Shahid v Police - [2015] NZHC 1570

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 Respondent

Judgment:

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…

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: [2015] NZHC 1570
Decision Date: 7 July 2015

CaseChat Overview and Summary

Hussein Samir Shahid appealed against his convictions for driving while suspended, dangerous driving, failing to stop for flashing red and blue lights, and failing to stop. The appeal hinged on the identification evidence presented by two constables, Baker and Ellis, who identified Shahid as the driver of the vehicle in question. The High Court reheard the case to determine whether the trial judge's assessment of the identification evidence was flawed to the point of a miscarriage of justice.

The central legal issue was whether the trial judge erred in assessing the reliability of the identification evidence under section 45 of the Evidence Act 2006. Specifically, the court needed to determine if the trial judge correctly applied the statutory criteria for evaluating the admissibility and reliability of visual identification evidence, and whether any such errors were material. The court considered whether the trial judge should have first assessed if there were good reasons for not following a formal identification procedure, and then whether the circumstances of the identification produced a reliable identification beyond a reasonable doubt.

The High Court concluded that while the trial judge made some errors in applying the law regarding identification evidence, these errors were not material. The judge should have first considered whether there were good reasons for Constable Baker not to follow a formal identification procedure, and then whether the circumstances of Constable Baker's identification produced a reliable identification. However, Constable Ellis's recognition evidence sufficiently demonstrated that Shahid was the driver of the vehicle, making the errors inconsequential. The court found that Constable Ellis's familiarity with Shahid, having dealt with him on multiple occasions, provided a good reason for not conducting a formal procedure. Moreover, Ellis's recognition evidence, independent of Constable Baker's, proved beyond reasonable doubt that Shahid was the driver.

Accordingly, the High Court dismissed Shahid's appeals against his convictions.

Orders