M v Police HC Napier CRI 2009-441-38 [2009] NZHC 2509 (15 December 2009)

Last Updated: 15 February 2016

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

_{CRI 2009-441-038}

BETWEEN M

Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 15 December 2009

Counsel: R D Stone for Appellant

F E Cleary for Respondent

Date: 15 December 2009

_{ORAL JUDGMENT OF WILD J}

[1] Mr M appeals against his conviction for breaching the conditions of his

Extended Supervision Order (ESO), contrary to s 107T of the Parole Act 2002.

[2] His grounds of appeal are two-fold. First, the trial Judge erred in admitting identification evidence. Secondly, there was insufficient evidence to prove that the breached condition still applied at the relevant time.

[3] On 19 December 2002 Mr M was sentenced to six years imprisonment for eight sexual offences. On 25 September 2008 he was released on parole. The parole conditions ceased six months after his release, that is on 23 March 2009.

[4] On 10 February 2009 this Court granted an application by the Department of Corrections and imposed an Extended Supervision Order for a period of 10 years Department of Corrections v M HC Napier CRI 2008-441-27, 10 February

_{2009. The standard conditions of that ESO included the following:}

M V NEW ZEALAND POLICE HC NAP CRI 2009-441-038 15 December 2009

(1) The offender must not associate with, or contact, a person under the age of 16 years, except in the presence and under the supervision of an adult who –

(i) has been informed about the relevant offending

(ii) has been approved in writing by a probation officer as suitable to undertake the role of supervision

[5] On 17 April 2009 Mr M visited the Hawkes Bay Branch of New Zealand Prisoners Aid and Rehabilitation Society (PARS), which had been assisting him with accommodation and financial support. Mr M had been dealing there with a Ms Stewart, meeting with her approximately fortnightly over a period of 4-5 months. Mr M saw Ms Stewart again on 17 April, and a Ms Kapua sat in on the meeting. Ms Kapua was meeting Mr M for the first time. Ms Kapua and Ms Stewart left the PARS office shortly after Mr M had left. It was 1pm and they were going out for lunch.

[6] In her evidence Ms Stewart said that from the entrance lobby to the building she saw Mr M in a green vehicle. She said that she saw him in the back seat of the vehicle seated between two children in safety restraint seats. There were two adults in the front. She was adamant that she recognised Mr M .

[7] Mr Stone’s cross-examination of Ms Stewart included the following:

Q. And the person sitting in the back seat is between some other people which would make it difficult to see that person, do you agree?

A. No I did clearly see Douglas sitting in the back seat.

Q. I put it to you Miss Stewart that you are mistaken about who you saw in that back seat, do you agree that you could be mistaken about that?

A. No I am correct in what I saw.

[8] Ms Stewart said that she and Ms Kapua then went out the rear entrance of the building, that opened out onto Lyndon Road. She said that while they were waiting to cross the road, the green vehicle drove past them travelling south on Railway Road, and she again recognised Mr M sitting in the back seat of the vehicle between the two children.

[9] The thrust of Ms Kapua’s evidence was similar, save that she said that from the entrance foyer, after she had come out of the lift, she saw Mr M actually hopping into the rear seat of a green coloured Odyssey type car. She described him having to get over a child to get into the middle back seat. Ms Kapua explained that she thought it was an Odyssey vehicle, because “I have a similar vehicle”.

[10] Ms Kapua was asked in chief whether she could describe the features of the child Mr M had had to step over to get into the seat. In answer she said:

Um he, it was a toddler um probably no older than 3 and fair coloured hair.

[11] Ms Kapua confirmed that she and Ms Stewart had then walked out the back entrance of the building and as they were waiting to cross Railway Road had seen the green car go past again, with Mr M seated in it in the back seat between two children in car seats.

[12] In the course of Mr Stone’s cross-examination of Ms Kapua the following exchange took place:

17. I put it to you Ms Kapua that you are mistaken in your identification of him in that car on 17 April?

A. Are you asking me was that Mr M in that vehicle?

17. No I am putting it to you that you were mistaken, that he wasn’t, he was never in that vehicle?

A. He was definitely in the vehicle.

[13] In a 16 July decision given orally, Judge Watson held that despite the enforcement agency, the Community Probation Service, not following the formal procedure required for the admission of identification evidence under s 45 of the Evidence Act 2006, there was good reason for this lack of formal procedure, with the result that Mr M had to prove that the evidence was probably unreliable. The Judge held that Mr M had failed to do that and admitted the evidence. That identification evidence formed the crux of the prosecution case against Mr M .

[14] Mr M ’ secondary argument was that the prosecution had not proved that there were no approved supervising adults on 17 April. Judge Watson rejected

that argument. He found the charge proved to the requisite standard and, in a separate 16 July judgment, convicted Mr M .

Statutory framework

[15] Section 45 of the Evidence Act states:

45 Admissibility of visual identification evidence

(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.

(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.

(3) For the purposes of this section, a formal procedure is a procedure for obtaining visual identification evidence—

(a) that is observed as soon as practicable after the alleged offence is reported to an officer of an enforcement agency; and

(b) in which the person to be identified is compared to no fewer than 7 other persons who are similar in appearance to the person to be identified; and

(c) in which no indication is given to the person making the identification as to who among the persons in the procedure is the person to be identified; and

(d) in which the person making the identification is informed that the person to be identified may or may not be among the persons in the procedure; and

(e) that is the subject of a written record of the procedure actually followed that is sworn to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

(f) that is the subject of a pictorial record of what the witness looked at that is prepared and certified to be true and complete by the officer who conducted the procedure and provided to the Judge and the defendant (but not the jury) at the hearing; and

(g) that complies with any further requirements provided for in regulations made under section 201.

(4) The circumstances referred to in the following paragraphs are good reasons for not following a formal procedure:

(a) a refusal of the person to be identified to take part in the procedure (that is, by refusing to take part in a parade or other procedure, or to permit a photograph or video record to be taken, where the enforcement agency does not already have a photo or a video record that shows a true likeness of that person):

(b) the singular appearance of the person to be identified (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):

(c) a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure:

(d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:

(e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence was reported and in the course of that officer’s initial investigation:

(f) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency after a chance meeting between the person who made the identification and the person alleged to have committed the offence.

[16] The term ‘visual identification evidence’ is defined in s 4 of the Evidence

Act:

visual identification evidence means evidence that is—

(a) an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or

(b) an account (whether oral or in writing) of an assertion of the kind described in paragraph (a)

[17] The purpose of s 45 is two-fold. Firstly, to prescribe the correct approach for enforcement agencies when receiving identification evidence. Secondly, to assign burdens to the prosecution and defence respectively to prove reliability. If a formal identification procedure has been followed or there is a “good reason” why it has not

been followed, then the defence must prove, on the balance of probabilities, that the visual identification evidence is unreliable, in order to have it ruled inadmissible. If the formal identification procedure has not occurred, and there is no good reason why it did not, then the prosecution must prove beyond reasonable doubt that the visual identification evidence is reliable.

[18] Despite the enforcement agency not undertaking the formal procedure, Judge Watson held that there was a good reason for this absence of a formal procedure, namely s 45(4)(f) of the Act. Ms Stewart and Ms Kapua identified Mr M to the enforcement agency after a chance meeting between each of them and Mr M .

[19] Mr Stone argues that this was wrong, because s 45(4)(f) applies to a situation where, following an offence, the witness and accused meet. If it referred to a chance meeting contemporaneous with the offending, a requirement for a formal procedure would be pointless. The Crown ought to have been obliged to prove beyond reasonable doubt that the evidence of Ms Stewart and Ms Kapua was reliable, pursuant to s 45(2). Mr Stone argues that this would not have been possible, given that the only evidence of reliability was Ms Stewart’s previous association with Mr M , which was insufficient. Mr Stone also argues that there was insufficient evidence to prove that the condition applied on 17 April 2009, as it appeared to have expired on 24 March 2009.

Should the visual identification evidence have been admitted under s 45(1)?

[20] So far as I am aware, there has not been any decision on s 45(4)(f), but I am in no doubt that Mr Stone is correct in submitting that Judge Watson misinterpreted the provision. The ‘good reason’ referred to in s 45(1) is to cover the situation where a witness to an offence subsequently encounters an accused in a different context, recognises the accused as the person involved in the previously witnessed offence, and reports that identification to the enforcement agency. There is a good policy reason behind this; if a formal identification procedure was required in those circumstances it would be redundant. The witness has already identified the accused, and any formal identification procedure would be tainted by the chance

encounter between witness and accused, rather than informed by the witnessing of the offence. An example given by the Law Commission in its report Evidence Code and Commentary(R55) at 133 is “in a dairy, when a witness recognises the alleged offender”. Cross on Evidence (at EVA45.5) is a little more helpful, corroborating that explanation in this way:

Para (f) applies when a witness sees the person the witness believes to be the perpetrator on another occasion, eg in the street or at a cafe. At any subsequent identification procedure, the witness will be liable to identify the person seen on the subsequent occasion.

[21] I hold that s 45(4)(f) does not apply to identification of the accused by a witness at the time of the commission of the offence. As Mr Stone submits, if s 45(4)(f) did apply to that situation, then, since by definition all identification evidence involves a witness observing the accused at the commission of the offence, there would always be a ‘good reason’ under s 45(1) to dispense with the formal procedure. Section 45(4)(f) only applies to chance encounters that occur subsequent to the commission of the offence.

[22] However, I am satisfied that there was a ‘good reason’ for dispensing with the formal procedure not identified by Judge Watson. I draw this from the Court of Appeal’s judgment in R v Edmonds [2009] NZCA 303. That decision held, first, that s 45(4)(f) is not exhaustive (para [64]), and, secondly, that recognition evidence could also amount to a ‘good reason’ not to hold a formal procedure. The Court’s reasoning is this:

Should recognition evidence be an added good reason under s 45(4) for not conducting a formal identification procedure?

[65] For the reasons given by the Crown (summarised at [57] above), we consider that the fact that a witness recognises an alleged offender could constitute a good reason not to conduct a formal identification procedure. We add that conducting such a procedure in circumstances where a suspect is known to the witness could even be positively harmful as it could wrongly be perceived as reinforcing the strength of the recognition evidence. This is, of course, dependent upon evidence of the procedure conducted being admissible: see a discussion of the issues in that regard in R v Barlien [2009]

1 NZLR 170 at [72] (CA).

[66] We agree with the Crown submission that it would be consistent with the common law position to regard recognition as good reason for dispensing with a formal identification procedure. In England and Wales, identification parades are seen as unnecessary, and indeed undesirable, for cases involving

recognition evidence, at least in situations where the accused was well known to the witness. This reflects the common law position with regard to recognition evidence: see discussion below at [121]

...

[73] We thus consider that there would be good reason not to conduct a formal identification procedure where the witness recognises an accused, except where such a procedure would serve a useful purpose, such as would likely be the case where there is slight acquaintance only or in a case where the accused denies that he is the person whom the witness claims to know ...

[23] The situation on 17 April fell within the ambit of the Court of Appeal’s reasoning in Edmonds. Ms Stewart and Ms Kapua had been meeting with and talking to Mr M immediately before they saw the green vehicle parked at the front entrance to their office building and recognised Mr M as the person they had been talking to before leaving their office. Then each of the two women recognised him again as the green car drove past them on Railway Road a minute or two later. That is the position with Ms Kapua. The recognition evidence is is much stronger in the case of Ms Stewart, given her regular contact with Mr M over the preceding 4-5 months.

[24] I hold that the recognition of Mr M by each of Ms Stewart and Ms Kapua on 17 April was ‘good reason’ for not conducting a formal procedure lest, as the Court of Appeal pointed out in Edmonds, it be perceived as reinforcing the recognition evidence. I therefore hold that the evidence was properly dealt with under s 45(1) and, as its unreliability was not proved by the defence to the civil standard, was properly admitted by the Judge.

[25] Even if I am wrong in respect of Ms Kapua’s evidence, I note that Edmonds (at [111]) also cites Lord Widgery CJ in R v Turnbull [1977] 1 QB 224 as to the standard required under s 45(2):

If the quality [of the identification evidence] is good and remains good at the close of the accused’s case, the danger of a mistaken identification is lessened; but the poorer the quality, the greater the danger. In our judgment, when the quality is good, as for example when the identification is made after a long period of observation, or in satisfactory conditions by a relative, a neighbour, a close friend, a workmate and the like, the jury can safely be left to assess the value of the identifying evidence even though there is no other evidence to support it: provided always, however, that an adequate

warning has been given about the special need for caution. Were the courts to adjudge otherwise, affronts to justice would frequently occur.

[26] Were it necessary I would reject Mr Stone’s argument that the evidence of Ms Stewart alone, and her previous association and familiarity with Mr M , was insufficient, and hold that the quality of her recognition evidence was extremely high, reliable and sufficient in itself to discharge the s 45(2) burden.

[27] Accordingly, this first ground of appeal fails. The evidence was properly admitted and could be relied on by the Judge.

Did the relevant condition apply at the time of the offending?

[28] This submission is based on the fact that the original conditions attaching to Mr M ’ parole expired on 24 March 2009. Those conditions, including one identical to the relevant one in the ESO, had been supervised by Mr de Courcy Lys. The ESO came into force on 10 February for a term of 10 years, and included the condition set out in [4] above.

[29] Mr Stone’s point is that Mr de Courcy Lys accepted in his evidence that he ceased acting as Mr M ’ probation officer from 24 March 2009, when the original parole conditions expired. Mr Stone submits that there was accordingly no proper evidence that the original parole condition of not associating with children under the age of 16 years was applicable at 17 April 2009.

[30] That submission fails because it is irrelevant. It is the ESO condition and its breach that is relevant, and that was certainly in force at the time.

[31] Mr Stone also submits that there is no evidence from the prosecution that adults had not been approved under the condition as to supervision as at 17 April. Mr de Courcy Lys gave evidence that adults – Mr M ’ daughter and son-in-law

– had been approved, but their approval had been withdrawn in January.

[32] Although Mr de Courcy Lys was no longer supervising Mr M as at 17

April, he did give evidence about this, and was cross-examined about it. The relevant evidence is this:

Q. If you would just like to carry on with your evidence thank you.

A. When the Court order was received I inducted Mr M fully into the sentence of extended supervision. I explained to him the standard extended supervision conditions contained on the back of the Court order going over each condition from (a) to (k) so I was satisfied he understood the requirements. Condition (1) states that the offender must not associate with or contact a person under the age of 16 years except in the presence and under the supervision of an adult who has been informed about the relevant offending, has been approved in writing by a probation officer as suitable to undertake the role of supervision. I knew that Mr M was well aware of this condition as it also had been one of his parole conditions. There were no approved adults in respect of the condition as at 17^th April 2009.

CROSS-EXAMINATION: MR STONE

Q. In April 2009 you were no longer his probation officer were you? A. No.

Q. And it was another probation officer’s responsibility to approve people or impose conditions on them?

A. Yes.

[33] That was the extent of the relevant cross-examination. When he gave evidence in his own defence, Mr M did not gainsay Mr de Courcy Lys’ evidence – he did not suggest that there was any approved supervising adult on 17

April.

[34] I hold that Judge Watson was entitled to conclude that there were no approved supervising adults on 17 April, and thus that the adults in the front seat of the green vehicle were not approved to be supervising Mr M in the company of the children in the back seat. Accordingly, this second ground of appeal also fails.

Result

[35] Neither ground of appeal has succeeded. The appeal is accordingly dismissed. Mr M ’ conviction stands.

Solicitors:

Souness Stone, Hastings for the Appellant

Crown Solicitor, Napier for the Respondent