Uasi v R [2009] NZCA 236; [2010] 1 NZLR 733; (2009) 24 CRNZ 297 (16 June 2009)

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA731/2008 [2009] NZCA 236

THE QUEEN

v

_{WILLIAM INOKE UASI}

Hearing: 27 May 2009

Court: Hammond, Ronald Young and Clifford JJ Counsel: K S Holden for Appellant

N P Chisnall for Crown

Judgment: 16 June 2009 at 2.15 pm

_{JUDGMENT OF THE COURT}

A. The appeal against conviction on causing grievous bodily harm is allowed and the conviction and sentence are quashed. A retrial is ordered.

B. The appeal against conviction on attempting to pervert the course of justice is dismissed.

R V UASI CA CA731/2008 [16 June 2009]

REASONS OF THE COURT

_{(Given by Clifford J)}

Introduction

[1] Mr Uasi, the appellant, was found guilty by a jury in the District Court on charges of causing grievous bodily harm with intent to do so and wilfully attempting to pervert the course of justice. Mr Uasi now appeals his convictions. Mr Uasi says that the Judge erred in law by including in his summing up an identification warning under s 126 of the Evidence Act 2006. Alternatively, if the Judge did not err in giving that warning, it did not comply with s 126. Mr Uasi says further that he was unfairly prejudiced when evidence the Crown referred to in its opening was not, in fact, given at trial. Mr Uasi argues finally that the jury verdict is unreliable, being against the weight of evidence.

[2] Mr Uasi had also originally appealed against his sentence. Although Ms Holden did not formally discontinue that appeal prior to the hearing, at the hearing she indicated that she would not be pursuing that matter. At the hearing we therefore dismissed Mr Uasi’s appeal against his sentence on the charge of causing grievous bodily harm.

Background

[3] In the early morning hours of 24 September 2006, a fight broke out outside a party which Mr Uasi was attending in Waimumu Road, Massey, Auckland. During the fracas that resulted, Mr Christopher Adamson was knocked to the ground and repeatedly struck with a metal pole. As a result, Mr Adamson sustained severe facial injuries and lacerations to his head which required a lengthy stay in hospital and extensive reconstruction surgery.

[4] There was no issue at the trial as to whether those events had occurred. The issue at trial was whether Mr Uasi was, as alleged by the Crown, the person who had beaten Mr Adamson around the head with a metal pole.

[5] The principal witnesses for the Crown, as regards the factual elements of the allegations against Mr Uasi, were Moana Cotterell and Evander Feleti. Ms Cotterell went to the party with her boyfriend, Rhys Reti, and Mr Uasi. She gave evidence of seeing “Willie” hitting a man, who was lying on the ground, about the head with a metal pole. Mr Feleti was also at the party and said he saw ”Willie” with a metal bar in his possession but did not see him hitting anyone with that bar. Mr Feleti’s evidence principally related to events on which the second charge, of attempting to pervert the course of justice, depended.

[6] Mr Uasi made a statement to the Police, and himself gave evidence.

[7] In his statement to the Police, and at trial, Mr Uasi admitted that he had attended the party at which Mr Adamson was injured. He testified, however, that he witnessed his brother Steven fight another man. He, along with others, kicked that man whilst that man was lying on the ground. He was adamant that the man he assaulted was not the complainant and that he had not used a metal bar. After that he drove away from the scene in the vehicle in which he had arrived at the party, and not in a car with Ms Cotterell.

Discussion

Identification warning not required

[8] Section 126 of the Evidence Act requires a judge to give a warning about identification evidence “in a criminal proceeding tried with a jury in which the case against the defendant depends wholly or substantially on the correctness of 1 or more visual or voice identifications of the defendant”. Visual identification evidence is defined in s 4 of the Evidence Act as meaning:

(a) an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or

(b) an account (whether oral or in writing) of an assertion of the kind described in paragraph (a).

[9] Ms Holden’s argument was that the Judge erred in giving a visual identification warning because there was no visual identification evidence. She said that the only identification evidence was circumstantial, neither Ms Cotterell nor Mr Feleti having at trial identified the appellant as being the “Willie” they referred to in their evidence. Therefore the warning by the Judge implied that Willie was the appellant and had been so identified by Ms Cotterell and Mr Feleti. On the basis of R v Tristram [1999] NZCA 249; (1999) 17 CRNZ 147 (CA) and R v Adams and Hansen [2008] NZCA

171 that warning undermined the defence case.

[10] As the Crown acknowledged on appeal, it was unsatisfactory that the prosecutor did not seek to secure from Ms Cotterell or Mr Feleti an in-court identification of the appellant. This is notwithstanding that, apparently, both witnesses were briefed to do so, had provided dock identifications of the appellant during the preliminary hearing and, in Ms Cotterell’s case, had identified the appellant from a photograph montage she had been shown.

[11] To decide whether Ms Cotterell’s evidence did, nevertheless, include visual identification evidence of Mr Uasi, it is necessary to consider that evidence in some greater detail.

[12] Ms Cotterell’s evidence was that she was going to the party, which was an

18^th birthday party of a friend of hers, with her boyfriend at the time, Mr Reti. They were picked up by a friend of Mr Reti’s, Moses, and some other people – Willie and Stephen – whom she did not know. They drove with those people to an address in Brougham Street. There would appear to have been a second person called Willie at Brougham Street. Ms Cotterell then went from Brougham Street to the party in a car belonging to someone called Carlos. The people in that car with Ms Cotterell were, as she said, “Carlos’ big brother DJ, Cory, um this other boy, Matinga and um Stephen”.

[13] Ms Cotterell gave evidence of how the fracas outside the party had started and developed. At one point she saw a boy fall down amongst a small crowd of people, and that crowd of people kicking that boy.

[14] She then described how those people backed away and how she saw “Willie come over and – with a pole, and he just stood over him and just started hitting him with the pole”. She described Willie hitting the man on the ground with significant force, in two separate sequences of blows.

[15] She described leaving the party in a different car, driven by Willie. With her in that car were “Rhys, Willie, Peter, Evander and then we picked up Moses”. The following exchange with the prosecutor then occurred:

17. The Willie who was in the car, is that the same Willie you had seen on the street?

A. Yes.

17. Is it the same Willie that you'd seen striking the man on the ground with the pole?

A. Yep.

[16] In cross-examination, Ms Cotterell confirmed that she had travelled to Brougham Street in a car with Willie, Steven, Rhys and Moses; that she had left the party in a car with Rhys and Willie, Mr Feleti and another man; and that she had seen Willie hitting the boy with the pole.

[17] At one point Ms Holden asked the following question:

Q. Do you recall Willie, William Uasi, at some stage saying “One on one”, yelling to the guys at the black 4-wheel drive “One on one?

A. Yep.

[18] Some minutes later, Ms Holden put the following question to Ms Cotterell:

Q. So this Willie’s the only person you know that you saw fighting from that party?

A. Yep.

[19] Ms Holden then asked:

Q. William Uasi will say that he left the party with his brother and one other person and he didn’t leave the party with you in his car. What do you say to that?

A. He’s lying.

[20] Ms Holden’s last exchange with Ms Cotterell in cross-examination was as follows:

Q. You’ve described the person you saw and you've been asked for a description a number of times today, of the person that you saw kicking and striking the boy on the ground with the pole. How do you know it was Willie?

A. I just recognised his face.

Q. And Willie was the person you went to the party with? A. Yep.

Q. And Willie was the person you left the party with? A. Yep.

[21] On the basis of those exchanges, we have no difficulty in concluding that Ms Cotterell’s evidence did contain visual identification evidence of Mr Uasi. The effect of that evidence was that William Uasi had gone with her in the car to the party, and had left with her in that car from the party. It was that William Uasi who she had seen kicking and striking the boy on the ground with the pole.

[22] The manner in which Ms Cotterell was cross-examined reflects an assumption by the defence that she had identified Mr Uasi, the man she went to and left from the party with, as the man who had beaten the victim with the pole. In addition to the very specific cross-examination on identification evidence noted at [16] to [20], Ms Holden focussed in a more general way on the initial description of the offender provided by Ms Cotterell to the Police, and the environmental factors that might have affected the reliability of Ms Cotterell’s identification of the offender as being the appellant. In her final address to the jury, Ms Holden herself described Ms Cotterell as the only “eye witness”.

[23] It is also apparent that from early on the trial had proceeded on the basis of Ms Cotterell’s identification evidence. This is reflected in the Judge’s ruling as to the admissibility of Mr Reti’s statement, given on the second day of the trial. As reflected in its opening, the Crown had intended to call Mr Reti. Mr Reti did not, however, present himself at Court to give evidence. In the circumstances the Judge did not accede to a Crown application that Mr Reti’s statement to the Police should

be introduced as hearsay evidence. The Judge was, quite rightly in our view, concerned about the reliability of that statement. In the course of his ruling, the Judge commented:

The evidence so far from the Crown indicates the accused was observed doing this by a Crown witness, Moana Cotterill [sic], who was one of a number of people who travelled to the party in a car with Mr Uasi and, after the events with which the accused is charged, left the scene with him as well.

The accused has been positively identified by Ms Cotterill [sic] as being the person who was beating the complainant, Mr Adamson, with the pole. She has given further evidence as to having been spoken to by her then boyfriend, Reece [sic] Reti, and being told by Mr Reti that the accused had told him to dissuade her from giving evidence or from identifying him in Court.

[24] Furthermore, given – amongst other things – the fact that no other prosecution witness positively identified Mr Uasi as wielding the metal pole and Mr Uasi’s denial, we are satisfied that the case against Mr Uasi depended substantially, if not wholly, on the correctness of that identification evidence.

[25] The Judge was right, therefore, to conclude that an identification warning was required. We reject this ground of appeal.

Identification warning given inadequate

[26] Section 126(2) of the Evidence Act provides that an identification warning:

... need not be in any particular words but must—

(a) warn the jury that a mistaken identification can result in a serious miscarriage of justice; and

(b) alert the jury to the possibility that a mistaken witness may be convincing;

and

(c) where there is more than 1 identification witness, refer to the possibility that all of them may be mistaken.

[27] The warning of the special need for caution must, therefore, include a warning that a mistaken identification can result in a serious miscarriage of justice, although the warning need not be in those particular words.

[28] The Judge warned the jury in the following terms:

Members of the jury, the case does raise an issue of identity and as such I really am required by the law to say to you that you need to be especially careful when relying on identification evidence as the basis of a conviction. 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 can be convinced of the accuracy of what they are telling you about that and may well come across as quite a convincing witness, but may still be mistaken. Bear in mind how we sometimes make mistakes ourselves in everyday life with people that we know quite well. You might come up behind somebody in the street and say, “Hello Bill,” and then a man turns around and you think, “Oh, no it is not Bill at all.” These sorts of mistakes are made, and so you need to be careful in weighing up the quality of the evidence that identifies the accused as the assailant.

Think about the circumstances in which people who identified him saw him. How long did they have him under observation and how far away were they? What was the light like, and was there anything in the way of the observation? Had they seen the accused before and if so in what circumstances, and did they know the person? How does the description that the person gave line up with the appearance of the accused, and things like that?

So it is a case of being careful to make sure that you can be sure that evidence is able to be relied upon. It is not to say, of course, that you can’t rely on that evidence. Of course you can, but be careful, be mindful of the fact that such evidence can be honestly given but can be mistaken.

[29] The Judge then went on to analyse the identification evidence.

[30] Ms Holden argued that warning was inadequate. She submitted that the Judge did not refer, either by reference to the specific words of subsection (2)(a) itself or to the underlying substantive concept, to the risk that an erroneous identification could give rise to a substantial miscarriage of justice. We accept the Judge did not do so.

[31] The predecessor to s 126, s 344D of the Crimes Act 1961, required the Judge to include “the reason for the warning” (s 344D(2)(a)). It would appear from decisions such as R v Ma’u [2008] NZCA 117, R v Hewett CA350/03 12 December

2003 and R v Joseph CA 358/01 20 May 2002 that the Judge’s direction in this case would have very ably met the requirements of that earlier provision.

[32] Section 344D(2)(a) was replaced in s 126 by requiring the Judge to “warn the jury that a mistaken identification can result in a serious miscarriage of justice”

(s 126(2)(a)). Although the amendment was included in the New Zealand Law Commission’s Evidence Code (see Evidence: Evidence Code and Commentary (NZLC R55 Vol 2 1999)), there is no specific commentary by the Law Commission addressing that change. The question at issue here, therefore, is whether the new reference in s 126(2)(a) to a serious miscarriage of justice requires something more in the warning given to the jury than was required under s 344D.

[33] In two recent decisions, R v Hohepa [2008] NZCA 316 and R v Davis [2008] NZCA 424, this Court has said that s 126(2)(a) requires the trial Judge to warn the jury that a mistaken identification can result in a serious miscarriage of justice, as opposed to simply warning them of the special need for caution. It may be helpful, in light of the change from s 344D(2)(a) to s 126(2)(a), to explain briefly what we consider to be the reasons for that conclusion.

[34] The roots of the s 126 warning – and its predecessor s 344D – are found in the decision of the English Court of Appeal in R v Turnbull [1976] 3 All ER 549. Giving the judgment of the Court, Lord Widgery CJ expressed the rationale for the warning as follows (at 551):

Each of these appeals raises problems relating to evidence of visual identification in criminal cases. Such evidence can bring about miscarriages of justice and has done so in a few cases in recent years. ... In our judgment the danger of miscarriages of justice occurring can be much reduced if trial judges sum up to juries in the way indicated in this judgment.

[35] Cases in the United Kingdom since Turnbull illustrate that there the warning should include express reference to the risk of injustice or a miscarriage of justice underlying the giving of the warning. Thus in R v Pattinson and Exley [1996] 1 Cr App R 51, the English Court of Appeal referred to the Judge’s warning and observed (at 54):

... the reference to the fact that questions of identification give considerable concern to the courts, that concern being based on the fact that mistakes (even by honest and genuine witnesses) are made, does not seem to us adequately to deal either with the courts’ experience of the risk of miscarriages of justice or how convincing a mistaken witness can be. It does not put across the full force of the requirements that we are presently considering.

[36] That approach is also evident in the United Kingdom Judicial Studies Board’s specimen directions, which provide as relevant:

The case against the defendant depends [wholly][to a large extent] on the correctness of one [or more] identification[s] of him which he alleges to be mistaken. To avoid the risk of any injustice in this case, such as has happened in some cases in the past, I must therefore warn you of the special need for caution before convicting the defendant in reliance on the evidence of identification. A witness who is convinced in [his][her] own mind may as a result be a convincing witness, but may nevertheless be mistaken.

(Emphasis added).

[37] A similar emphasis on reference to the reason for the warning being located in the courts’ past experiences of miscarriages of justice is seen in R v Dickson [1983] VicRp 19; [1983] 1 VR 227 at 231 and R v Clarke (1997) 97 A Crim R 414.

[38] In our judgment, the reference in s 126(2)(a) is best understood in the context of that United Kingdom and Australian practice, and indicates that the reference to avoiding the risk of a miscarriage of justice is to be identified separately from the risk of identification evidence being objectively unreliable. Furthermore, we think that the reference to avoiding the risk of a miscarriage of justice should, whatever words are used, make it clear that that risk has been identified on the basis of actual cases in the past, and is not something that is purely theoretical.

[39] Accordingly, we find that the lack of reference to avoiding a miscarriage of justice (or words to that effect) in the Judge’s direction on the identification evidence amounted to an error of law. Mr Uasi’s conviction must accordingly be set aside unless we consider it appropriate to apply the proviso to s 385(1) of the Crimes Act.

[40] We acknowledge that in all other respects the Judge’s summing up on identification was appropriate. It was fully detailed and the relevant points for and against the accuracy of the identification of Mr Uasi were covered for the jury. The Judge did warn the jury of the special need for caution in comprehensive and easily understood terms.

[41] Having said that, we note that the only identification evidence in the case came from Ms Cotterell. Mr Feleti’s evidence as to identification during the incident

was in reality dependent for its probative force on Ms Cotterell’s evidence, analysed above, that it was Willie Uasi who used the pipe. Furthermore, there is other evidence which does not identify “Willie” as the assailant with the pipe, and which could be said to be in conflict with Ms Cotterell’s evidence that the assailant with the pipe was “Willie”. There is also evidence that “Willie” tried to ensure those at the party said nothing about what he did. Whilst that could be said to support Ms Cotterell’s evidence, we note that Mr Uasi admitted that he had been involved in kicking someone on the ground that evening. His attempts to threaten others, therefore, are also consistent with him attempting to dissuade those people from “narking” on him with respect to that assault.

[42] Given this analysis we think that the Crown case, relying as it does essentially on one eye witness, is not such that we are satisfied that a conviction was inevitable. We therefore conclude it is not appropriate to rely on the proviso in this instance. Mr Uasi’s appeal against his conviction under s 188(1) of the Crimes Act for causing grievous bodily harm with intent to cause grievous bodily harm is allowed.

[43] We do not consider, however, that this leads to our upholding Mr Uasi’s conviction for wilfully attempting to pervert the course of justice by threatening Mr Feleti. The issues of identification, which arise in the context of what was seen during the brawl outside the party, do not in our view affect the evidence on that charge.

[44] Mr Feleti made a statement to the Police one day after the incident. Some time later, on 21 December 2006 after the depositions hearing, Mr Feleti was at his grandmother’s house. His evidence was that a mate of his, Cory, told him that Viliami, or Willie, wanted to smash him. Willie wanted to smash him because, apparently, he had seen Mr Feleti’s statement to the Police and was angry that he had “narked him off”. Mr Feleti subsequently spoke to Willie and told him that he had not narked him off. He then went to a house nearby where Willie was with some acquaintances. Mr Feleti’s evidence was that Willie called him out on the deck, mentioned that he had to go to court and said to Mr Feleti that if Mr Feleti did not go to court to give evidence “then you won't die”. Mr Uasi in his evidence

acknowledged speaking to Mr Feleti on that occasion. Mr Uasi said that he had asked Mr Feleti to be his witness. Given that acknowledgement, the question was not whether Mr Uasi had spoken to Mr Feleti, but what was the gist of their conversation.

[45] The jury, as they were entitled to, clearly accepted Mr Feleti’s version of the conversation. This was sufficient to convict Mr Uasi.

[46] The appeal against conviction on this count is dismissed.

Crown opening unfairly prejudicial

[47] The Crown opened its case on the basis that Mr Reti would give evidence that Mr Uasi had told him to tell Ms Cotterell not to point Mr Uasi out at the Court hearing. The Crown also opened on the basis that Mr Adamson was punched by a friend of Mr Uasi. As the case proceeded, Mr Reti did not give evidence, and neither was evidence given that Mr Adamson had been punched by a friend of Mr Uasi. Ms Holden argued that Mr Uasi had been unfairly prejudiced, as the Crown’s case in opening was not supported by evidence called. If, as would appear, the Crown did open on the basis of evidence that it was not able to produce at trial, then that was a matter that Ms Holden herself could have used to impugn the Crown’s case. In our view, it is not a matter which can be relied on in this case to challenge Mr Uasi’s conviction. We reject this ground of appeal.

Unreasonable verdict

[48] Ms Holden’s final argument was that this was an unreasonable verdict and one that could not be supported having regard to the evidence. She made the submission by reference to a number of inconsistencies between the evidence given by witnesses for the Crown in particular. We acknowledge that, as is often the case, there were inconsistencies within the Crown case. However, the Judge dealt carefully in his summing up with the question of inconsistencies that may exist, and more generally with the difficulties that arise in these sorts of violent episodes involving large numbers of people, in the evening, inflamed by fighting and

probably by liquor as well. On the basis of that direction, and given the inconsequential nature of the inconsistencies Ms Holden identified, we would not have upheld Mr Uasi’s appeal on this ground.

Result

[49] The result, therefore, is that Mr Uasi’s conviction for causing grievous bodily harm with an intent to do so is hereby quashed, as therefore is his sentence on that charge. We order a retrial on that charge.

[50] We dismiss Mr Uasi’s appeal against his conviction for attempting to pervert the course of justice. He was sentenced to a cumulative term of six months imprisonment on that charge on 29 October 2008. It is highly likely that Mr Uasi has already served that term. Questions of bail may therefore arise. Bail is to be dealt with in the District Court.

Solicitors:

Crown Law Office, Wellington