The Queen v Tuporo
[2006] NZCA 336
•5 December 2006
IN THE COURT OF APPEAL OF NEW ZEALAND
CA172/06
THE QUEEN
v
BRIAN TUPORO
Hearing:26 October 2006
Court:Robertson, John Hansen and Goddard JJ
Counsel:C J Tennet for Appellant
K B F Hastie for Crown
Judgment:5 December 2006 at 3 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
Introduction
[1] The appellant was convicted of one count of burglary by a jury in the District Court at Manukau and sentenced to three years imprisonment. He now appeals against conviction on the basis that a substantial miscarriage of justice has occurred, citing four grounds of appeal. Each ground is argued as a separate matter but also in the alternative as an aggregate of errors leading to the conclusion that a retrial is necessary.
[2] The first ground concerns a pretrial ruling permitting evidence of identification of the appellant by the complainant from a photo montage; the second is the refusal of the trial Judge, Judge Epati, to order a mistrial following opinion evidence by a scene of crime officer as to the age of fingerprints; the third and fourth grounds allege errors by the Judge in directing the jury on the expert evidence and on the correct approach to the identification evidence and the standard of proof to be applied when assessing that identification evidence.
Background
[3] On 10 June 2003 the complainant was at his rural property in Mill Road, Takanini. As he walked back towards his house from a paddock he saw a utility vehicle parked in the driveway. He said he was “completely flabbergasted” to see a vehicle there because the entrance gates to the property were electronically controlled and he could not understand how it had entered his property. As he approached he saw that the back window of the vehicle was up and a male person was standing beside it, who the complainant described in his evidence in chief as much younger than him (he is 62 years), somewhat shorter than him and bodily much larger and heavier than him. He said he was Maori, part-Maori or Pacific Island.
[4] The complainant immediately dialled 111 on his cell phone and reported the registration number of the vehicle and gave a description of the person. He said he then realised there was a second person present, who he described as “relatively short, very thin and – difficult to say the age but could well have been a young teenager”.
[5] At that point the larger of the two men yelled out for them to “scarper” and jumped into the car. The younger thinner man followed suit and they drove off at speed. The complainant, who had initially kept a safe distance because he felt that if the larger man had got hold of him he would have thrown him around like a “rag doll,” was at the front of the car checking the registration number and had to jump out of the way as they drove off. At some stage, he said, he had got “very close up” and was “right beside the driver so I could see him in profile”.
[6] Under cross-examination, the complainant agreed that in his statement to the police that same day, he had described the larger of the two men, who he confirmed as the driver of the vehicle, as “a rather large male Maori, possibly late teens or early twenties” and “approximately 5 foot 10 inches” in height. He told the police he would recognise that man again.
[7] After discovering that various items had been stolen from an office in his house, the complainant examined the electronic gates at the entrance to the property but without touching them because he was expecting the police to take fingerprints. He found the gate was very damaged on the right-hand side, as the result of being forced open manually and that the gate on the left-hand side had also been forced half open. Later that day three palm prints were successfully lifted from the gates by a senior crime officer, one from the top rail of the right-hand gate. This print was later identified as having come from the left palm of the appellant and a second lift, found on the top of an upright prong on the right-hand gate, was identified as having come from the appellant’s right palm.
[8] This print identification was made some two years later and as a result the police officer assigned to the case, Constable Richards, had a photo montage prepared comprising a photograph of the appellant and photographs of seven other persons of similar size and appearance to him, all standing against a similar background. Constable Richards attempted to contact the complainant to show him the photo montage but before he could do so the appellant was arrested. Two days later Constable Richards did contact the complainant and on 29 June 2005 showed him the photo montage. The complainant was told that the suspect or person responsible for the burglary might or might not be depicted in the montage and after studying the photographs for one to two minutes, said “if I had to choose one, it would be one or four but it was a long time ago, they’re both full in the face”. The appellant’s photograph was number four in the montage.
[9] At a pre-trial hearing Judge Wade ruled that the evidence of the photo montage identification was probative and properly admissible but that a dock identification subsequently made by the complainant at the depositions hearing should not be repeated at the trial. The Judge’s reasoning in relation to the photo montage identification was as follows:
[8] It was submitted to me that I should also exclude any evidence of the showing of a photo board to Mr Rawnsley. The normal prejudicial effect of such evidence is that the jury might assume from the fact that the police had the accused’s photograph meant he had a prior conviction. However, in the instant case the showing of the photo board to Mr Rawnsley took place after the accused had been arrested. As part of the standard procedure on processing following arrest, the accused would have been photographed at that time. The defence, if it thinks appropriate, could adduce that evidence of the photographing of the accused upon his arrest so that the jury would naturally assume that was the photograph used in the photo board montage so that there would be no prejudice to the accused by the admission of such evidence.
[9] Although the Crown does have positive identification of the accused’s fingerprint, as its location was on the gate of the property to which the public had access and not an internal part of the dwelling the leading of the evidence of the photo board would be relevant to rebut any suggestion that the accused’s fingerprints came to be on the gate on some earlier innocent occasion.
First ground of appeal - the admission of the identification evidence
[10] Mr Tennet submitted that Judge Wade had erred in fact and law in admitting the identification evidence for a number of reasons: because of the length of time that had elapsed between the complainant’s sighting of the intruders and his identification of the appellant from the photo montage; because the complainant’s original identification had been of a man of five foot ten inches and the appellant is five foot six inches; and because the selection of two photographs from the montage made the identification so unsafe that it ought to have been withdrawn from the jury.
[11] The main thrust of his criticism was directed to the alleged discrepancy between the description the complainant gave of the appellant at the time he made his statement to the police and the appellant’s physical characteristics; in essence the height differential.
[12] Mr Tennet was also critical of the need for a photo identification, once the palm prints had been identified as the appellant’s and he had been arrested. He also queried why a photo montage had been used in the first instance, rather than an identification parade. He submitted that there should have been resort to a photo montage only if an identification parade proved unsuccessful. However, the decision in R v Hicks (1992) 8 CRNZ 73 (CA) upon which he relied as authority for the proposition that photographic identification should only be employed during the investigative stage and not after arrest, is not apposite to the present case and turned on its particular facts. Nor does it establish the proposition for which Mr Tennet contended. The correct approach in any case concerning an identification methodology is to ask whether the process employed was fair or was slanted and whether there is a risk that the evidence obtained may have a prejudicial effect that outweighs its probative value. The applicable principles remain as discussed by this Court in R v Tamihere(No 2) [1991] 1 NZLR 195.
[13] In the appellant’s case we see no unfairness in the use of a photo montage. At the time the photo board was prepared the appellant had not been located and so could not be asked to take part in an identification parade. His arrest, two days later, did not preclude the use of the photo montage that had been prepared. The only issue is whether the photo montage and the manner of its presentation was fair.
[14] The inclusion of seven photographs of men of similar appearance to the appellant in the photo montage, all photographed against similar backgrounds, was a fair methodology. Moreover, the manner in which the photo montage was presented to the complainant and he was invited to comment was unexceptional. There was therefore no inherent risk in the compilation of the photo montage or the manner of its presentation to predispose the complainant to select the appellant’s photograph. The evidence obtained was properly admissible and the weight to be attached to that evidence was a matter for the jury to assess.
[15] Likewise, the effect of any uncertainty on the complainant’s part as to which of two photographs might have been of the appellant was for the jury to weigh. This was not a case which depended solely on the identification evidence of the complainant. There was also the palm print evidence so that, as Ms Hastie submitted, the fact that the complainant pointed to two of the photographs is far less concerning and, in the circumstances, arguably more probative than might otherwise be the case, given the statistical improbability of both sources of identification evidence being a coincidence.
[16] The effect of the length of time between the complainant’s sighting of the two men and his being shown the photo montage was again a matter for the jury to assess. The length of time resulted from the appellant not becoming a suspect until the palm print identifications were made. It was not the result of any unreasonable delay on the part of the police. The jury were aware of the lapse of time and of the defence criticisms arising from it.
[17] This leaves the alleged discrepancy in the height description given by the complainant to the police on the day of the burglary and in Court at trial. That was eminently a jury issue. As is evident from the transcript of evidence, Mr Tennet cross-examined vigorously and extensively on the matter. It is clear from the express reference to it in the summing-up that he also closed comprehensively to the jury on the issue. We see no reason for concern over the safety of the verdict arising from this or any of the other aspects advanced under this head.
The fingerprint evidence
[18] The second ground of appeal concerns a passage of evidence given by the non-sworn senior crime officer who located and lifted the palm prints from the entrance gates to the property. During the course of her evidence-in-chief the officer, Ms Rasmussen, was asked about the life expectancy of a set of prints like those she had found and gave the following evidence:
At the moment there is no scientific way of giving an exact time frame from when the prints were placed there. However, given that these prints were located on a gate that is exposed to the weather what wouldn’t be a long time at all.
What do you mean by not a long time at all? Days, months, weeks, years?….. It would depend on the weather at the time. It was June so that was winter so probably until the next time there was a lot of moisture in the air and they would have been washed away. Very misty in that area as well especially in the mornings.
[19] Mr Tennet objected to the expression of opinion in the above evidence and the prosecutor accepted that the evidence went beyond the bounds of Ms Rasmussen’s knowledge and pursued the topic no further. Mr Tennet then cross-examined Ms Rasmussen vigorously about her qualification to express an opinion in relation to the “staying power of fingerprints on specific surfaces”. She outlined the professional courses she had undertaken and accepted that although the topic had been discussed in lectures her opinion was based more on her experience in the field which taught her that prints can last for a long time in an ideal situation but will be washed away by rain. She accepted that she could not identify the length of time that prints can last for on any surface. In re-examination she said her training had included a general explanation as to how long fingerprints might last and this is based on the fact that they are mostly sweat and sweat is 98% water.
[20] The Crown next called the fingerprint officer who made the comparison between the palm prints lifted from the gates and the appellant’s prints on his fingerprint form. Having analysed, compared and re-evaluated his comparison and then had his conclusion verified by two other experts he was, he said, “quite assured that the prints at the scene and the prints on the fingerprint form are one and the same person”.
[21] He was then asked about the life expectancy of a fingerprint. He said this depended on the exposure of the print to climatic conditions, where the print is made and when it is made and also whether it is made on the inside or exterior of a surface. He said that prints on the outside of a residence or a vehicle tend not to last as long as a print in the interior of a house or car and that it is mostly weather conditions that cause deterioration in a print: sunlight will dry up a print and constant rain can wash away a print. The officer said his knowledge of these matters had been acquired through training, from tests conducted and conclusions drawn, and from his experience in the field.
[22] At the conclusion of his evidence-in-chief, Mr Tennet sought to have a mistrial ordered on the grounds that Ms Rasmussen had not been qualified to express a view on the life expectancy of the palm prints she had lifted from the entrance gates and this evidence was highly prejudicial. He said her evidence had forced the defence to use the fingerprint officer (who he acknowledged to be an expert) “as a ‘friendly’ witness to undo her damaging testimony, thereby undermining cross-examination of him (in his own right)”. Mr Tennet was also critical of the fact that Ms Rasmussen’s expression of opinion had not been included in her brief of evidence and thus had been led without warning.
[23] Judge Epati declined to order a mistrial on the grounds that any issue over Ms Rasmussen’s expertise and the adequacy of her evidence could be adequately addressed on to the jury and would be a matter of weight for them. The Judge also declined an application not to permit the prosecutor to re-examine the fingerprint officer.
[24] We find no miscarriage of justice in what occurred. The bulk of Ms Rasmussen’s evidence was within her knowledge and experience as a senior crime officer. Her observation that fingerprints will be affected by adverse weather conditions was, as Ms Hastie submitted, a reasoned comment and she explained the basis for her reasoning; for example, the composition of fingerprints. Any deficit in her ability to express an opinion on the life expectancy of prints was in any case cured by the fingerprint officer, whose qualifications could not be challenged, and who gave evidence directly on the issue that did not conflict with Ms Rasmussen’s unqualified opinion. Therefore it cannot be said that the criticised portion of her evidence caused any prejudice to the appellant. In any event, as Judge Epati said in his ruling and later when summing-up to the jury, the relative expertise of both witnesses was a matter for the jury to consider in determining what weight to give to their evidence.
Errors in summing-up
[25] Under this head Mr Tennet submitted that Judge Epati had erred in directing the jury about the nature of the expert evidence on the correct approach to take to the identification evidence and on the standard of proof to be applied when assessing that identification evidence.
[26] In relation to expert evidence, Mr Tennet submitted that the directions given by Judge Epati were inadequate, in that he failed to outline the criteria for expert evidence, as set out by this Court in R v Carter CA155/05 19 December 2005. He said Judge Epati also failed to warn the jury as to the use they might make of the opinion evidence and as to the limits of opinion evidence. Specifically, he submitted that the Judge should have given a warning about Ms Rasmussen’s evidence as not conforming to the standards required for expert evidence and have invited them to put it totally to one side.
[27] We find no substance in these criticisms. The Judge gave the jury the standard advice about the nature of expert evidence, including the advice that expert opinion evidence can be given about matters within an area of expertise that is outside of most people’s general knowledge. He directed the jury that, in assessing the evidence of the two expert witnesses called, they must have regard to the qualifications and experience of each and he reminded them that both witnesses were asked questions about their respective qualifications and experience. He directed the jury to think about that and to assess those matters and directed them that they did not have to accept the evidence. He reminded them of Mr Tennet’s closing submission (in Carter terms) on the issue:
… that you should not regard [the evidence] as worthy of being taken into account because as he had listed points to you which I shall not repeat, he was full and he covered all of those that they are not so expert as they seem to be and also with regard to those matters that he submitted to you yesterday.
[28] In the context of a short trial where there has been extensive cross-examination of the expert witnesses and overt criticism of them in Mr Tennet’s closing address, the Judge’s directions were adequate. The jury would have been under no misapprehension about the parameters in which the expert evidence was to be considered or of their ability to reject that evidence if they wished.
[29] In relation to the Judge’s directions on the approach to be taken to the identification evidence, and the standard of proof to be applied in assessing that evidence, Mr Tennet submitted that the Judge dealt inadequately with the dangers generally associated with eyewitness evidence and did not advert to or comment on the particular inadequacies in the complainant’s identification evidence, which he submitted had merited a strong warning.
[30] Mr Tennet thought there should also have been a direction on reasonable doubt as part of the discussion of the risks associated with eyewitness evidence (in accordance with the indication of this Court in R v Wanhalla CA321/05, 324/05 24 August 2006 at [49] and [51]), as this was a critical aspect of the trial.
[31] Again we observe that this was a short trial in which the issues were clear and were well-covered by the Judge in his summing-up. His directions on the contested issue of identification occupied a substantial part of the summing-up and he began by reminding the jury that the credibility of the complainant was under attack and there was criticism of his uncertainty in picking two photographs from the montage. He reminded the jury of what each counsel had to say about those matters in their closing addresses and then directed them as follows:
That brings me to talk to you about how you consider evidence of identification.
With regard to identification, any identification, when somebody says that is the person, and this applies to Mr Rawnsley identifying the photographs you need to consider what the Crown relies upon as the accuracy of the identification of the accused. The defence contends that that identification is mistaken or unreliable. This is where Mr Tennet made a lot of cross-examination about the difference in heights, about the general description of the identification. When that is so the law requires me to warn you, now the word is warning. I must warn you of the special need for care before relying on identification evidence as the basis for a conviction. The reason for that is that experience has shown that it is quite possible for a perfectly honest witness to be mistaken about identification. That is something which you would not, from your experiences in everyday life. An honest witness who is convinced of the accuracy of what he says may well come across as very convincing but may still be mistaken. Now bear in mind that sometimes we all make mistakes in thinking that we recognise people, even those we do know very well. That is not to say that you cannot rely on identification evidence, of course you may, but you need to be careful in deciding whether the evidence is good enough to be relied upon.
I suggest that you think about the circumstances under which the witness saw the person at the time. For instance, how long did the witness have the person under observation? At what distance did he see the person? What was the lighting like? Was there anything that physically impeded his observation? Had the witness ever seen the person before? If he knew the person, how well? Was there anything about the situation that would cause him to take particular note of the person? How long elapsed between the event and any subsequent sighting or the identification of the person, that is between the time Rawnsley saw him at the property and the time he looked at the photographs and identified the accused? If a description was given at the time, how soon after and how well did it match the accused?
Now think about those sorts of issues carefully to see if you can rely upon the evidence of identification. Think of how Rawnsley gave his evidence to you and also take into account what Mr Tennet had submitted to you as being the discrepancies and the unreliability, as he says, of the evidence of Mr Rawnsley with regard to those things and with regard to his evidence in general.
[32] As is evident from this passage, the directions Judge Epati gave about the risks associated with eyewitness evidence encompassed all of the necessary elements of the warning required by s 344D of the Crimes Act 1961 and contain no errors. Those directions were adequately tailored to the features of the appellant’s case. They included references to the discrepancy in the complainant’s description of the height of the driver of the vehicle, and the lapse of time between the sighting of the driver and the complainant’s selection of two photographs from the photo montage. There is no basis for asserting there was a miscarriage of justice in this aspect either.
Conclusion
[33] The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
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