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The Queen v Pahulu [2006] NZCA 239 (4 September 2006)

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The Queen v Pahulu [2006] NZCA 239 (4 September 2006)

Last Updated: 13 September 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA79/06

THE QUEEN

v

FAKATOU PAHULU

Hearing: 24 August 2006

Court: Robertson, Wild and Harrison JJ

Counsel: L J Postlewaight for Appellant
S B Edwards for Crown

Judgment: 4 September 2006 at 11am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1] The appellant, Fakatou Pahulu, was found guilty in the District Court at Whangarei on one charge of aggravated robbery. He appeals against conviction.
[2] The only issue at trial was whether or not Mr Pahulu was the offender. The Crown’s case relied solely upon the complainant’s evidence identifying Mr Pahulu as his attacker. He appeals on the ground that the trial Judge failed in his summing-up to direct the jury adequately on identification evidence.

Background

[3] At about 12.30 am on 9 December 2004 the complainant, Mr John Keatley, was walking home along Water Street in Whangarei. He had been visiting night clubs and had consumed a significant amount of alcohol. He saw three people – two males and a female – sitting in a seat outside the old Northern Advocate building. Mr Keatley had first seen the three people from a distance of 20-30 metres. He had no reason to keep them under observation but as he passed he made a friendly greeting.
[4] One of the two men responded in similar terms. Mr Keatley thought he was Maori, in his early 20s, and about 6 ft 2 inches. He said that he was wearing a black singlet, brown trousers and had distinctive tattoos on one of his upper arms and forearm.
[5] A little further on along Water Street one of the two men he had seen earlier tapped Mr Keatley on the shoulder. When Mr Keatley turned around the man punched him in the face between 12 and 15 times. The man stole some tobacco from him. The attack lasted for more than a minute and the two men were face to face throughout. Mr Keatley suffered a broken jaw and was admitted to hospital. Later that day Mr Keatley gave a description of his assailant to a police officer.
[6] On 30 December 2004, as a result of information received about Mr Pahulu, the police requested a computer generated photo board from the photography section in Wellington. The photographs were emailed to the officer-in-charge in Whangarei who compiled a photo montage, blacking out information which might identify the persons in the photograph. That afternoon Mr Keatley identified Mr Pahulu from the photo board. The officer described his identification as instantaneous. Mr Keatley then made a full written statement to the officer. His description remained unchanged from that given on the day after the assault.
[7] The police spoke to Mr Pahulu on 12 April 2005. He made a statement, which was recorded on video, denying his participation in the assault.
[8] Following his committal for trial, Mr Pahulu challenged the admissibility of the photographic identification evidence. This was dismissed by Judge Barbara Morris on 25 November 2005. Mr Pahulu did not appeal her decision and in argument on appeal Ms Postlewaight accepted that she could not request this Court to review or revisit the Judge’s decision.
[9] At trial Mr Pahulu gave evidence in his own defence. He also called alibi evidence from Ms Pauline Wilson, his girlfriend’s mother.

Decision

[10] Ms Postlewaight’s original synopsis raised a number of issues in support of Mr Pahulu’s appeal but they were later refined as follows.

(a) Inadequate Direction

[11] First and primarily, Ms Postlewaight submitted that when warning the jury pursuant to s 344D of the Crimes Act 1961 the Judge did not adequately deal with the dangers inherent in the identification evidence led at trial as to Mr Keatley’s state of intoxication, his credibility at trial, poor lighting, duration of observation, impediment to observation, limited description of his assailant given soon after, distance and the absence of evidence to corroborate the identification.
[12] To give this submission context, we note the relevant passages from the Judge’s summing-up:

[14] As I have said there is no doubt that an aggravated robbery occurred, that is that there was a theft accompanied by violence and, at the time, serious harm, was done to Mr Keatley. The sole question is, is it or was it [Mr Pahulu] and I must direct you on how you approach your task when deciding that question. The question of identification and has Mr Keatley got it right. This is a case where the Crown relies upon the accuracy of his identification of [Mr Pahulu] as the man who attacked him and the defence contends that Mr Keatley is mistaken. Where that is so, the law requires me to warn you of the special need for care before relying on the identification evidence as the basis for a conviction.
[15] The reason for that is that experience has shown that it is quite possible for a perfectly honest witness to be mistaken about identification. An honest witness, who is convinced of the accuracy of what he says, may well come across as a convincing witness but may still be mistaken. Bear in mind that sometimes we all make mistakes into thinking we recognise people even those people we know well. Some of you may have experienced that in your lives. You see somebody across the road from the back and you think oh that’s my mate. You cross the road and tap him on the shoulder. The person turns around, and lo and behold you have never seen the person before and they are wondering what you are doing tapping them on the shoulder. So that is why there is this warning that you should take special care.
[16] That is not to say, however, that you cannot rely on the identification evidence. Of course you may but you need to be careful in deciding whether the evidence is good enough to be relied upon. 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 was he looking at the person; at what distance. You will remember the evidence here which was not seriously challenged and it started as Mr Keatley walked along Water Street towards the old Advocate building. There was an observation then. Later when he hears footsteps behind him and a tap on the shoulder and he turns, all those matters, when he hands over his tobacco. So those sorts of things.
[17] What was the lighting like. Was there anything that physically impeded the observation. There does not seem to be here like in some cases, is there a tree or something in between. Had the witness ever seen the person before. Was there anything about the situation that would cause him to take particular note of the person. These are all matters of common sense aren’t they. If you are just walking down the street and someone walks past you and you have got no reason really to look at them and you are later asked, well who was that person, you would think well I was just thinking about Christmas and I haven’t done any of my Christmas shopping yet, and I wasn’t expecting to ID the person walking past me.
[18] So was there something about the situation here that you think caused Mr Keatley to particularly note the person. How long a lapse between the event and any subsequent sighting or identification of the person. Here it was 21 days until he was shown this montage of photographs. If a description was given, at the time or soon after, how well did that match [Mr Pahulu] and you will recall Ms Postlewaight yesterday made some comment about that. Think about those sorts of issues carefully to see if you can rely upon the evidence of Mr Keatley as to identification.
[19] It needs to be a special need for care but balanced against that, there is no rule of law in this country that you need two or more eye witnesses before a jury can act. That is what you need to go through, those sorts of things, and I am sure you might think of others using your common sense and experience of people when assessing this central issue in this trial. Has Mr Keatley got it right.
[20] Where there has been a dock identification, and a dock identification is a word that lawyers and Judges use, and is when a witness comes into the witness box and he is asked by the prosecutor "well can you see the person who attacked you?" and the witness generally looks around. He looks at me and he thinks it won’t be the Judge and he looks over at you, well it won’t be you, and then he comes around and who’s it going to be, the man flanked by the two prison officers. So you should be careful about that sort of identification as well.
[21] Where there has been a photo identification, I need to warn you as the jury that no adverse inference should be drawn from the fact that the police possess a photograph of [Mr Pahulu], and obviously they did, but you should not draw any adverse inference against [Mr Pahulu] because the police had a photograph of him.

[13] Ms Postlewaight submitted that these directions, while arguably correct in law, were insufficiently tailored or focused towards the facts of this case. She said, by way of example, that the Judge should have specifically referred to the lighting and the level of Mr Keatley’s intoxication. In these respects she acknowledged that the Judge said this:

[32] [Ms Postlewaight] submitted that the lighting was poor, that [Mr Keatley] had had a lot to drink – to use her phrase, ‘he had had a skin full’, 24 stubbies that he had shared with his three flatmates, 6 to 8 handles when he was out on the town, plus a small amount of Bourbon – that he is assaulted almost immediately on turning, instant panic, instant pain, even while handing over the cigarettes...

However, Ms Postlewaight said that this reference was too late, when given in the context of summarising the defence case, and should have been at the forefront of the Judge’s directions.

[14] Ms Postlewaight, first, submitted that the Judge failed to make clear to the jury that it had to be satisfied that Mr Keatley’s identification of Mr Pahulu that night was reliably made but, second, accepted that the Judge correctly directed the jury that it must be satisfied that the man in the dock was the person who assaulted Mr Keatley. The distinction between the two requirements is not easy to follow as acceptance of the latter must include proof of the former.
[15] We are satisfied that the Judge’s directions were sufficient and appropriate. With a single exception which we will discuss next, Ms Postlewaight was unable to identify one error in the cited passages. In particular, the Judge emphasised that where the Crown relies on the accuracy of the complainant’s identification of his assailant, in circumstances where the latter alleges mistake, the jury must exercise special care before accepting that evidence as the basis for a conviction. He correctly emphasised the risk of an honest witness being mistaken about identification and the circumstances which the law requires a jury to take into particular account. He concluded this part of his directions with the rhetorical question – ‘has Mr Keatley got it right?’
[16] The Judge specifically referred the jury to the lighting and asked them to consider whether anything ‘physically impeded’ Mr Keatley’s observation. He repeated Ms Postlewaight’s submission to the jury that the lighting was poor.
[17] The Judge did not err in first referring to Mr Keatley’s state of intoxication when summarising the defence case. The jury was aware of the quantity of alcohol he had consumed that evening. It was the subject of careful cross-examination by Ms Postlewaight. Mr Keatley emphatically rejected her concluding propositions that his identification was mistaken because he was drunk and the lighting was not perfect. The whole focus of the Judge’s direction was on the reliability of Mr Keatley’s identification evidence which would of necessity include his own condition and whether or not his powers of accurate observation were impaired by alcohol consumption. This aspect was emphasised when he outlined the defence case and an earlier special direction was unnecessary.

(b) Misdirection

[18] Second, Ms Postlewaight submitted that the Judge erred in this direction:

[16] ... You will remember the evidence here which was not seriously challenged and it started as Mr Keatley walked along Water Street towards the old Advocate building. There was an observation then. ...

[19] Ms Postlewaight submitted that the defence case was that Mr Keatley did not observe anything then. However, in reply to one of Ms Postlewaight’s own questions, Mr Keatley said that he first noticed the three people from a distance of 20-30 metres before passing them. Ms Postlewaight did not challenge or dispute his answer.
[20] The Judge was explaining for the jury the relevant aspects of the observation factor. He gave an example of when Mr Keatley observed three people. He was correct in saying that that evidence was not seriously challenged.

(c) Error

[21] Third, Ms Postlewaight submitted that the Judge erred when summing up the Crown case on one point: at [28]. She said that his direction conveyed a conclusion that it was Mr Pahulu who assaulted Mr Keatley.
[22] It is unnecessary for us to recite the relevant passage. We are satisfied that Ms Postlewaight’s submission is unsupportable. The Judge did no more than summarise part of the argument for the Crown. His summing-up, when read as a whole, is balanced, and would have left the jury in no doubt that the decision on whether Mr Pahulu was Mr Keatley’s assailant was for them alone.

(d) Video Interview

[23] Fourth, Ms Postlewaight submitted that when summing up the Crown case the Judge failed to point out to the jury that Mr Pahulu’s admission to the officer-in-charge that he was in Whangarei on 9 December 2004 may have been the consequence of the officer’s suggestion of the wrong date and time.
[24] In summarising Crown counsel’s address the Judge referred to a submission that: at [30]:

... [Mr Pahulu] admitted he was in town on the night in question but in Vine Street and not in Water Street and definitely not down by Pizza Haven (now Domino’s), but that when he gave evidence he now takes himself out of town and is home...

[25] The Judge fairly balanced the ledger when, in summarising the defence case, he referred to Ms Postlewaight’s submission that the jury should not put much weight on the interview for various reasons: at [34]. He recited her explanatory submission that, when speaking to the police officer some months after the event, Mr Pahulu was reconstructing events to the best of his knowledge. Additionally, he recited Ms Postlewaight’s reference to Mr Pahulu’s evidence on oath that, on reflection, he was at home when the assault occurred. The Judge did not err.

(e) Tattoos

[26] Fifth, Ms Postlewaight submitted that, again when summing up the Crown case, the Judge erred in suggesting that the complainant had accurately described tattoos on both arms.
[27] Again, there is nothing in this point. The Judge, in a shorthand way, was summarising the prosecutor’s admission that Mr Keatley had not accurately described the tattoos as being on both arms: at [29]. Mr Keatley had inaccurately referred to one as lettering and the other as a type of design when in fact both were of lettering.
[28] The point of the prosecutor’s submission, by way of explanation for Mr Keatley’s error, was that Mr Pahulu ‘has tattoos in the general area where Mr Keatley says his attacker had tattoos’. Ms Postlewaight did not suggest that the Judge’s summary was incorrect. Moreover, again fairly, he referred to Ms Postlewaight’s challenge to Mr Keatley’s reliability on the tattoo point: at [32]. The Judge said nothing that could be construed as endorsing the accuracy of Mr Keatley’s description of his attacker’s tattoos.

(f) Alibi Evidence

[29] Sixth, Ms Postlewaight submitted that the Judge failed to direct the jury on alibi evidence.
[30] As we have earlier noted, Ms Postlewaight called alibi evidence from Mr Pahulu’s girlfriend’s mother. The Judge fully summarised Ms Postlewaight’s submission on this issue: at [34]. It did not call for any special direction.

Result

[31] Mr Pahulu’s appeal against conviction is dismissed.

Solicitors:
L Postlewaight, Whangarei, for Appellant
Crown Law Office, Wellington

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[1]	The appellant, Fakatou Pahulu, was found guilty in the District Court at Whangarei on one charge of aggravated robbery. He appeals against conviction.
[2]	The only issue at trial was whether or not Mr Pahulu was the offender. The Crown’s case relied solely upon the complainant’s evidence identifying Mr Pahulu as his attacker. He appeals on the ground that the trial Judge failed in his summing-up to direct the jury adequately on identification evidence.

[3]	At about 12.30 am on 9 December 2004 the complainant, Mr John Keatley, was walking home along Water Street in Whangarei. He had been visiting night clubs and had consumed a significant amount of alcohol. He saw three people – two males and a female – sitting in a seat outside the old Northern Advocate building. Mr Keatley had first seen the three people from a distance of 20-30 metres. He had no reason to keep them under observation but as he passed he made a friendly greeting.
[4]	One of the two men responded in similar terms. Mr Keatley thought he was Maori, in his early 20s, and about 6 ft 2 inches. He said that he was wearing a black singlet, brown trousers and had distinctive tattoos on one of his upper arms and forearm.
[5]	A little further on along Water Street one of the two men he had seen earlier tapped Mr Keatley on the shoulder. When Mr Keatley turned around the man punched him in the face between 12 and 15 times. The man stole some tobacco from him. The attack lasted for more than a minute and the two men were face to face throughout. Mr Keatley suffered a broken jaw and was admitted to hospital. Later that day Mr Keatley gave a description of his assailant to a police officer.
[6]	On 30 December 2004, as a result of information received about Mr Pahulu, the police requested a computer generated photo board from the photography section in Wellington. The photographs were emailed to the officer-in-charge in Whangarei who compiled a photo montage, blacking out information which might identify the persons in the photograph. That afternoon Mr Keatley identified Mr Pahulu from the photo board. The officer described his identification as instantaneous. Mr Keatley then made a full written statement to the officer. His description remained unchanged from that given on the day after the assault.
[7]	The police spoke to Mr Pahulu on 12 April 2005. He made a statement, which was recorded on video, denying his participation in the assault.
[8]	Following his committal for trial, Mr Pahulu challenged the admissibility of the photographic identification evidence. This was dismissed by Judge Barbara Morris on 25 November 2005. Mr Pahulu did not appeal her decision and in argument on appeal Ms Postlewaight accepted that she could not request this Court to review or revisit the Judge’s decision.
[9]	At trial Mr Pahulu gave evidence in his own defence. He also called alibi evidence from Ms Pauline Wilson, his girlfriend’s mother.

[14]	Ms Postlewaight, first, submitted that the Judge failed to make clear to the jury that it had to be satisfied that Mr Keatley’s identification of Mr Pahulu that night was reliably made but, second, accepted that the Judge correctly directed the jury that it must be satisfied that the man in the dock was the person who assaulted Mr Keatley. The distinction between the two requirements is not easy to follow as acceptance of the latter must include proof of the former.
[15]	We are satisfied that the Judge’s directions were sufficient and appropriate. With a single exception which we will discuss next, Ms Postlewaight was unable to identify one error in the cited passages. In particular, the Judge emphasised that where the Crown relies on the accuracy of the complainant’s identification of his assailant, in circumstances where the latter alleges mistake, the jury must exercise special care before accepting that evidence as the basis for a conviction. He correctly emphasised the risk of an honest witness being mistaken about identification and the circumstances which the law requires a jury to take into particular account. He concluded this part of his directions with the rhetorical question – ‘has Mr Keatley got it right?’
[16]	The Judge specifically referred the jury to the lighting and asked them to consider whether anything ‘physically impeded’ Mr Keatley’s observation. He repeated Ms Postlewaight’s submission to the jury that the lighting was poor.
[17]	The Judge did not err in first referring to Mr Keatley’s state of intoxication when summarising the defence case. The jury was aware of the quantity of alcohol he had consumed that evening. It was the subject of careful cross-examination by Ms Postlewaight. Mr Keatley emphatically rejected her concluding propositions that his identification was mistaken because he was drunk and the lighting was not perfect. The whole focus of the Judge’s direction was on the reliability of Mr Keatley’s identification evidence which would of necessity include his own condition and whether or not his powers of accurate observation were impaired by alcohol consumption. This aspect was emphasised when he outlined the defence case and an earlier special direction was unnecessary.

[19]	Ms Postlewaight submitted that the defence case was that Mr Keatley did not observe anything then. However, in reply to one of Ms Postlewaight’s own questions, Mr Keatley said that he first noticed the three people from a distance of 20-30 metres before passing them. Ms Postlewaight did not challenge or dispute his answer.
[20]	The Judge was explaining for the jury the relevant aspects of the observation factor. He gave an example of when Mr Keatley observed three people. He was correct in saying that that evidence was not seriously challenged.

[21]	Third, Ms Postlewaight submitted that the Judge erred when summing up the Crown case on one point: at [28]. She said that his direction conveyed a conclusion that it was Mr Pahulu who assaulted Mr Keatley.
[22]	It is unnecessary for us to recite the relevant passage. We are satisfied that Ms Postlewaight’s submission is unsupportable. The Judge did no more than summarise part of the argument for the Crown. His summing-up, when read as a whole, is balanced, and would have left the jury in no doubt that the decision on whether Mr Pahulu was Mr Keatley’s assailant was for them alone.

[23]	Fourth, Ms Postlewaight submitted that when summing up the Crown case the Judge failed to point out to the jury that Mr Pahulu’s admission to the officer-in-charge that he was in Whangarei on 9 December 2004 may have been the consequence of the officer’s suggestion of the wrong date and time.
[24]	In summarising Crown counsel’s address the Judge referred to a submission that: at [30]:

[26]	Fifth, Ms Postlewaight submitted that, again when summing up the Crown case, the Judge erred in suggesting that the complainant had accurately described tattoos on both arms.
[27]	Again, there is nothing in this point. The Judge, in a shorthand way, was summarising the prosecutor’s admission that Mr Keatley had not accurately described the tattoos as being on both arms: at [29]. Mr Keatley had inaccurately referred to one as lettering and the other as a type of design when in fact both were of lettering.
[28]	The point of the prosecutor’s submission, by way of explanation for Mr Keatley’s error, was that Mr Pahulu ‘has tattoos in the general area where Mr Keatley says his attacker had tattoos’. Ms Postlewaight did not suggest that the Judge’s summary was incorrect. Moreover, again fairly, he referred to Ms Postlewaight’s challenge to Mr Keatley’s reliability on the tattoo point: at [32]. The Judge said nothing that could be construed as endorsing the accuracy of Mr Keatley’s description of his attacker’s tattoos.

[29]	Sixth, Ms Postlewaight submitted that the Judge failed to direct the jury on alibi evidence.
[30]	As we have earlier noted, Ms Postlewaight called alibi evidence from Mr Pahulu’s girlfriend’s mother. The Judge fully summarised Ms Postlewaight’s submission on this issue: at [34]. It did not call for any special direction.