Wamoana v Police
[2016] NZHC 55
•2 February 2016
ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED. IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY
CRI-2015-441-000048
[2016] NZHC 55
BETWEEN DEBDEN OSBOURNE WAMOANA
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 2 February 2016 Appearances:
M J Phelps for Appellant
M M Mitchell for Respondent
Judgment:
2 February 2016
(ORAL) JUDGMENT OF LANG J
[on appeal against pre-trial admissibility decision]
WAMOANA v NEW ZEALAND POLICE [2016] NZHC 55 [2 February 2016]
[1] Mr Wamoana faces a number of charges in the District Court. These include charges of assault, being found without reasonable excuse in an enclosed yard and entering buildings without authority. He has pleaded not guilty to all charges and has elected trial by Judge alone.
[2] On 11 December 2015, Judge Adeane ruled that the prosecution was entitled to adduce evidence relating to the visual identification of Mr Wamoana by several prosecution witnesses.1 Mr Wamoana now appeals against that decision.
Background
[3] All of the charges arise out of a series of events that occurred on 11 October 2015. On that date Mr Wamoana is said to have gone to a residential property in Hastings and asked the occupier whether his dog was there. He then entered a shed on the property and also went into the house. During the course of the visit he caused some damage to the property. When the occupier of the property remonstrated with him, he is alleged to have assaulted the occupier.
[4] From that property Mr Waomoana went to a number of other properties in the area. He was seen and/or accosted by persons in the vicinity as he did so. During the course of these visits he is also alleged to have stolen some items of property. The police executed a search warrant a few days later at an address frequented by Mr Wamoana. There they recovered some of the items that had been taken.
[5] On the day of the incident the police interviewed a number of prospective witnesses who had seen the person who had gone onto the various properties. The police physically compiled a montage containing eight photographs of young Maori males. They then showed the montage to the persons who had seen the man who had entered the properties. Several of these identified Mr Wamoana as being that person.
1 New Zealand Police v Wamoana [2015] NZDC 24875
Relevant principles
[6] The evidence in question comprises visual identification evidence in terms of s 45 of the Evidence Act 2006. As a result, it was necessary for the requirements of the section to be followed if the evidence is to be admissible.
[7]Section 45 relevantly provides as follows:
45 Admissibility of visual identification evidence
(1)If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.
(2)If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
(3)For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—
(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and
(b) in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and
(c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and
(d) in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and
(e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and
(g) that complies with any further requirements provided for in regulations made under section 201.
…
[8] There is no dispute regarding the principles that apply in this area of the law. Section 45(3)(b) does not require the photo montage and the descriptions provided by identification witnesses to be consistent. Rather, it requires consistency between the image of the person to be identified and the other images.2 Importantly, the image of the person to be identified should not contain features that automatically direct the viewer to that photograph. An example of this occurred in Ah Soon v R, where the photograph of the person to be identified was the only one in which the hair of the person depicted had blond tips.3 That factor immediately drew the attention of identifiers to the photograph of the person to be identified. The Court of Appeal held that this meant that the police had not followed the procedure required by s 45(3) because the other persons in the montage were not sufficiently similar to the person to be identified.4 In reaching this conclusion the Court said:5
[23] Whether the photographs show men of similar appearance to the appellant is a fact-dependent evaluative exercise. Whether the others shown in the montage are similar in appearance to the suspect is a question of degree. Similar does not mean identical. The police are not required to go to extraordinary or impractical lengths to ensure that those shown are similar in appearance. However, there may be cases where the accused person has particular identifying features which, unless the others shown in the montage have similar features, may lead to a witness unfairly picking out the accused. The guiding principle must be whether the photo montage or other formal procedure is such as to avoid any material risk of predisposing the witness to identify the accused.
The Judge’s decision
[9] Judge Adeane reached his conclusion that the police had correctly followed the procedure prescribed by s 45(3) for the following reasons:6
[3] The matter is proceeding to a Judge alone trial rather than a jury trial so that the winnowing out of evidence of insufficient probative value becomes a more assured process, at least in theory. The argument comes down to a very narrow question as to whether the eight individuals, Mr Wamoana
2 R v Faifua [2011] NZCA 152 at [21].
3 Ah Soon v R [2012] NZCA 48.
4 At [25].
5 Ah Soon v R, above n 2.
6 New Zealand Police v Wamoana, above n 1.
included, depicted in the montage are sufficiently similar that the resulting witness comments are fairly admissible. In other words, if Mr Wamoana’s appearance was easily distinguishable from the others then there could be an argument that the procedure is sufficiently unfair that the evidence should be excluded entirely.
[4] The exercise on which I am asked to embark is a highly subjective one. I think it can fairly be said that this octet of young men, presumably in police custody, are of similar age, they are obviously of similar gender, they are of relatively similar ethnicity with one exception and they also demonstrate to greater or lesser degree facial hair growth. Not only is this trial a trial before a Judge alone, but there is a statutory requirement that the tribunal of fact exercise a special degree of care before convicting on reliance on identification evidence.
[5] A combination of those two factors, the need for special care which will be observed in a Judge alone trial, and the need for a careful assessment of the weight of evidence, not just its admissibility, both bear on the question of whether this montage can fairly be admitted here. I am aware of the authorities which require the degree of similarity to be a real one, but of course it is counsel of perfection that the prosecutor should obtain eight virtually identical individuals. That would frustrate the whole underpinning logical of the formal identification procedure. In other words the selection of individuals should offer the prospective witness a real choice, not merely an insuperable hurdle which could only be resolved by guesswork. Ironically, as I understand, these montages are computer selected.
[6] I think this montage allowed a proper choice and that any matters arising out of it which cause concern will be duly noted as matters going to weight by the trial Judge. In my view the montage ought to be admitted in evidence.
[7] It is notable that despite the use of the montage a number of witnesses were quite equivocal about selection again touching on the weight issue, but also bearing in mind that each of them nevertheless has bits of circumstantial evidence to offer about time and place and what they saw capable of creating a circumstantial picture which may impress itself on the tribunal of fact also.
Decision
[10] On Mr Wamoana’s behalf Mr Phelps submits that the Judge erred by conflating the requirements of s 45(3) with the fact that the trial will be by way of Judge alone. In doing so he submits that the Judge confused the threshold issue of admissibility with the separate issue of the weight to be given to the evidence by the tribunal of fact.
[11] I do not consider that the Judge did err in that way. Even if he did, however, I am satisfied that the Judge correctly concluded that the other seven photographs in the montage depicted persons who can fairly be described as similar in appearance to Mr Wamoana. As I have already recorded, all eight photographs are of young Maori
males. The captions now under each of those photographs confirm that the men in the photographs were born between December 1981 and April 1985. They are therefore broadly of a similar age. This is borne out by their appearance in the photographs. Furthermore, each of the individuals in the photographs has facial hair to some degree.
[12] Mr Phelps submits that the noses of the men other than Mr Wamoana are different in appearance. I do not share his view regarding that matter. There is nothing in my view remarkable about the noses of any of the men in the photographs. Furthermore, Mr Wamoana does not stand out because his nose is different to those of the other men depicted in the montage.
[13] Mr Phelps also submits that the photograph of Mr Wamoana is the only photograph of an individual who may have his hair tied back. He says this is relevant because several of the witnesses identified the alleged offender as having his hair tied back. Ms Mitchell reminds me, however, that s 45(3)(b) requires the other persons depicted in the montage to be similar to the person to be identified. It does not require those persons to conform to the descriptions given by witnesses. In any event, I consider that several of the men depicted in the photographs have hair that could be tied back.
[14] Two other factors strike me as significant. The first is that all of the eyes of the eight individuals depicted in the montage appear to be very similar. Secondly, each of the individuals in the photographs has hair that is either cut or has naturally receded to a point relatively high on the forehead. This, in my view, is a distinguishing feature that renders all of the individuals similar in appearance.
[15] Taking those factors into account, I am satisfied that the Judge was entitled to conclude that the requirements of s 45(3)(b) have been met. It follows that the police followed the formal procedure prescribed by s 45, and that the visual identification evidence is accordingly admissible at Mr Wamoana’s trial.
Result
[16]The appeal against the Judge’s ruling is accordingly dismissed.
Lang J
Solicitors:
Crown Solicitor, Napier
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