T v Police HC Wellington CRI-2006-485-130

[2007] NZHC 160

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2006-485-130

BETWEEN  T

Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         13 March 2007

Appearances: S Insley for Appellant

N L K Stone for Respondent

Judgment:      15 March 2007

In accordance with r540(4) I direct the Registrar to endorse this judgment with the delivery time of 2.30pm on the 15th day of March 2007.

RESERVED JUDGMENT OF GENDALL J

[1]      This  is  an  appeal  against  a  conviction  entered  in  the  District  Court  at

Wellington on two charges of assault, which were alleged to have occurred on

20 April 2006.

[2]      The   appeal   turns   upon   the   contention   that   District   Court   Judge T J Broadmore erred in his conclusion that the identification of the appellant had been established beyond reasonable doubt, in respect of the charges of assault on the two complainants.

[3]      Counsel submitted that the identification evidence was inherently unreliable, and that the Judge erred in failing to direct himself as to the law required by s67A of

the Summary Proceedings Act 1957, namely that in cases where identity is disputed:

T V NEW ZEALAND POLICE HC WN CRI-2006-485-130  15 March 2007

“the Court shall bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, the possibility that the witness may be mistaken.”

Evidence in the District Court

[4]      The appellant was charged that he assaulted two separate complainants on the night of 19-20 April 2006 whilst grossly intoxicated.  The alleged events occurred in the early hours of the morning of 20 April 2006 outside a bar in Courtnay Place, Wellington.  The evidence of one complainant was that the appellant punched him in the side of the head, whilst about 1-2 metres away.  The aggressor had not previously been seen by the complainant, but he described him as a medium height, well-built Polynesian, dark haired, with “dreads”.   That complainant’s evidence was that the same person then proceeded to strike a friend of his, breaking his glasses in the process.   The witness observed the attack from a distance of about 20-30 metres. The police were then rung by another friend.  The two complainants and two others then followed the assailant down the street for about two blocks.  They observed him to cross the footpath and stand outside a bar where he stood for about two to three minutes.  They saw him enter a bar where he remained for 10 minutes “at most”. There was evidence that one of the group asked a doorman at that bar to detain the man inside until the police arrived.  The evidence was that when the police arrived members of the group including the two complainants pointed the assailant out to the officers.

[5]      The first complainant struck in the face, apart from describing the assailant as set out above – and saying that he was the same person who later hit his friend – did not identify the appellant in Court.  He said that “we pointed him out to the cops” at the scene, and they apprehended him.

[6]      In re-examination this complainant said:

“Q.Now just regarding the person who hit you that you followed, how sure are you that the person who hit you is the same person the police later apprehended?

A.        100 percent. There was four of us following him the whole time and he was staggering most of the time so we were quite – yeah.  We kept, like, 10 or so steps behind him but yeah, no, 100 percent sure.”

[7]      The complainant who was the subject of the second assault described the person as “looking like” the appellant, and he identified him in Court.  The witness had approached the assailant to ask what he was doing, but was then struck in the face with a hard hit.  He said that he had not known the person before but recognised who had assaulted him.  His evidence was that he, together with the first complainant and two friends, followed the assailant down Courtnay Place from what they described as “a safe distance” namely about 10-15 metres.  The police were called and after about 15 minutes they arrived, and the witness said “we” pointed the man out to the police.  In evidence in chief he said that he was positive that the person who punched him was the person pointed out to the police, and taken away.  There is no doubt that the appellant was the person arrested.

[8]      A third prosecution witness was another member of the group which included the two complainants.   He identified the appellant in Court.   He described him hitting both of the complainants and engaged in some conversation with the assailant who said that he wished to hit one of the complainants just because he “felt like it”. He  described  the  assaults  upon  two  of  his  friends  and  how  they  followed  the appellant down Courtnay Place until the police arrived.  He observed the arrest and said that he was “sure” that the person  arrested was the same person who had assaulted his two friends.   He described him as having “dreads, a bit overweight and…I think he was a Polynesian actually”.

[9]      A fourth prosecution witness was another friend of the two complainants.  He described the assaults in broad terms and said that the assailant was “a Polynesian man with dreadlocks” who he had not seen since that night but would recognise him again and then proceeded to make  a dock identification.   In cross-examination, however, he went further and said that he saw the police arrest the assailant near the St James Theatre in Courtnay Place, but when asked how sure he was that the person who hit his friends was the same person he saw to be arrested his answer was “not entirely sure”.

[10]   A police constable who arrested the appellant, gave evidence that the complainants pointed out a man leaning against the side of a bar in Courtnay Place, and that person was the appellant.  He was therefore identified by the complainants

to the police at the scene that evening.   He was arrested and, naturally, was the appellant who was in Court.   When arrested, the approach of the appellant was described by the constable as follows:

“He got extremely agitated.  He squared his shoulders up, tensed his body up, clenched his fists and at this stage I believed he was about to assault me so I immediately arrested him for the previous assaults.  I placed handcuffs on him and he said something along the lines of, do you want to have a go, nigger? or something like that.”

[11]     He was placed in the back of a patrol car but according to the constable engaged in a “sort of gangster type drawl”.  He was then given his rights under the New Zealand Bill of Rights Act 1990 but was in an agitated state, quite intoxicated and refused or was unable to make any statement or explanation then.   He was described as being very intoxicated.

[12]     The appellant gave evidence to the effect that he had been to a wedding reception at which he had left about 9.00pm or 10.00pm, he went to Courtnay Place but remembered “nothing really” thereafter until he was awoken by friends.   His evidence  was  that  he  could  not  remember  what  he  was  wearing  but  had  been drinking at the wedding and was intoxicated.  He said he did not remember being arrested by the police officer nor waking up in the cells.  When advised that he was alleged to have punched two people he said that he did not remember anything like that happening.

Decision of District Court Judge

[13]     Judge T J Broadmore, when finding the charge proved in an oral judgment, said that he was not going to deliver a lengthy judgment because the only issue was one of identity.  The Judge said that he reflected on the evidence of identity and was satisfied beyond any reasonable doubt that the appellant was identified as the assailant.  The Judge said:

“The totality of the evidence, without analysing each witnesses’ evidence in detail, satisfies me to the requisite extent that it was indeed the defendant who assaulted the complainant.  I therefore find the charge proved.”

[14]     That was an economical decision, but it belies the fact that, prior to delivering it, the Judge heard submissions from both counsel for the informant and appellant. The appellant’s counsel said:

“The need for caution Sir in relation to ID evidence, because it’s inherently unreliable and it’s my submission Sir the police haven’t proven the case beyond reasonable doubt.”

Counsel gave reasons why, in her submission, the evidence did not amount to that proof.

[15]     Counsel  for  the  prosecution  submitted  all  witnesses  minus  one  were completely sure that the person who assaulted them or their friends was the same person they followed, he was arrested by the police and was in Court.  The transcript records the Judge as saying:

“Well I’m not going to deliver a lengthy judgment because the only issue in the case is identity.  I listened to what [defendant’s counsel] has said about that.   I had reflected on the evidence of identity during the course of the prosecution case.   I am satisfied beyond any reasonable doubt that the defendant in Court today has been satisfactorily identified as the person who assaulted the two complainants.   The totality evidence without analysing each witnesses’ evidence in detail, satisfies me to the requisite extent that it was indeed the defendant who assaulted the complainants and I therefore find both charges proved.”

Submissions on appeal

[16]     Ms Insley on behalf of the appellant contended that the Judge failed in law to direct himself as required under s67A of the Summary Proceedings Act 1957.  She said that the possibility of “displacement” in the identification process existed given the lapse of time when it was said the complainant and the two friends lost sight of the aggressor (10 minutes) was significant.   She submitted that in line with the decisions of Wilson v Ministry of Transport AP5/90 HC GIS 21 August 1990

Thomas J;   Vaughn v Police AP131/00 HC WN 21 August 2000 Heron J and Wilson v Police AP88/02 HC HAM 18 December 2002 Heath J it is not enough for a Judge merely to mention s67A but the caution must be embodied in the Judge’s assessment of the evidence and form an integral part of the Court’s reasoning in arriving at a decision.   She said the Judge erred by not reminding himself of the requisite statutory caution.

Discussion

[17]     The issue of s67A of the Summary Proceedings Act 1957 requirement was raised and presented in submissions by the appellant’s counsel to the Judge.  So it is abundantly clear that the Judge was aware of the need for caution.  He was told this by counsel immediately before giving his decision, and he said that he had listened to what she said about that.  That he was required to remind himself of the need for caution before convicting in reliance on identification evidence is a caution that is always given by Judges to juries in trials of indictable offences.  The caution is not given, as counsel said to the Judge, and in submissions to this Court because identification evidence is “inherently” unreliable.   In some cases it may be very reliable, but it all depends upon the nature and quality of the identification evidence and all the surrounding circumstances.   The reason that identification evidence requires  the  fact  finders to  be  warned  about  it  is  that  it  is  possible  for  honest witnesses to be mistaken about identification and people may make mistakes in thinking that they recognise others.  Of course, that does not mean a finder of fact, whether it be a jury or a Judge sitting alone, cannot rely on identification evidence but simply that the decision-maker needs to be careful in deciding whether the evidence is good or cogent enough as to be relied upon.  Identification evidence can take many forms, whether recognition evidence by one witness of a particular person or evidence of a number of witnesses all identifying a particular person;  or it may be evidence of a number of persons giving circumstantial evidence of identity in terms of clothing, description, general description and the like, which when put together in totality afford the sufficient proof beyond reasonable doubt.

[18]     In the present  case dock identification evidence was of little moment or weight.   But the crucial issue was the evidence that the assailant was observed to strike both complainants and was then followed and kept under observation by four witnesses.  He disappeared into a bar for about 10 minutes, whilst the four witnesses kept watch outside, and immediately identified him to the police when he emerged. In those circumstances the identification evidence was strong.   One witness was

100 percent sure that the assailant had been adequately pointed out to the police; another victim was “positive” that the police arrested the assailant;   and a third witness was “sure” as to his identification evidence, namely that the person arrested

was the same as the assailant.  The combined effect of those three witnesses and the surrounding circumstances where they kept the assailant under observation as they followed close by him, provided strong evidence upon which the Judge was entitled to convict.  If his decision did not provide any basis to indicate that he kept in mind the caution required by s67A, then the position might be different.  But it is clear that he was told of the need for caution and he said that he had listened to what he had been told, but nevertheless, having reflected on the evidence of identity, he was satisfied beyond reasonable doubt that the appellant had been satisfactorily identified as the assailant.

[19]     I do not think this is a case where the Judge was not alerted to the need for caution nor failed to bear this in mind.  Implicitly he heeded what he was told before reaching his decision.

[20]     I am satisfied by a wide margin that there was no error of law or approach in the manner the Judge reached his decision.  This was not a matter of identification based on hazy recollection some days, months thereafter or based upon a fleeting glimpse of a momentary event.  The evidence was based upon more than one witness identifying assaults in subsequent events over a significant period of time where the person they had under observation was identified as the appellant and, despite the short period when he was not in their view, nevertheless was immediately pointed out to the arresting police on their arrival.   The identification evidence was overwhelming and the conviction is not unsafe.  The appellant was rightly convicted and the appeal is dismissed.

…………………………………..

Solicitors:
S Insley, Porirua for Appellant

Crown Solicitor, Wellington for Respondent

J W Gendall J