X v The King

[2024] NZHC 467

INTERIM NAME SUPPRESSION ORDER EXISTS AS CONTAINED IN THE JUDGMENT.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2024-404-000044

[2024] NZHC 467

BETWEEN

X

Appellant

AND

THE KING

Respondent

Hearing:	1 March 2024
Appearances:	D P H Jones KC for Appellant E J Hoskin for Respondent
Judgment:	6 March 2024
Reissued:	22 April 2024

REASONS JUDGMENT OF ANDREW J

This judgment was delivered by Justice Andrew

on 6 March 2024 at 2.30 pm and re-issued on 22 April 2024 pursuant to r 11.5 of the High Court Rules 2016

Registrar / Deputy Registrar Date ……………………….

X v R [2024] NZHC 467 [6 March 2024]

[1]                 In open court on 1 March 2024, I granted the appeal on the basis that a miscarriage of justice has occurred. I entered a judgment of acquittal on both charges.

[2]This judgment contains my reasons.

Introduction

[3]                 This is an appeal by X following a referral by the Criminal Cases Review Commission (CCRC) pursuant to s 17 of the Criminal Cases Review Commission Act 2019.

[4]The appellant seeks the following orders:

(a)That the appeal be allowed because a miscarriage of justice has occurred (s 232(2)(c) of the Criminal Procedure Act 2011); and

(b)A judgment of acquittal is entered on both charges (s 233(3)(a) Criminal Procedure Act 2011).

[5]                 The Crown concedes the appeal. It accepts that a miscarriage of justice resulted from the non-disclosure of information relevant to the critical issue of identification evidence in the District Court. The Crown accepts that if this critical information had been appropriately disclosed, it would have affected the outcome of the appellant’s trial.

[6]                 The critical issue for this Court is whether there was, as the parties agree, a miscarriage of justice.

Appeal jurisdiction

[7]                 The power to refer a conviction to this Court arises where the CCRC considers that course to be in the interests of justice.1 However, determining whether a miscarriage of justice has occurred remains the exclusive province of the appeal court.

1      Criminal Cases Review Commission Act 2019, s 17.

This Court must hear and determine the matter as if it were the first appeal against conviction.2

[8]                 The Court must allow the appeal if satisfied that a miscarriage of justice occurred.3

[9]                 This involves a two-step test. The appellant must show that there was an error or irregularity, and that it created a real risk that the outcome of the trial was affected or resulted in an unfair trial.4

Factual background

[10]              The appellant faced two charges in the District Court of committing an indecent act with intent to offend. The alleged incidents occurred on two separate days but involved the same complainant.

[11]              After the first occasion, the complainant made a complaint to the Police. She was shown a photo board containing the appellant’s photograph but did not identify him.

[12]              Subsequent to the second incident and a further complaint, the complainant was again shown a photo board by Police containing the appellant’s photograph. This time she identified the appellant as the person she had seen on both occasions.

[13]              The appellant was considered a suspect and his photograph was included in the photo boards because of an incident that had occurred on an earlier occasion, for which he received diversion.

[14]              The diversion incident was led as propensity evidence at the appellant’s trial by way of s 9 admitted facts.

2      Criminal Cases Review Commission Act 2019, s 20.

3      Criminal Procedure Act 2011, s 232.

4      Criminal Procedure Act 2011, s 232(4).

[15]              The sole issue at trial was one of identification. The correctness of the complainant’s photo board identification after the second occasion was fundamental to the prosecution.

[16]              Additional and/or fresh evidence has since been obtained in the course of the CCRC investigation which establishes that identification was tainted:

(a)The second photo board containing the appellant’s photograph in the same position as the first photo board. His was the only photograph common to both the first and second photo boards;

(b)Immediately after the conclusion of the first (unsuccessful) photo board process, the appellant’s photograph was indicated to the complainant by the officer as that of the suspect. The complainant advised of this on two separate occasions:

(i)The first time was to the officer who conducted the second photo board identification procedure when the complainant identified the appellant. What she said was contained in paragraph five of the Police 258 report. That paragraph was subsequently removed from the 258 report that went on to the Police file provided to the prosecutor. The defence did not receive a copy of any of the 258 reports;

(ii)The second advice was to the prosecutor during the trial. The complainant was specifically asked in cross-examination if any indication had been given to her as to who the Police thought the offender could be. She denied that it had been;

(iii)In the lunch adjournment the complainant telephoned the prosecutor and advised him that she had been given “some sort of affirmation” by the officer after the first photo board process of who the “offender” was. This contradicted the evidence she had given on oath. The prosecutor then passed the information

on to the then defence counsel and later that day recorded what had transpired in an email to defence counsel. Notwithstanding, this issue was never raised with the trial Judge by either counsel, nor was it advised to this Court on appeal before Asher J.

[17]              The appellant denied throughout that he was the offender. He gave evidence and also called alibi evidence.

Analysis and decision

Miscarriage of justice

[18]              The appellant’s photograph was only identified by the complainant after she had received the indication that he was a suspect from the officer, after the first, unsuccessful photo board. Her advice of this to the officer who conducted the second positive photo board identification was not recorded in the complainant’s statement, nor on the final 258 report put on the Police file. It was deliberately removed from the 258 report in the face of concerns already raised by the defence with the Police about identification.5

[19]              The complainant’s second advice of this to the prosecutor during the trial and then to defence counsel was never advised to either the trial or the appellate judges.6 Her evidence that no indication had been given to her as to who the Police believed the suspect could be was wrong but remained unchallenged and unaffected. The late disclosure to defence counsel did not, in my view, remedy the non-disclosure of the statement recorded in the original 258 report.7

[20]              No application was made to recall the complainant or the officers who conducted either photo board process. There was no ability for the defence to question any witness on what was recorded in the unredacted 258 report because the

5      The information that was removed from the 258 report was not contained in any other document on the Police or Crown files.

6      Two unsuccessful appeals followed the District Court trial. Both the Court of Appeal and the High Court expressed themselves satisfied with the reliability of the visual identification evidence in X’s case; [citations withheld for name suppression reasons].

7      I accept that it may not be a requirement to disclose the internal 258 document (it may contain some privileged information), but the critical information should have been disclosed to the defence from the outset of X’s prosecution.

information was not known. The failure to recall the witness and to allow the trial Court to address the issue in absence of this information further deprived the appellant of a fair trial. That was not remedied on appeal.

[21]              In the circumstances, I find that it is clear that a miscarriage of justice has occurred and that the identification of the appellant, a critical issue, was tainted. The convictions are accordingly unsafe.

[22]              I have already noted that the Crown accepts that a miscarriage of justice has occurred and that the appeal should be allowed. The Crown does not seek a retrial.

Result

[23]The appeal is allowed because a miscarriage of justice has occurred.

[24]A judgment of acquittal is entered on both charges.

[25]As noted, the Crown does not seek a retrial.

[26]              The proceedings are adjourned until 22 March 2024 at 9.00 am (Criminal Appeals Callover List) in order to resolve the outstanding issue of name suppression. In the interim, I make a further order extending the interim order for suppression of the appellant’s name and identifying particulars until that Callover date (i.e. 22 March 2024).

Andrew J