T v Police HC Dunedin CRI 2010-412-13

[2010] NZHC 1030

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND DUNEDIN REGISTRY

CRI 2010-412-13

BETWEEN  T

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         14 May 2010

Counsel:         I Stewart for Appellant

R D Smith for Respondent

Judgment:      14 May 2010

ORAL JUDGMENT OF MILLER J

[1]      Mr T   appeals his convictions, after trial before a Judge alone, for assault and assault with intent to injure.  The issue is identity.

[2]      The victims, Mr Dick and Mr Duffy, were walking along George Street on 13

June 2009 when they met two men, apparently Mongrel Mob members.  Mr Duffy was punched in the face then kicked heavily in the back and legs.   Mr Dick was punched when he intervened.

[3]      It was the police case that the appellant, who has prominent facial tattoos, actually inflicted the blows.  They called the two victims and two other witnesses to the incident, Messrs Clark and Blanchard.  Mr Dick could remember nothing, and there was some conflict among the other three witnesses.   The preponderance of evidence  was  that  the  man  with  facial  tattoos  did  the  punching  and  kicking. However, he was also said to be wearing a patch.  The appellant and the co-offender

were apprehended driving a car identified by Mr Clark and Mr Duffy.  The police

T V NEW ZEALAND POLICE HC DUN CRI 2010-412-13  14 May 2010

found the appellant wearing a leather jacket, but no patch, and a red bandana, while the co-offender, Mr Karetu, wore a patch but no tattoos.

[4]      As  I have  said,  there  was  some  conflict  among  the  witnesses  about  the identifying details and which man committed the assaults.  Mr Duffy said that the two attacks were carried out by different men, while Messrs Clark and Blanchard, who were driving slowly by in a car and stopped when they saw the incident, were clear that the same man was involved.

[5]      There was also a conflict over whether the tattooed man wore a gang patch. Mr Duffy thought that while his attacker, who had spoken to him, was tattooed he did  not  have  a  patch.    He  also  identified  the  appellant  from  a  photomontage. However, in his original statement to the police he said the man had a patch.  Again, Messrs Clark and Blanchard thought the attacker wore a patch, although both were perhaps less certain about that than they were about the tattoos.  Mr Clark identified the appellant from a photomontage.   Mr Karetu was never charged because the witnesses did not identify him from the photomontage.

[6]      Also referred to in evidence although not produced, were CCTV images showing two men near the scene, one with a patch and one without.  It was common ground that the man without a patch was Mr T  , who was also seen wearing a red bandana.

[7]      The Judge identified the issue and reminded himself of the need for care when evaluating eyewitness evidence.  He found Mr Clark reliable and credible, and Mr Blanchard, who did not see a second person with the attacker, somewhat less reliable.  The lighting was good, and the view reasonably close.  He acknowledged that the police found Mr Karetu wearing a patch while the appellant was not, but the evidence  as  a  whole  satisfied  him  that  the  attacker  could  only  have  been  the appellant.

[8]      The appellant’s submission is, in short, that the contradictory eyewitness evidence cannot establish identity beyond reasonable doubt.   The patched man identified as the assailant was plainly not Mr T  .   Indeed, the Judge adjourned

after hearing the evidence, commenting that the eyewitness evidence was a matter of concern, especially since no one had mentioned the red bandana.

[9]      The last observation merely demonstrates, however, that the Judge was alive to all the weaknesses of the eyewitness evidence.   Eyewitness warnings are given because it is easy for witnesses to err in their recollection.  For the same reason, it is not uncommon for eyewitnesses to contradict one another in some particulars.  The mere existence of a contradiction cannot establish reasonable doubt in itself;   the proposition that it does assumes all eyewitness evidence is of equal weight.   The finder of fact must evaluate the quality of the evidence before reaching a decision. In this case the Judge did so, rejecting Mr Duffy’s evidence as less reliable than that of the other eyewitnesses.  It cannot be said that he erred in reaching that conclusion.

[10]   Ms Stewart also sought to persuade me that the evidence of the other eyewitnesses was unreliable because it failed to mention a given particular of the evidence or was inconsistent with other evidence.  For example, she pointed out that Mr Clark, the witness found most reliable by the Judge, acknowledged saying to the police that the man with the patch committed both assaults.  However he confirmed in his evidence that that was not correct.   She also pointed out that Mr Clark had been driving a car and cannot have seen the entire incident.

[11]     It  is  true  that  the  appellant  is  entitled  to  this Court’s  assessment  of  the evidence.  But in making that assessment the Court must be alive to the advantages enjoyed by the trial Judge.  In a case such as this those advantages are considerable. Further, it is for the appellant to show that the Judge was wrong.  Despite all that Ms Stewart was able to say, the striking feature of the evidence is that Mr T  , the only tattooed man, was clearly identified by a reliable witness as the assailant in both cases.   The tattoo was the most distinctive identifying feature.   All of the issues about reliability were before the Judge, and it is impossible to say that he might not prefer the evidence of Mr Clark, corroborated as it was in its essential particulars by that of Mr Blanchard and indeed, that of Mr Duffy.

[12]     The appeal is dismissed.

Miller J

Solicitors:

Anja Klinkert Lawyers, Dunedin for Appellant

Crown Solicitor’s Office, Dunedin for Respondent