THE QUEEN v FAFETAI TIMO [1999] NZCA 11 (25 February 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND CA 421/98

THE QUEEN

V

FAFETAI TIMO

Coram: Thomas J

Blanchard J

Tipping J

Judgment: 25 February 1999

(ex parte)

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JUDGMENT OF THE COURT DELIVERED BY TIPPING J

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This is an appeal against the decision of the District Court at Christchurch on a s344A application made by the Crown in respect of the evidence of two Crown witnesses.While the evidence of one of these witnesses was rejected, the evidence of Constable David Murray identifying Mr Timo was found to be admissible, and it is in respect of this aspect of the ruling that Mr Timo appeals.

On 15 November 1997, Constable Murray stopped an Austin car, and the driver of the car identified himself as Fafetai Timo, the appellant.Constable Murray issued infringement notices and ordered the vehicle off the road.Convictions were later entered on the infringement notices.On 2 March 1998 the appellant applied for a rehearing.He swore an affidavit on 1 May 1998 stating that he was not the driver of the vehicle stopped by Constable Murray.

Upon receiving the application for rehearing, Constable Murray visited the address that had been given by the person he had stopped driving the Austin. The appellant answered the door and Constable Murray asked to speak with the person with whose details he had been provided on 15 November 1997.The appellant denied being that person.The following day, 5 May 1998, Constable Murray visited the house a second time with a colleague.On this occasion Constable Murray identified Mr Timo as the person he had stopped.

The appellant was charged with wilfully attempting to defeat the course of justice by making a false affidavit.

Mr Timo applied for legal aid to conduct his appeal.After consultation in accordance with s15 of the Legal Services Act 1991, the Registrar declined to grant legal aid.An application for a review of that decision by a Judge of this Court was unsuccessful.The appeal has therefore been determined on the basis of written submissions received from the appellant's counsel.

Mr Timo appeals on the ground that the Judge erred in fact and in law in admitting Constable Murray's evidence.It was submitted that the Constable's identification of Mr Timo is of poor quality for a number of reasons.A period of six months passed between the day on which the vehicle was stopped and Constable Murray's identification of the appellant.But Constable Murray stated that a significant event had occurred on 15 November 1997, and as a result he remembered Mr Timo, whom he had stopped just prior to this event. Constable Murray acknowledged that he could not remember any other person he stopped on the same day.The appellant argues that while the event may have made the day memorable, it was not sufficient, in the absence of corroborative evidence, to show that the Constable specifically recalled Mr Timo.There is no such corroborative evidence.It is also submitted that there is a serious risk that Constable Murray's identification is based on racial characteristics rather than on any specific recollection of Mr Timo himself.In these circumstances, it is argued by the appellant that the evidence of Constable Murray is more prejudicial than probative.

We have considered all the appellant's submissions and are satisfied that the Judge was correct in allowing the evidence of Constable Murray to be given. The evidence is obviously relevant and we agree with the assessment that it is not more prejudicial than probative.Whether the jury will accept the evidence is another matter; but it is clearly admissible.We add that nothing we have said is intended to limit the trial Judge's discretion to withdraw the case from the jury if the Judge concluded, in light of the prosecution evidence as a whole and the identification evidence as it emerges in Court in particular, that such a course is appropriate.Accordingly, the appeal is dismissed.