Vaitohi v R [2019] NZCA 371 (16 August 2019)

Last Updated: 21 August 2019

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA729/2018 [2019] NZCA 371

	BETWEEN	LASALOHI VAITOHI Appellant
	AND	THE QUEEN Respondent

Hearing:	31 July 2019
Court:	Miller, Peters and Woolford JJ
Counsel:	J M Hudson for Appellant JEL Carruthers for Respondent
Judgment:	16 August 2019 at 3.00 pm

JUDGMENT OF THE COURT

The conviction appeal is dismissed.
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REASONS OF THE COURT

(Given by Woolford J)

[1] Lasalohi Vaitohi was found guilty of aggravated robbery by a jury in the Manukau District Court on 14 June 2018. He was subsequently sentenced to five years and four months’ imprisonment and was disqualified from driving for six months.^[1] He now appeals against conviction on the basis that the Court wrongly admitted evidence that the complainant had identified him as one of two offenders when shown a photo montage. The photo montage consisted of photographs of eight men, who are said to be of similar appearance.

Facts

[2] The complainant was the owner of a BMW 318i motor vehicle. In the early hours of 8 May 2017, she was sitting in the vehicle which was parked in the driveway of her home address. The complainant’s son was standing by the vehicle, talking with her. The appellant and his co-offender arrived in another vehicle and parked behind the complainant. The complainant got out of her vehicle to see who was parked behind her. The appellant and his co-offender got out of their vehicle. The co-offender pulled a firearm from his pants and pointed it at the complainant and her son and said “Where’s the stuff?” The appellant also pulled out a firearm from his pants and said “Where’s the keys?” After a threat from the co-offender, the complainant handed the keys to her vehicle to the appellant, who then got into the vehicle. His co-offender pointed to a gold necklace worn by the complainant and said, “I’ll have that”. He took the necklace from the complainant and left in the vehicle he arrived in. The appellant also drove away in the complainant’s vehicle.
[3] The appellant was found driving the complainant’s vehicle 36 hours later. His fingerprints were found inside and outside the vehicle. A firearm that matched the description of one of the two firearms used by the two offenders was found under his bed.

Identification by complainant

[4] The complainant knew and recognised the appellant’s co-offender. She did not, however, know the appellant. On the night she described him as a Māori male, about six foot one inch in height, with a fat build and about 42 years old.
[5] Two and half weeks later, the complainant was shown a photo montage of eight men who were said by the police to be of similar appearance. The complainant identified a photograph of the appellant as the man who came over that night and pulled a shotgun on her and then drove away in her vehicle.
[6] Prior to trial, the appellant challenged the admissibility of the complainant’s identification of him. He complained, in particular, that the men in the photo montage were not of sufficiently similar appearance. In a ruling dated 14 March 2018, Judge Winter rejected the challenge.^[2] The Judge held that the men included in the photo montage fell within the general description given by the complainant and were of sufficiently similar appearance to make the formal procedure a meaningful exercise.
[7] The Judge also considered the circumstances surrounding the complainant’s identification. The complainant’s driveway was lit by a sensor light and the appellant was close enough to the complainant for her to hand him the keys to the vehicle. The Judge found the complainant clearly saw the appellant.

Discussion

[8] The principles surrounding the use of a photo montage for identification of offenders are well settled.^[3] We have viewed the photo montage the police showed the complainant and are satisfied that it met the legal requirements for the complainant’s identification to be admissible.^[4]
[9] The appellant complains that four of the men featured had significantly lighter skin than him. Only three of the eight photographs featured men with a full beard like that of the appellant. One of the men appeared to be of Indian or Fijian/Indian appearance, rather than Māori, as described by the complainant on the night of the offending. Finally, the appellant had a small facial tattoo below his eye on the right side of his face. The tattoo has been replicated and featured on the seven other photographs, but the appellant states that the crude application of the tattoo on the other men has resulted in it being more prominent on four of the men.
[10] As to the skin colour of the photographs, we agree with the Judge that it was more due to the lighting used in the photographs than a difference in ethnicity or skin tone. We also agree with the Judge that the difference in the fullness of the beards would not have predisposed the complainant to choose the appellant. This was not a particular characteristic which would mean the appellant stood out from the other men, just as subtle differences in hair length and facial hair in Fukofuka v R were held not to make the defendant stand out from the other faces presented to the complainant in that case.^[5]
[11] The complainant did not provide a description of the facial hair of the offender and all the men in the photo montage can be described as having a full beard. The replication of the appellant’s facial tattoo on the photograph of the seven other men eliminates the tattoo as having any significance. We cannot say that the tattoo is any more prominent on four of the men. Again, any differences are a result of the slightly different lighting of the photographs.
[12] There is no challenge to the Judge’s assessment of reliability, given the circumstances of the complainant’s identification on the night and the fact that the appellant was found in the complainant’s car the next day. He was also found to have a shotgun under his bed when he was arrested.

Result

[13] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Vaitohi [2018] NZDC 24715.

^[2] R v Vaitohi [2018] NZDC 4792.

^[3] Ah Soon v R [2012] NZCA 48; and Fukofuka v R [2012] NZCA 510.

^[4] Evidence Act 2006, s 45.

^[5] Fukofuka v R, above n 3, at [22]–[25].