R v Ali [2007] NZCA 343 (10 August 2007)

Last Updated: 29 December 2014

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND THE REASONS THEREFOR IN NEWS MEDIA OR ON INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF THE TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST IS, HOWEVER, PERMITTED

IN THE COURT OF APPEAL OF NEW ZEALAND

CA68/07 [2007] NZCA 343

THE QUEEN

v

_{IMTIAZ ALI}

Hearing: 23 July 2007

Court: Chambers, Keane and MacKenzie JJ Counsel: B J Hart and A J Trenwith for Appellant

K Raftery for Crown

Judgment: 10 August 2007 at 10 am

_{JUDGMENT OF THE COURT}

A The application for leave to appeal is granted, but the appeal is dismissed.

B An order is made prohibiting publication of this judgment and the reasons therefor 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 a law digest is, however, permitted.}

R V ALI CA CA68/07 10 August 2007

REASONS OF THE COURT

(Given by Keane J)

[1] Imtiaz Ali is shortly to go to trial for attempting to pervert the course of justice. He is alleged on 23 February 2004 to have made a false statement to a police officer investigating a complaint of assault. The Crown contends that Mr Ali asserted that on 7 October 2003, the date of the assault complained of, he was the driver of a limousine to whom the complainant had attributed the assault. He denied any assault. His uncle, Mohammed Khan, has since been identified as the driver and convicted of the assault.

[2] The Crown has an unequivocal statement from Mr Ali on 23 February 2004 that he was the driver on 7 October 2003. The issue at his trial will be whether the Crown can prove that he was not. The Crown will rely on Aroha and Isabelle Robson, the complainant and her daughter, who at Mr Khan’s trial identified him as both the limousine driver and the assailant; Aroha Robson having identified Mr Khan some months after the incident from a photo montage. To prove that Mr Ali was the passenger the Crown will rely on Isabelle Robson, who just before Mr Khan’s trial began saw Mr Ali sitting outside the courtroom and recognised him as the passenger.

[3] The evidence which Mr Ali seeks to impugn has previously been examined by this Court in Mr Khan’s unsuccessful appeal (R v Khan CA312/05 7 March

2006). He attacked as unfairly incomplete the photo montage from which Aroha Robson had identified him. It ought, he said, to have included a photograph of Mr Ali. He maintained also that his counsel should have been told before the trial began that Isabelle Robson had just informally identified Mr Ali. This Court found neither argument cogent. This Court will inevitably be slow to depart from its previous findings in respect of similar challenges to the same evidence, although of course the entry into force of the Evidence Act 2006 changes the law under which Mr Ali’s trial will be conducted.

[4] On 13 February 2007 in the District Court, Judge Sharp, faced with a challenge mounted by Mr Ali, ruled under s 344A of the Crimes Act 1961 that the

evidence of Aroha and Isabelle Robson was admissible against him. Mr Ali now pursues that challenge on this appeal.

[5] First, he contends, Aroha Robson’s evidence cannot safely or properly be admitted to exclude him as the driver. She singled out Mr Khan from a montage of eight, none of whom corresponded with the man she and her daughter described immediately after the offence. Isabelle Robson, Mr Ali contends secondly, cannot safely or properly identify him. At Mr Khan’s trial he was singled out for her unfairly or she singled him out in circumstances that were unfair.

[6] We propose to resolve those issues on all the evidence that Aroha and

Isabelle Robson will be able to give at Mr Ali’s trial: their depositions evidence on

24 January 2006, their more complete evidence at Mr Khan’s trial on 23 – 24 June

2005, Isabelle Robson’s further evidence and that of Constable Powley before the

Judge in February this year.

Context

[7] On 7 October 2003, Aroha and Isabelle Robson will say, as they drove out of the Shell Service Station, Glen Innes, they were blocked at the exit. A Ford Falcon limousine had entered the wrong way.

[8] Aroha Robson will say that she and the driver of the limousine drew up alongside each other. Still seated, but face to face and within an arm’s length of each other, they disputed the right of way. Neither gave way. She will admit to striking the driver’s side mirror on the limousine. The driver of the limousine, she will say, then tried to wrench her driver’s side mirror out of its socket. When she tried to prevent that he bent back her fingers so severely she required three days off work.

[9] After that happened, she will say, she called out for help and the driver of the limousine reversed and left. A moment later she followed. She had noted the registration letters but lacked the three following numbers. She lost contact briefly but had a fair idea where the limousine came from. She thought she had seen the man (whom she subsequently identified as Mr Khan) driving a limousine before. In

this she proved right. At the address she had in mind the limousine was already parked in the driveway. The driver was no longer in it.

[10] Isabelle Robson, as well as confirming her mother’s evidence, will identify Mr Ali as the passenger in the limousine. At the service station she saw him for as long as 10 – 15 minutes. At the house shortly after, she saw Mr Ali again, when he was standing at the boot of the limousine, for perhaps 30 seconds. Isabelle Robson will say that she recognised the man who had been the passenger at the courthouse just before Mr Khan’s trial began. That man was Mr Ali.

[11] Once they had the registration number, Aroha and Isabelle Robson will say, they went to the Glen Innes police station. The registered owner of the limousine, Constable Powley will say, was Nazrean Khan, whom we understand to be Mr Khan’s wife. It was she who told Constable Powley that the driver on 7 October

2003 must have been Mr Ali.

[12] Constable Powley will produce Mr Ali’s statement on 23 February 2004 in which he asserted that he was the driver and that his uncle, Albert Ali, whom he described as having a big chubby face, was the front seat passenger. Mr Ali did accept there had been an incident much as Aroha Robson described. He denied touching her driver’s side mirror or assaulting her. He declined to be photographed for a montage for her to consider, or to meet her.

[13] Constable Powley will say that he put to Mr Ali that he could not have been the driver. He did not look like the person Aroha and Isabelle Robson had described. He was not middle aged. He did not have facial scarring. He looked like the person Isabelle Robson had described as the front seat passenger. He warned Mr Ali against attempting to pervert the course of justice but, he will say, Mr Ali remained adamant that he was the driver. In a comment the Judge ruled inadmissible, Mr Ali said ‘you cops can charge me for assault but when it goes to court you’ll never be able to prove it was me.’

[14] Hearing from another officer that another of Mr Ali’s uncles, Mr Khan, might have been the driver, Constable Powley will say, he spoke to Mr Khan who

denied driving and refused to take part in an identification parade. When, however, on 28 April 2004, Aroha Robson identified Mr Khan from the eight photograph montage Constable Powley charged him with assault, and the charge against Mr Ali was withdrawn.

[15] At his trial on 23–24 June 2005 Mr Khan was found guilty of the assault and on 20 July 2005 Mr Ali was charged with attempting to pervert the course of justice. Mr Khan appealed his conviction on three grounds, two of which are relevant to this appeal (see above at [3]). His appeal was dismissed by this Court on 7 March 2006.

Principles of admissibility

[16] The proposed evidence of Aroha and Isabelle Robson implicating Mr Ali either directly or indirectly that the Judge allowed in as a matter of discretion under the common law, is now admissible as a matter of “fundamental principle” under s 7 of the Evidence Act 2006, which came into force on 1 August 2007. It is relevant evidence that goes to what will be the central issue at Mr Ali’s trial, namely, whether his statement to Constable Powley on 23 February 2004 was false.

[17] The s 7 principle, though fundamental, is not, however, absolute. It is subject first to the equally general exclusionary principle in s 8, which Mr Ali invokes on this appeal. Where the probative value of the evidence is outweighed by the risk that it will have an unfairly prejudicial effect, particularly on the right to offer an effective defence, it must again be excluded.

[18] Equally, where the defence contends, as Mr Ali does here, that evidence has been obtained improperly, and that assertion can be sustained to the balance of probabilities, s 30 requires that the impropriety be weighed against the effect of excluding the evidence, taking into account the need for an effective and credible system of justice: s 30(2)(b). Where exclusion is a proportionate remedy to the impropriety, then the evidence must be excluded: s 30(4).

[19] The admissibility of visual identification evidence is now to be governed by the particular rules set out in s 45. Those rules will not apply at Mr Ali’s trial

because they do not apply to any identification made before the Act came into force:

s 206. But we have been mindful of them in resolving this appeal.

Khan identification - photo montage

[20] In declining to exclude Aroha Robson’s proposed evidence, Judge Sharp held that if as this Court decided on Mr Khan’s appeal that evidence was admissible to prove he was the driver it ought, subject to any new point taken by Mr Ali, to be as admissible against him to prove that he was not the driver. In that the Judge was plainly right.

[21] On his appeal Mr Khan sought to undermine Aroha Robson’s evidence that he was the driver by challenging the montage. He did not challenge the use of a montage. Nor could he: he had refused to take part in an identification parade. Rather, he challenged the form of the montage in two ways. First, there were numbers on some or all of the photographs that, as Aroha Robson confirmed at Mr Ali’s depositions hearing, had suggested to her that those particular men had been in trouble with the police. Secondly, only Mr Khan was included in the montage. Mr Ali was not. Finally, Mr Khan complained, the trial judge should not have directed that the montage go to the jury.

[22] This Court saw nothing in any of these points. The numbers complained of would not have influenced Aroha Robson, the Court held, and did not appear on the photographs shown to the jury. The montage itself, the Court held, constituted a fair test. The men depicted were of like age and appearance to Mr Khan. The inclusion of Mr Ali, a somewhat younger man, would have been incongruous. The true function of the montage, the Court held, was not to enable Aroha Robson to identify her assailant. Rather, she had seen him before the incident and his face was familiar to her: the montage simply assisted her to name him.

[23] Before Judge Sharp Mr Ali challenged the identification based on the montage on different grounds. His counsel contended that the montage was an unsafe and improper basis for Aroha Robson to identify Mr Khan, because the persons depicted did not resemble the man she and her daughter described on the day

of the incident, their descriptions were so broad as to be generic, and where those descriptions were particular they did not reconcile with one another. Also, Mr Ali alleged, Aroha Robson vacillated in her description of the driver.

[24] The Judge accepted that Mr Ali’s challenge was new and with that we agree. Mr Khan did not at his trial, as we have confirmed, or on his appeal, rely on any discrepancy between the persons in the montage and the first descriptions given by Aroha and Isabelle Robson. However the Judge held that those discrepancies, such as they were, did not render Aroha Robson’s identification of Mr Khan ‘weak and baseless’. They were rather issues to be explored at trial, and any possible prejudice could be countered by a direction from the trial Judge.

[25] Again we agree. The initial descriptions were only generic, and perhaps inevitably, were detailed only to the extent that the driver of the limousine and the passenger were said to be of Indian ethnicity. Mr Ali’s sole point of possible substance is that the men depicted in the montage are irreconcilable with the man first described, and that Aroha Robson vacillated in her descriptions of those men.

[26] At depositions Aroha Robson described the driver as an Indian man, aged between 35 and 40, about 5'5'', skinny, with shoulder-length partly-dyed hair and acne scars. Yet on the day of the incident she had described him as having a moustache. She had said nothing about his hair being dyed or acne scars. When pressed at depositions, she said that what had led her to identify him was the sharpness of his features.

[27] None of the men in the montage, Mr Ali says, moreover, had shoulder length hair. Isabelle Robson had described the driver as an Indian man in his late 30s of skinny to medium build, about 5'9'', clean shaven with possible acne scarring. She may have been right about the length of hair, but not about the absence of a moustache.

[28] Like the Judge, we do not consider these discrepancies, such as they are, of such an order as to make the montage unsafe or improper. Rather, they simply go to the weight to be placed by a jury on the identification evidence. The Judge rightly

saw them as issues for the jury and perhaps a direction from the trial judge. We agree also with the conclusion that this Court reached on Mr Khan’s appeal. The true significance of the montage lies in this: it enabled Aroha Robson to put a name to Mr Khan’s face.

[29] At Mr Khan’s trial Aroha Robson said, and will be able to say at Mr Ali’s trial, she had before 7 October 2003 seen Mr Khan (although she could not then name him) driving the limousine, indeed a second limousine, and that is why she was able to identify where he lived. That the limousine was at the address she anticipated, and that Mr Khan can be linked to it, is evidence independent of the montage that confirms the identification she made was reliable.

[30] Aroha Robson’s evidence, we conclude, is relevant and properly admissible at Mr Ali’s trial. It is more probative than prejudicial. Any issues as to its weight, or possible vacillation by Ms Robson in her descriptions of Messrs Khan and Ali, are for the jury to evaluate.

Ali identification – spontaneous recognition

[31] The Judge was equally correct, we consider, to allow the Crown to call at Mr Ali’s trial Isabelle Robson, a Crown witness at Mr Khan’s trial, to say what she did not say at that trial, namely, that when she saw Mr Ali outside the courtroom, just before that trial, amongst members of Mr Khan’s extended family, she recognised him as the passenger in the limousine on 7 October 2003.

[32] That evidence, this Court held on Mr Khan’s appeal, would have been relevant and admissible to prove he was the driver. It would have enhanced the Crown case and there was nothing in it for the defence. It is equally relevant and probative at Mr Ali’s trial, especially as there will be no issue at trial as to whether Mr Ali was in the front of the limousine. The only issue will be where he was seated.

[33] On the evidence, moreover, the Judge was entitled to conclude that Isabelle Robson had the opportunity, especially at the service station, but also at the house soon after, to take a ‘good hard look’ at the passenger, whom she has since

identified as Mr Ali. She may on the day have described him very generally. But as the Judge was entitled to find, having seen Mr Ali, he fell within Isabelle Robson’s description and he had no features that stood out as taking him outside the ambit of her initial description.

[34] The only possible impediment to Isabelle Robson giving this evidence is whether it was improperly obtained. At depositions she appeared to say that Constable Powley had singled Mr Ali out for her and, if that were correct, of course, it would make the identification improper and potentially unreliable. This would be the same under the old law as well as under the Evidence Act 2006: see s 45(3)(c). Before Judge Sharp, however, Isabelle Robson disavowed that evidence. She had meant to say, she said, that as she passed the courtroom she had seen Mr Ali, had told Constable Powley, and had pointed out Mr Ali to him.

[35] Judge Sharp accepted this and was entitled to. At depositions Isabelle Robson had been, the judge found, in a state of stress. She was pregnant and on medication. Further, the Judge found that, having reviewed the depositions evidence, this evidence had been confusingly led from Isabelle Robson. The Judge was justified in concluding that Isabelle Robson had recognised Mr Ali outside the Courtroom spontaneously and without any tainting unfairness.

[36] Finally, the Judge was entitled to conclude that Isabelle Robson’s evidence was untainted by circumstance. Mr Ali may have been in a small group of four men and three women standing outside the courtroom. But, as the Judge held, Isabelle Robson had no reason to anticipate he would be there. Nor would he have necessarily stood out. His brother was there and, as Constable Powley said, he looked somewhat similar.

[37] Aroha Robson’s proposed evidence, we conclude, is relevant and proper. It is more probative than prejudicial. Any issues as to how reliable the identification was are for the jury.

Result

[38] For these reasons we consider that the Judge rightly held under s 344A that the evidence the Crown proposes to call from Aroha and Isabelle Robson identifying Mr Khan as the driver of the limousine on 7 October 2003, and Mr Ali as the passenger, evidence that is inconsistent with Mr Ali’s statement on 23 February 2004 that he was the driver, is admissible at Mr Ali’s trial. Mr Ali’s appeal is dismissed.

Solicitors:

Crown Law Office, Wellington