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Court of Appeal of New Zealand |
Last Updated: 13 August 2015
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
22 July 2015 |
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Court: |
Stevens, Heath and Collins JJ |
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Counsel: |
N P Chisnall and O J Brittain for Appellant
M A Corlett for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Introduction
[1] Following a jury trial in the Tauranga District Court, Mr Ake was convicted of charges of wounding with intent to injure and assault with a weapon.[1] For this offending he was sentenced to a term of imprisonment of four years and nine months.[2] He appeals only against conviction.
[2] The initial focus of the appeal was against a pre-trial ruling allowing the prosecution to lead what the District Court Judge characterised as “observation evidence”.[3] The events resulting in the charges in question arose out of a large group assault, involving numerous assailants, one evening in November 2012. In summary, the challenged evidence comprised a purported identification of Mr Ake by two witnesses, each of whom had been shown by a police officer a set of photographs of four persons (three male, one being Mr Ake, and one female) said to have been involved in the alleged offending. The officer deposed the purpose of showing witnesses these photographs was to assist in identifying what role the defendants played in the assault. During the police investigation prior to the witness identifications, Mr Ake had accepted he was at the complainants’ address on the night in question but maintained he had taken no part in any of the assaults. Pursuant to the District Court ruling, the challenged evidence was found to be admissible and was led by the prosecutor from the two witnesses at trial.
[3] During argument on appeal, it emerged there was a further significant issue regarding the identification of Mr Ake. During the trial, the same two witnesses who identified Mr Ake from his photograph and described what they saw him doing at the scene during the investigation, gave what amounted to a dock identification. It seems from the transcript of evidence that these dock identifications were unanticipated by the prosecutor. They occurred as follows:
- (a) By Mr Kevin Duncan:
Q. So you didn’t have that long to observe this person, did you?
(b) By Mr Andrew Duncan:
Q. ... And the male with the spade, what was he saying?
[4] During his summing-up the Judge gave the jury a warning about the identification evidence, as required by s 126(1) of the Evidence Act 2006. Counsel for the respondent, Mr Corlett, drew our attention to the content of the direction given. The nature and extent of the directions concerning the two apparently unintended dock identifications then became the focus of argument on appeal. Due to its decisive effect, we confine our judgment to this point.
The directions given
[5] In his jury directions, Judge Harding said this about the identification evidence:
[16] Now this is a case where the Crown clearly is relying on the accuracy of a number of identifications of the defendants as the people who did the particular acts of violence that you’ve heard about and the defence contends that the Crown witnesses are mistaken or not adequately clear and a mistaken identification can lead to a serious miscarriage of justice. Where that is so, the law requires me to warn you of the special need for care before relying on the identification evidence as the basis for a conviction. The reason for that is that experience has shown that it’s quite possible for a perfectly honest witness to be mistaken about identification. An honest witness who’s convinced of the accuracy of what he says may well come across as a convincing witness but still be mistaken and if one such witness can be mistaken so can a number of them. You need to bear in mind that we sometimes all can make mistakes in thinking that we recognise people, even those we know well. That’s not to say that you can’t rely on identification evidence. Of course you can but you do need to be careful in deciding whether the evidence is good enough to be relied on.
[17] Can I suggest you think about the circumstances under which the witness saw the person at the time? For example how long was the observation? How far away was the person? What was the lighting like? Was there anything that physically impeded observation? Had the witness ever seen the person before? Was it somebody they knew well? Was there anything about the situation that would cause the witness to take particular note of the person and how long elapsed between the events and any subsequent identification of the person and what about the description? If there was one given at the time how well did that match the particular defendant? So those are the sorts of issues you need to think about carefully to see if you can rely on evidence of identification.
[6] Mr Corlett accepted these directions made no reference either generally or specifically to the dock identifications. Mr Corlett also accepted there should have been a tailored direction about these particular identifications of Mr Ake made during the trial. The absence of such a direction could be said to amount to a legal error on a fundamental issue in the case.
[7] For Mr Ake, Mr Chisnall endorsed these submissions adding that the failure to give a tailored direction on the dock identifications involved a legal error amounting, in the circumstances, to a miscarriage of justice pursuant to s 385(1)(c) of the Crimes Act 1961.
[8] Mr Chisnall acknowledged that trial counsel had not objected to the evidence at the time the evidence was given. Neither was the Judge invited to direct the jury in more comprehensive terms at the conclusion of the summing-up. While it is understandable that trial counsel may have considered it better not to draw attention to the dock identifications when addressing the jury, with the benefit of hindsight counsel ought to have at least raised with the Judge the need for directions on the point.
Our evaluation
[9] This Court has in the past clearly signalled that the Courts should be wary of accepting dock identifications. In R v Young the Court noted that dock identifications will have limited value both where it is the first identification and where there has been a previous formal procedure.[4] The Court stated:[5]
To expose the jury to the charade of a pretended dock identification, when the real identification has been by photographs, is not only demeaning to the judges of fact in the case but a distraction from their function of appraising the true evidence. In an identification case, it will usually be essential that they understand exactly what the process of identification has been.
[10] We consider the summing-up in the present case did not explain to the jury what was involved with the process of identification either in Court during the trial or during the investigation. Neither did the Judge give a properly tailored direction by providing an appropriate warning in terms of s 126 of the Evidence Act in relation to the dock identifications.[6] Given the two unintended dock identifications, the Judge’s failure to warn the jury about the dangers of relying on such evidence was significant and caused prejudice to Mr Ake’s defence.
[11] We conclude that these omissions comprise legal errors that in the present circumstances constituted a miscarriage of justice. We therefore allow the appeal.
Should a retrial be ordered?
[12] Both Mr Chisnall and Mr Corlett addressed the question whether a retrial should be ordered. Counsel referred to the limited nature of the evidence in support of proof that Mr Ake was the perpetrator of the charges he faced. In summary, the evidence broadly comprised the following categories:
- (a) Mr Ake acknowledged he was at the scene, although he denied being the perpetrator of the offences he faced. He accepted that he was one of a large group between 12 and 20 persons on the property and claimed to be acting as a “hero”.
- (b) Mr Ake was described by some witnesses as an “older Māori man”.
- (c) There was evidence that a man seen carrying a spade was aged 30, rather than Mr Ake’s age which was closer to 50.
- (d) Two persons were not able to identify him at all and there was limited evidence as to the ages and identity of the other aggressors.
- (e) There were varying descriptions of the height of the perpetrators and the clothing they were wearing (particularly, the perpetrator alleged to be Mr Ake).
- (f) Two witnesses identified Mr Ake from the sets of four photographs, referred to earlier.[7] Both witnesses said Mr Ake was wielding a spade or other similar object. Two other witnesses, shown the same set of photographs, did not identify Mr Ake.
[13] It remains to consider whether or not a new trial should be ordered. The factors applicable to this question were discussed by the Privy Council in Reid v The Queen.[8] The test involves consideration of whether the evidence adduced at the trial was insufficient to justify a conviction by a reasonable jury if properly directed. We are satisfied the state of the evidence presented at the hearing on the question of the identity of Mr Ake was so unsatisfactory that no jury properly directed would have convicted him. This is not a case where the prosecution should be given another chance to cure the evidential deficiencies in the case against Mr Ake. For these reasons we consider it is not in the interests of justice to direct a new trial.
Result
[14] The appeal is allowed. The convictions are quashed and the first warning given under s 86B(4) of the Sentencing Act 2002 is cancelled.
[15] There is no order for a retrial.
Solicitors:
Public Defence Service,
Wellington for Appellant
Crown Law Office, Wellington for Respondent
[1] Sections 188(2) and 202C of the Crimes Act 1961.
[2] R v Borell DC Tauranga CRI-2012-070-5921, 3 December 2014. Mr Ake was sentenced alongside co-offenders.
[3] R v Ake DC Tauranga CRI-2012-070-5921, 7 August 2014 [admissibility ruling] at [15]–[16].
[4] R v Young [2009] NZCA 453 at [29]–[30]. This decision was approved by the Supreme Court in Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [20]. See also R v Peato [2009] NZCA 333, [2010] 1 NZLR 788 at [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) of the Evidence Act”. This Court acknowledged in R v Young that objections to dock identifications are less marked where the dock identification confirms a prior identification made by use of a formal procedure: at [29].
[5] At [26]. R v Young was decided under the applicable common law, rather than under the provisions relating to “visual identification evidence”: at [18]–[20]
[6] In R v Peato, above n 4, this Court confirmed that a s 126 warning was still required where the evidence in question was characterised as observation evidence as opposed to falling strictly within the statutory definition of “visual identification evidence”. In R v Young, above n 4, the Court analysed the adequacy of the jury direction on identification at [32]–[33]. See also E (CA113/09) v R (No 2) [2010] NZCA 280 at [65]; R v Witehira [2011] NZCA 658 at [47].
[7] Nothing we say in this judgment should be taken as commenting on the admissibility or otherwise of evidence of this nature.
[8] Reid v The Queen [1980] AC 343 (PC) at 349–350.
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URL: http://www.nzlii.org/nz/cases/NZCA/2015/334.html