Shahid v Police
[2015] NZHC 1570
•7 July 2015
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2015-485-000032 [2015] NZHC 1570
BETWEEN HUSSEIN SAMIR SHAHID
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 7 July 2015 Counsel:
J Griffiths for Appellant
A Garrick for RespondentJudgment:
7 July 2015
JUDGMENT OF COLLINS J
Summary of judgment
[1] I am dismissing Mr Shahid’s appeals against conviction because I have concluded that although the trial Judge, Judge O’Dwyer, made errors in the way she applied the law relating to identification evidence set out in s 45 of the Evidence Act
2006 (the Act), those errors were not material.
[2] In rehearing Mr Shahid’s case I have reached the same conclusion as Judge O’Dwyer, namely that Mr Shahid was reliably identified as being the person who committed the offences.
The offences
[3] On 19 February 2015, Mr Shahid was convicted in the Hutt Valley District
Court of the following offences:
SHAHID v NEW ZEALAND POLICE [2015] NZHC 1570 [7 July 2015]
(1) driving whilst suspended;1
(2) dangerous driving;2
(3) failing to stop for flashing red and blue lights;3 and
(4) failing to stop.4
The prosecution case
[4] On 22 February 2014, Mr Shahid was suspended from driving for a period of three months. On 20 May 2014, Mr Shahid was seen by Constable Baker driving his Mazda motor vehicle in the Hutt Valley area. At 1.30 pm, Mr Shahid was stopped by Constable Baker. When Constable Baker got out of the car and approached him, Mr Shahid accelerated away. Constable Baker activated his lights and siren and followed, but Mr Shahid failed to stop.
[5] It was alleged that Mr Shahid continued to drive at a speed in excess of
100 km/hr in residential streets. Due to the high speed, Constable Baker was forced to abandon the pursuit.
[6] A short time later, Constable Ellis saw the car and recognised Mr Shahid as the driver. He pursued the car, which Constable Ellis said was being driven at a very high speed in residential areas. Constable Ellis also had to abandon the pursuit of the car due to the dangerous manner in which it was being driven.
[7] Constable Ellis searched the national database for “Shahid Hussein” and Mr Shahid’s home address. When the name and address did not match, he then put in a search for Mr Shahid’s brother, who is also known to Constable Ellis. Once he did that, he realised that he had switched Mr Shahid’s first name and surname in the
system. He then was able to obtain Mr Shahid’s home address.
1 Land Transport Act 1998, ss 32(1)(c) and 32(3).
2 Section 35(1)(b).
3 Section 52(1)(aa).
4 Sections 52(3) and (5).
[8] A short time later, Constable Baker arrived at Mr Shahid’s home address. The car was in the garage and its bonnet was “hot” from the car having been recently driven. Constable Baker found Mr Shahid hiding under a bed in a bedroom. Constable Baker then arrested Mr Shahid. Constable Ellis also arrived at the house and confirmed Mr Shahid was the person he had seen driving the Mazda.
[9] When Mr Shahid was leaving with Constable Baker, he is alleged to have said to the other people present at the address at the time, “this fellow couldn’t catch me”.
[10] Mr Shahid denied that he was the driver of the Mazda car. Neither Constable Baker nor Constable Ellis undertook a formal identification procedure for identifying Mr Shahid.
Judge O’Dwyer’s decision
[11] Judge O’Dwyer determined that the “fundamental” issue was identification of Mr Shahid as the driver of the Mazda car. During the hearing, Judge O’Dwyer heard evidence from Constables Baker and Ellis.
[12] Judge O’Dwyer approached the issue of the reliability of the identification of
Mr Shahid by the two witnesses by acknowledging:
(1) honest witnesses can be genuinely mistaken about identification;
(2)the Court has to examine the circumstances of the identification to assess the reliability of the evidence and the weight that can be attached to it; and
(3)where the witness is identifying a person of a different race, identification can be more difficult.
[13] Judge O’Dwyer concluded that Mr Shahid was identified by Constable Baker and recognised by Constable Ellis to be the driver of the Mazda car. In relation to Constable Baker, Judge O’Dwyer took into account that:
(1) the conditions of observation were good, as it was daylight, dry and
Constable Baker was stationary;
(2)Constable Baker had a view of the face of the person who was driving, albeit a view through a side mirror of the car;
(3) Constable Baker held that view by direct eye contact for about 10 to
15 seconds;
(4)although the driver was wearing a cap and hoodie, Constable Baker said he could clearly see the face from the forehead down to the chin, and described the driver’s beard as “wispy”;
(5) Constable Baker recorded that he thought he saw a Caucasian face;
(6) Constable Baker identified the person he saw under the bed as
Mr Shahid without having seen a photograph of him; and
(7)Constable Baker identified Mr Shahid as the driver after seeing other males of similar ethnicity to Mr Shahid in the house where Mr Shahid lived.
[14] Judge O’Dwyer noted that if Constable Baker’s evidence was the sole evidence of identification, it would have been difficult for her to conclude beyond a reasonable doubt that Mr Shahid was the driver.
[15] However, she also heard evidence from Constable Ellis on the issue of
Mr Shahid’s identification. She took into account that:
(1)Constable Ellis said he “fleetingly” saw the driver of the Mazda car, but immediately recognised him as “Shahid Hussein”. He later determined that Mr Shahid’s name was “Hussein Shahid”.
(2)Constable Ellis knew the defendant as Shahid Hussein, based on his experience of dealing with Mr Shahid on at least four occasions, and most recently within 12 months prior to May 2014.
(3)Constable Ellis also knew the family of Mr Shahid, and distinguished Mr Shahid from his family members in his mind when he saw the driver of the Mazda.
(4)Based on his recognition of Mr Shahid, Constable Ellis correctly estimated that Mr Shahid would be driving to his family home. It was at the family home where Constable Baker found Mr Shahid hiding under his bed.
[16] When determining beyond a reasonable doubt that Mr Shahid was the driver
of the Mazda car, Judge O’Dwyer also took into account:
(1)Mr Shahid said to the other people who were present when Constable Baker was arresting Mr Shahid in the house and they were leaving, “this fellow couldn’t catch me”. Constable Baker then put Mr Shahid in the back of the police car and recorded that comment.
(2)When Constable Baker was questioning Mr Shahid, Mr Shahid said he was not driving the car. When asked by Constable Baker about the comment made before they left the house, Mr Shahid replied that he was “just fooling around”. When Constable Baker read his notes to Mr Shahid at the conclusion of the interview, Mr Shahid denied ever saying “this fellow couldn’t catch me”.
[17] Judge O’Dwyer considered that Constable Baker took care to accurately record all that had occurred between when he first saw the Mazda vehicle and the end of the event, including Mr Shahid’s comments and Mr Shahid’s corrections of Constable Baker’s notes. Judge O’Dwyer concluded that Constable Baker’s notes were unimpeachable.
Principles governing appeal against conviction
[18] I can only allow Mr Shahid’s appeal if I conclude that Judge O’Dwyer erred in her assessment of the evidence to such an extent that a miscarriage of justice occurred, or if for any other reason a miscarriage of justice has occurred.5
[19] A miscarriage of justice is defined to mean:6
… any error, irregularity, or occurrence in or in relation to or affecting the trial that–
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
[20] The test contained in s 232 of the Criminal Procedure Act 2011 involves, in part, an assessment of whether the Judge in the court below made an error of such a nature that there is a real risk that the outcome of the trial was affected.
[21] An appeal against conviction proceeds by way of rehearing. I am therefore required to carefully consider all matters that were before Judge O’Dwyer, but ultimately I must reach my own decision on the merits. The weight I give to the evidence is a matter for my judgement. If I conclude that the Judge below was wrong I must act on my own view of what the outcome should be.7
Relevant law
[22] Section 45 of the Act governs the admissibility of visual identification evidence. The relevant subsections of s 45 state:
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.
5 Criminal Procedure Act 2011, s 232(2)(b) and (c).
6 Section 232(4).
7 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
(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.
[23] Section 45(4) identifies circumstances which qualify as 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.
[24] Section 45 governs identification evidence from police officers who witness an offence.8 There is a difference between the tests set by ss 45(1) and 45(2).9
Section 45(1) places the burden of proof on the defendant to prove that the evidence is unreliable. Section 45(2) places the onus on the prosecution to prove that the circumstances in which the identification was made have produced a reliable
identification beyond a reasonable doubt.
8 Naidu v Police [2013] NZHC 2453 at [16]; applying Harney v Police [2011] NZSC 107, [2012]
1 NZLR 725.
9 R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762.
[25] When deciding if the prosecution has discharged its burden under s 45(2), the Court cannot take into account the strength of the other evidence in the case.10 It is not for the Judge to determine whether the identification is accurate, but instead to determine the threshold question whether the identification evidence can be legitimately relied upon by the fact-finder.11
[26] In Harney v Police the Supreme Court determined that the confidence with which the identification witness made the identification must be treated as one of the circumstances under both s 45(1) and 45(2).12 The Supreme Court noted, however:13
What is of paramount importance is that too much weight should not be given to this factor, especially when it is not an expression of confidence at the time the identification was first made. …
[27] Section 45(4) of the Act lists the “good reasons” for no formal procedure. That list is not exhaustive.14 The Supreme Court in Harney v Police said that the definition of visual identification evidence includes “recognition evidence”, where the witness purports to identify the offender as someone with whose appearance the witness is already acquainted.15
[28] The Supreme Court said further:16
When the witness knows the offender, the witness is likely to be able to offer a more reliable opinion as to identity. The carrying out of a formal identification procedure may then be of no practical utility, and even create a false impression of the reliability of the identification, when in reality the witness has simply pointed to a person previously known to the witness.
…
It does not follow, of course, that merely because identification evidence takes the form of recognition of a person known to the defendant, that factor will necessarily provide a good reason for dispensing with a formal procedure. It will not do so unless the appearance of the alleged offender was sufficiently known to the witness before the time of the alleged offending that a formal procedure would be of no utility…
10 R v Edmonds, above n 9, at [113].
11 Aramoana v R [2010] NZCA 315 at [13].
12 Harney v Police, above n 8, at [33].
13 At [33].
14 At [25].
15 At [16].
16 At [17] and [27].
[29] The Supreme Court held that when considering the issues of the sufficiency of the familiarity of the witness with the defendant’s appearance and the utility of a formal procedure, there is no formulaic requirement that the defendant must have been “well” known to the witness.17 The trial Judge, however, must take into account:18
(1)the particular circumstances in which the witness has previously seen the defendant; and
(2)how, and with what degree of cogency, those prior circumstances demonstrate that the witness had the capacity to identify the defendant with accuracy.
Analysis
Constable Baker’s identification evidence
[30] I accept that Judge O’Dwyer erred by not first considering whether there were good reasons for no formal procedure, and by not subsequently considering that the circumstances in which Constable Baker made the identification of Mr Shahid as the driver produced a reliable identification beyond a reasonable doubt.
[31] I also note that she probably made an error when she relied upon Constable Ellis’s recognition of Mr Shahid as the driver to be satisfied beyond a reasonable doubt that the circumstances in which Constable Baker made the identification of Mr Shahid produced a reliable identification. Judge O’Dwyer should not have conflated the two witnesses’ identification of Mr Shahid.
[32] It would have been proper for Judge O’Dwyer to first consider under s 45(1) whether there was good reason for Constable Baker not to follow a formal procedure, and if there was not, then consider whether the circumstances in which Constable Baker identified Mr Shahid produced a reliable identification beyond a
reasonable doubt.
17 Harney v Police, above n 8, at [28].
18 At [28].
[33] In the circumstances of this case it would have been open for Judge O’Dwyer to conclude there was good reason for Constable Baker not to follow a formal identification procedure. Constable Baker had just arrested the person he was certain was the driver of the Mazda and obtained an unsolicited admission from him.
[34] Judge O’Dwyer was hesitant to find that the identification by Constable Baker of Mr Shahid was, by itself, reliable beyond reasonable doubt. I can understand her Honour’s hesitancy. As it transpires, it does not matter in this particular case whether or not Constable Baker reliably identified Mr Shahid because Constable Ellis’ evidence more than satisfied the requirements of establishing beyond reasonable doubt Mr Shahid was the driver of the Mazda.
[35] Judge O’Dwyer’s error in conflating the evidence of Constable Baker with
Constable Ellis’ evidence was not a material error that led to a miscarriage of justice.
Constable Ellis’ recognition evidence
[36] Although Judge O’Dwyer did not consider Constable Ellis’ recognition evidence separately from Constable Baker’s, this was not a material error. I have examined Constable Ellis’ evidence without reference to other evidence. After undertaking this exercise I conclude Judge O’Dwyer was entitled to find that Constable Ellis’ recognition of Mr Shahid as the driver of the car was a good reason for no formal procedure to be undertaken. I am satisfied that the appearance of Mr Shahid was sufficiently known to Constable Ellis before the time of the alleged offending that a formal procedure would have been futile. My reasons for reaching this conclusion are:
(a) Constable Ellis caught a fleeting, but clear look at the driver of the car. He immediately recognised the driver as Mr Shahid.
(b)Constable Ellis had dealt with Mr Shahid on at least four previous occasions. The most recent occasion was within 12 months of the date of the present offending.
(c) Constable Ellis knew Mr Shahid’s name, although he had mixed up his surname and first name. Not only is he familiar with Mr Shahid, but he is also familiar with Mr Shahid’s brother. This familiarity allowed Constable Ellis to obtain Mr Shahid’s home address from the national database, and subsequently and independently of Constable Ellis, Constable Baker apprehended Mr Shahid at that address.
[37] Constable Ellis’ evidence also proved beyond reasonable doubt that he
reliably identified Mr Shahid as the driver of the Mazda.
[38] Although Judge O’Dwyer erred in her analysis of the evidence of
Constable Ellis, I am satisfied that error did not lead to a miscarriage of justice.
Conclusion
[39] The identification evidence and the recognition evidence were properly
admitted under s 45 of the Act. Accordingly, Mr Shahid’s appeals against conviction
are dismissed.
D B Collins J
Solicitors:
Public Defence Service, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
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