The Queen v Holtz [2002] NZCA 323; [2003] 1 NZLR 667; (2002) 20 CRNZ 14 (18 December 2002)

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The Queen v Holtz [2002] NZCA 323 (18 December 2002); [2003] 1 NZLR 667; (2002) 20 CRNZ 14

Last Updated: 14 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA149/02

THE QUEEN

V

WILLIAM SAMSON HOLTZ

Hearing:	7 November 2002
Coram:	Gault P Keith J McGrath J
Appearances:	C B Cato for Appellant S P France and R J Marchant for Crown
Judgment:	18 December 2002

JUDGMENT OF THE COURT DELIVERED BY GAULT P

[1] Mr Holtz was convicted of the aggravated robbery and murder of Mr Shiu Prasad, the proprietor of the Liquor Warehouse at Mangere East. He was further convicted of the aggravated robbery of Mr Hemant Kumar, a convenience store owner also of Mangere. The jury acquitted Mr Holtz of the attempted aggravated robbery of Mr Prasad on an earlier occasion and on two other aggravated robbery charges relating to other Asian business proprietors in the Mangere area. Similar fact evidence was relied upon at trial for the purposes of establishing identity and to rebut the defence of innocent presence in relation to the murder and aggravated robbery of Mr Prasad. Mr Holtz now appeals against his convictions primarily on the ground that propensity and identification evidence should not have been admitted and was the subject of misdirections to the jury by the trial Judge.

Prasad facts

[2] On the morning of 29 August 2000 at 11am Mr Prasad was discovered outside his shop by a passer-by who had stopped to use a cash machine which was just outside his shop in Saville Drive. She saw him stagger a little and then collapse. She went to his aid. He was bleeding from his head and body as the result of multiple stab wounds. After an ambulance was called he gave the woman his wife’s phone number and asked her to close up his shop for him. When the police arrived he was able to state that he had been burgled and stabbed and to describe to them the offender and the direction in which he escaped. There are some variances in the descriptions that he gave to different persons but essentially he described the offender as Maori or Polynesian, in his twenties, wearing black clothes and bald with a beanie covering his face. Mr Prasad was taken to hospital by ambulance but died that afternoon during surgery as a result of a stab wound to his liver and pancreas. He had been stabbed with two knives, one large and one small, ten times.
[3] There was no issue of identity of the appellant as a person at the scene of the murder of Mr Prasad and the associated robbery. Although the appellant told the police initially that he went to the cash machine that morning but did not go into the shop, he subsequently admitted having done so. Resiling from an earlier claim to have had amnesia, he claimed in a prepared statement given to the police after his arrest that while using the cash machine he heard a cry and went into the shop. He said he saw an attacker standing over Mr Prasad. He said that, because he himself had recently been attacked near the cash machine, he feared for his safety and left the shop. In this way he sought to explain his footprints behind the counter and the presence in one of the blood spots found on his shoe of DNA almost certainly that of Mr Prasad.
[4] There was evidence of spending by the appellant after the robbery and before a social welfare payment became available to him. The balance in his bank account, which he had accessed using a bank card twice shortly before the robbery, had remained unchanged at $2.02 throughout the preceding week. The appellant had told the police money he spent had been taken from coins collected in a bottle by his son. He said that greater spending over subsequent days was from money given to him by an acquaintance, although she denied that.

Kumar facts

[5] The third conviction related to the aggravated robbery of the Super 7 Superette at 64 Vine Street, Mangere on 17 June 2000. At about 8.20pm the robber appeared outside the shop and pointed a sawn-off rifle at the chest of Mr Chandra while he was closing the security doors. The robber told him to go inside the shop, which he did. The robber then approached the counter and pointed the gun at Mr Kumar, the owner of the shop, who was standing behind the counter. He put a bag on the counter and gestured to Mr Kumar to empty the contents of the till into it. Mr Kumar placed the takings, amounting to between $600 and $700, into the bag. The robber then picked up the bag and left the shop.
[6] The Crown case was that Mr Holtz was responsible for this robbery. The Crown evidence was of the two people who were working in the Super 7 at the time of the robbery, Mr Chandra and Mr Kumar, and of a customer in the shop. In addition, the Crown produced a videotape from the security camera at the premises and still prints taken from that tape. Evidence was also given by an ESR forensic scientist about what he observed in the still photos taken from that tape. Mr Chandra was unable to identify the offender from a police photo board but Mr Kumar had identified Mr Holtz from a photo board of eight photos in early November 2000, about five months after the robbery.

The similar fact evidence

[7] The appellant was charged in the same indictment with two further knife-point robberies of shops in Mangere on 2 and 28 July 2000, and with an attempted robbery at Mr Prasad’s liquor store on 3 July 2000. The appellant was found not guilty on each of these charges but they remain relevant because the evidence relating to them was relied on by the Crown as probative of the charges for which he was convicted.
[8] The first of these incidents occurred on 2 July 2000 at approximately 8pm when the shopkeepers in the Price Cutter store at 72 Vine Street, Mangere were beginning to close up. The offender, Polynesian or Maori, wore a black woollen jersey, jeans, a beanie and black “Nike” running shoes. His face was covered with a T-shirt. He had been in the shop before. He held a long knife in his right hand. He held it to the throat of one of the Asian shopkeepers and demanded money. Having got money from the till he inquired as to whether there was any money under the till. Once the till had been emptied into the offender’s bag he left the shop on foot. One of the shopkeepers picked out the appellant from a photo montage some six months later but was not absolutely certain in his identification. He also made a dock identification.
[9] The second of the incidents occurred on 3 July 2000 when the offender entered Mr Prasad’s shop at approximately 9pm when he and an assistant were shutting up for the night. The offender, described as Polynesian, was wearing black clothing and shoes, maybe sneakers. He had a black beanie hat on his head and his face was covered with a scarf or bandanna. He produced a long wooden-handled knife from under his jacket. He waved it about and moved behind the counter without speaking. The assistant attracted the attention of Mr Prasad who was in the office area. He came into the shop with a baton. The offender left the shop and while doing so was struck by Mr Prasad. The assistant also threw two padlocks he was holding and he thought one struck the offender on the side of the head.
[10] The third incident, on 28 July 2000, was the aggravated robbery of the Massey Road Lotto shop in Mangere at about 7.40pm when the proprietor was alone. The offender was described both as Caucasian and as Polynesian or Maori wearing black jeans, a black woolly jumper, a balaclava, black sports shoes and had his face covered. He brandished a big kitchen knife and went to the till. He threatened the Asian shopkeeper with the knife and demanded he open the till and empty it into a bag. He then departed on foot. Videotape footage from the shop security camera was played to the jury. The appellant had previously made purchases from this shop. There was no identification of the offender.
[11] Prior to trial the Crown applied to admit similar fact evidence of two aggravated robberies committed by Mr Holtz in July 1989 and July 1997 and to rely as well on the five indicted incidents as mutually supportive and probative on the crucial issue of the identity of the offender in all the five incidents and on the lack of credibility of the defence of innocent presence at the scene of the murder and aggravated robbery incident on 29 August 2000. The Crown submitted that significant similarities in the seven incidents disclosed a clear pattern of offending on the part of Mr Holtz and bolstered the Crown case on each of the indictment counts.
[12] Mr Holtz had been convicted of the two aggravated robberies committed in 1989 and 1997. The first was the aggravated robbery of the Kingsford Superette in Mangere on 4 July 1989. He was armed with a knife and had something covering his face. He was dressed in black clothing. He threatened the shop owner with the knife while directing him to open the till. He forced the till open and grabbed at the cash in the till. However, he was overpowered and disarmed. He was recognised by the shopkeepers as a local man and a regular customer. Mr Holtz pleaded guilty and was sentenced to six years imprisonment.
[13] After his release from prison he committed the second aggravated robbery, to which he also pleaded guilty. On 26 July 1997 Mr Holtz entered the Redhill Superette in Papakura at approximately 7.30pm. His face was covered with a black cloth. He held a knife in his right hand. He was dressed in black clothing. He threatened shopkeepers with the knife and demanded money. He forced the shop owner to hand over the till drawer. He noticed money under the till drawer and took this also. Although he was seen holding only one knife, when his vehicle was searched two knives were found in it. One was a big knife, the other a smaller stiletto-style knife. The till drawer was found in Mr Holtz’s possession and his fingerprints were later recovered from it. Mr Holtz was convicted after a plea of guilty and sentenced to four years imprisonment.

Pre-trial ruling on similar fact evidence

[14] Nicholson J canvassed the law relating to similar fact evidence in terms that were unchallenged in this Court. He then referred to what the Crown identified as the significant similarities in the seven incidents in nine respects of season, time, premises, location, shop owners, general description of offender, offender’s clothing, entry and weapon. The Judge reached the conclusion that these factors amounted to cogent similar fact evidence that Mr Holtz was responsible for all seven incidents. Accordingly, he ruled that the similar fact evidence arising from the seven incidents was admissible on the issue of identity of the offender and in rebuttal of the defence of innocent presence at the scene of the murder and aggravated robbery of Mr Prasad.
[15] Perhaps not surprisingly in view of the pre-trial ruling, the trial Judge was not asked to rule again on the admissibility of the evidence of the incidents giving rise to prior convictions, nor on the admissibility of the evidence of the incidents the subject of counts in the indictment as supportive of other counts. He did rule inadmissible proposed evidence of a police officer of an analysis of robberies in the Mangere area between February 1999 and February 2001. This proposed evidence had been influential in the pre-trial ruling that the other similar fact evidence was admissible.

Kumar identification evidence

[16] Specific to the Kumar robbery, Mr Cato submitted that the conviction on this count was unsafe not only because of the erroneous use of similar fact evidence, but also because of the weakness of the evidence of identification of Mr Holtz by Mr Kumar.
[17] Mr Kumar’s identification evidence was the subject of challenges pre-trial and during the trial. The trial judge summarised the circumstances relating to the identification evidence of Mr Kumar as follows:

He [Mr Kumar] was the person confronted by the offender at the time of the robbery. The offender had the bottom half of his face covered but did not have the top of his head covered. The police approached Mr Kumar with a board of eight photographs but this did not occur until 4th November 2000, which was nearly five months after the events.

Mr Kumar gave evidence, and this was confirmed by Detective Sergeant Williams, that he identified Mr Holtz from that photo board by putting his hand over the bottom half of the faces in the photo board. Subsequently, when the depositions occurred in August 2001, Mr Kumar indicated that he could identify the accused and he made a dock identification at depositions. That contrasted with what he said at the time the offence occurred, which was that he did not think he would be able to recognise the offender. His explanation for that in this Court was that he had some concerns for his safety. He also indicated in evidence that he watched the security video of the offence occurring numerous times and this had assisted him in making his identification.

In this Court he was presented with an amended version of the original photo board by defence counsel, Mr Gibson. [This of course was after Mr Kumar had given his evidence of identification]. The photo board had been amended in two ways; the first was that the photos had been placed in a different order so that the numbers attaching to each photo were altered from the original; the second was that half of the face on each of the photos had been covered up. The witness had this put to him in Court and was unable to make an identification from the photo board. In addition to the photo board identification he also made a dock identification in this Court.

[18] The trial Judge ruled that there was no difficulty with displacement risk in relation to the repeated viewing of the security video because the image was of the actual offender. He concluded that the subsequent events after the photo board identification, particularly the witness’ announcement at depositions that he could make an identification, and the fact that he was unable to make an identification from Mr Gibson’s amended photo board, were matters of weight for the jury. This accorded with the earlier pre-trial ruling by Nicholson J. The Judge declined to withdraw the identification evidence from the jury. He indicated that in the circumstances he intended to direct the jury appropriately. Mr Cato argued on the appeal that the identification evidence should have been withdrawn from the jury and, alternatively, submitted that the Judge had not directed in adequate terms.
[19] At the trial the evidence of identification of the appellant was supported by the evidence of the ESR scientist. He had examined enlarged versions of still photographs taken from the Kumar security video and commented on his comparisons of the shoes and jacket worn by the offender and those uplifted from the appellant.
[20] In the course of their deliberations the jury asked to have the videotaped footage from the security cameras at the Mangere Lotto shop and Mr Kumar’s Super 7 Superette as well as that from a BP service station visited by the appellant on the same day after the robbery (and after the appellant had changed his clothes). There was no objection by counsel and the Judge ruled that the jury could be provided with the tapes and playing equipment.

Other circumstantial evidence

[21] There was evidence that over the period of June to August 2000, during which the offences charged in the indictment were committed, the appellant lived in Tennessee Avenue in Mangere which was within one kilometre of all of the premises where the incidents occurred. At the time of the 1989 robbery the appellant was living in Skipton Road in Mangere East which was within 600 – 700 metres of the Kingsford Superette. In 1997 at the time of the robbery by the appellant of Redhill Superette he was staying nearby in Pallisade Place.
[22] There was also evidence of very small or negative balances in the appellant’s bank account in the days immediately before each of the incidents charged in the indictment.
[23] With reference to the events of 29 August, there was evidence from forensic experts adduced to exclude the presence of a third person in the small office area of the premises where Mr Prasad was attacked. Two sets of footprints, identified with the assistance of luminol used to detect the presence of blood, were traced from the office area to the entrance door of the shop. One trail went directly from the office area to the door and was said to be that of Mr Prasad. The other (admittedly the appellant’s) went from the office area, behind the counter, past the till (where over-printing suggested activity beyond merely walking by) and then to the shop entrance.
[24] The evidence of examination of the blood in the scene area and of shoeprints detected from blood traces were said to be inconsistent with the description of the whereabouts of Mr Prasad’s attacker given by the appellant in a video statement to the police and to have yielded no evidence of anyone other than Mr Prasad and the appellant being present.

Submissions for the appellant

[25] In a full and careful argument Mr Cato advanced five grounds of appeal. The first was that the evidence of the robberies committed by the appellant in 1989 and 1997 should not have been admitted. He submitted that there was not the necessary signature or special feature of that offending present also in the offences charged to render the evidence admissible. The primary contention was that evidence of previous offending is not admissible where it is to be adduced to establish identity unless there are common features that so mark or stamp the conduct as to indelibly point to the same person being responsible. We were referred to R v Blackledge [1965] VicRp 54; [1965] VR 397, R v McIntosh (1991-2) 8 CRNZ 515, R v Julian [1981] 1 NZLR 743, R v Straffen [1952] 2 QB 91, Pfennig v R [1995] HCA 7; (1994-5) 182 CLR 461 (particularly the judgment of McHugh J), R v Boardman [1975] AC 421 and DPP v P [1991] 2 AC 447.
[26] In effect, counsel's submission was that while the striking similarity requirement for the admission of similar fact evidence may have been relaxed for other cases, it had been maintained for cases in which the evidence is to be presented to establish identity. He relied particularly on the following passage in the speech of Lord Mackay of Clashfern LC in DPP v P (p462) with whom the other members of the House of Lords agreed:

When a question of the kind raised in this case arises I consider that the judge must first decide whether there is material upon which the jury would be entitled to conclude that the evidence of one victim, about what occurred to that victim, is so related to the evidence given by another victim, about what happened to that other victim, that the evidence of the first victim provides strong enough support for the evidence of the second victim to make it just to admit it notwithstanding the prejudicial effect of admitting the evidence. This relationship, from which support is derived, may take many forms and while these forms may include ‘striking similarity’ in the manner in which the crime is committed, consisting of unusual characteristics in its execution the necessary relationship is by no means confined to such circumstances. Relationships in time and circumstances other than these may well be important relationships in this connection. Where the identity of the perpetrator is in issue, and evidence of this kind is important in that connection, obviously something in the nature of what has been called in the course of the argument a signature or other special feature will be necessary. To transpose this requirement to other situations where the question is whether a crime has been committed, rather than who did commit it, is to impose an unnecessary and improper restriction upon the application for the principle.

[27] Reliance was also placed on the judgment of this Court in R v McIntosh in which it was said (p517):

Thus while “striking similarity” is not the essential qualification for admitting similar fact evidence, and the inquiry is as to cogency relative to prejudice, where the purpose of the evidence is to establish identity, the only evidence that is likely to have cogency is evidence that the offence or the way in which it was committed point convincingly to the accused. That is the essence of it, whether one uses the term “striking similarity” or “signature” or “special feature” or some other.

[28] It was submitted that the similarities between the 1989 and 1997 offending and that charged in the present indictment are factors that raise no more than suspicion. Those factors were commonplace and that there were factors of material difference, e.g. the use of a car in the 1997 offence and the use of a gun in the Kumar robbery. There was a singular lack of any hallmark trait.
[29] The second ground of appeal was essentially the same as the first. It was submitted that, because the similar fact evidence was not admissible so as to make them mutually supportive, the robbery and attempted robbery charges the subject of the remaining counts should not have been tried together with the counts of murder and robbery of Mr Prasad. The third ground, advanced in the alternative, was that the trial Judge did not give sufficient directions to the jury on how the evidence could be used. It was submitted:

In particular, he did not instruct the jury that before they could take evidence of pattern into account in deciding whether the appellant was guilty of an offence they must be satisfied beyond a reasonable doubt that the offender in the count under consideration and in relation to the other incidents alleged to form the pattern was one and the same man and to the extent that they were not so satisfied that the incident or incidents were attributable to the same offender they must exclude that incident or incidents from their consideration in relation to the guilt or otherwise of the appellant of the count under deliberation.

[30] This requirement was said to have been recognised in the judgment of this Court in R v Gee [2001] 3 NZLR 729, favouring the English line of authority over the decision of the Supreme Court of Canada in R v Arp (1998) 129 CCC (3rd) 321. Counsel accepted, however, that the requirement that the jury must be directed that they must be satisfied of the pattern beyond reasonable doubt before relying on it to convict the accused may apply only where the evidence is tendered to prove identity. That was the situation in this case in respect of the Kumar count.
[31] The fourth ground related to specific evidence. In light of the pathology evidence that Mr Prasad’s injuries were inflicted by two knives, it was submitted that Crown counsel was wrong to suggest to the jury that they could draw the inference that the appellant was the attacker from the evidence relating to the 1997 Redhill robbery. In the vehicle used in that robbery the police located two knives. One was a large black-handled kitchen knife corresponding to the description of the weapon used in the robbery. That was found tucked into the fuse box cover near the accelerator. The other was a shorter knife which was found on the left side of the front passenger seat. It was submitted that this evidence could not justify the inference that the appellant had been in possession of two knives in carrying out the earlier robbery and would have been disproportionately prejudicial in light of the pathology evidence.
[32] The fifth ground of appeal was that the conviction for the robbery of Mr Kumar’s Super 7 Superette should be quashed. It was submitted that the identification evidence given by Mr Kumar was so weak that it should have been excluded. Counsel argued that the rulings made pre-trial and by the trial Judge that the criticisms of the identification were matters of weight for the jury represented in each instance an erroneous exercise of the discretion to withdraw fragile or tenuous evidence from the jury. We were referred to R v Hoto (1991) 8 CRNZ 17 in which the dangers of presenting weak identification evidence were articulated by Fisher J. It was said that Mr Kumar’s less than satisfactory identification would have been taken unjustifiably as bolstering other evidence relied on to implicate the appellant which also was less than compelling.
[33] With reference to that other evidence, counsel submitted that the Judge had been wrong to invite the jury to form their own assessment of whether the person in the security video and the prints taken from it was the appellant when the witnesses were less than sure. We do not read the summing-up as constituting such an invitation but, in any event, that was a difficult submission after trial counsel for the appellant had cross-examined on the basis that the jury were as well placed as the witnesses and had told the Judge that he believed it would be desirable for the jury to have the video and the means for playing it.
[34] Alternatively, it was submitted that the Judge should have alerted the jury more positively to the inadequacies of the evidence and the dangers in relying on it. It was contended further that the conviction on this charge in respect of an incident proximate to the robbery and murder of Mr Prasad, must have further prejudiced the appellant on those charges.

Evidence of previous conduct

[35] One of the problems with evidence of past conduct, whether labelled evidence of bad character, propensity evidence or similar fact evidence, is the tendency to look for principles of admissibility applicable to all such evidence in all circumstances. At a very general level there is the broad principle that to be admissible the evidence must be such that its probative value outweighs illegitimate prejudice to the accused in having adduced evidence of past conduct that might be given undue weight or used improperly in reasoning towards guilt of the crime charged. It is in the application of that general principle in the circumstances of particular cases that difficulties arise. Often this is because the approach adopted in one set of circumstances is taken as the rule to be applied in a quite different case. Because of the wide variation in circumstances in which the issue calls for consideration, the preferable approach in a particular case is that which determines and weighs probative value and potential prejudice in the circumstances. It is necessary to consider the nature of the evidence, what it is sought to prove, what other evidence there is and its relationship and whether the evidence relates to prior proved offending or to concurrent charges, all against the underlying dangers inherent in propensity or bad character evidence.
[36] We are not persuaded that it is necessary to have different rules governing the admission and use of evidence of past conduct where identity is the issue. We do accept, however, that where the evidence is to be given with a view to establishing identity, care is necessary in assessing probative value. There is a real danger of being seduced by invalid reasoning. Evidence of a past incident which might have been that of the accused may have no probative value (or even relevance) in establishing that it was the accused who was responsible for the crime charged. That he or she might have been responsible for both incidents, without more, cannot amount to proof beyond reasonable doubt. There must be something that points to both incidents having been the responsibility of the same person and that the accused was responsible for one of them before the evidence is probative. That something may be provided in many ways. Striking similarity in the two incidents may be one of them. Other evidence linking the incidents and the accused may be available. Instead of one, there may be a series of previous incidents, each separately having little distinctiveness but when taken together compel the exclusion of coincidence.
[37] The approach to cases where identity is in issue referred to by Lord Mackay in DPP v P is convincingly explained in the judgment of the Court of Appeal in John W [1998] 2 Cr App R 289. Hooper J for the Court said (p300) that Lord Mackay had in mind a case where the only evidence of any substance against a defendant was a signature or other very striking similarity and held that there is no special rule for identification cases. He said (p301):

In this case there was a considerable amount of evidence against the appellant on the Aldershot counts and the Farnham count. The evidence on the Farnham count did not need to be “strikingly similar” or of the nature of a “signature” to be admissible on the Aldershot counts merely because the issue on the Aldershot counts was one of mistaken identification.

[38] Consideration of the circumstances in which the evidence is introduced is necessary also on the question of the standard of proof required for the use of evidence of pattern or similarity in previous events. Where that evidence is the only evidence or substantially the only evidence available from which the jury is asked to infer that the accused was the person who committed the offence charged, since the offence must be proved beyond reasonable doubt, the accused’s responsibility for the pattern of events necessarily must be found established beyond reasonable doubt before a verdict of guilty is justified. But that is because the offence charged must be proved beyond reasonable doubt. It is not because the similar fact evidence on which a verdict of guilty is based must be established beyond reasonable doubt before it can be used. By contrast it may be that in a particular case the evidence of pattern may be just another strand of circumstantial evidence pointing toward the accused. In that event, to require proof beyond reasonable doubt, would be quite inconsistent with the proper approach to circumstantial evidence. Accordingly we do not accept as of universal application that, where identity is in issue, similar fact evidence cannot be used unless it is found to the standard of beyond reasonable doubt that the accused was responsible for the past conduct and that the same person was responsible for the offence charged. Nor do we read the judgment in R v Gee as deciding that. But we do accept that that may in practical effect be the requirement when there is no other evidence identifying the accused as the offender in the count under consideration. The views of the Supreme Court of Canada in R v Arp, paras 62-70, are to similar effect.
[39] No standard of proof is required for the acceptance of evidence or for findings of fact. In analytical terms it may be appropriate to apply a standard of proof to the drawing of inferences from evidence even where such inferences are barely distinguishable from findings of fact and may relate merely to facts preliminary to the assessment of whether the elements of the offence have been proved. However, because we have rejected a general requirement that pattern or the like must be found beyond reasonable doubt before similar fact evidence may be used, we consider it would tend more to confuse than to clarify to insist that juries be directed expressly on a standard of proof in this respect. Directions to the effect that the jury must “find” “conclude” or be “satisfied” of the pattern, link, underlying unity or whatever is appropriate to the particular case are sufficient. Of course, it is important to emphasise in jury directions that where similar fact evidence is used the elements of the offence still must all be proved beyond reasonable doubt.

The first three grounds of appeal

[40] We turn to the grounds of appeal. We accept that, as Mr France for the Crown submitted, after conviction the appellant must show that the admission of the evidence was plainly wrong and that its admission has produced a miscarriage of justice.
[41] There is a real likelihood in this case that the jury did not rely at all on the similar fact evidence, perhaps because they did not find (as directed) sufficiently strong similarities between in each case the offence charged and the other incidents relied upon. There is support for that likelihood in the acquittals on the charges other than those relating to Mr Prasad and Mr Kumar. However, we accept that there cannot be discounted the possibility that on the counts on which guilty verdicts were returned the evidence of the other incidents had some influence. It is necessary to consider therefore whether the evidence was wrongly admitted and, if not, whether the Judge’s directions were adequate.
[42] On the charge of the robbery of Mr Kumar at his Super 7 Superette on 17 June 2000 the evidence of the previous robberies in 1989 and 1997 and of the other instances the subject of charges in the same indictment the evidence was led as tending to show identity – that the appellant was the person responsible. There was no dispute that the appellant was the offender in the 1989 and 1997 robberies. The evidence of those was advanced on the basis that the pattern established by all seven incidents cast the inference that the same person was responsible.
[43] There was other evidence tending to incriminate the appellant in the Super 7 incident. There was the identification evidence of Mr Kumar (assuming that was rightly admitted). There was the security videotape and the expert opinion evidence that the offender’s shoes and jacket bore strong similarities to the appellant’s shoes (his only pair) and jacket. Where there is other identification evidence the similar fact evidence is in the nature of circumstantial evidence. It is to be considered as part of the whole. The task for the Judge was to determine whether the evidence of the other incidents (or one or more of them) was capable of being found by the jury to disclose a pattern indicating that the same person was responsible to the point of constituting a credible strand of circumstantial evidence pointing to the appellant as the offender. If so, a finding that the evidence was probative of identity was appropriate. The probative value then needed to be weighed against the prejudice to the appellant of having the prior conduct disclosed.
[44] Regrettably, there is no particular distinctiveness in a robbery at knife point of small retail businesses in South Auckland. Nevertheless the repetition sufficiently often of the same factors (albeit commonplace factors) undoubtedly can reduce the likelihood of coincidence. Here the court was presented with evidence of six robberies and one attempted robbery, five within a small area and a short period. Except in the incident in which Mr Prasad was killed, each took place at or about closing time, in the winter when it was already dark at that time. The offender acted alone. He travelled on foot and had previously visited as a customer (except when the appellant was staying temporarily at Redhill). The offender wielded a large knife often referred to as a kitchen knife. He was right-handed. Descriptions of physical attributes and clothing were similar. Similar disguise was repeatedly mentioned. In each case the shopkeeper was Indian. Money only was taken. The appellant located money underneath the till drawer at the Redhill Superette. The offender enquired about money under the till at the Vine Street Price Cutter shop.
[45] In addition to the similarities in the incidents themselves, there was the evidence of the state of the appellant’s bank account immediately before each of the incidents in the year 2000. There was also some evidence of identification of the appellant in four of the incidents being those for which the appellant was convicted.
[46] The same considerations apply to the issue of whether the evidence of the other incidents was wrongly admitted in relation to the charges of robbery and murder of Mr Prasad. In respect of those charges the evidence was relied upon not to prove that the appellant was the person present at the scene, but to rebut his claims made to the police that he was there innocently. The evidence that he had committed robberies of small retailers at knife point in the past undoubtedly had probative value in that way. Similarly the evidence led on the other charges in the indictment, so far as that was found to show a pattern, was directly relevant to the likelihood that his presence on the scene in Mr Prasad’s store was pure coincidence.
[47] The care with which evidence of similar acts is scrutinised is justified because of the prejudice that inevitably arises from the risk of guilt being improperly inferred from mere propensity or disposition evidenced by previous bad conduct. But, where the evidence is truly probative and cogent, admission is appropriate so long as the circumstances are such that, while allowing the probative value of the evidence to be availed of, the risk of improper use can be avoided by appropriate directions to the jury.
[48] We are not persuaded that the Judge erred in not excluding the evidence of the robberies of which the appellant had been convicted. Nor do we consider there was any error in giving the jury the opportunity to treat the evidence of the indicted offences as mutually supportive so long as they were properly directed. That also disposes of the argument that there should have been severance.
[49] It will be clear from what has been said already that we do not accept that the trial Judge was required to direct the jury in the circumstances of this case that they could use the evidence of the other acts only if they were satisfied beyond reasonable doubt that the offender in the count under consideration was the same person as committed the other acts alleged to form the pattern. The important direction is that, if the similar fact evidence is relied upon, it must not be used to infer guilt merely because of past conduct. Further, the elements of the offence charged must be found proved beyond reasonable doubt.
[50] The Judge gave quite extensive directions in respect of the similar fact evidence. He preceded them with a clear direction on the need to consider each charge separately. Part of those directions was as follows:

I need to explain to you the extent to which the evidence from those offences can be relevant in this trial. The relevance is limited, and you need to be careful about it. Normally when a Court’s considering a charge, evidence about what an accused is said to have done at other times is deliberately excluded. That’s because what an accused might or might not have done on one occasion is, by and large, irrelevant to what might have been done on another occasion. However, there are exceptions to this general rule. Whether or not it was the accused who was the offender in relation to counts 3, 4, 5 and 6 of the indictment is the issue in relation to those counts. In relation to counts 1 and 2, the accused says that his presence at the scene of the crime at the time of its commission was an innocent presence, so the issue in relation to counts 1 and 2 is not so much one of identification but an issue as to whether the accused committed the offences himself or was an innocent witness to their commission. In each case, evidence of what has occurred on a previous occasion, or on another occasion, can be relevant so long as each of the two following factors is present: first, that the count under consideration is said to have been committed in a characteristic way or to have some features about it which are unusual or striking; and second, that the accused can be linked to the offences committed on other occasions which were committed in that characteristic way or which had the same unusual or striking features.

Where those factors exist, the Crown may call evidence about the other offences, which is known as ‘similar fact evidence,’ and you’ve heard that term used throughout the trial, for one purpose only. It may use that evidence as the basis for a submission to you that the characteristics or features of an offence which you are considering in this case are so strongly similar to the earlier offences of which the accused was convicted that you can logically conclude that the same person must be responsible for committing all of them. If you reach that conclusion in relation to counts 1 and 2, that would support the Crown’s contention that the accused’s presence at the scene was as an offender, not as an innocent bystander. In relation to counts 3 and 6 it would support the Crown’s contention that the person who was the offender was the accused, Mr Holtz.

In the present case the Crown alleges that the similarities between the Kingsford and Redhill offences, in respect of which the accused was earlier convicted, assist your consideration of all six counts in the indictment. In addition to that, the Crown argues that the similarities between the counts in the indictment themselves are such that you can gain assistance from a consideration of the similarities of one count in the indictment with the circumstances giving rise to one or more of the other counts in the indictment when you come to your verdict.

Now again I emphasise that the fundamental rule is that you must consider separately the evidence relevant to each count and that the relevance of evidence as to similarities in the other counts is limited, and you need to exercise care in the way you consider that evidence. As I said earlier, the fact that an accused person has done something wrong on one occasion does not mean that he must also have committed offences on other occasions.

However, if you find that there is a sufficient degree of similarity in the combination of features of the incidents giving rise to the counts in the indictment, and that those similarities go beyond the commonplace, then you may use the evidence in relation to one count in helping you in deciding whether the charge against the accused in another count is established beyond reasonable doubt. The same applies to the evidence relating to the Kingsford and Redhill incidents in respect of which the accused has already been convicted. The only relevance of those incidents is that, if you find there are distinctive features or similarities in what happened in relation to those incidents and any counts in the indictment, then you can use the evidence from those incidents to help you in deciding whether any charge in the indictment is established beyond reasonable doubt.

[51] We do not accept that these directions were inadequate in the ways contended for by Mr Cato. Nor do we accept that they are defective because of failure to direct the jury that to the extent they were not satisfied that the evidence qualified for use they were to exclude it from their consideration. A direction that the evidence could be used only if it was found to qualify was to the same effect.

The fourth ground

[52] The fourth ground of appeal is directed to reliance by Crown counsel on the location by the police of two knives in the vehicle used by the appellant in the 1997 robbery. Taking this as a separate point is to focus on a single factor in complex evidence involving seven incidents. By itself the point seems of little weight. In its context we cannot accept that it could have significantly added to the weight of the fact of the prior Redhill robbery as it bore on the issue of whether the appellant’s explanation of innocent presence in Mr Prasad’s store was credible. Certainly we find no risk of a miscarriage of justice on this point.

The Kumar evidence

[53] We turn finally to the appeal as it relates specifically to the robbery of Mr Kumar.
[54] The trial Judge had a discretion to exclude identification evidence on the ground of unreliability. In this case the identification evidence of Mr Kumar was admitted, and, taken together with the other evidence pointing to the appellant as the offender in the robbery of his shop, led to the jury being satisfied beyond reasonable doubt and returning a verdict of guilty. The discretion to exclude is to be exercised where, because of the weakness or unsatisfactory nature of identification evidence, its admission might lead to an unsafe verdict. Exclusion on this ground would not normally be appropriate where there is other evidence of identification so that the evidence in issue is part only of the evidence tending to identify the accused as the offender.
[55] Both the Judge who considered the matter pre-trial and the trial Judge considered that the criticisms of Mr Kumar’s evidence were matters to be assessed by the jury in determining what weight, if any, should be placed on it. We are not persuaded that was wrong. The weaknesses of the evidence were fully canvassed before the jury.
[56] In circumstances such as this, after conviction, the ground of appeal really must be that the verdict is unreasonable and cannot be supported on the evidence: s385(1)(a) Crimes Act 1961.
[57] There was before the jury, in addition to the identification evidence that Mr Kumar picked out the appellant from a photo-montage, the evidence of the images captured on the security videotape and the evidence of comparisons of the shoes and jacket of the offender in enlarged prints taken from the videotape with the items uplifted from the appellant. There was the similar fact evidence, subject to the jury finding sufficient evidence of pattern, even though this was the only incident in which the offender had a gun. We consider that it was open to the jury to conclude beyond reasonable doubt that the evidence taken together identified the appellant as the offender. It may well be that separately each item of evidence would not have convinced the jury, but that is not the test.
[58] For the same reason that we consider it was open to the Judge to allow evidence of Mr Kumar’s identification, we see no objection to the jury considering whether they found assistance in viewing the security videotape. That alone would not likely have provided conclusive evidence of identity – the ESR expert could not say conclusively it did – but it was nevertheless part of the evidence.
[59] We have carefully reviewed the Judge’s summing-up against Mr Cato’s submission that the Judge did not strongly enough alert the jury to the dangers present in Mr Kumar’s identification. The Judge gave the conventional direction warning of the special need for care before relying on identification evidence as a basis for conviction. That fully met the requirements of s344D Crimes Act. The Judge then said:

Can I suggest that you think about the circumstances under which the witness saw the person at the time? For instance, how long did the witness have the person under observation – how long did they see them for? What was the distance between them? What was the lighting like? Was there anything that physically impeded observation, such as something obscuring or covering the face? Had the witness ever seen the person before – did he or she know them already? If the witness did know the person, how well did they know them? Was there anything about the situation that would cause the witness to take particular note of the person? How long a lapse between the event and any subsequent sighting in the identification of the accused? If the witness gave a description at the time, or soon after, how well did it match the accused? Thank about those sorts of issues carefully to see if you can rely on the evidence of identification in this case.

There are two instances of identification evidence I want to highlight in this context. The first concerns the Super 7 aggravated robbery, that’s count 3, and that is the identification evidence of Mr Kumar. The second concerns the aggravated robbery of the PriceCutter Superette, which is count 4, and that is the identification evidence of Tajinder Singh. There are aspects of those two witnesses’ identification evidence that I will come to when I review the evidence relating to those counts, and I will remind you about it when I get there. Those are the general points I wanted to deal with.

[60] Later in the summing-up, when reviewing the Crown and defence cases the Judge reviewed the evidence quite extensively. After summarising the evidence of Mr Kumar and his failure to identify the appellant in the revised montage presented to him in the course of cross-examination he said:

I mentioned earlier about the need for care when considering identification evidence. For the reasons I’ve already outlined to you, as with other examples of identification evidence, you should go back to the fact, as I mentioned earlier, and consider whether there is any risk that the witness may have been mistaken in his identification. In addition, you can make your own assessment in the manner in which the witness gave his evidence in this Court.

The defence case is that the identification evidence given by Mr Kumar is characterised by inconsistencies between what he said at the time, what he said at depositions and what he said in Court. The defence also says that any risk inherent in an identification is made greater because the identification occurred some months after the robbery. Again those are matters for you to assess as to the reliability of Mr Kumar’s evidence.

[61] We consider the directions were entirely adequate and the jury can have been in no doubt of the need to treat the evidence with care in light of the criticisms of it by defence counsel. It was submitted that the Judge couched his comments on the deficiencies in the evidence in terms of counsel’s submissions rather than give judicial imprimatur to its inadequacies. We do not accept that. Overall the directions were balanced and left to the jury to assess the weight they should give the evidence.
[62] We reject this final ground of appeal.
[63] For the reasons given the appeal against the convictions is dismissed.

Solicitors
Crown Law, Wellington