Hennessey v R [2010] NZCA 5 (9 February 2010)

Last Updated: 16 February 2010

IN THE COURT OF APPEAL OF NEW ZEALAND

CA810/2009 [2010] NZCA 5

BETWEEN JAKE ZINZAN HENNESSEY
Applicant

AND THE QUEEN
Respondent

Hearing: 8 February 2010

Court: Glazebrook, Venning and Miller JJ

Counsel: B J Hunt for Applicant
S B Edwards for Respondent

Judgment: 9 February 2010 at 10.15 am

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

[1] Mr Hennessey is charged with injuring Mr James Paton with intent to injure him under s 189(2) of the Crimes Act 1961. The incident in respect of which Mr Hennessey has been charged was a “bottling” that took place in Courtney Place in Wellington on 13 June 2008. Mr Hennessey’s trial is scheduled to commence in the Wellington District Court on 11 February 2010.
[2] At issue in this application is the evidence of Mr Timothy Ruck. Mr Ruck, then a barman at a bar in a nearby street, reported to the police that, some 15 minutes after the alleged incident, a man he knew as Jake told him that he had “bottled someone”. Later that same evening, the police showed Mr Ruck a photograph of Mr Hennessey. Mr Ruck confirmed that the photograph depicted the person (Jake), who had told him that he had “bottled someone”. On 1 July 2008, Mr Ruck went to the police station and made a full written statement.
[3] Mr Hennessey seeks leave to appeal against the decision of Judge Butler of 14 December 2009 ruling Mr Ruck’s evidence admissible. Judge Butler held that Mr Ruck’s evidence was not visual identification evidence as defined in s 4 of the Evidence Act 2006 (the Act). Rather it was evidence of Mr Hennessey’s statement to him in terms of s 27 of the Act. Consequently, there was no need to follow a formal identification procedure under s 45(3) of the Act. As this was his view, Judge Butler made no finding on whether or not the Crown had proved the identification reliable in terms of s 45(2) of the Act.

Mr Hennessey’s position

[4] Ms Hunt, on behalf of Mr Hennessey, submits that the proposed appeal has merit. In her submission, Mr Ruck’s evidence is properly regarded as visual identification evidence, as defined in s 4 of the Act. Further, in her submission there was no good reason not to follow a formal identification procedure. Although Mr Ruck said that he recognised the person who made the statement, he did not provide a full and satisfactory identification and his acquaintance with “Jake” was very slight. In Ms Hunt’s submission, identification evidence obtained by reference to a single named photograph is prejudicial and not probative and the Crown cannot prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification (under s 45(2) of the Act).
[5] While accepting that the granting of leave to appeal would almost certainly lead to abandonment of the trial fixture on 11 February 2010, Ms Hunt submits that it would be uneconomic and an unnecessary strain on Mr Hennessey to allow the trial to go forward without hearing what she submits is a meritorious appeal against Judge Butler’s ruling.

The Crown’s position

[6] The Crown opposes the granting of the application for leave to appeal on the basis that the proposed appeal lacks any merit. In Ms Edward’s submission, Mr Ruck’s evidence does not amount to “an assertion” that Mr Hennessey was “present at or near” the location of the “bottling” and thus does not come within the definition of visual identification evidence in s 4 of the Act. Mr Ruck’s evidence concerned what Mr Hennessey, whom he knew, had told him. In any event Mr Ruck’s evidence was recognition evidence and this provides good reason not to follow a formal identification procedure. It also renders Mr Ruck’s identification reliable.
[7] Leave to appeal is also opposed by the Crown on the basis that any appeal would cause unnecessary delay. Mr Ruck lives in Western Australia and has already been brought back to Wellington twice in respect of this matter. The first fixture in August 2009 was abandoned on the morning of trial due to concerns raised by Mr Hennessey’s counsel about the admissibility of Mr Ruck’s evidence. The Crown submits that there may be availability difficulties for Mr Ruck if the current trial date has to be vacated (which would be the case if leave to appeal was granted).

Decision

[8] We do not accept the Crown’s submission that the proposed appeal is totally without merit. On the other hand, neither is it self-evident that any appeal would be successful given that Mr Ruck was acquainted with “Jake”. It is not appropriate for us to comment further on the merits.
[9] Granting leave to appeal would mean that the trial would need to be adjourned for the second time. This would be the case even if the appeal could be heard quickly and even if the result was favourable to Mr Hennessey, as the Crown would have to be given the opportunity to prove reliability of the identification under s 45(2) of the Act. Given the proximity of the trial date and the fact that Mr Ruck is living in Australia, we are of the view that leave to appeal should be declined. This does not stop Mr Hennessey raising the argument that a formal identification procedure should have been followed with regard to Mr Ruck’s evidence in any subsequent appeal against conviction, should Mr Hennessey be convicted.
[10] It is worth recording that formal notice of the challenge to the admissibility of Mr Ruck’s evidence was given on behalf of Mr Hennessey on 7 September 2009 but the application with regard to that evidence was not heard until 14 December 2009. We are not to be taken as suggesting that any delay since the first trial date was vacated has been the fault of Mr Hennessey.
[11] We also note that the trial Judge will need to consider what direction should be given with regard to Mr Ruck’s evidence. Even if, as the Crown asserts, the evidence does not come within the definition of visual identification evidence or that, in any event, there was no need for a formal identification procedure (matters upon which we make no comment), there was still “identification” of Mr Hennessey as the maker of the admission. The trial Judge will need to consider an appropriate direction concerning the alleged admission and the circumstances in which Mr Ruck confirmed that the “Jake” he says made the admission was Mr Hennessey.

Result

[12] The application for leave to appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent