H v Police HC Auckland CRI-2005-404-17 [2006] NZHC 179 (7 March 2006)

Last Updated: 9 April 2015

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2005-404-017
_{CRI-2005-404-027}

H

Appellant

v

NEW ZEALAND POLICE

Respondent

Hearing: 21 February 2006

Appearances: M A Edgar for the Appellant

Ms K P Cato for the Respondent

Judgment: 7 March 2006

_{JUDGMENT OF FRATER J}

Solicitors: M A Edgar P O Box 6462 Wellesley Street Auckland for the Appellant

_{Meredith Connell P O Box 2213 Auckland for the Respondent}

H V POLICE HC AK CRI-2005-404-017 7 March 2006

Introduction

[1] This is an appeal against conviction. The sole issue on appeal concerns the safety of the conviction, given that it was reached on the basis of identification evidence only.

[2] On 10 December 2004, after a defended hearing in the District Court at Auckland, His Honour Judge McElrea convicted Mr H on one charge of indecently assaulting a woman. The appellant was subsequently sentenced to undertake 150 hours community work and pay reparation to the complainant of

$250. He takes no issue with the sentence.

Evidence

[3] At the hearing the prosecution called two witnesses: the complainant, a 27 year old youth worker, and the Officer in Charge of the case, Cons Tangney. The appellant did not give evidence or call any others to give evidence on his behalf.

[4] The complainant’s evidence was that at approximately 10.15 pm on Friday,

23 July 2004 she was walking home up Hobson St, in Central Auckland, towards Pitt St, when a man grabbed her from behind and spun her around 180^o. As he did so, he felt her breast with one hand and put his other between her legs, feeling her crotch. He was “really strong”. This lasted about three seconds. He then released her and “kind of shoved” her out of the way, before running off, down the street and into an alleyway, laughing, as she swore at him.

[5] She immediately went into a nearby Chinese restaurant on Hobson St and rang 111. Her description of the assailant, recorded by the operator, was that he was a male Caucasian, bald, quite tall, wearing a dark coloured tee-shirt.

[6] Because the restaurant was about to close, the complainant waited on the street for the Police to arrive. She had been there between 15 and 20 minutes when she saw a man walking from the direction of Wellesley St, towards her. As he passed her on the footpath he greeted her, then walked down an alleyway further up

Hobson St. She identified him as the person who had attacked her earlier. He was wearing jogging clothes: white shorts, a blue coloured “Nike” tee-shirt, and running shoes, and had:

... a really large neck, kind of with wrinkles in the neck.

[7] This time she had him in her sight for something like 30 seconds before he disappeared. She was able to see both his face and front view; on the first occasion the sighting lasted about 10 seconds and was a back view only. The main thing that she remembered about the second occasion was the man’s dark eyebrows. She was sure that he was the same person as Mr H , who she saw in Court.

[8] Cons Tangney arrived on the scene approximately five minutes after the second sighting. After noting the complainant’s description, he went into an apartment building at the end of the alleyway that she indicated and spoke with the appellant, who matched the description the officer had been given.

[9] Cons Tangney advised the man of his rights and had a short conversation with him, which he recorded in his notebook. In the course of their discussion the appellant said that, earlier that evening, he had gone for a run down Hobson St, to the train station, and back. As he was running down Hobson St he heard a woman calling out obscenities, which he took to be directed at him. On his return, he saw the woman again and said hello to her. By then it would have been after 10.00 pm. He denied any other contact with her.

Judgment under appeal

[10] Judge McElrea began his careful judgment by emphasising that the onus lay on the prosecution to establish the charge beyond reasonable doubt, and that that was a high standard. In the absence of evidence from the defendant, the matter was to be decided on the basis of the prosecution evidence alone.

[11] Although he did not specifically refer to 67A of the Summary Proceedings Act 1957, the Judge stressed the need for caution in relying upon identification witnesses, noting that even apparently sincere and honest witnesses can be mistaken.

In those circumstances, he said, the Court needed to look very carefully at the quality of the evidence and the circumstances in which the identification was made. That was the basis upon which he proceeded.

[12] In relation to the identification evidence, the Judge recorded that:

[9] The witness gave evidence in the witness box about the assailant who she described in these terms; that he had a shaved head, that he was tall, large build and was wearing jogging clothes with a blue shirt and had a large neck with wrinkles in the back of his neck. She said that he was dressed in the same way as the person who came back up the street about 20 minutes later. She said that he was the same person. She is now able to remember his shorts as being white, although she says that that memory, she thinks, comes from the second sighting rather than the first sighting of the assailant. In all other respects however she says that the person was the same.

[10] The second witness was the police officer who came to the scene and located the defendant in a block of apartments. He said that the defendant appeared to have taken off some weight between 23 July and today and that whilst it is not possible to see wrinkles on the back of his head at the moment, he said that there certainly were wrinkles there at the time. Today the defendant appears with shortish dark hair – then his head was shaved.

[11] The complainant gave an account of the assailant in the 111 call which was not as full as that which she gave in evidence. At that time she said that he was a male Caucasian, that he was bald, was quite tall and had a dark coloured t-shirt.

[12] The defendant appears from his name to be at least part Maori, his name being Ihaka Baden H . One assumes that he is a Maori, but looking at him in Court he may or may not be Maori – he could be somebody with Italian or other Southern Mediterranean blood which might give a darker or more tanned appearance. The fact that he was therefore described as Caucasian, in my view, does not mean that the witness was describing another person. He certainly is quite a tall person. The t-shirt that he was wearing apparently was of a dark colour namely blue, he was apparently bald in the sense of having no hair and therefore my conclusion is that the description which the complainant gave on the 111 call is consistent with her describing the defendant.

[13] He then proceeded to address apparent conflicts and points in the evidence which he found either supported the Crown case, or did not detract from it. In particular, he held that:

i) The fact that the complainant did not give as much detail in her 111 call as she did in Court did not establish that she was describing a different person.

He said that:

[13] ... Courts frequently see examples of witnesses who are to be believed, and are believed, who give more detail in their evidence in Court than they have given in a statement to the police, simply because they had further time to think about it and other details may become important that may not have seemed important at the time. For whatever reason, I do consider that the difference between the account given on the 111 call and that given in Court is anything against the prosecution at all.

As an aside, I note that it would seem that the last sentence should have read:

For whatever reason, I do not consider that the difference ...

and that the omission of the word “not” was an unintended slip. Any other reading is completely inconsistent with the general conclusion recorded in this paragraph.

ii) Although there was evidence that the complainant had been drinking at a nearby bar between 8 pm, and when the incident occurred at 10.15 pm, there was no evidence that she was affected by alcohol and therefore likely to be inaccurate in her observations.

iii) The evidence established that the street lighting and lighting from other premises in the particular area was adequate and ample to be able to make an identification.

iv) There was no other person in the street at the time with whom the assailant might have been mistaken – therefore, there was no possibility of confusion with some other person.

v) On the appellant’s own account, he was on Hobson St at the time the assault was committed and there was plenty of time for him to run from there to the railway station and back during the 20 minute period before the complainant saw him again.

[14] On the basis of the foregoing, Judge McElrea was satisfied beyond reasonable doubt that the appellant was one and the same person as the assailant and also the person who the complainant saw, some 20 minutes later. He said:

[19] ... The chances of it being a different person, in my view, are so small as to be fanciful. The description is not only based on clothing but on build here, and significantly wrinkled skin on the back of the neck. That aspect was confirmed by both witnesses.

[20] Putting all matters together I was impressed by the reliability of the complainant; she seemed to me to be both honest and a careful witness, although she may have been upset at the time and one can expect her to have been emotional. I am satisfied that she got a good view of the person who assaulted her and was able to properly identify him from four aspects other than his face when he returned.

Issues on appeal

[15] Mr Edgar’s submissions on appeal were directed at two issues:

i) Whether the complainant’s evidence was sufficient for the Court to be satisfied beyond reasonable doubt that the appellant was the person who indecently assaulted her.

ii) Whether, given Cons Tangney’s contradictory evidence about being present in Court when the complainant gave her evidence, it should be given any weight.

[16] Dealing with each of these issues in turn:

Complainant’s evidence as to identity:

[17] Mr Edgar submitted that the Judge erred in finding that the evidence of the complainant as to identity was sufficient to establish the necessary nexus between the indecent assault, which undoubtedly took place, and the appellant.

[18] In particular, he pointed to the inadequacies in her “true first identification” that she made to the Police in her 111 call – the wrong description of him as a male Caucasian and the failure to mention that he was wearing jogging clothes or to give any physical description of him (apart from saying that he was tall and bald).

[19] In his submission, the discrepancies between the initial description and the subsequent description given to the Police Officer, and the even more detailed description given in Court, were such that they raised real doubt as to whether her identification of the appellant as the assailant was influenced by her sighting of him before she spoke with Cons Tangney.

[20] Another area of concern was the evidence which both the complainant and the officer gave in Court about the assailant having a “wrinkled neck” – something which neither had mentioned before then.

[21] Finally, Mr Edgar submitted that if, as the appellant said in his statement to the officer, he was out for his nightly jog at the time of the offending, he could not have been the assailant as, to do so, he would have had to have run past the complainant, stopped, groped her from behind and spun her around, before continuing. Yet she was adamant that she had not seen anyone pass her before she was assaulted.

[22] In my view, there is a basic flaw in this last argument. It assumes that the appellant started his run by leaving the apartment where he lived, entering onto Hobson St, turning right and then running down the street towards the Wellesley St intersection at the same time as the complainant was walking up. However, that cannot be assumed, given that he said that he left for his run just after 9.00 pm. And

although he said that he “just ran down to the train station, running down Hobson St”, he did not say where he began the run. He could well have entered behind the complainant, perhaps through the alleyway by St Matthew’s Church where she said she saw the man run into, after the assault. We simply do not know. In the absence of direct evidence from the appellant it is inappropriate to speculate, one way or another.

[23] Apart from the issue regarding the wrinkles evidence, to which I will return, I am satisfied that Judge McElrea was well aware of, and adequately and appropriately addressed, the issue of the complainant’s developing identification evidence, and the apparent mis-description of the appellant as being Caucasian. (see [14] and [15] i)). It is understandable that she would give only a brief description to the emergency call operator; her concern at that stage would have been to ensure that the Police arrived as soon as possible. What is important is that the description she gave at that stage was not contradicted by the description/s given later.

[24] Although the Judge did not specifically comment on Mr Edgar’s argument that the complainant’s description to the officer and in Court was affected by her sighting of the appellant as he returned from his run and later, after he was apprehended by the officer, I am satisfied that he was very much aware of the point. This is apparent from the following dialogue he had with the complainant:

QUESTIONS FROM THE COURT

I want you to clarify an answer that you have [sic] to Mr Edgar. He asked you at the end of his cross examination about the description that you’ve given today of the clothing which included the white shorts and the Nike -

?..... Tee shirt?

No, was it Nike tee shirt, a blue shirt, anyway that description and he said to you and is that what you saw the second time?..... Right.

Right, and you said yes and it fitted in with my sense of the person the first time, is what you said?..... So my description the first time, like to the 111, it said someone wearing a dark tee shirt, so obviously it wasn’t that good a description, but when he came back the clothes he was wearing I didn’t think they were different from the person I’d seen the first time, I thought it was the same clothes, the same person.

Do you now have a memory of what the first person, if I can call him that, or the person who groped you, do you now have a memory of what that person was wearing or is the only memory that you really have of the person that

you saw walking up the street later, which you think looked similar?..... Like saying it’s a Nike tee shirt, that’s only written across the front so I can’t have that memory from the first time, but the blue tee shirt, jogging clothes, yeah I do have that memory, yeah.

So you say that you today you still have a memory of the person that was running away from you?..... Yes.

And the description you gave in evidence was given from your memory of that, of the person running away not the person walking towards you, is that right?..... Um ...

I know you say it was the same clothing but when you gave your evidence originally and described the person that you said had groped you, I’m just wanting to be clear as to whether that description was given from your memory of seeing the person who ran away from you?..... It was a memory confirmed by seeing the person walking past again, so that I can’t separate these two descriptions, they compliment each other, they confirm each other.

That sounds to me as though you’ve got no independent memory of the person that you’ve described as having groped you?..... Well I saw him, I saw him running away, I’ve described him as – you have my description, he’s really big, tall, shaved head, blue tee shirt, jogging clothes, that is my first memory.

That’s your first memory?..... Yeah.

Right. And what about the shorts, is that part of your first memory too, the white shorts you mentioned?..... That’s probably more from observing him walking past the second time. At the time that it happened, I thought it was bizarre for someone to be dressed like that in town at that time of night, in jogging clothes.

[25] Mr Edgar suggested that the complainant’s comment to the Judge that she could not separate the two descriptions, that they complimented and confirmed each other, indicated that she was relying on the second memory of the appellant to identify the first memory of the alleged offender.

[26] However, Judge McElrea had the advantage of seeing the witness and watching her demeanour. He was impressed by her and satisfied that she was honest (see [20] and [17] above). That conclusion was clearly available to him, on the evidence. It is not for this Court to say that he was wrong.

[27] In Powell v Streatham Manor Nursing Home [1935] A.C. 243, cited in

Gillard v Cleaver Motors Ltd [1953] NLE 885 and Toomey v Police [1963] NZLR

699, 701, Lord Atkin said:

In cases which turn on the conflicting testimony of witnesses and the belief to be reposed in them an appellate Court can never recapture the initial advantage of the Judge who saw and believed.

[28] Although this case turns not so much on conflicting testimony, but rather on whether the evidence of the prosecution witnesses can be relied upon at all, the observation is still apposite.

Credibility of the officer in charge

[29] Mr Edgar submitted that the evidence of Cons Tangney was irretrievably undermined by the contradictory answers he gave to the Judge as to whether he was in Court when the complainant described the clothing worn by the appellant. In answer to the Judge he said “no” but then, under further questioning by Mr Edgar, he acknowledged that he probably was in Court when the prosecutor re-examined on that issue.

[30] Mr Edgar was also concerned about the evidence which both the complainant and the officer gave to the effect that, at the time of the incident, the appellant (and, according to the complainant, her assailant), had wrinkles at the back of his neck.

[31] The officer did not record this characteristic in his notebook at the time. He mentioned it for the first time in his evidence in chief, saying that:

He was approximately six foot two, six foot three in height, solid build, he had a shaven head and he had wrinkles or sort of crinkles of fat on the lower part of his head. From what I’ve seen today, he’s lost some weight and he’s obviously grown his hair out, and I would describe him as light skinned Maori at that point.

[32] Although he agreed that he discussed identification evidence with the prosecutor prior to the hearing, Cons Tangney was adamant that they did not talk about the issue of wrinkles.

[33] The inference suggested by Mr Edgar’s questioning of the officer was that somehow or other the witnesses colluded in giving their evidence on this point, or, alternatively, that Cons Tangney simply repeated what he had heard the complainant say, to somehow add weight to her identification evidence.

[34] However, it would not make any sense for them to do so. If, in fact, the witnesses wished to embellish their evidence, one would hardly think that they would do so by citing a characteristic which the appellant before the Court did not display.

[35] Judge McElrea called the description of the assailant as having “wrinkled skin on the back of the neck”, significant. I agree. If anything, it supports, rather than detracts from, the veracity of the evidence of the prosecution witnesses.

Conclusion

[36] For the foregoing reasons, I see no basis for interfering with the decision by the District Court Judge. In my view, having properly warned himself about the dangers of relying upon identification evidence, he reached the only reasonable conclusion available on the evidence before him.

[37] Accordingly, the appeal is dismissed.

M A Frater J