R v Moore CA241/01 [2001] NZCA 462 (1 November 2001)

Last Updated: 12 June 2023

IN THE COURT OF APPEAL OF NEW ZEALAND CA241/01

THE QUEEN V

ADAM RODNEY MOORE

Hearing: 1 November 2001

Coram: Gault J

Gendall J William Young J

Appearances: E Lorimer for Moore

P J Shamy for the Crown

Judgment: 1 November 2001

JUDGMENT OF THE COURT DELIVERED BY WILLIAM YOUNG J

Introduction

[1] As a result of events which occurred in December last year, the appellant was charged with theft of two number plates, receiving a shotgun, conspiracy to commit aggravated robbery and unlawful possession of a pistol.

[2] He stood trial in the District Court on all four charges in May this year. The jury found him guilty in relation to the charge associated with the pistol but was unable to agree on the other charges. At his retrial in July he was found guilty of the remaining charges.

[3] He now appeals against conviction in respect of the three counts on which he was convicted at the retrial. His appeal against sentence was not prosecuted.

Factual background

[4] On 18 December 2000, three men drove into and parked in the car park of the Bush Inn Mall in Riccarton, Christchurch. Two women (Sandra Brockhurst and Bernadette Pyke) were sitting in an adjacent vehicle. They overheard a conversation between these men which indicated that they proposed to rob a bank - the Westpac Trust branch in the mall. One of these women telephoned the police. The men in the car eventually drove off. It is open to inference that they had been monitoring police radio bands with a scanner and, upon realising that police were on their way, abandoned the proposed robbery.

[5] The undisputed facts are:-

1. The appellant and a man called Arne Brenmuhl lived at the same property.

2. Brenmuhl was one of the men who was in the car in the Bush Inn Mall car park on 18 December 2000.

3. The car which had been observed at the Bush Inn Mall carpark belonged to Brenmuhl’s girl-friend.

4. The number plates which had been on this car when it was in the car park at the Bush Inn Mall had been stolen from a car in the street in which the appellant and Brenmuhl lived.

5. Those number plates and a sawn-off shotgun, were found by the police in a car which was used customarily by the appellant and his girl-friend but was also sometimes used by Brenmuhl. The sawn-off shotgun was wrapped in a denim jacket and in the pockets of that jacket the police later found two gold triggers which had been removed from the sawn-off shotgun and also a bank deposit slip relating to a payment which the appellant had made in September.
6. Also found at the address were two radio scanners and printouts of police frequencies and codes. The codes had been faxed through on the evening of 18 December and thus after the incident in the car park.

7. On 20 December 2000, a note was found in the appellant’s home, in the appellant’s handwriting which seems to have been in the nature of a “to do list”. Under the heading “get rid of” were listed a number of items including “car plates” and “gun”.

[6] Ms Brockhurst described the three men she had seen in the carpark at the Bush Inn Mall to the police when interviewed later the same day. She referred to a man sitting in the back seat of the car in this way:-

Male Caucasian, early 20’s, light ginger unshaven look, medium build. Very fine features.

The Crown case at trial was that this was the accused. Ms Pyke, in a note which she wrote out while in the car, described this man as being a skinhead and having facial hair which she described as being “one day’s growth”. At no time did Ms Pyke identify the appellant as being the back seat passenger in the car. Her position, from the outset, was that she did not believe that she would be able to identify anyone as being the back seat passenger.

[7] The preliminary hearing was on 21 March 2001. Prior to the hearing commencing Ms Brockhurst was sitting outside the courtroom in a witnesses' waiting area. The entrance to the courtroom is through that area. The officer in charge of the case, accompanied by a uniformed police officer, brought the appellant through that waiting room to enter the court. Given that the appellant was in handcuffs and was accompanied by the officer-in-charge, Ms Brockhurst realised that he was one of the men whom the police claimed was in the car on 18 December 2000.

[8] She recognised the appellant as being the man in the back seat and she adhered to that identification at the preliminary hearing and at both trials.

[9] The appellant claimed that the opportunity for Ms Brockhurst to identify him was engineered by the officer-in-charge. As well, based on the evidence of his father, the appellant claimed that there was a discussion between the officer-in- charge of the case and Ms Brockhurst just before the latter gave evidence in terms of which the officer-in-charge said something to the effect of:-

All you have to do is say that you recognise him and we will do the rest.

and later said:-

Yes in the rear seat of the car.

Both the officer-in-charge and Ms Brockhurst denied that any such conversation occurred.

[10] Quite apart from the unsatisfactory circumstances in which it was first made, there were grounds upon which Ms Brockhurst’s identification could be challenged by the appellant:-

1. The evidence pointed to the appellant having had what was described perhaps not altogether accurately as mature goatee beard at the time of the offence. The key evidence as to this is a police photograph of the accused taken on 19 December 2000 which indicates rather more facial hair (by way of moustache and beard) than is captured by Ms Brockhurst’s description (“unshaven look”) or, indeed, Ms Pyke’s reference to “one day’s growth”. Ms Brockhurst first described this man as having a goatee at the first trial.

2. Ms Brockhurst placed heavy emphasis in her evidence on the appellant’s eyes, a feature which she had not mentioned in her initial description and there was some development of her evidence over time associated with this form of identification.

3. There had been no identification parade.
4. The officer-in-charge showed Ms Brockhurst a photomontage which did not include the appellant’s photograph. It rather appears that she identified someone from that montage as having been in the car, but the evidence as to all of this was rather uncertain (as the photomontage was not produced in evidence). Ms Brockhurst’s position is that she did not purport to identify the man in the back seat from the photomontage but rather the man in the front passenger seat (who she believed was Maori). The detective’s position is that he thought that he could not properly invite Ms Brockhurst to view a photomontage which included a photograph of the appellant after the appellant had been arrested (as he was on 19 December). The detective’s view on this issue was wrong. It would have been open for him to have arranged a photomontage identification exercise after the arrest.

5. In her written statement, Ms Brockhurst said that she believed that she could identify the front seat passenger but did not, at least in her written statement, make such a claim in relation to the man in the backseat.

6. It is fair to say that the descriptions given by Ms Brockhurst and Ms Pyke fitted not only the accused but also Brenmuhl (leaving aside the perhaps not insignificant fact that Brenmuhl had a full head of hair).

[11] On the other hand, the identification evidence was not entirely flimsy. Leaving aside the difference between the “unshaven look” referred to in the initial statement by Ms Brockhurst and the goatee the appellant had at the time, the description was a reasonable match. In particular the appellant’s hair colour is ginger. Moreover, he also fitted Ms Pyke’s description which she recorded in the carpark. The appellant is a skinhead and at all material times had a shaven head. Both Ms Brockhurst and Ms Pyke had every reason to take care, while in the car park, to pay attention to the people in the car. Indeed, Ms Pyke took notes. If the appellant was not guilty it was something of a coincidence that a man with ginger facial hair who was a skinhead (and thus generally matched the appellant’s appearance) should have been in this particular car on 18 December 2000. We say this given that he was generally associated with the car and also with Brenmuhl who was undoubtedly in the car. As well, the implausibility of the coincidence was

enhanced by the other evidence linking the accused to the car to which we have already referred.

Proceedings in the District Court.

[12] Before the second trial there was an application under s 344A in relation to the evidence of identification. This was heard by the Judge who had presided at the first trial and who was therefore well placed to form an assessment as to the appropriateness of leaving the identification evidence to the jury. His conclusions were:-

1. The identification outside the court prior to the preliminary hearing was not engineered by the police and that the opportunity which Ms Brockhurst had to see the appellant was “fortuitous”.

2. The identification was corroborated in a material way by evidence which was outside Ms Brockhurst’s control and, as to this, the Judge referred, by way of example, to the number plates and the aide-mémoire referring to the number plates and the gun.

So he ruled that the identification evidence was admissible.

[13] During the second trial there was an application under s 347 which focused primarily on the reliability issue. The trial Judge dealt with the identification issue in these terms:-

I have had the advantage of seeing and hearing the identification witness, Ms Brockhurst, in this case and of observing her demeanour in the witness box. She was somewhat strained at the end of giving evidence, saying that she had suffered a recent neck injury in a car accident. She may also have been suffering from some strain because this is the third time now in Court that she has given evidence.

I am conscious of Ms Lorimer’s submission, particularly the variations which have occurred in parts of Ms Brockhurst’s identification evidence; variations between what she said in her statement to the police; in what she said at depositions; what she said at the first trial; and then what she said in evidence here yesterday.

One, of course, has to make due allowance for the fact that an honest witness may give evidence on different occasions which varies from the other occasions. There are, I accept, pieces of evidence which could, and no doubt will, if the matter proceeds further, lead counsel for the defence to making a submission to the jury that Ms Brockhurst’s evidence is inherently unreliable because it appears to have been embellished as she gives the evidence on each occasion.

What was striking about Miss Brockhurst’s evidence, however, was her clear identification of the accused. That is to say her recognition of the accused, just before she gave evidence at the depositions hearing. That has been the subject of substantial criticism both in cross-examination, and then in submission before me by Ms Lorimer.

The circumstances, it has to be said, were unfortunate. It is unnecessary for me to relay them, because unarguably they are part of the record. The accused at depositions was walked through the same waiting room in which Ms Brockhurst waited on his way into court. Clearly he could not have been anybody else other than the defendant at the time because he was escorted by the officer in charge of the case, Detective Bracegirdle, and by another police officer. That was unfortunate.

That was the subject of a s344A application. So far as the defence was concerned, the application was unsuccessful. It will no doubt, if the case proceeds, be the subject of strong criticism by the defence during closing address, and it will also of course have to be the subject of an appropriate direction by me in the course of summing up, coupled with the usual warning, effectively about dock identification, which is what that was.

Having seen and heard the witness, however, I return to what I said earlier, that what impressed me about her evidence was the nature of the way in which she gave her evidence of immediately recognising him upon seeing him at Court. It has been suggested that that was less than inadvertent, that he should not be taken past the witness in that way, and it is regrettable that that happened, but that issue, of course, has already been dealt with.

In the particular circumstances therefore, I conclude without too much difficulty, that it would be quite inappropriate in this case for the Court to take the case from the jury. Uniquely, this is an issue for the jury to determine. It is for them to decide whether they are satisfied beyond reasonable doubt on Ms Brockhurst’s evidence, together with what they make of the evidence capable of supporting her evidence of identification, and to deprive them of the ability to make that judgment would be clearly to usurp their function and would be quite wrong.

[14] In his summing up to the jury, the Judge dealt extensively with the identification issue. He did so in terms that satisfied all legal requirements and which particularly addressed the strengths and weaknesses of the identification. There has been no criticism of the way in which he summed up to the jury.

[15] After the jury retired it asked to have evidence read as to the original description by Ms Brockhurst of the back seat passenger.

Grounds of appeal

[16] The appeal is argued on two grounds: first that the identification in the waiting room was unfair and, secondly, that the identification evidence was, in any event, so unreliable that the Judge ought not to have permitted it to be given.

Was the identification unfair?

[17] For the purpose of this argument, Ms Lorimer relied heavily, at least in the District Court and in her written submissions in this Court, on a judgment of Tipping J given in R v McIntosh (unreported, T8/90, High Court, Invercargill Registry, judgment delivered 22 August 1999). In that case the police had engineered an opportunity for an eyewitness to a crime to identify one of the suspected offenders. The identification evidence was excluded by Tipping J.

[18] As indicated earlier, the Judge who heard the s 344A application rejected the contention that the opportunity to make an identification was engineered. Any challenge to this decision would face the fundamental hurdle that the conclusion that the opportunity for the identification was just fortuitous was a finding of fact with which we could not properly interfere on the material which is before us.

[19] Recognising that, Ms Lorimer simply maintained that in a more general sense it was unfair that there should have been an identification by reason of the encounter in the waiting room and this to an extent which warranted the exclusion of the evidence.

[20] No doubt better arrangements could and should have been made as to where Ms Brockhurst was sitting prior to the commencement of the preliminary hearing and how the appellant was to be brought to the courtroom. But we see no real difference in substance between the identification in the waiting room and the more common situation of a courtroom dock-identification. Further Ms Brockhurst gave evidence in court at the preliminary hearing and, irrespective of what happened in the waiting room, she was always going to have the opportunity to see the appellant in the court and thus to make a dock identification. So we do not see anything of real substance and materiality in relation to complaints about the waiting-room incident.

Was the identification evidence so unreliable that it ought to have been excluded?

[21] The dangers of identification evidence have long been recognised both by the courts (see Turnbull [1977] QB 224, Bridger (unreported, CA 308/94, judgment delivered 30 March 1995) and the legislature (see s 344D, Crimes Act 1961) - dangers which are of course particularly pronounced where what is involved is, in substance, a dock identification.

[22] On the other hand, the Courts must allow for the realities of the dynamics of the trial process. In this case the two identification witnesses did record contemporaneous descriptions of the back seat passenger which were, collectively, a reasonable match for the accused. Ms Pyke said in evidence that she would not be able to identify the rear seat passenger. But that was not Ms Brockhurst’s position and the jurors would have been puzzled if she had not been asked if she could identify the appellant. At the very least her dock identification excluded the possibility that there was something about the appellant’s appearance in the court at the time of his trial which made it clear to her that he was not the back seat passenger.

[23] We are of course only dealing with this case. In the context of the contemporaneous descriptions, we think that it was reasonable and not unfair for Ms Brockhurst to be invited to make a dock identification. Such an identification, if

standing alone (particularly given the developments in her evidence as to identification) might well not have been sufficient by itself to warrant conviction. But plainly the identification did not stand alone. Rather it fell to be considered in the context of what was a strong circumstantial case. As to this reference can usefully be made to R v Tamihere [1990] NZCA 213; [1991] 1 NZLR 195. Even in that context a careful warning as to the dangers of identification was required. But such a warning was given.

[24] There were two ways of looking at the Crown case. On one view, it depended primarily on the evidence of Ms Brockhurst which was reinforced by the circumstantial evidence. The other approach is to regard the evidence of Ms Brockhurst as at least indicating that the back seat passenger resembled the appellant and that this, when considered with the other facts which were proved, formed part of an overall pattern of evidence which was sufficient to persuade the jury that he was guilty. The Judge, at least in substance, although not in exactly those words, left both theories to the jury. We think that he was entitled to do so.

[25] In those circumstances we are of the view that the appeal must be dismissed.

Disposition

[26] Accordingly the appeal is dismissed.

Solicitors

E Lorimer, Christchurch for Moore

The Crown Solicitor’s Office, Christchurch for the Crown