O'HARA v R [2005] NZCA 43 (14 March 2005)

Last Updated: 20 April 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA368/04

THE QUEEN



v



TODD O'HARA

Hearing: 8 March 2005

Court: William Young, Randerson and Robertson JJ

Counsel: C B Cato for Appellant
A Markham for Crown

Judgment: 14 March 2005

JUDGMENT OF THE COURT

Appeals against both convictions dismissed.

REASONS

(Given by Robertson J)

Introduction

[1]	This is an appeal against conviction in respect of one count of attempted aggravated robbery and one count of aggravated robbery.
[2]	Mr O’Hara appeals on the ground that the verdicts were unreasonable, not supported by the evidence and that identification evidence of two witnesses was wrongly admitted.

Background

[3]	On Saturday 14 June 2003, offences occurred between 6.15pm and 6.45pm at two liquor stores on Auckland’s North Shore. The first was an attempted aggravated robbery at Bush Road Liquor Centre in Albany, and the second an aggravated robbery at Liquorland in Glenfield.
[4]	The uncontroverted evidence at trial was that, on both occasions, a male offender entered the premises carrying a firearm which was pointed at the proprietor and demands made for money. The person on each occasion was wearing a black beanie and his face was uncovered. The general description was of Maori or Polynesian appearance, medium height and build and wearing a black open jacket and black or dark clothing.
[5]	At trial, the sole issue was identification. In his submissions Mr Cato made some overt reference to the fact that evidence establishing that one person had committed both offences was not conclusive, although he recognised similarities in modus operandi, proximity, time and place. As the Crown properly submitted, if this were to be an issue on the appeal it would involve counsel competence, as the trial was conducted on the footing that it was the same person and only identity was in issue. Counsel’s conduct has not been specifically raised, no waiver provided and the question is not properly before us. We do not consider that point further.

The appellant’s case on identification

[6]	It is logical and convenient to first consider the admissibility of the evidence of Mr Benjamin who was a customer at the Albany Liquor Store and Mr Stembridge who was a salesman at the Glenfield Liquor Store. In respect of each of them it was contended their evidence should have been excluded entirely because neither positively identified Mr O’Hara.
[7]	Mr Cato also suggested that there should have been a voir dire to determine whether this evidence should have been admitted. That point had not previously been raised. Again it involves a question of counsel competence suggesting a fundamental error of judgment in not pursuing that course of action at trial. Such an attack has not been properly raised and we do not assess the ground from that perspective.
[8]	Mr Benjamin said in evidence, discussing the identification parade:

And when you walked up and down did you see anybody that you recognise?
Well, I wasn’t a hundred percent sure but I saw one guy which I thought would sort of most likely be the person that committed robbery but I didn’t tell them that at that time standing outside that I thought it was him.
Why did you not tell them then? ... Well I wasn’t really a hundred percent sure and I stopped and sort of turned around after I’d walked down the line of people and sort of had another look and then we walked back inside and then proceeded to go up into the police station and I was still thinking about it as we were walking back to the police station and I sat down in this room for about half a minute before they called me up to make the statement and when I went in to make the statement, when I sat down the officer started to sort of started typing up the statement which is when I asked him if I thought – if I was most likely sure but not a hundred percent that there was a person there that was in the robbery could I say so or did I have to be a hundred percent sure, which is when I – that was when I said well I’m pretty sure it was this guy.

[9]	The relevant cross examination was:

Didn’t he have a discussion with you, back in the doorway, about whether you identified anyone on the parade? ... He asked me, after we walked down the line of people. He said – can you identify anyone – and I said – no. And then we walked back inside and he may have asked me again I think. Yeah.
And you told him, on both of those occasions, if there were two, that you couldn’t identify anyone? ... Yes.
Were there any persons on the parade that you gave a second look? ... Yes, well I – after I’d walked. I walked down the first time and looked at everyone, walked past them and then I stopped at the end and turned around and sort of took a look back past all the people again, and then looked back at the person sort of second in from the end. Had another look at him and then I said, I didn’t identify anyone – I couldn’t.
Well, let me suggest this to you Mr Benjamin, didn’t you spend some time with one or two gentlemen at the beginning of the line. Some time looking at a couple of persons at the left-hand side of the line? ... No, I walked – I walked down and walked along at a reasonably steady pace; all the way down.
In any event, when you turned away from the parade, when asked the question whether the person involved in the robbery was in the line-up, you said you didn’t recognise anyone? ... That’s right, yes.
And that was the position, wasn’t it? ... I don’t understand the question. Well that was true wasn’t it – you didn’t recognise anyone? ... There was somebody I thought was the person but I wasn’t sure whether I had to be one hundred percent that it was the person or not, so I said – no.
Well what are you today Mr Benjamin – are you in a position where you thought or you’re not sure, or you are sure – what is the position? ... I’m most likely sure that it was that person. Most likely sure? .... Yes.
When did you become "most likely sure"? ... As I was walking back to the police station, I was still thinking about what had just happened and after a minute or so, sort of, after I’d been thinking about it, was becoming more and more sure that that was the person that was at the robbery.
Well, what was it that was making you more and more sure? What was changing? ,... The reason why I didn’t – at first I wasn’t sure was because he seemed sort of taller than the person that was at the hold-up, and seemed a little bit chubbier. And – but there was something recognisable about his face and as I was walking back into the police station, was when I was thinking about it and he had – he had very, very sort of thick soled shoes on which made him seem taller. And the ground that we were standing on - they were all standing on sort of slopey ground – and they were all standing on the high side of me, so he seemed taller than he may have actually been.
The ground sloped from left to right didn’t it? ... No, the ground slopes - they were standing on a high side of me. Well if that was a factor, that was a factor that was quite apparent to you when you went on the parade, wasn’t it? ... Well I sort of noticed it as I was walking along but didn’t really think about it until after I was walking back towards the police station.
Aren’t you saying to the jury that when he looked at those men on the parade – number seven was different to the man that you’d seen in the robbery - because his face was different and he was taller. Is that what you’re saying? ... No, I didn’t say his face was different. I said he looked a little bit chubbier than I remember. And he was tall? ... And he looked tall.
You told that to the officer-in-charge, perhaps twice, and then you went upstairs to make a statement to a police officer – another police officer? ... Yeah, after I didn’t – the officer at the parade didn’t ask me any details, he just asked me if I could identify someone and I said – no – and then we proceeded to go up to the police station to make a statement to another officer.
And it was while you were upstairs in the police station, with this police officer, that you became sure – that’s right isn’t it? ... Ah no. As I was thinking about it as I was walking back – and I was sitting in this room by myself – and then the police officer came in and said to come into the other office to make a statement and when we got into the office I sat down and he started taking a statement. That was when I asked him about, if I had to be a hundred percent sure of someone to identify them or not.
And what did he say? ...Well he said to me that if you are most likely sure or had a pretty good idea that one of the people was a person at the robbery, then you should say so, but also say why you were not a hundred percent sure; the reasons for it.
Well at the time you made the statement – were you sure? ... I was most likely sure that was the person, yes. Well you keep saying – most likely sure. Were you sure or not? You see, what I’m not sure about is, if you were sure of identification, why did you need to have any discussions with any police officers. Why didn’t you just say – it’s number seven, I’m sure. Why not say that? ... Because I was thinking about it as I was walking back to the police station, when it was I made up my mind. Sort of though about it.
You told us that when you got upstairs with the officer – in the little room upstairs – you asked him whether you had to be sure or not? ... I asked him whether ... Why did you ask him that? ... I asked him whether you had to be one hundred percent sure, but if I recognised someone’s face and that I thought it was them, then could I say so and he said yes but just make sure you tell us the reasons why you’re not a hundred percent sure, so I did.
...
Because you weren’t a hundred percent sure? ... No I wasn’t one hundred percent sure. Never have been a hundred percent sure correct? ... I wasn’t one hundred percent sure at the time, no. Well, you never have been a hundred percent sure have you? ... I suppose not, no.

[10]	Mr Cato criticised the Judge’s treatment of this evidence in his summing up when he directed the jury:

Could I suggest that, rather than focussing on the literal words, you stand back a bit and look at Benjamin’s evidence in the round, consider the whole of what he said and just ask yourselves in the end, does this man seem certain about identification of male seven in the line-up and if he is, is he a reliable witness concerning the identification. Of course, have regard to the words he used at the time, and that sort of thing, but look at his evidence as a whole. It is a matter for you to use your commonsense about; it is a question of fact for you to decide.

[11]	In respect of Mr Stembridge, the relevant evidence about the identification parade was:

So having looked at the men and walked up and down the line, what was your reaction or your response at that stage? ... I just said to the officer-in-charge that I couldn’t be a hundred percent sure. Would this have been the Sergeant – Sergeant Libby – who was there? ... Yeah.
So you spoke to the Sergeant and were you asked to go back into the police station? ... Yes. Was that with another officer? ... Yes.
So you went back into the police station and then what happened? ...I made a statement to the policeman that took me back inside and I told him who I thought it was, with about 80% certainty, yeah.

[12]	Cross-examination on the point included:

You’ve also told us that you spoke to the officer-in-charge of the parade and told him words to the effect that you couldn’t be sure – couldn’t be 100% sure – whereabouts were you both when you told him that? ... We were outside in the yard.
There was a big gap wasn’t it. You’ve told us that at one stage you were a foot or two away from the parade as you were walking up and down. Was it at that stage that you said that? ... No, we’d moved closer to the door I guess. Sort of at the start of the line-up. Did you say anything to the officer in front of the parade when you’d finished inspecting the men? ... I just said that I couldn’t be one hundred percent sure.
Well so you did say that – in front of the men – did you? ... Ah, yep I guess. Well are you sure about that? ... We were still in the yard, yeah.
Yes I understand that and I know it was sometime ago but I just want you to try and put your mind back then. You went with the officer-in-charge, the man with a clipboard, and you started with the left hand end of the parade, number one – is that right? ... Yes. And the two of you walked together along the length of the parade and at number eight, just after you’d inspected all of them, didn’t the officer-in-charge ask you at that stage whether you could identify anyone? ... We walked up and then back, and then he asked me, yes. Is this close to the participants in the parade? ... I guess it would have been a few metres yeah.
Did you not feel intimidated then? ... I did a bit yes. When you walked back to the door to the building, doorway to the building is that right? ... Yeah – towards that yeah. And that would be several metres away from the parade isn’t it? .. I would say it would have been three or four metres, yeah – I don’t know. Certainly out of hearing of the participants on the parade at that stage? ... Possibly yeah. You weren’t intimidated then were you? ... I was still feeling a bit uneasy yeah. Why was that? ... Well, just like I said before the whole situation, yeah. At that stage did the officer in charge of the parade ask you who your 80% man was or who the man was that you weren’t 100% sure of? ... No. And you didn’t volunteer that? ... Not at that stage no. When did you volunteer it? ... When I went back inside with the officer to give my statement.
He asked you whether you could identify anyone? ... Yes. And you said no, isn’t that right? ... I said, once again, I said not with a hundred percent, but I thought with about eighty percent – was number 7 yeah.

[13]	In the summing up with regard to Mr Stembridge, the Judge said:

He too identified the accused as being the person (as I have said) to an 80% certainty but he thought that the man in the parade could well have been a little taller than the man who came into the liquor store.
You will have noticed Mr Stembridge spoke in terms of percentages. It is a matter for you, members of the jury, but perhaps what he was trying to get at was that on a scale of 0 to 100 he was at 80 when it came to how certain he was about whether or not this was the man.
So the decision is one for you. You need to keep in mind that the identification evidence is part of the evidence only; it is a very important part of the evidence though that the Crown has brought before you.
Before we leave the matter of identification, I just want to add these comments: mistakes that are made in this area are very hard to undo. We can never put ourselves in the exact position of the eye witness – it was them, and them alone, who carried out the identification and we cannot independently assess how good their identification was, how good their memories were, how reliable they are. We are critically dependent upon them – we almost have to take their word for it. So that is why a caution is called for.

[14]	Counsel argues the approach in each case is contrary to important principles about purported identifications. He says the correct position is summarised by the High Court of Australia in Pitkin v R [1995] HCA 30; (1995) 130 ALR 35 when Deane, Toohey and McHugh JJ said at 38:

... neither wisdom nor commonsense supports the conclusion that, in circumstances where the Crown case rests solely on a witness’ purported identification of him through being shown photographs in a police station, that identification need not be clear and unambiguous.

[15]	Counsel submitted that, in accordance with that principle, the evidence should not have been admitted at all because:

It is submitted they should not have been permitted to consider the evidence of identifications at the parade because they were not positive identifications, on their face, and were incapable of being so regarded. The danger is that the jury will have used the fact that no one but two eyewitnesses purported to identify the appellant as makeweights for each other so that in the face of the defence approach which was not to dispute the fact that the robberies were related lent itself to an overall identification albeit that both identifications were less than certain. It is submitted one less than certain identification cannot be used to shore up another.

The Crown response

[16]

The Crown submitted that there was no rule that identification evidence of this sort should be excluded unless it was said to be 100 per cent certain or positive. Reference was made to decisions of this Court in R v Tuisafia CA111/01 30 August 2001 at [4], and R v Panapa CA199/99 16 December 1999 at [14] to that effect.

[17]

Ms Markham submitted that the critical issue in Pitkin was not the admissibility of evidence that the appellant ‘looked like’ the offender, but rather the safety of a verdict which depended solely on such evidence. Counsel also made reference to the more recent decision of the Queensland Court of Appeal in R v Lam [2001] QCA 279; (2000) 121 A Crim R 272 where a witness who was shown a photograph of the accused had said that "it might have been this guy" and he was "not 100 percent sure". About this the Court said at [287]:

It has never been the law that certainty is a necessary requirement before identification evidence may be admitted. Indeed, confident witnesses are persons in respect of whose evidence some need for caution may be required. Pitkin was a case where the evidence of resemblance ("this looks like the person") was the only evidence linking the accused with the crime. In the present case, although [the evidence] was less strong than evidence to a similar effect given by [another witness] it was nonetheless properly admissible. It was one of a number of circumstances that the Crown was entitled to prove against [the accused].

Discussion

[18]	We do not accept the contention that the evidence of identification at the parades at the Police Station should have been excluded. It was for the jury to assess how much weight they could place on the evidence of Mr Benjamin and Mr Stembridge bearing in mind the hesitation which they expressed. The Judge, in terms of Turnbull v DPP [1977] 1 QB 224 had properly warned the jury about the need for caution. The witnesses had themselves been careful in what they had said. If they had been adamant and absolute they probably would have been attacked for being too confident.
[19]	We reject the suggestion that this was inadmissible evidence. It was relevant and therefore admissible unless some rule required its exclusion. It was for the jury to assess its weight and value. It would have been better if the Judge had been more precise in speaking of the evidence about identity by these two witnesses rather than calling it "identification evidence". However this semantic shift in the totality of the summing up does not give rise to any concern.
[20]	We specifically reject Mr Cato’s approach that their evidence about the identity parade should not have been heard. As counsel acknowledged there is no authority for his proposition. Evidence of this type can be probative (for both the prosecution or the defence) and a blanket exclusion in the absence of an absolutely positive assertion is neither necessary nor justified.
[21]	We accept that Pitkin may be distinguished on the ground that the High Court of Australia was dealing there with a case where the identification evidence in question was the sole available evidence. Here, the evidence from the identification parade was simply part of the overall evidence on that subject which came from a variety of sources.

The appellant’s case on unreasonableness/Verdict not supported by the evidence

[22]	The second aspect we consider is the more generalised challenge that, even with the evidence of the two men from the identification parade, there was an insufficient evidential base to justify conviction.
[23]	Mr Cato undertook a detailed analysis of each of the witnesses called. As one would expect from an appellant’s counsel, he stressed the variations and discrepancies which have arisen and the room which existed for the jury to consider alternative possibilities.
[24]	As well as the position of Mr Benjamin and Mr Stembridge, he noted that various professional witnesses gave evidence indicating that they could not be absolutely positive about certain matters although they indicated their overall assessment of connection and relationship which existed.
[25]	Of importance was a beanie which was located near to the Liquorland carpark in Glenfield in good condition. In respect of this a forensic scientist was able to say that there was a mixed DNA profile (which meant the sample originated from more than one person), but the major portion came from the appellant. Mr Cato submitted this did not add anything as the appellant was sometimes in that area as he admitted, as a patron of the liquor store.
[26]	Mr Cato also noted there were discrepancies in the description of the clothing and importantly nothing distinctive mentioned or which linked what was described back to the appellant. He said what was spoken about was commonplace and had little value as far as identification was concerned, particularly a substantial time after the event.
[27]	Counsel submitted that there was no probative value in the fact that the appellant could not state exactly what he was doing at the time of the robberies considering that he was asked months after the event.
[28]	As a result, Mr Cato contended that the evidence did not establish beyond reasonable doubt that the appellant was the robber.

The Crown response

[29]

Ms Markham emphasised that the relevant test was whether a jury properly directed could reasonably convict on the totality of the evidence available at trial. She submitted that, the evidence as a whole provided an ample foundation from which the jury could infer that the appellant was the offender. She noted in particular that:

• the appellant had been selected by one witness from each of the crime scenes following an identification parade that included eight men of similar appearance at the Takapuna Police Station five and a half months later, even if the evidence fell short of absolutely positive identification;
• the appellant lived a short distance from the scene of each of the offences;
• the security surveillance footage available showed a person who was consistent with the descriptions given by people present at the sites;
• when he was arrested (three months after the event) the appellant was wearing clothing of similar appearance to that described on the night; and
• Mr O’Hara was left handed and the video footage from Glenfield indicated that the offender had been left handed.

Discussion

[30]	We are satisfied, on this aspect of the case, the matter falls squarely within the test enunciated by this Court in R v Seekamut CA82/03 10 July 2003, when it was said at [21]:

Counsel has raised many possible alternative inferences consistent with innocence, and has argued that those inferences must be preferred. If on an objective basis that has regard to all the circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt. But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough. The jury’s function is to assess the whole of the evidence and in so doing may conclude that a suggested alternative is not reasonably tenable.

[31]	It could not be said, in the circumstances of this case, that on the basis of the totality of the evidence available it was not open to the jury to conclude that the appellant was the offender and that any other rational possibilities had been excluded.
[32]	This was a classic circumstantial evidence case which included as well as the matters asserted by Ms Markham:

• A beanie with Mr O’Hara’s DNA being found in the vicinity of where the offender had been seen to flee;
• Mr O’Hara being of the size, shape and general appearance of the person who had been seen by people at the two premises;
• Mr O’Hara being seen in the area at relevant times;
• The appellant being left-handed which was consistent with material evidence;
• Mr O’Hara wearing clothes consistent with what was visible on the security surveillance tape.

Conclusion

[33]	On the totality of the available material, we are satisfied that the verdicts were properly available to the jury.
[34]	The appeal against each of the convictions is dismissed.

Solicitors:
Crown Law Office, Wellington