R v Zurowski [2007] NZCA 112 (2 April 2007)

Last Updated: 12 February 2014

NOTE: ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND THE REASONS THEREFORE IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

CA306/06 [2007] NZCA 112

THE QUEEN

v

CINDY ELIZABETH ZUROWSKI

Hearing: 7 March 2007

Court: Chambers, Gendall and Heath JJ Counsel: J Haigh QC and P F Wicks for Appellant

B J Horsley for Crown

Judgment: 2 April 2007 at 2 pm

_{JUDGMENT OF THE COURT}

A Leave to appeal is granted, but the appeal is dismissed.

B An order is made that the judgment and the reasons therefore are not to be published in the news media or on the internet or in any other publicly accessible database until final disposition of the trial.

_{Publication in a law report or law digest is, however, permitted.}

R V ZUROWSKI CA CA306/06 2 April 2007

REASONS OF THE COURT

(Given by Gendall J)

[1] The appellant is awaiting trial on a count of importing into New Zealand the class B controlled drug MDMA (Ecstasy) jointly with Gwenda Hutson and Anthony Munnings. The last-named has pleaded guilty and the trial will proceed only in respect of the appellant and Ms Hutson. This appeal is against a ruling of Judge C J Field that identification evidence of three Crown witnesses is admissible at trial.

The Crown case

[2] The Crown case is that on 10 June 2003 the appellant, an Australian citizen, travelled to New Zealand and stayed at an Auckland city hotel for two days. Over those two days air tickets were obtained in the names of Gwenda Hutson and Anthony Munnings for return flights from New Zealand to Germany via Singapore. Ms Hutson and Mr Munnings then resided in Australia. The Crown says it was the appellant who purchased the tickets.

[3] On 10 June a female went to a Flight Centre travel consultancy in Queen Street, Auckland. She had a printout of precise flights upon which she wished to book for a friend of hers, who was in Australia. That friend was named as Gwenda Hutson. Tickets were booked under that name. The travel consultant, Leanne Dixon, dealt with the woman for a period of about 20 minutes. A cash deposit was paid and on 12 June, two days later, the woman returned and paid the balance in cash. The ticket was issued and given to her that day. So Ms Dixon saw her on two occasions. Ms Dixon was later, on 25 June, to describe the woman to whom she issued the tickets, to a Customs Officer, Helen Veysey. She described the woman as having an Australian accent and was possibly in her mid to late 20s and remembered the woman as making the booking for a friend.

[4] The following day, 11 June, a female called at another Flight Centre travel office in Ponsonby, Auckland. She was first seen by Nicola Sutton, who referred her to another agent Dyane Bunter. The woman paid for the ticket in cash, saying that the ticket was for her brother who was currently in Australia. She said she was going back there and there was an urgent requirement to have the ticket.

[5] The ticket was booked in the name of Anthony Munnings. The customer gave her name as “Julia” and accordingly, the name “Julia Munnings” was entered on the receipt document. Ms Sutton’s evidence was that she dealt with the woman for about half an hour sitting about a metre away from her. She recognised her when she came on the second occasion to collect the ticket, which was not ready for issue, so the woman returned a third time. Ms Sutton’s evidence is that this was the first time she had sold air tickets to Europe and that helped her to remember the event. Dyane Bunter also dealt with the female customer.

[6] The Crown case is that the appellant flew back to Australia on 12 June.

[7] On 17 June, Ms Hutson and Mr Munnings, who had been in a relationship for four years, travelled separately from Brisbane to Auckland. They stayed in separate rooms at a city hotel. They departed from Auckland on 18 June on a booked flight via Singapore to Frankfurt, Germany.

[8] On 23 June, the appellant flew again to Auckland. She booked into the same city hotel at which she had earlier stayed on 10 June. On that day accommodation was booked for Ms Hutson, from a public payphone booth in Queen Street, Auckland at the New President Hotel in Auckland. The following day, 24 June, a booking at the same hotel was made for Mr Munnings by a person ringing from a public payphone booth. Separate rooms were booked for Ms Hutson and Mr Munnings.

[9] On 24 June, Ms Hutson and Mr Munnings arrived in Auckland on a flight from Singapore. They passed through Customs within three minutes of each other, but did not associate with each other at that location. Ms Hutson passed through Customs Control but Mr Munnings was subject to a search. Customs found 15,897

tablets of MDMA in his luggage. The drugs had a potential street value of approximately $1 million. Mr Munnings was arrested and charged with importing MDMA. Ms Hutson was arrested the following day.

[10] On 28 June, the appellant returned to Australia.

[11] Following inquiries, the authorities formed the view the appellant might have been involved in the drug importation, and in particular might be the woman who purchased the air tickets. Detective Sergeant Sowter, attached to the Auckland Police Drug Squad, obtained a copy of a passport photograph of the appellant from Australian authorities. He prepared a photo montage having obtained 12 photographs of a generally similar description from the police prisoner photography section at National Headquarters in Wellington. From those 12 photographs the detective selected eight which along with the passport photograph of the appellant, made up the photo montage. The photograph depicting the appellant was photograph number 6.

[12] Before the detective showed the photo montage to Ms Bunter, she provided a description of the person she had dealt with:

...a female caucasian, late 20s early 30s, friendly, relaxed, well dressed, 165 cm in height, hair colour dark, and slight build.

[13] In the District Court she was asked whether she recognised the person that she had dealt with at the Flight Centre and her evidence was:

1. ...I did see one photo there that sort of stood out from the others and that’s the one I chose.

17. When you say the photo stood out from the others, why do you say that it stood out?

1. Just how she looked, and the colour of her hair, and the age – just looked like the person that I saw or dealt with.

She went on to say:

Certain photographs that definitely didn’t look anything like [the appellant], that it, you know, completely discounted but definitely when I came to her photograph it looked like her.

[14] Customs Officer Veysey showed the photo montage to Nicola Sutton whose evidence was that:

...I spent a couple of minutes having a look through them all and pointed out the number 6 [the photograph of the appellant] as being the woman that looked familiar to me.

Q. Why did you point out number 6?

A. It just best fitted the recollection I had of the client.

She said that she “went through a process of looking at each photo”

and thinking, no that doesn’t ring a bell, that doesn’t look like the person. And number 6 did.

Ms Veysey had not, prior to showing the photo montage to Ms Sutton, obtained a verbal description of the person served by Ms Sutton.

[15] Ms Veysey also interviewed the witness Leanne Dixon on 25 June 2003. Her evidence was that Ms Dixon recalled the transaction and when shown the photo montage of the nine females she identified the woman who had made the bookings for Ms Hutson as number 6 [the appellant]. Ms Dixon then gave her the following description of the woman she had served:

She was a short, small built girl, with her hair tied back and spoke with an Australian accent. She told me she was booking the flights for a friend that was coming over from Australia.

[16] Ms Dixon’s evidence was strong in that she said in evidence in chief that she was “adamant that it [photograph 6] was the same person that I’d been dealing with” when she made the identification to Customs Officer Veysey. In cross-examination she said that she did not discern photograph 6 to be a passport photograph, nor that it was the only one where a person was smiling, nor that it was a larger photograph than the others. In re-examination her evidence concluded:

Just you see somebody and you see a photo of them and you generally know whether that’s the person or not. I don’t think the size of the photos or whether people were smiling really have any bearing on that.

[17] In his decision Judge Field outlined the background to the case and recorded that the photo montage was shown to the three witnesses some two and a half to three months after the event. He referred to the defence submission that the evidence’s prejudicial effect outweighed its probative value and the argument that it would be unfair to admit it. He noted the contentions that the photo board did not consist of nine similar-looking females, and the photograph of the appellant was distinctive when compared to the other eight. He referred to the arguments that the board was not compiled in accordance with the police “Manual of Best Practice”, and that no clear or detailed descriptions were given by the witnesses immediately after the event.

[18] After reviewing a number of authorities relating to the difficulties of single photograph identification, the Judge concluded that the appellant’s argument related more to the question of weight to be attached to, rather than admissibility of the evidence. The Judge referred to the Crown’s contention that it was the composite effect of the identification evidence, when viewed as part of the proof of circumstantial evidence, that was important. Judge Field said:

[33] ...I am unable to say that their [sic] evidence is so inherently unreliable that it should be withdrawn from the jury.

[34] ....It is obvious from the evidence that photo six is not a mug shot, suggesting previous dealings with the police and the defence might seek to derive some advantage from that....

[19] The Judge concluded the three witnesses’ identification evidence was admissible.

Appellant’s arguments

[20] Mr Haigh QC, counsel for the appellant, submitted that the Judge ought to have exercised his discretion to exclude the identification evidence because its prejudicial effect outweighed its evidential value, and there was unfairness in the manner in which the police sergeant constructed the montage, and showed it to the

three identification witnesses: R v Luce CA434/05 7 March 2006. He argued that a lack of detailed description being given by the witnesses prior to police identification (apart from that of Ms Bunter) significantly undermined the quality of photo identification; the selection of photographs was inadequate as they did not reflect nine similar-looking females; the photograph of the appellant was larger than those of others on the board so as to stand out in comparison; and it had a background appearance distinctive and different from the others. Counsel submitted that the detective sergeant had not explained why the photo montage was not prepared in the usual way by the police prisoner photography section so as to enable similar-looking female photographs to be employed.

[21] In a general way counsel submitted the Judge erred in finding that the identification evidence was not unfair, because he failed to place any weight upon the delay between original observations and the identification through photographic montage; limited descriptions were given prior to viewing the photographs; the identification by two witnesses was equivocal; and the witness Sutton was not positive in her identification but simply stated words to the effect of “looks familiar”. Mr Haigh submitted that the shortcomings in obtaining the evidence, and the unsatisfactory nature of it, could not fairly be overcome by way of a direction by the trial Judge to the jury.

Discussion

[22] This appeal is centred entirely upon the photographic montage shown to each of the witnesses. Each witness identified, with various degrees of certainty, the photograph of the appellant as being the person with whom they dealt on separate occasions, in separate places in Auckland between 10 and 12 June 2003. Whilst the standard “best practice” adopted by the police when preparing photo montage boards is for the police prisoner photography section at Police National Headquarters in Wellington to compile a montage after selecting a variety of photographs of persons of a similar race, age, and general description, we do not think that the fact that Detective Sergeant Sowter prepared the montage himself leads to any inherent unfairness. While Mr Haigh was undoubtedly correct in submitting that a more

professional approach would have been taken to the compilation of the photo montage by the police prisoner photography section in Wellington, we do not accept that the montage as presented fell below an acceptable standard.

[23] Mr Haigh submitted that the photograph of the appellant in the montage was larger than the other photographs. Whilst the appellant’s photograph was somewhat bigger than the others, the fact is that not all photographs were of the same size in any event.

[24] Counsel submitted that the appellant’s photograph stood out because she was depicted as smiling whilst the other women were not. However, the photographs display a whole range of countenances, from glum to smiling.

[25] Counsel further submitted that the other women depicted in the montage did not look particularly like the appellant. We have concluded that the other women depicted were reasonably similar in appearance to the appellant.

[26] We do not think that the identification evidence based upon the montage ought to be excluded on the grounds complained of by the appellant. The montage was not unfairly constructed. If defence counsel wished to put the montage to witnesses and to cross-examine on the basis of it then they may do so, so that if cross-examination is effective that may affect the weight the jury gives to that identification evidence. But it does not affect its admissibility. If at trial, however, the Judge considers the identification evidence has emerged following cross-examination as unacceptably weak and unreliable, then the Judge may withdraw the case from the jury.

[27] It was further argued that there had been a failure to obtain a detailed description from the identification witnesses before they were shown the montage. Clearly that should have been done in respect of the witnesses Ms Dixon and Ms Sutton. Ms Bunter gave a very detailed description to Detective Sergeant Sowter before seeing the montage. The fact that the other witnesses did not do so does not lead to their evidence being so unreliable as to justify its exclusion. Some witnesses

may not be good at verbalising a description of a person but nonetheless be reliable in picking out the person from a montage.

[28] The final point advanced on behalf of the appellant was that the identification evidence ought not to be admitted because of the delay in the montage being shown to the witnesses. Whilst delay may go to weight to be given to the identification evidence it is not in this case such as to render the evidence so unsafe or unreliable as to require it to be excluded altogether.

[29] Cumulatively the points argued on behalf of the appellant do not give sufficient cause for concern to render the identification evidence inadmissible. There was strong evidence that it was the same women who approached the three witnesses. All of the three saw the woman for a considerable period. All were able to verbalise to an extent the description of the woman, and those descriptions coincide with known attributes of the appellant. That all three witnesses chose photograph number 6 is a powerful point. There is no evidence of the three having communicated amongst themselves prior to making their identification. We think that fact is capable of bolstering considerably the reliability of the identification.

[30] Weak identification evidence does not of course achieve admissibility through the strength of the other evidence in the case, see R v Hoto (1991) 8 CRNZ

17 (HC) and R v McIntosh HC INV T8/90 22 August 1990. But in R v Holtz [2003]

1 NZLR 667 at [54] this Court said:

The trial Judge had a discretion to exclude identification evidence on the ground of unreliability...

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.

[31] It may have been preferable for the montage to have been prepared by National Headquarters of the police and for Customs Officer Veysey to have obtained a detailed description of the alleged offender from Ms Dixon and Ms Sutton before they were shown the montage, but there is not such unfairness or irregularity

as to require the evidence to be excluded. The challenge goes to the weight to be attached to the evidence, not to its admissibility.

[32] The trial is scheduled for some time in August 2007 and it may be that the Evidence Act 2006 will have come into force by then. If it has, this judgment and the reasons for it will need to be reassessed by the trial Judge in light of the new law.

Result

[33] The disputed evidence is admissible. The appeal is dismissed.

Solicitors:

Swarbrick Beck, Auckland, for Appellant

Crown Law Office, Wellington