THE QUEEN v MOHAMED ALI AHMED [1999] NZCA 308 (14 December 1999)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca400/99

THE QUEEN

V

MOHAMED ALI AHMED

Hearing:	14 December 1999
Coram:	Richardson P Henry J Tipping J
Appearances:	D N Bunce for the Appellant M J Thomas for the Crown
Judgment:	14 December 1999

judgment of the court delivered by henry j

[1] This appeal raises an issue relating to the use of photographs for the purpose of identifying a suspect.The appellant, a Somalian, was convicted in the District Court at Christchurch on counts of indecent assault on three different children, one of assault on a child and on one count of unlawfully entering a building.He was acquitted on two other counts of indecent assault, two of assault on a child and also one of theft.

[2] The police investigation resulted from complaints that a man, generally described as being an African of large build possibly Somalian, had been making indecent approaches to children.The appellant became a suspect.The police decided against holding an identification parade, for reasons which are not challenged.Instead a montage containing photographs (head and shoulders) was prepared.It depicted two African males and six of Polynesian origin.When shown the montage, five witnesses identified the appellant as the offender in a particular incident, or in the vicinity when it occurred.

[3] At trial objection was taken to this evidence of identification.Having heard evidence on the voir dire, the Judge in a comprehensive and detailed ruling allowed four witnesses to give evidence of their identification from the montage.At trial, that evidence was supplemented by a dock identification. The sole issue on appeal is whether the photograph identification evidence was wrongly admitted and a miscarriage of justice has resulted.

[4] For the appellant Mr Bunce submitted the montage was unfair in that having regard to the general description given of the offender, it did not give the witnesses a fair opportunity of selecting the appellant from persons of similar appearance.In his ruling the Judge noted that the unfairness claimed arose from the appellant being the only fat or "chubby" African man (the kind of description given by most of the witnesses), the only other photograph of an African man being that of a Tanzanian described by counsel as "of somewhat gaunt appearance".The Judge said:

At the hearing I reached the conclusion that, although as a matter of perfection there was some force in Mr Bunce's contention, any unfairness to the accused was not to the extent that the identification evidence based on the montage of photographs should be excluded.While it is clear from the montage that six of the photographs were of Polynesian males and that only two were of African males, all eight photographs were of men of the same general appearance in terms of skin colour, hair colour, hair length, and age range.In those circumstances, it appeared to me that there was only a minimal risk of any displacement effect of the type which was referred to by the Court of Appeal in R v Ormsby [1985] 1 NZLR 311 and R v Ruscoe (1997) 14 CRNZ 669.

[5] The Judge went on to note two other factors relevant to identification. First, the similarity of the alleged incidents and the description of the offender in terms of height, build, hair, skin colour and mode of transport (a bicycle).Secondly, evidence that the appellant was to the knowledge of a Somali community worker one of the only two or three Somali men of heavy build living in the Christchurch area.The Somalian community there comprised about 450 people.In addition the appellant was the only one known to the witness to ride a bicycle, which featured in the offender's actions in most of the incidents.

[6] The main thrust of Mr Bunce's complaint, who accepted that there would have been real difficulties in obtaining photographs of men of similar race and build to the appellant, is that the presence of six Polynesian men necessarily tended to unduly isolate the photograph of the appellant in the eyes of the witnesses.This he submitted was confirmed by some of the witnesses accepting under cross examination that the appellant's photograph was really the only one which fitted the description the witness had given.The significance of such a concession however must be assessed from a practical viewpoint.A witness will very likely give such an answer, because the image of the offender will still be the one looked for in the montage, and it will be difficult for many people to separate that out from their own description of the person.And to accept that there were others who met the description would immediately be seen as a challenge to their own reliability.

[7] In the end an objective assessment must be made.We have had made available to us the montage, and have considered that against the evidence given by the witnesses in question.We have also taken into account Mr Bunce's detailed submissions covering the matters of concern.Overall we are not persuaded that the Judge erred in admitting the evidence, nor are we persuaded that its admission has in the particular circumstances of the case resulted in a miscarriage of justice.The summing up was unimpeachable, it was balanced and in particular traversed with care the possible dangers arising from the compilation of the montage.The jury obviously exercised care in distinguishing the strength of the identification evidence relating to the separate counts.In respect of those resulting in convictions, the verdicts were justified and give no cause for concern as to their safety.Selection of the appellant from the montage as the offender is not to be viewed in isolation and was supported by other evidence.

[8] For the above reasons the appeal is dismissed.

Solicitors

Crown Law Office, Wellington