Sharpe v Police
[2019] NZHC 823
•11 April 2019
IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY
I TE KŌTI MATUA O AOTEAROA KIRIKIRIROA ROHE
CRI 2018-419-54
[2019] NZHC 823
BETWEEN MATTHEW DAVID SHARPE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 26 February & 11 April 2019 Counsel:
T Sutcliffe for Appellant B Vaili for Respondent
Judgment:
11 April 2019
Reasons:
15 April 2019
JUDGMENT OF DUFFY J
This reasons judgment was delivered by me on 15 April 2019 at 11.30 am pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors/Counsel:
T Sutcliffe, Barrister, Hamilton Crown Solicitor, Hamilton
SHARPE v NEW ZEALAND POLICE [2019] NZHC 823 [11 April 2019]
[1] Matthew Sharpe appealed against conviction of one charge of operating a vehicle causing a sustained loss of traction contrary to s 36A(1)(c) Land Transport Act 1998.1 I allowed the appeal. My reasons for doing so now follow.
[2] In the District Court the Judge did not address the admissibility of the Sergeant Banfield’s evidence in terms of s 45 of the Evidence Act 2006. Mr Sharpe appealed on the grounds the Judge had misdirected himself on evidential issues and failed to properly address the issue of identification, giving rise to a miscarriage of justice.
[3] The appeal first came before this Court on the 26 February 2019, but it was adjourned for further submissions to allow counsel to address the effect of s 45(2) of the Evidence Act.
[4] When the appeal resumed before the Court on 11 April 2019 it was common ground that the admissibility of Sergeant Banfield’s evidence would be determined by s 45(2) of the Evidence Act. Accordingly, the respondent was required to prove beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification.
Factual background
[5] On the 17 December 2017, Sergeant Banfield was driving his private motor vehicle on MacFarlane Street in Hamilton. It was a Sunday afternoon. He witnessed another vehicle performing certain manoeuvres on McFarlane Street. The manoeuvres in question were twice spinning around and causing smoke to come from the tyres (performing a ‘donut’) and accelerating in a straight line at speed and leaving tyre marks on the road while ‘fishtailing’ (having the rear of the car sway from side to side).
[6] Before Sergeant Banfield reached the other vehicle, it had turned around and reversed into a driveway off Macfarlane Street. It parked temporarily, facing the road. Sergeant Banfield drove past the driveway at approximately 20 kilometres per hour, committing the number plate of the vehicle and a description of the driver to memory.
1 Maximum penalty 3 months’ imprisonment or a $4500 fine, and mandatory disqualification from holding or obtaining a driver’s licence for 6 months or more.
[7] The next day Sergeant Banfield went to the address where he encountered and spoke with Mr Sharpe. Sergeant Banfield immediately identified Mr Sharpe as the person seen driving the vehicle the previous day. During their discussion Mr Sharpe stated at one time that he was not sure whether he was driving the vehicle the previous day. He also on several occasions denied that he was the driver or that he had performed the “donut” and “fishtailing” manoeuvres .
[8] Sergeant Banfield had no prior knowledge of Mr Sharpe. At trial, Sergeant Banfield gave evidence that included a description of the male driver of the vehicle:2
Male Māori. I couldn’t see you know height wise et cetera, looked fairly if I could say rough in his, his beard and hair et cetera. Yeah, medium build, he didn’t look to be a big man or anything.
[9] In fact, Mr Sharpe is Pākehā, and his counsel describes him as not having typical Māori features.
The procedure for visual identification evidence
[10] Section 45 of the Evidence Act 2006 controls the admission of visual identification evidence relating to the defendant in criminal proceedings. Section 45(1) relates to visual identification evidence obtained by way of a formal procedure by officers of an enforcement agency. Such evidence will be admissible unless the defendant proves on the balance of probabilities that it is unreliable.
[11] Section 45(2) covers visual identification evidence obtained without formal procedure being followed, where there was no good reason for it not being followed. Such evidence is inadmissible in a criminal proceeding unless the prosecution can prove beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification.
[12] The Court of Appeal in R v Edmonds discussed the high standard of proof in s 45(2) in respect of the “increasing body of evidence showing that inaccurate
2 Notes of Evidence, Police v Sharpe, Sergeant Banfield at 9.
identification evidence has been responsible for a number of miscarriages of justice”.3 The Court of Appeal in that case framed s 45(2) as a threshold:4
The emphasis in s 45(2) (and indeed in s 45(1) also) is on whether the evidence is such that it would be legitimate for the jury to rely on it. This is a threshold question and it was not intended that the judge usurp the function of the jury by determining whether the identification was in fact accurate.
[13] Similarly, the Supreme Court in Harney v Police stated that s 45(2) evidence will be inadmissible unless it can be established to the specified standard of proof that:5
… the surrounding circumstances were conducive to an accurate identification so that, if the jury believes the evidence of the witness, they can properly rely upon it.
[14] However, the Court of Appeal in Moala v R questioned the characterisation of the s 45(2) obligation as a ‘threshold’, because this is suggestive of a lower standard of proof.6
[15] The Supreme Court in Harney also noted that although under s 45(1) other evidence in a case that affects the accuracy of the identification can be raised, under s 45(2) only the ‘circumstances in which the identification was made’ can be considered.7 Other corroborating evidence that indicates the defendant was the offender is not relevant.8
[16]The circumstances that can be considered include:9
(a)Internal factors, such as the witnesses’ eyesight or knowledge of the offender;
3 R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [33].
4 At [105].
5 Harney v Police [2011] NZSC 107 at [22].
6 Moala v R [2018] NZCA 488, at [38].
7 Harney v Police, above n 5, at [32].
8 Crichton v R [2017] NZCA 301 at [12].
9 As set out in Simon France (ed) Adams on Criminal Law - Evidence (online ed, Thomson Reuters) at [EA45.11(4)].
(b)External factors such as the lighting or any obstruction to the witnesses’ view;
(c)The means of collecting the identification evidence;
(d)Witness confidence.
Respondent’s submissions
[17] Both counsel in this case acknowledge that s 45(2) applies, because no formal procedure was undertaken and there was no good reason for the failure to follow one.
[18] The Respondent referred to the Harney discussion of the standard of proof as outlined above.10 The Respondent submitted the following as the circumstances that led to the identification:
(a)Internal factors:
(i)Sergeant Banfield was an off-duty police officer at the time he made his observation;
(ii)He does not require spectacles to correct his vision, only for reading;
(iii)He committed to memory the plate number, the distinctive bonnet of the vehicle being driven and a description of the driver.
(b)External factors:
(i)Sergeant Banfield was certain that the road dry and it had not been raining;
(ii)It was approximately 4.14 pm on a Sunday;
10 Harney v Police, above n 5, at [22].
(iii)Sergeant Banfield described his visibility as ‘perfect’ and said he could see all the way down the end of the street;
(iv)Sergeant Banfield said he was half the road’s width, maybe 10 metres, away from the vehicle when he made this observation;
(v)The speed at which he drove past the vehicle was “no more than maybe” 20 kilometres an hour;
(vi)At the time the vehicles passed each other, it can be inferred there would have been nothing obstructing his view.
[19] The Respondent noted that in Harney, the confidence with which the witness made the identification must be treated as one of the circumstances under both s 45(1) and s 45(2).11 The Respondent submitted that the confidence with which Sergeant Banfield made his identification is important. In his evidence, he stated: “I looked and I could see quite clearly who the driver was…”; “as soon as I saw him I recognised him as the driver”; “I have definitely got the right person. I have no doubt in my mind that he is the right person.”
[20] The respondent submitted that the circumstances in which the identification was made by Sergeant Banfield, together with his level of confidence, produced a reliable identification. The respondent also noted that this was the conclusion of the District Court Judge, on the basis of the Sergeant’s expertise as a trained police officer, his familiarity in observing vehicles and the fact he probably drives every day as part of his normal role.
Appellant’s Submissions
[21] Counsel for the appellant accepted that whilst the absence of a formal procedure does not definitely make evidence inadmissible, the argument for admissibility is harder to make.12
11 Harney v Police, above n 5, at [33].
12 Harney v Police, above n 5, at [21].
[22]Counsel accepted the following factors would be favourable to identification:
(a)It was daylight, at 4.30pm;
(b)It was not raining;
(c)There was nothing obstructing the view of the stationary suspect vehicle as the witness drove past;
(d)The distance between the vehicles as the witness drove past was one half of the width of the road.
[23] Counsel submitted the following factors counted against Sergeant Banfield’s identification:
(a)Sergeant Banfield did not know the appellant and had not met him previously;
(b)Sergeant Banfield’s opportunity to observe the driver was subject to the following limitations:
(i)He was driving a moving vehicle, travelling at 20 kilometres per hour past the suspect’s stationary vehicle;
(ii)As he looked at the stationary vehicle, his attention was divided between different interests:
1. He observed the registration number and committed it to memory;
2. He made general observations about the vehicle;
3. He looked into the vehicle and saw a driver and possibly a passenger or two.
(iii)Sergeant Banfield’s opportunity to view the driver could only have been momentary and was competing with other observations that were being made;
(c)Sergeant Banfield described the driver as Male Māori with a scruffy beard. The appellant is not Māori and does not look like he is Māori, although he did have a beard.
[24] Counsel for the appellant submitted that overall these factors do not favour admissibility.
[25] Counsel for the appellant discussed Sergeant Banfield’s high degree of confidence in his identification of the appellant as the driver. The Supreme Court in Harney counselled that Judges should proceed with caution about placing too much weight on a witness’ confidence, even when that witness is a Police Officer: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. Certainly, as the President said in the Court of Appeal, the confidence level of the witness cannot, in itself, satisfy a reliability test.
[26] The appellants submitted that Harney involved a similar set of circumstances to this case. In that case, a Constable was in a stationary vehicle and was passed by a distinctive vehicle. Twenty minutes later, the same vehicle turned in front of him (within 15 metres of him). The constable claimed he recognised the driver as the defendant on the second occasion, from two previous dealings with the defendant years earlier. The Constable was “very sure” the defendant was the driver. No formal identification process was undertaken. The evidence was ruled admissible in the lower Court. It was not accepted by the Supreme Court. The Court concluded the case by saying that:14
The expression of confidence by the constable (that he was “very sure”) was nowhere near enough to satisfy that burden when only an inadequate account had been given by him of how he was able to recognise the defendant, and the circumstances of the purported recognition were not particularly favourable to a reliable identification.
13 Harney v Police, above n 5, at [33].
14 Harney v Police, above n 5, at [38].
[27] The Supreme Court described the opportunity to observe the suspect as “fleeting”. In that case, the Constable had previous dealings with the Defendant, but here Sergeant Banfield did not know the defendant. Further, Counsel submitted that the description of the driver Māori, when the appellant is not, is not of particular concern. The degree of confidence that the witness expressed at trial does not provide any comfort and indeed should be viewed with caution.
[28] Counsel for the appellant submitted that the prosecution had not established beyond reasonable doubt that the circumstances in which identification was made produced a reliable identification and the evidence is therefore inadmissible.
Analysis
[29] The circumstances of this case relate directly to the warning of the Court of Appeal in R v Edmonds:15
The concern is that identification evidence, particularly of strangers after a “fleeting glance”, is notoriously unreliable but that juries put inordinate weight on it and have difficulty assessing the reliability of such evidence.
[30] In my view, the circumstances of this case do not reach the high standard of proving beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification. Here Sergeant Banfield meets the classic description of a witness who, with no prior knowledge of a defendant and after no more than a fleeting glance at an offender, becomes convinced the two are one and the same. In this regard the present circumstances are different from those in R v Moala where the identification evidence could pass the s 45(2) threshold because the two identification witnesses had sufficient exchange with and were sufficiently proximate to the offender to be able to become familiar with his visual appearance.16 The same cannot be said here. In particular the following circumstances prevent the prosecution from meeting the s 45(2) standard:
(a)Sergeant Banfield only had a brief opportunity to identify the driver;
15 R v Edmonds, above n 3, at [33].
16 Moala v The Queen, above n 6, at [44].
(b)He had not met the appellant before;
(c)A key part of his description of the driver (as Māori) did not apply to the appellant.
[31] Sergeant Banfield’s confidence in his assertion that the appellant was the driver is relevant. However, bearing in mind the warning set out in Harney, too much importance should not be placed on his confidence. As in that case, Sergeant Banfield’s confidence is not enough to satisfy the burden of proof.
[32] Accordingly, I was satisfied the identification evidence could not meet the reliability requirements of s 45(2) of the Evidence Act and so it should have been excluded at trial. As the respondent had no case against Mr Sharpe without the identification evidence it necessarily followed that the conviction could not be sustained. The appeal had to be allowed and the conviction set aside.
Result
[33] The appeal against conviction was allowed. The conviction entered against Mr Sharpe in the District Court was set aside.
Duffy J
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