Peato v R [2009] NZCA 333; [2010] 1 NZLR 788; (2009) 24 CRNZ 260 (29 July 2009)

Last Updated: 2 February 2018

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

IN THE COURT OF APPEAL OF NEW ZEALAND

CA354/2008 [2009] NZCA 333

THE QUEEN

v

_{IONA PEATO}

Hearing: 15 July 2009

Court: Chambers, Randerson and Keane JJ Counsel: S J Lance for Appellant

J M Jelas for Crown Judgment: 29 July 2009 at 10.30 am Reasons: 15 September 2009

_{JUDGMENT OF THE COURT}

A The appeal against conviction is allowed. B The convictions are quashed.

C A retrial is ordered on both counts in the indictment.

4. An order is made that the reasons for this judgment are not to be published in news media or in any other publicly accessible database

R V PEATO CA CA354/2008 [29 July 2009]

until final disposition of the new trial. Publication in a law report or a law digest is, however, permitted.

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1] On 29 July 2009 we allowed Mr Peato’s appeal against conviction. We also quashed his convictions and ordered a retrial. These are the reasons for our decision.

[2] The appellant was convicted after a trial before Judge Weir and a jury in the District Court on one count of injuring with intent to injure under s 189(2) Crimes Act 1961 and one count of wounding with intent to cause grievous bodily harm under s 188(1) Crimes Act. He was sentenced on 22 May 2008 to six and a half years imprisonment on the lead charge of wounding with a concurrent sentence of two and a half years’ imprisonment on the injuring charge.

[3] The charges against the appellant arose from a fight on 24 September 2006 both inside and outside a Rotorua bar during which a security officer was allegedly punched, kicked and attacked with a broken beer bottle. It was alleged that the attack outside the bar involved a number of participants of whom the appellant was one. The Crown alleged the appellant broke a bottle and then attacked the victim around the head with it.

[4] The appellant admitted to the police he had been responsible for punching the victim but denied any other involvement. In particular, he denied kicking the victim or having any part in or knowledge of the alleged attack on the victim with a bottle.

[5] The Crown case turned substantially upon the evidence of the victim and two female witnesses, a Ms Te Nahu and a Ms Katipa. In important respects, the evidence of the victim differed from that of the two women. The victim’s evidence was that he was punched by the appellant inside the bar but he was unable to say that

the appellant was involved in any attack outside the bar or that the appellant attacked him with a bottle. He said he was injured by a glass object inside the bar. He was unable to say whether a bottle was used on him outside the bar.

[6] The two women gave evidence that the appellant was involved in the attack on the victim outside the bar. They said that he and others were involved in punching and kicking the victim while he was on the ground. They both identified the appellant as the person who had attacked the victim with a bottle while he was on the ground outside the bar.

[7] A third witness, a Mr Kauhala, identified the appellant as the person who punched the victim inside the bar and said the appellant was involved in kicking and punching the victim outside the bar. But he did not see a bottle being used on the victim.

[8] The appellant’s defence at trial was that he was only involved in punching the victim and did not have the necessary intent to injure for the injuring count. His defence to the wounding charge centred on a challenge to the reliability of the evidence of the two women who said they identified him as the attacker using the bottle outside the bar.

[9] The appellant appeals against his conviction and sentence. The grounds of his conviction appeal are:

(a) The Judge failed to give an adequate direction on identification as required by s 126 Evidence Act 2006.

(b) The Judge failed adequately to put the defence case in summing up.

(c) The Judge wrongly allowed the prosecutor to re-examine a witness on previous identifications of the appellant.

(d) Fresh evidence is available from another man admitting that he was responsible for the attack on the victim with the bottle. (This man was called as the sole defence witness at trial. He said the appellant

was not involved in any of the matters alleged but did not admit to involvement himself as trial counsel expected.)

The alleged errors in the summing up

[10] It is unnecessary for us to deal with all of the grounds Mr Lance raised on behalf of the appellant because we accept the submission that the summing up by the Judge was in error in several respects and that this has led to a miscarriage of justice.

Identification warning

[11] First, we are satisfied that the Judge did not give all of the elements of the warning about identification evidence required by s 126, which provides:

126 Judicial warnings about identification evidence

(1) 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 or any other person, the Judge must warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any such identification.

(2) The 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.

[12] In his summing up, the Judge addressed the issue of identification as follows:

[10] This is a case where the Crown relies upon the accuracy of a number of identifications of the accused and the defendant contends that they are mistaken. Those witnesses principally are Ms Karen Te Nahu, Ms Ritihia Marama Katipa, Mrs Mason-Kauhala and Mr Jonathon. Where this applies, the law requires me to warn you of the special need for care before relying on identification evidence as the basis for 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 who is convinced of the accuracy of what he or she says, may well

come across as a convincing witness, but may still be mistaken and if one such witness may be mistaken, so can a number of them.

[11] Bear in mind that sometimes we all may make mistakes in thinking that we recognise people, even those we know well. That is not to say that you cannot rely on 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 witnesses say they observed the accused at the time. For instance, how long did the witnesses have him under observation and in what circumstances? And you need to look carefully at the evidence of each individual witness because it is clear that they had the accused under observation possibly at the same time, possibly not at the same time. Certainly there were two separate incidences, first in the bar and then on the pavement outside the bar. What was the lighting like inside the bar and outside the bar? At what distance were the witnesses from the accused when they said they saw what they saw: Compare and contrast for instance the evidence of Ms Te Nahu and Ms Katipa and where they said they were by referring to the photographs and where, for instance, Mr Kauhala said he was. Was there anything that physically impeded observation? Had any of the witnesses ever seen the witness before? Mr Kauhala in his evidence said he had. Was there anything about the situation that would cause any of the witnesses to take particular note of the person?

[12] Counsel for the defence has drawn your attention to inconsistencies in the description of the accused, for instance, by Ms Te Nahu and Ms Katipa. Ms Te Nahu said that he was about five foot eight tall, but if you look at her evidence you might conclude that she was unsure about how tall five foot eight was. Ms Katipa referred to a height of five foot eleven but seemed to qualify that further on in her evidence as well. Both appeared to describe the accused as being a big person.

[13] This is really an example of perhaps where you may determine, in applying your collective common-sense, that people have different recollections of events. They will recall the event in general terms, but those recollections can contain minor inconsistencies in matters of detail. That is a classic example of your principal requirement in assessing the witnesses and that is to apply your collective common-sense and your knowledge of human nature.

[14] I should also say something about the identification of the accused in the photograph montages referred to. That particular identification is by Ms Te Nahu and Ms Katipa and also Mr Kauhala and also there was an earlier dock identification at depositions and also of course in Court here over the last couple of days. These identifications occurred in re-examination of those witnesses by the Crown. Both of those particular forms of identification were admitted to respond to a challenge to the accuracy of those witnesses by counsel for the accused. Those other forms of identification may assist your assessment of the accuracy of their testimony and help you assess their credibility and reliability as a witness of the truth. Whether and to what extent they do so, is entirely a matter for you to assess.

[15] Insofar as the dock identification is concerned, you need to be careful about simply accepting this. You might well consider that given the layout of this courtroom the dock and the prison officers sitting beside the accused,

who else could the witnesses have identified as being the accused and that of course also applies to the dock identification of the accused and the earlier deposition hearing of this case.

[13] Ms Jelas for the Crown accepted that the Judge had failed to give that part of the warning in s 126(2)(a) to the effect that a mistaken identification can result in a serious miscarriage of justice. As this Court noted in R v Hohepa [2008] NZCA 316, the new section requires the Judge to make specific reference to the possibility of a miscarriage of justice through a mistaken identification or to use words which convey the gist of that part of the warning. This requirement is in addition to the warning about the special need for caution when relying on the correctness of any identification of the accused. The Judge did not refer to the possibility of a serious miscarriage of justice either in those terms or in words to similar effect.

[14] In Hohepa, this Court found that although there was an error of law resulting from the failure by the Judge to give that part of the warning referred to in s

126(2)(a), in the circumstances there was no reasonable possibility of a miscarriage of justice. The Court noted the absence of any reference to the risk of a substantial miscarriage of justice in the now repealed s 344D Crimes Act. The summing up was otherwise “commendably detailed and no doubt helpful to the jury for that reason”: at [31]. We also note, in Hohepa, the appellant was known to the principal witness who identified him.

[15] The present case is quite different from Hohepa, where the accused was known to the identification witness. In the present case, the victim’s evidence did not implicate the appellant except in respect of the punching which took place inside the bar. The two female witnesses did not know the appellant. Their evidence was that the attacker outside the bar was wearing a black shirt with distinctive white stripes. In contrast, the victim gave evidence that the appellant was wearing a green and brown shirt. There were discrepancies as to the height of the attacker. It is accepted that the appellant is six foot two inches or six foot three inches in height. One of the female witnesses described him as being five foot eight inches in height and the other about five foot eleven inches in height (although she said he might have been up to six foot one inches in height).

[16] While the Judge referred to the height discrepancies in his summing up, he then tended to negate or downplay their significance by reference to the common occurrence of witnesses having minor inconsistencies in matters of detail. The Judge did not refer at all to the difference between the critical witnesses as to the clothing being worn by the attacker.

Was a warning under s 126 required at all?

[17] Since the hearing of this appeal, this Court has delivered two substantial decisions in relation to identification evidence. In R v Turaki [2009] NZCA 310 this Court discussed the differences between varying types of identification evidence and the circumstances in which a judicial warning under s 126 is required. The Court focused on s 4 Evidence Act which defines “visual identification evidence” as follows:

visual identification evidence means evidence that is—

(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)

[18] The Court in Turaki drew a distinction between visual identification evidence as defined and what was described as observation evidence. The former applies where a witness identifies a particular person as being at or near the scene of an offence while the latter is evidence about what the person was seen to do at the scene. Where, for example, the accused admits to being present at a scene but denies taking part in an assault, it is said there is no issue about identification; the only question is what the accused did at the scene. In such a case, the Court in Turaki reasoned that s 126 has no application: see the summary at [84]-[94] and in particular at [92]-[93].

[19] The second decision of this Court in relation to this issue is R v Edmonds [2009] NZCA 303 which was delivered the same day as Turaki, the Court comprising the same members in each case. The distinction between identification

evidence and observation evidence was reiterated at [44] but the appeal was principally concerned with the issue of whether there was good reason not to conduct a formal identification procedure in terms of s 45(4) Evidence Act. In the present case, s 45 does not apply because Subpart 6 of Part 2 (including s 45) does not apply to identifications made before the commencement of that Subpart: s 206. The reason s 45 does not apply to pre-commencement identifications is that the requirements of s 45 differ from identification procedures under the New Zealand Police Manual of Best Practice (1997), which governed how formal identifications were carried out prior to the commencement of the Evidence Act. Obviously Parliament did not want to rule evidence from such identification procedures to be inadmissible, provided the procedures had been undertaken in accordance with best practice at the time.

[20] Unfortunately, we cannot accept in its entirety what this Court said in those two cases. We do not consider ourselves bound by them, as they are, in our view, inconsistent with what this Court said in R v Uasi [2009] NZCA 236. We prefer the approach in Uasi.

[21] The approach of this Court in Turaki and Edmonds focused very much on the definition of “visual identification evidence” in s 4. In our respectful view, that focus has led to an incorrect conclusion as to when the need for a s 126 warning is required. The Court in Turaki seems to have itself recognised that its interpretation can yield an unsatisfactory result, as it accepted that, even in circumstances where, on its view, s 126 had no application, it might nonetheless be appropriate for the judge to direct the jury on some or all of the matters that a standard s 126 warning would include: at [93]. The Court appeared to contemplate a warning which did not necessarily need to conform to s 126 but which included elements commonly mentioned before the new Evidence Act came into force.

[22] The definition of visual identification evidence in s 4 and the linkage between ss 45 and 126 are not straightforward. To draw a bright line distinction between visual identification evidence in the strict sense and observation evidence, and to require a s 126 warning for the former but not the latter, is not necessarily consistent with the evident statutory purpose of avoiding miscarriages of justice through mistaken identifications. In particular, we do not see any necessary logical

distinction in all cases between evidence identifying the accused as being present at or near the scene of an offence and evidence identifying which of several possible attackers was responsible for inflicting the fatal blow or, in this case, wielding the bottle which injured the victim.

[23] Nor do we consider that an admission by an accused of presence at the scene of a crime necessarily means that there is no issue as to identification. For instance, in R v Slater [1995] 1 Cr App R 584 (EWCA) the Court said at 590:

[It would be] contrary to common sense to require a Turnbull direction [ie a warning to the jury about the dangers of identification evidence] in all cases where presence is admitted but conduct disputed. Purely by way of example, such a direction would not, in our view, generally be necessary if the defendant admitted he was the only person present when the complainant received his injuries, or if a woman and a man were present and the complainant said the man caused his injuries, or if a black man and a white man were present and the complainant said the white man caused the injuries, or if four men were present, three dressed in black and one in white, and the complainant said the man in white caused his injuries. Of course, in all but the first of those examples, an appropriate warning would need to be given if in a particular case, for example, the lighting was bad or there were other circumstances giving rise to the possibility of mistake. But, in our judgment, the possibility of mistake is a necessary prerequisite for an identification issue to arise such as to require a Turnbull direction. (Emphasis added.)

[24] To take a hypothetical example. A victim (V) may claim she has been raped. She gives the police a description of her attacker. In addition, a bystander (B) may see a man running from the scene where the rape took place shortly after it was said to have occurred. Ordinarily, both V and B would be required to undergo a formal procedure in terms of s 45 and, at trial, there could be no doubt that a warning under s 126 would be required in each case.

[25] If the accused admitted either at or prior to trial that he was present at the scene, along with others, but denied having any part in the rape, should this, in logic, make any difference? We would agree that the evidence of B could probably be dispensed with as unnecessary in the light of the admission. But in our view, it ought not to make a difference to V’s evidence since, with or without the admission, the case against the accused depends wholly or substantially on the correctness of one or more visual identifications of the accused and falls squarely within s 126.

[26] Part of the difficulty in reconciling ss 4, 45 and 126 is the use of the following expression in s 4: “an assertion... that a defendant was present at or near a place where an act ... was done”. It will be apt for some circumstances and not others. It may be perfectly appropriate where there is no direct evidence of the accused committing the offence but the Crown has evidence identifying the accused as being present at or near the scene. It may also be appropriate in a case where the accused is identified as present at the scene and the circumstances are such that there is no realistic possibility of anyone else being the offender. But in a case like the present, the critical question is whether the accused can be reliably identified (amongst others present) as the perpetrator of the crime. Placing him at the scene only takes the prosecution case part of the way.

[27] In some cases, the evidence of a witness will both identify the accused as being present at the scene and identify the accused as the perpetrator. In the hypothetical example, V identifies the accused as being both present at the scene and as the perpetrator. But this will not always be the case. The evidence of B only identifies the accused as being present at or near the scene. It does not identify the accused as the perpetrator.

[28] To take another example, an accused might admit being present in one room in a house but deny being present in another room where an attack is said to have occurred. The risk of mistaken evidence identifying the accused as the attacker in the room where it happened (where there were several present who could have been responsible) is just as real as it would be if the accused had not made the admission.

[29] We see these logical difficulties being resolved by interpreting and applying the definition of “visual identification evidence” in context. The authorities demonstrate that, where, as here, a definition applies “unless the context otherwise requires” the context is given a wide meaning. See Burrows & Carter Statute Law in New Zealand (4ed 2009) at 423:

It includes not only the text of the provision in question, but also the purpose and policy of the legislation, its history and the consequences of a suggested interpretation.

[30] The authorities cited for this proposition are Police v Thompson [1966] NZLR 813 at 820 (CA) and Kirk v Electoral Commission [2008] NZHC 740; [2008] 3 NZLR 125 at [16] (HC).

[31] Reading s 4 in context would broaden its scope to include the case of a witness who gives evidence identifying the accused as the perpetrator of a crime, in circumstances where the reliability of the identification is at issue notwithstanding an admission or other evidence placing the accused at or near the scene. Such evidence will engage s 45 and potentially s 126 if the evidence is important to the Crown case.

[32] Adopting this approach, the evidence of Ms Te Nahu and Ms Katipa was akin to the evidence of V in the hypothetical example. They had witnessed the attack with the bottle and described the attacker. In the photo montage exercise, they were asked whether they could identify the man wielding the bottle and they identified Mr Peato. That evidence continued to be evidence identifying Mr Peato as the man wielding the bottle even after defence counsel accepted Mr Peato had been present during the fight. It was essential to the Crown case that Mr Peato be proved to be the person who wielded the bottle since he was charged solely as a principal. It was not sufficient to prove he was simply one of several present who all joined in an attack on the complainant.

[33] In our view, Mr Peato’s admission to the police that he was present at the scene and had punched the victim did not remove the need for a warning under s 126. The identification of Mr Peato as the perpetrator of the bottle attack was still at issue and the case against him depended wholly or substantially on the correctness of the visual identifications of Ms Te Nahu and Ms Katipa.

[34] This conclusion is consistent with this Court’s decision in Uasi. In that case, this Court held an identification warning under s 126 was required in circumstances where, although the appellant admitted being at the party in question, the critical eye-witness evidence was the identification of the appellant as the man wielding a metal pole and striking the victim on the ground: at [21], [24] and [25].

[35] In a case such as the present, the prosecution case depended critically on the correctness of the evidence of the two women identifying the appellant as the person who wielded the bottle. Neither knew the appellant previously. The risk of their being mistaken was identical whether their evidence is treated as observation evidence or as visual identification evidence as defined in s 4. To conclude that no warning was required under s 126 because the appellant admits being at the scene (while denying he committed the offending act) would, in such circumstances, undermine the evident purpose of s 126.

[36] The interpretation adopted in Turaki would also be more restrictive and inflexible than the equivalent common law as expressed in R v Turnbull [1977] 1 QB

225 at 228. In R v Slater (above), the Court explained at 589:

Where, however, there is no issue as to the defendant’s presence at or near the scene of the offence, but the issue is as to what he was doing, it does not automatically follow, in the judgment of this Court, that a Turnbull direction must be given. Whether such a direction is necessary will depend on the circumstances of the particular case. It will be necessary where, on the evidence, the possibility exists that a witness may have mistaken one person for another, for example, because of similarities in face, build, or clothing between two or more people present. (Emphasis added.)

[37] See also R v Thornton [1995] 1 Cr App 578 at 583 (CA) and R v O’Leary

(Benjamin) [2002] EWCA 2055.

[38] Malek (ed) Phipson on Evidence (16ed 2005) at [15-20] also endorses the view that the fact a defendant admits to being present at the scene of the crime does not necessarily obviate the need for a Turnbull direction.

[39] It is useful to consider the scope of the former s 344D Crimes Act on identification warnings, which s 126 replaced. Mathieson Cross on Evidence (8ed

2005) at [2.36] expressed the view that a warning under s 344D could be required despite the fact an accused admitted his presence at the scene of a crime but denied its commission. (We refer to this edition of Cross on Evidence as it contains helpful commentary on the pre-Evidence Act position, as it was then understood to be. All subsequent references are to this edition.) The Law Commission viewed s 126 as a re-enactment and extension of s 344D: see Evidence: Reform of the Law (NZLC R55-Volume 1 1999) at [216]. The former s 344D also used the expression “one or

more visual identifications” just as s 126 does. The former s 344D was extended in the new s 126 by the addition of voice identifications and identifications of persons other than the accused. And, as earlier noted, by the addition of the need to warn of the risk of a serious miscarriage of justice. This suggests that the intention was to require a warning to be given in a wider range of circumstances than previously. It is not suggestive of any narrowing of the section’s scope.

[40] We conclude that, in the circumstances of this case, a warning under s 126

Evidence Act was required notwithstanding the appellant’s admission that he was present at the scene. The failure to give the full warning required was an error of law that gave rise to a real risk of a miscarriage of justice.

[41] In case we are wrong in our approach, we consider there is an alternative (possibly less attractive) argument to support the view that a warning under s 126 may still be required for observation evidence. It is possible to interpret ss 45 and

126 as distinct in purpose and scope. Section 45 is concerned with the admissibility of visual identification evidence as defined by s 4. This is linked with the need for a “formal procedure” as a means of obtaining visual identification evidence. Such a procedure is defined in subs (3). If a formal procedure is followed (or if there is good reason for not doing so), the visual identification evidence is admissible unless the defendant proves on the balance of probabilities that it is unreliable: s 45(1). The reverse applies if a formal procedure is not followed and there was no good reason not to do so. In that case, the visual identification evidence is inadmissible unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification: s 45(2).

[42] There is nothing in s 45 directly linking the admissibility issues to the judicial warnings required by s 126, a provision contained in a quite separate Subpart 6 under Part 3 of the Act dealing with trial process. While there can be no question that s 45 is dealing with visual identification evidence as defined by s 4, the identical expression is not used in s 126. Section 126 is not confined to identifications of the defendant. Unlike s 4, it extends also to the identification of any other person.

[43] We consider that s 126 may be interpreted as referring to all evidence relating to the identification of a person, regardless of whether that evidence is “visual identification evidence” within s 4. In particular, s 126 may include observation evidence, being evidence identifying the defendant as the person who committed the offence by doing a particular act. To restrict the need for a warning strictly to “visual identification evidence” as interpreted in Turaki would undermine the purpose of s 126 which is to ensure that juries are aware of the well recognised reliability problems with eye-witness evidence as to identification.

[44] On either basis, we conclude that a warning under s 126 was required in respect of the evidence of Ms Te Nahu and Ms Katipa.

[45] We regret that different divisional courts have reached slightly different conclusions on when s 126 warnings are required. It would be helpful if any differences in approach could be resolved at an early date, either by the permanent members of this court or by the Supreme Court. In the meantime, trial courts are perhaps best advised to adopt a cautious approach and to give s 126 warnings where indicated by this judgment and Uasi.

Defining the issues and the cases for the Crown and defence

[46] In addition, the case called for a clear identification of the issues and the prosecution and defence case in relation to each. Unfortunately, the Judge did not give clear directions and assistance to the jury in this respect. It was crucial to do so given the defences raised to each charge. Effectively, the jury had to determine whether:

(a) The appellant’s involvement was limited to his admitted punching of the victim;

(b) He was also involved in kicking the appellant;

(c) In respect of either kicking, punching or both, he had the necessary intention to injure;

(d) He attacked and wounded the victim with a bottle; and

(e) He had the necessary intention to cause grievous bodily harm.

[47] The summing up did not identify and address these important issues of fact and did not clearly state the position of the Crown and defence in relation to each issue. While we accept that this was a short trial (two days with the Judge summing up on the third day), the jury was entitled to much greater assistance than was offered in the summing up.

Parties direction

[48] On the injuring count, the appellant was charged “together with persons unknown”. In contrast, on the wounding count, he alone was charged. The Judge gave a parties direction in respect of the injuring count which related to punching and kicking. On the appellant’s own admission, he was a principal to punching the victim. He may have been either a principal or a party to what happened outside in respect of kicking the victim. The Judge did not make these crucial distinctions of fact and law clear to the jury and direct them accordingly. Nor did he direct the jury clearly as to the contrasting Crown case on the wounding charge where the appellant was charged as a principal.

Failure to put the defence case

[49] We accept Mr Lance’s submission that the defence was touched upon only tangentially by the reference to inconsistencies in the description of the appellant given by the two women, and that the Judge then immediately downplayed the significance of these inconsistencies by the remarks which followed. Other than the reference to inconsistencies and the defence contention that the relevant witnesses were mistaken in their identification, the Judge did not address the defence case at all.

[50] Viewed overall, we are satisfied that the summing up was defective in failing to comply with s 126(2)(a), failing to identify the relevant issues of fact and law and failing adequately to put the defence case. Taken together, we are satisfied these errors led to a miscarriage of justice.

Other concerns

[51] Although not raised by Mr Lance, we also have concerns about the way in which the Judge dealt with the burden and onus of proof.

[52] All the Judge had said on this topic in his opening remarks to the jury was this:

It is your role to decide the facts of the case and to decide finally whether the

Crown has proved the charges against the accused beyond reasonable doubt.

[53] He did not deal with the topic again until the end of his summing up: it was the final comment he made to them. That is contrary to what this Court said in R v Wanhalla [2006] NZCA 229; [2007] 2 NZLR 573. There it was said that “directions on reasonable doubt should be given both at the start of the summing up and, in short form, also when addressing the elements of the offence and any defences”: at [51]. It was particularly unfortunate to leave this matter to the end when no assistance had been given in the opening remarks either.

[54] When the Judge did give the direction, he chose not to give the direction this Court had endorsed in Wanhalla at [49]. Again, this was unfortunate, as the Judge’s version omitted some of the salient features of the Wanhalla formula:

(a) It did not explain the rationale for the burden of proof, namely “the presumption of innocence”.

(b) It did not, at least expressly, convey that “it is not enough for the Crown to persuade [the jury] that the accused is probably guilty or even that he or she is very likely guilty”.

(c) It did not explain what a reasonable doubt was. The Wanhalla formula defines a reasonable doubt as “an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence”. All the Judge said

is that reasonable doubt “means what it says” and is not “some thin or weak doubt”.

[55] We would not have declared a miscarriage of justice on this basis, if it stood alone. While the Wanhalla formula is not mandatory, we encourage its use to promote consistency: Wanhalla at [52]. If judges develop their own formulations, there is a real risk that those formulations will be found defective on appeal. All the research set out in the Wanhalla opinions shows clearly that juries have real difficulties with many of the traditional explanations of the burden and standard of proof. The Wanhalla formula represents this Court’s best attempt, after studying the overseas research and overseas models, to provide assistance to juries in this difficult area.

Conclusion

[56] It was for these reasons that the appeal was allowed, the convictions quashed and a new trial ordered on both counts.

[57] Our conclusion on the conviction appeal meant we did not have to deal with the appeal against sentence. It was automatically discharged – as is the remission of fines the Judge purported to order: at [19]. We say “purported” because the Judge had no jurisdiction to remit fines in the circumstances: see R v Brown [2009] NZCA 288 at [28]- [29] and the cases there cited. The fines are reinstated.

Issues for the retrial: dock identification and the photo montage evidence

[58] Another of Mr Lance’s concerns we have not found it necessary to deal with was what happened in Ms Te Nahu’s re-examination. Ms Te Nahu had identified the appellant in a photo montage exercise conducted two days after the incident. She did not refer to the photo montage in her evidence in chief but she was asked to identify the appellant in court and she did so. She also confirmed in re-examination that she had been asked to take part in a photo montage and that she had picked someone out. Constable Robson later gave evidence that she had picked out the appellant.

[59] We wish to make some comments for the benefit of the Judge who conducts the new trial and for the benefit of the Crown and defence. There is ample authority for the proposition that a dock identification by a witness who has not previously identified the accused is of negligible probative value and has the potential for significant prejudicial effect. This is for the obvious reason that the accused would ordinarily be sitting in the dock or beside his or her counsel. The identity of the accused would be obvious to all in the courtroom. The witness has no opportunity to differentiate the accused from others of similar appearance as would be the case with a photo montage or a identification parade carried out outside the context of the trial.

[60] The leading evidence texts support these observations. See, for example, Mathieson, Cross on Evidence (8ed, 2005) at [2.32] (“The identification of an accused for the first time at his trial should be avoided if possible...”); Tapper Cross and Tapper on Evidence (11ed 2007) at 761 (“The least satisfactory method of all is to ask the witness to identify the man in the dock as the criminal”); Heydon Cross on Evidence (7ed 2004) at [1410] (“...it is unsatisfactory for the accused to be first identified in the dock”), and Sopinka, Lederman and Bryant The Law of Evidence in Canada (1992) at 313 (“There is an inherent suspicion in testimony given by a witness identifying with certainty, for the first time, the accused in the witness box...”).

[61] The current position in England is summarised in Halsbury’s Laws of England (Lexisnexis, London, 4ed, 2006 Reissue), vol 11(3), Criminal Law, Evidence and Procedure at [1456] (citations omitted):

A “dock identification”, in which the defendant is identified in court by a witness who has not identified him in any pre-trial procedure, is not inadmissible in law or necessarily incompatible with the defendant’s right to a fair trial, but it is generally considered to be an unsatisfactory form of identification and a witness should not ordinarily be invited by the prosecution to make such an identification at a trial on indictment.

[62] The practice of dock identification is also described as “an undesirable practice in general” by Lord Carswell giving the judgment of the Privy Council in Edwards v The Queen (Jamaica) [2006] UKPC 23 at [22]. A less critical view was adopted in a Scottish criminal appeal: Holland v HM Advocate [2005] UKPC D1. It seems that the practice is not uncommon in Scotland.

[63] In New Zealand, the courts have discouraged dock identifications: see for example R v Tamihere [1990] NZCA 213; [1991] 1 NZLR 195 at 197 (CA), where Cooke P referred to the courts disapproving various forms of identification including “purely courtroom identification”.

[64] On the other hand, where there has been a previously reliable identification by a witness, there is less objection to the witness merely confirming the identification in court: see Allen Practical Guide to Evidence (4ed 2008) at 258.

[65] We think it will usually be the case that identifications in court for the first time should be ruled inadmissible under ss 45 and 8(1) Evidence Act. It follows that, in general terms, it will also be equally impermissible to refer to like identifications made at a preliminary hearing.

[66] The thrust of the new Evidence Act is clear. Witnesses, when giving identification evidence, should first be asked to give a description of the offender as best they can from memory. It is also permissible for them to say they took part in a visual identification exercise (now conducted under s 45), although not to give the results of the exercise. The police officer who conducted the formal procedure under s 45 should then describe the results of the procedure. In the present case, three witnesses were shown a photo montage, in which they identified the appellant. It was unnecessary for them to be asked to identify him in the dock as well. Although the risk of a mistaken identification is reduced where the dock identification is confirmatory of a prior identification by a proper process, it is nevertheless a risk best avoided.

[67] While s 45 does not apply to the photo montage evidence in the present case, evidence to that effect would have been admissible at common law despite being a prior consistent statement. This view is confirmed in Cross on Evidence at [2.37] citing R v Christie [1914] AC 545 (HL) and R v Birkby [1993] NZCA 188; [1994] 2 NZLR 38 at 44-45 (CA). Evidence by a police officer as to an identification made by a witness was not treated as inadmissible hearsay but as original and admissible evidence: R v Ngahooro [1982] 2 NZLR 203 at 208.

[68] The admissibility of evidence of this type was regarded as an exception to the prior consistent statement rule. This exception was also recognised in the (now repealed) s 22A Evidence Act 1908.

[69] Under the new Evidence Act, any issue as to admissibility of the photo montage evidence under s 35 (the previous consistent statements rule) would not arise unless there was also an in-court identification. The evidence of the photo montage process would not be confirmatory of any in-court identification.

[70] In any event, we do not consider s 35 is engaged in relation to visual identification evidence. First, we consider s 45 (as a particular provision addressing the admissibility of visual identification evidence) overrides the general rule under s 35. Secondly, the Evidence Act should be interpreted consistently with the common law in this area: ss 10 and 12. To do so would be consistent with the purpose and principles of the Act and the provisions of s 45.

Solicitors:

Crown Law Office, Wellington