Police v Grace [2016] NZDC 23968 (5 September 2016)

Last Updated: 10 August 2017

EDITORIAL NOTE: PERSONAL/COMMERCIAL DETAILS ONLY HAVE BEEN DELETED.

IN THE DISTRICT COURT AT GISBORNE

CRI-2016-016-000812 [2016] NZDC 23968

NEW ZEALAND POLICE

Prosecutor

v

CRUIZE GRACE

_Defendant

Date:	5 September 2016
Appearances:	C A Stewart for the Prosecutor M Lynch for the Defendant
Judgment:	5 September 2016

_{ORAL JUDGMENT OF JUDGE A J ADEANE}

[1] Mr Grace is charged with assault contrary to the provisions of s 196 Crimes Act 1961. Assault is; the deliberate application of force by one person to another, a punch in the mouth generally constitutes an assault. The onus of proving the charge is on the prosecution. Proof beyond reasonable doubt is the required standard.

[2] This is a case which depends wholly on the reliability of the identification evidence given by one witness. That witness is [the witness].

[3] The complainant from this matter is [the victim]. [The victim] was plainly assaulted by someone, but he has no appetite whatever for this particular prosecution and was obstructive to the bounds of hostility, and at the end of the day, added

_{absolutely nothing to the case which the prosecution was required to make out.}

NEW ZEALAND POLICE v CRUIZE GRACE [2016] NZDC 23968 [5 September 2016]

[4] [The witness] was in an entirely different category. She is an apparently bright and intelligent young woman, upon whose word; one would normally, as a matter of instinct, rely on, although of course there is more to matters of credibility and reliability than instinct.

[5] Her evidence is that she was at her home waiting for the belated arrival of [the victim], her intended babysitter. He arrived heavily intoxicated. Shortly the two of them became aware that there were other persons at the rear of [the witness]’s property. They went out to investigate. [The victim] put his best foot forward but three men emerged out of the darkness and [the victim] was punched in the face by one of them. He retreated inside the house.

[6] Two of the group of three followed. One was a Pākehā and the other was a man who had delivered the first punch. They walked past [the witness]. She was in close proximity to them, within a distance of four metres or so and she says that the person who threw the punch then followed the victim inside the house and attempted to throw further punches at him, was the defendant Cruize Grace.

[7] She went on to add that Mr Grace is her [relationship deleted], she has known him for many, many years and she has lived in the same house as him. It is accordingly a case which, while it comes under the broad umbrella of an identification case, involves what is sometimes separately referred to as recognition.

[8] There are dangers inherent in convicting on reliance on identification evidence and those are not to be downplayed. There have been serious miscarriages of justice resulting from the fact that a mistaken witness was nevertheless found convincing, as indeed, more than one mistaken witnesses can be found convincing. The Court must guard against it and look carefully at the circumstances surrounding the identification.

[9] Such matters as the quality of the opportunity for a reliable identification, and in particular relevance to this case, whether the parties were previously known to one another, and if so, for how long?

[10] This is a case, as I say, which involves a recognition. A defendant is not obliged to give evidence. The fact that the defendant does not give evidence obviously proves nothing at all in the case. The onus is on the prosecutor to prove the charge and to establish that the evidence of [the witness] is to be relied on, even after the appropriate high level of care is taken, on the question of identification as deposed to by her.

[11] I exercise that degree of care. As I say, I found [the witness] to be an apparently bright and reliable young woman. She has no motive to mislead the Court. She had an opportunity to make identification at close quarters and she knew full well the individual she was identifying from many years past.

[12] Mr Grace has a distinctive appearance as seen in Court. He is heavily tattooed. Again this is just one factor, but one which makes the identification a little less likely to be unreliable.

[13] It is a combination of all the factors to be taken into account in deciding whether the recognition is to be relied on. I am satisfied after hearing the evidence, and then hearing from constables Rawiri and Fox who both went to the site of the alleged crime and shortly found Mr Grace to be there, one of whom spoke to Mr Grace and when asked what part, if any, he had played in matters, Mr Grace said he had, “Chased his friend’s ex-partner from the address as he had been playing up.”

[14] The evidence of [the witness] is that after the three men entered her home in pursuance of the attack on [the victim], that [the victim] fled out the door and was pursued by the others. One might think there is some connection between that and the brief account of himself given by the defendant.

[15] In any event, I am entirely satisfied after the appropriate level of care has been exercised that the identification or recognition in this case is viable and that it was indeed Mr Grace who punched [the victim] in the mouth.

[16] The charge is proved accordingly.

A J Adeane

District Court Judge