R v Ruawhare [2022] NZDC 8681 (17 May 2022)

Last Updated: 22 April 2023

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

IN THE DISTRICT COURT AT CHRISTCHURCH I TE KŌTI-Ā-ROHE KI ŌTAUTAHI

CRI-2020-009-006402 [2022] NZDC 8681

THE QUEEN Prosecutor

v

WILSON KORO RUAWHARE ZANE JOSEPH BROOKER TAURAKI TAURAKI Defendants

Hearing:	5 May 2022
Appearances:	S Mallett for the Crown T Aickin for the Defendant Ruawhare S Shamy for the Defendant Brooker B Ayrey for the Defendant Tauraki
Judgment:	17 May 2022

RESERVED DECISION OF JUDGE G M LYNCH

Introduction

[1] On 30 July 2020 a large group of Tribesmen gang members or associates fought with five Mongrel Mob gang members outside the Christchurch District Court.

[2] The Mongrel Mob gang members were outnumbered by the Tribesmen gang members. Accordingly, if “fight” is the correct description, the fight was plainly an unfair one.

R v WILSON KORO RUAWHARE [2022] NZDC 8681

[3] The Crown would say that the Tribesmen gang members attacked the Mongrel Mob gang members, having formed a plan to do so, while the defence would say that the Tribesmen gang members were ambushed by the Mongrel Mob gang members as the Tribesmen exited the court building.

[4] Fifteen Tribesmen face assault charges ranging from assault, to injuring with intent to cause grievous bodily harm. The defendants also faced charges of participating in an organised criminal group (“POCG”), however in a separate decision I have dismissed those charges.1

The application

[5] The Crown has filed a Formal Written Statement (“FWS”) from [Detective 1] who purports to identify each of the defendants as having participated in this incident.2 The admissibility of this identification evidence is challenged by the defendants Ruawhare, Brooker, and Tauraki.3

[6] There is also a challenge to the Detective’s intention to play to the jury individual CCTV clips where a defendant, identified as being involved in the incident, is highlighted by the use of a hovering red arrow over that person (with that defendant’s name shown) while the clip is played.4

[7] No other witness is briefed to give identification evidence.

[Detective 1]’s proposed evidence

[8] In 2020 [Detective 1] was working in the Precision Targeting Team. A focus of that team is on patched gangs and motorcycle groups. The Detective would periodically review intelligence reports of gang membership and any images captured of those parties linked to the gangs. For Tribesmen members, the Detective viewed

1 R v Ruawhare and ors [2022] NZDC 7694.

2 FWS [Detective 1] 6 July 2021.

3 The other defendants essentially “coattail” on this application.

4 In my decision on the participating in an organised criminal group charge I set out the Crown’s summary of the events. That summary sets out what it is contended each of these three defendants did.

numerous “stills” of them at “The Sound of Thunder” in early 2020; and to stay current, he also reviewed the Facebook profiles of the members and their associates.5

[9] [Detective 1] reviewed the internal and external CCTV footage from the Christchurch District Courthouse and identified each of the defendants in this matter.6 [Detective 1]’s identification of the defendants Ruawhare, Brooker, and Tauraki was based on his past dealings with the defendants. The identification evidence was as follows:

Wilson Koro Ruawhare

58. Mr Ruawhare is aged 36 years with a date of birth of both [date deleted] 1984.
    
59. Mr Ruawhare is recorded in NIA as a patched member of the Tribesmen MC since 2016.
    
60. On 11 April 2018, I had an extended period of interaction with RUAWHARE whilst at the Christchurch Central police Station.
    
61. I would describe him as:
    
    • Male Māori
      
    • Average height and stocky build
      
    • Short dark hair
      
    • Numerous tattoos covering most of his body, most notably around the sides of his head.
      
62. In the CJESP CCTV footage, he is wearing:
    
    • A grey Nike cap
      
    • Dark grey jacket
      
    • A grey Nike t-shirt
      
    • Black Adidas trousers
      
    • Black shoes with white soles
      

5 FWS [Detective 1], n 2 at [5]-[6].

6 Above n 2 at [10]-[96].

Zane Joseph Brooker

42. BROOKER is aged 29 years with a date of birth [date deleted] 1992.
    
43. BROOKER is recorded in NIA as a patched member of the Tribesmen MC since 2019.
    
44. On 1 March 2020, I stopped BROOKER in a white Holden motor vehicle on Skipton Street, Mairehau. I interacted with BROOKER for an extended period due to needing to serve a notice on him.
    
45. I would describe him as:
    
    • Male Māori
      
    • Tall and stocky/overweight
      
    • Short dark hair and small amount of facial hair
      
46. In the CJESP CCTV footage, he is wearing:
    
    • A black “Oakland Raiders” cap
      
    • Grey Adidas jersey
      
    • Grey Adidas trouser
      
    • White shoes
      

Tauraki Tauraki

63. TAURAKI is aged 28 years with a date of birth [date deleted] 1992.
    
64. TAURAKI is recorded in NIA as an associate of the Tribesmen MC since 1027.
    
65. On 15 June 2020, [Sergeant 2] and I were tasked with completing enquiries in relation to Tauraki TAURAKI’s bail address in North Canterbury. I reviewed intelligence reports, social media and crime reporting application “Auror” to better understand TAURAKI. Auror had CCTV stills of TAURAKI for my reference.
    
66. I would describe him as:
    
    • Male Māori
      
    • Short and average build
      
    • Short dark hair with short patchy facial hair
      
    • Numerous tattoos covering his body, notably distinctive script writing around his right jawline.

67. In the SJESP CCTV footage, he is wearing:
    
    • A brown checked cap
      
    • A dark grey hoody with a puffer vest over it
      
    • Black trousers
      
    • White shoes
      
68. On 6 August 2020, I participated in the vehicle stop of a Nissan Stagea on Halswell Road with TAURAKI was within. This confirmed to me that TAURAKI was the person I had identified in the CCTV stills.
    
69. In particular I noted the same distinctive script writing along the right jawline, as in previous CCTV stills I had seen and in the 30 July 2020 CJESP CCTV stills.
    

The Crown’s position – a summary

[10] The Crown relying on Keil v Police7 submits that [Detective 1]’s proposed evidence is recognition evidence, is reliable and will be substantially helpful to the jury. The Crown’s argument is that without this evidence the jury will have difficulty identifying each defendant; and it could mistakenly believe it was another defendant who inflicts certain blows to a Mongrel Mob member rather than the defendant who actually did.

[11] The Crown submits that the concerns the defence had about [Detective 1]’s identification of the defendants is a question of the weight the jury may give to that evidence, not its admissibility. The Crown did not agree with the suggestion that it was inviting a relaxation of the rules governing admissibility of this sort of evidence because the scenario is complicated because there are 15 defendants. Rather, it submitted that the identification evidence becomes “substantially helpful” because of those difficulties.

7 Keil v Police [2017] NZCA 430.

The Defence position – a summary

[12] The defence argument is that [Detective 1] has no particular expertise and, at the end of the day, in essence all he was doing was akin to comparing a photo with a CCTV clip, which a jury can do.

[13] Further, the defence emphasised that [Detective 1]’s interactions with the defendants, as described in his statement, were straightforward and unremarkable. There was nothing to set that interaction apart from any other interaction the Detective will have had with other persons he has been required to deal with.

[14] The defence argue that there was nothing substantially helpful in [Detective 1]’s evidence, that identification should be left for the jury. The risk the defence identified if this evidence was allowed was the “white coat” effect, that with a Detective claiming some expertise or knowledge of the defendants to identify them, the jury would simply defer to that identification or “expertise” and not make up their own minds.

Discussion

[15] [Detective 1]’s interactions with the three defendants is limited and there was nothing about his interactions with these defendants that involved anything out of the ordinary. As close as anything gets to something out of the ordinary are Mr Ruawhare’s tattoos around the side of his head, and Mr Tauraki’s facial tattoo, the distinctive script writing around his right jawline.8

[16] In Keil v Police the issue was whether the evidence of a police officer who knew Mr Keil and identified him from CCTV stills as a person involved in the offending was admissible. Mr Keil faced trial on a number of charges, including aggravated robbery. The officer had seen a police bulletin containing images of wanted offenders. The officer’s evidence was that he “immediately identified” Mr Keil in the images before him based on his recollection of his appearance. After seeing the images the officer viewed CCTV footage and gave evidence that this

8 FWS [Detective 1] at [61]; and [66] and [69].

footage “utterly confirmed” his view that Mr Keil was the offender in the footage. The officer’s evidence was that he knew Mr Keil and was familiar with his appearance as a consequence of sporadic contact with Mr Keil over the last 9 years, with his most recent dealing with Mr Keil some 2 to 5 years prior to the identification.9

[17] As the court observed in Keil:10

If however the proposed witness has knowledge or expertise of the defendant or relating to the footage or photographs that will provide information and assistance to the factfinder in considering the footage or photographs, then the evidence may be admitted.

[18] This is not the sort of case where the evidence shows that [Detective 1] has set about building knowledge and expertise in identifying Tribesmen members. In my assessment the Detective has no particular expertise in the matter. Rather, the Detective rather remarkably relies on a single interaction with each of the three defendants to identify them from the CCTV footage and stills.

[19] For Mr Ruawhare it was for what the Detective described as “an extended interaction”, whatever that is, three years earlier at the Christchurch Central Police Station.

[20] The Detective’s involvement with Mr Brooker 1 March 2020 is also said to be for “an extended period” for the purpose of serving a notice on him. What that notice was or if it was particularly memorable, is not known. There is nothing remarkable in the Detective’s description of Mr Brooker.

[21] For Mr Tauraki the identification is founded on a “vehicle stop “of an unknown duration on 6 August 2020. The Detective had earlier (15 June 2020) seen photographs of Mr Tauraki when he had been tasked with making enquiries regarding Mr Tauraki’s bail address. The Detective had reviewed “intelligence reports, social media and crime reporting application “Auror” to better understand [Mr Tauraki].”11 As I understand it, the “Auror” application uses CCTV footage from businesses such as supermarkets and service stations.

9 Above n 7 at [6]-[7].

10 Above n 7 at [35].

11 FWS [Detective 1] at [65].

[22] It is plain that not only does [Detective 1] rely for identification purposes on his single interactions with the defendants, but also from having seen intelligence, including from the Police database NIA (National Intelligence Application). The defendants’ photographs are on this data base. The Detective is not only contending that he is identifying these defendants from his interactions with them, but in reality, from intelligence held by New Zealand Police.

[23] There are a number of pathways to admissibility, commencing with relevance. In Keil, a case involving a stronger identification than here, the Court of Appeal on the issue of relevance said:12

In this case we have reached the view that the evidence was irrelevant. Constable Muir is giving evidence of a comparison which a jury or a judge could equally do if they had the same material as this witness. It is not evidence probative on a material issue in the case. A non-specific recognition from CCTV footage and stills derived from sporadic contact with a defendant over the last 9 years, but not the last 2 years, will not assist the fact-finder. The face of the person in the footage is visible and is captured from a number of different angles. The photographs are of sufficient quality to enable the fact- finder to discern the appearance of the person depicted. The judge in this case will therefore be in a position to compare the appearance of the person depicted with that of Mr Keel. In those circumstances, Constable Muir’s assertion that he believes that the person is Mr Keel has no relevance.

[24] The issue of admissibility in this matter begins and ends with relevance. In this case a jury with a photograph of a defendant is equally as capable as [Detective 1] in determining who was involved in the melee outside the Courthouse.

[25] Accordingly, relevance not being satisfied, [Detective 1]’s evidence identifying the defendants is inadmissible.

[26] Moreover, there is a broad agreement that the jury can have the defendants’ arrest photographs. This allows me to draw the conclusion that if this had reached the stage of considering admission under s 25 of the Evidence Act, I could not have found that the evidence was substantially helpful when a jury is, as I have observed, equally capable of comparing photographs of the defendants to the CCTV footage and stills. Where a defendant for example has facial tattoos as the Detective referred to, they will

12 Above n 7 at [37].

be shown in the arrest photographs and the jury can make a comparison with the persons shown on the CCTV footage or stills, just as the Detective did.

[27] Finally, turning to the CCTV footage with the hovering red arrows. The Crown’s position is that if [Detective 1]’s evidence was ruled inadmissible, the “hovering red arrow” in each clip focussing on an individual Tribesman should be permitted to be labelled something along the lines of: “Male 1 who the Crown alleges to be [named defendant]”.

[28] Not surprisingly that did not find favour with counsel for the defendants. It is a matter of submission. The Crown would be entitled to submit to the jury who they contend the subject of the CCTV clip is, but to label the clip with a defendant’s name is to risk giving that contention more weight than it deserves when it is for the fact- finder to decide who did what and when.

Decision

[29] [Detective 1]’s identification evidence is inadmissible.

[30] The Crown may use the “red hovering arrow” when playing the individual CCTV clips but are not permitted to label the arrow in any way that potentially identifies a defendant. “Male 1” or “Male A” would suffice, but not corresponding with the order the defendants appear on the Crown Charge List.

[31] While the remaining defendants did not participate in this argument it follows that they have the benefit of it. I would not permit the identification evidence relating to them to be led.

Judge GM Lynch

District Court Judge | Kaiwhakawā o te Kōti ā-Rohe

Date of authentication | Rā motuhēhēnga: 17/05/2022