evidence Act 2006 had come into force by the time of the trial, the trial judge would need to reassess the admissibility of this evidence in light of the new law.

Orders