Tamati v Police HC Hamilton CRI 2011-419-54 [2011] NZHC 2065 (25 August 2011)

Last Updated: 19 February 2012

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

_{CRI 2011-419-54}

BETWEEN TRIDENT TE TAHI TONY TAMATI Appellant

AND NEW ZEALAND POLICE Respondent

Hearing: 23 August 2011

Counsel: S McKenna for Appellant

J N Foster for Respondent

Judgment: 25 August 2011

_{JUDGMENT OF HEATH J}

This judgment was delivered by me on 25 August 2011 at 4.00pm pursuant to Rule 11.5 of the High

Court Rules

Registrar/Deputy Registrar

Solicitors:

Crown Solicitor, Hamilton

Counsel:

_{S McKenna, Hamilton}

TAMATI V NEW ZEALAND POLICE HC HAM CRI 2011-419-54 25 August 2011

Introduction

[1] Following a hearing in the District Court at Hamilton on 28 June 2011, Mr Tamati was found guilty on a single charge of driving while disqualified.[1] Judge Tompkins imposed a sentence of 75 hours community work. Mr Tamati appeals against conviction.

[2] The sole issue at trial was identification. The appeal is brought on the grounds that the Judge failed to caution himself adequately about the identification evidence given by Constable Ward. Mr McKenna, for Mr Tamati, submits that the quality of the identification evidence was insufficient to prove the charge beyond reasonable doubt.

Outline of the prosecution case

[3] The prosecution case was that Mr Tamati, at about 7pm on 22 January 2011, was driving a vehicle on Slim Street in Hamilton, when he was observed by Constable Ward. She was a passenger in a police car. She and the driver, Constable Bishop, were conducting inquiries in the area.

[4] The police officers were looking for a male who had absconded from their vehicle, at a nearby intersection. For that reason, the vehicle was travelling slowly along neighbourhood streets, checking driveways, cul-de-sacs and the like.

[5] Constable Ward described seeing a small white hatchback car turn into the street in which they were driving and approached from the opposite direction. Because she was trying to find a specific person, Constable Ward paid particular attention to the driver of the vehicle. The driver was not the person for whom the constables were looking but Constable Ward recognised him as Mr Tamati.

[6] Constable Ward’s evidence was that she recognised Mr Tamati from earlier occasions when she had conducted bail checks and was aware that he was bailed to

another address with a 7pm curfew. Constable Ward also identified Mr Tamati’s partner, Gabrielle Kaponga, as the passenger in the vehicle. Constable Bishop did not give evidence.

[7] Both Mr Tamati and Ms Kaponga gave evidence before the Court. Both denied that Mr Tamati had been driving that day. They also said that there was no “hatchback” vehicle kept at the house at which they resided.

The District Court judgment

[8] Judge Tompkins concluded that the charge had been proved beyond reasonable doubt. After reminding himself that an honest witness, even if convincing, may be mistaken, he concluded:

[8] Having seen the defendant give his evidence, I was not particularly impressed by his blanket denial of driving and so set both his and his partner’s evidence to one side. Returning to the police evidence, I am satisfied that the charge has been proved beyond reasonable doubt. Constable Ward had the oncoming vehicle under observation for an extended period when both cars were travelling at a relatively slow speed and she was specifically looking to identify the driver of the oncoming car because of the unrelated inquiry she and her partner were conducting. She had had earlier dealings with Mr Tamati in terms of his bail checks and with his partner and in those circumstances, despite what Mr McKenna described as a fleeting glance, I am satisfied it was much more than that and that the identification is sufficient to prove the charge beyond reasonable doubt.

Analysis

[9] During the course of oral argument, I explored with counsel for both parties two concerns I had formed about the judgment under appeal. The first related to Judge Tompkins’ rejection of evidence given by Mr Tamati and Ms Kaponga. The second was whether the Judge had cautioned himself adequately about the risks of acting on potentially mistaken identification evidence.

[10] The Judge’s approach[2] was to discard the evidence of both Mr Tamati and Ms Kaponga on the basis of Mr Tamati’s “blanket denial of driving” and then to return to Constable Ward’s evidence to determine whether it was sufficient to prove

the charge beyond reasonable doubt. No reasons were given by the Judge as to why Mr Tamati’s and Ms Kaponga’s evidence should be brushed to one side. While giving reasons for credibility or reliability findings cannot yet be described as mandatory, the desirability for (at least) brief reasons to be given is made clear in Lewis v Wilson & Horton Ltd.[3]

[11] A preferable approach might have been to review the totality of the evidence and then determine whether, having regard to that, the Constable’s evidence of identification could be regarded as reliable. As part of that analysis, the Court would take account of evidence from Mr Tamati and his partner and would also evaluate Constable Ward’s evidence, having regard to s 67A of the Summary Proceedings Act

1957:

67A Identification evidence

Where any evidence of identity is given against the defendant and the defendant disputes that evidence, the Court shall bear in mind the need for caution before convicting the defendant in reliance on the correctness of any such identification and, in particular, the possibility that the witness may be mistaken.

[12] After explaining their reasons for patrolling in the area,[4] Constable Ward described driving down Slim Street towards Montgomery Street. She said that she observed “a small white vehicle”, she thought “a hatch of some description, older model”. She looked for the absconder in this vehicle. The constable said that the person for whom she was looking had a distinctive hair colour.

[13] As the two vehicles approached each other, Constable Ward recognised Mr Tamati as the driver of the other vehicle. She said that she pointed that out to Constable Bishop. Her recognition arose from her involvement in various bail checks at a property at Holland Road.

[14] Constable Ward’s evidence was that the patrol vehicle in which she was

travelling was going relatively slowly as they were looking for their absconder. When she saw Mr Tamati she said there was nothing obstructing her view and there

was “clear sunlight”. She gave evidence that she was “a hundred percent” sure the

driver was Mr Tamati.

[15] As the vehicles moved closer together, Constable Ward says that she also recognised the passenger in the vehicle, Ms Kaponga. She knew Ms Kaponga to be Mr Tamati’s partner. The patrol car continued towards an intersection. At the corner, they spoke to a dog handler who had apprehended the male for whom they had been looking. After that they went back down Slim Street, turning into Wingate Street. At the end of the road, Constable Ward saw Mr Tamati lying on a trampoline. She observed Ms Kaponga coming out of a house to join him.

[16] Constable Ward said that Ms Kaponga was wearing a “distinctive blue/purple top” that she had seen her wearing in the car. Constable Ward noticed a “small, similar type car in the garage” to that identified a short time earlier but she did not believe the car “was running”.

[17] Rather than entering the property at this time, Constables Bishop and Ward performed other police business. They returned to Wingate Street, probably between

40 minutes to one hour later. In the meantime, Constable Ward had made inquiries about Mr Tamati’s actual bail address. She had found some uncertainty surrounding that issue.

[18] When they arrived back at Wingate Street, Constable Ward saw Ms Kaponga’s father in a “small white car in the driveway”. Again, the constables did not enter the property.

[19] At some point that is difficult to identify precisely, Constable Ward or Constable Bishop must have asked another officer to go to the Wingate Street property and arrest Mr Tamati. I say that because, when Constable Ward returned with Constable Bishop to the police station, she was informed that Mr Tamati had been arrested and had been placed in the Watch House. She ascertained that Mr Tamati’s bail address had, in fact, been changed to Wingate Street. She spoke to Mr Tamati at the Police Watch House. Mr Tamati denied that he was driving a

vehicle of the type described by her, saying that there were “no hatchbacks at the address”.

[20] In cross-examination, Constable Ward acknowledged that she could not identify more precisely the vehicle in which she says Mr Tamati and Ms Kaponga were travelling; she made no note of a registration number and she could not confirm that the white vehicle she had seen on the first occasion they went to the Wingate Street property was the vehicle being driven by Mr Tamati. Similarly, Constable Ward was unable to confirm that the white vehicle that was present at the property after Mr Tamati had been arrested was the vehicle in question. She said that it could “possibly be the vehicle he was driving”.

[21] Mr Tamati denied driving the vehicle. He gave evidence that the white Toyota seen in the garage when Constables Ward and Bishop first passed the property “did not go” but that the other car did. While he denied that he had ever met Constable Ward before, Mr Tamati accepted the possibility that she may have conducted bail checks on him.

[22] Ms Kaponga’s evidence largely confirmed that given by Mr Tamati. Unfortunately, Ms Kaponga had been in Court when Mr Tamati gave evidence, contrary to an order excluding witnesses. However, while it was put to her that she was there to support Mr Tamati and her evidence was untrue, it was not suggested she had tailored her evidence to fit that given by her partner. In any event, this was not a reason given by Judge Tompkins for rejecting her evidence.

[23] Ms Foster, for the Police, submitted that Constable Ward’s evidence should be regarded as recognition evidence because she knew Mr Tamati from other dealings. She submitted that greater weight should be given to Constable Ward’s evidence, both because of the recognition aspect and the fact that police officers are trained to observe.

[24] Ms Foster contended the fact that Constable Ward had identified both Mr Tamati and Ms Kaponga was significant, given that they were both located at the Wingate Street property shortly afterwards. She supported the Judge’s rejection of

defence evidence, submitting that it was open for him to do so and there was no rule requiring reasons for a credibility finding to be given.

[25] On the other hand, Mr McKenna submitted that the amount of time that Constable Ward had to make an identification was limited, particularly if the vehicles were about 300 metres apart (as described by Constable Ward) when first seen and were then travelling in each other directions at 30km/h; a conservative estimate. He submitted that the absence of confirmatory evidence demonstrating that one of the two white cars seen at the Wingate Street property was being driven when Constable Ward says she saw Mr Tamati tells against the reliability of her evidence on this issue.

[26] Section 67A of the Summary Proceedings Act reflects the need for caution before a defendant is convicted of an offence based wholly (or substantially) on visual identification evidence. Section 67A applies in summary cases held in the District Court, before a Judge sitting alone. In cases involving a jury, the Evidence Act 2006 requires the trial Judge to “warn the jury of the special need for caution before finding the defendant guilty in reliance on the correctness of any [visual]

identification”.[5]

[27] While a warning is not required to be given in any particular words, it must convey to the jury that a mistaken identification can result in a serious miscarriage of justice, alert the jury to the possibility that a mistaken witness may be convincing and (in cases where there is more than one identification witness) refer to the

possibility that all may be mistaken.[6] I highlight that provision to reinforce the need

for caution that is inherent in s 67A itself.

[28] The provision of such warnings reflects both empirical evidence suggesting the unreliability of some forms of eye witness testimony and judicial experience, as

_{discussed in a landmark decision of the Court of Appeal of England and Wales,}

R v Turnbull.[7] In R v Turaki,[8] Glazebrook J (delivering the judgment of our Court of

Appeal), described the relevant research:

[47] As an aside, we note that the evidence is equivocal as to the effectiveness of judicial directions. Research has suggested that directions by judges and traditional safeguards such as cross-examination of eyewitnesses have only a limited ability to help a jury discriminate between accurate and inaccurate eyewitness identifications. Instead, they have a tendency to foster a generalised disbelief of all eyewitnesses among jurors. This has led to calls for jurors to be assisted by expert testimony on human memory and guidance in the assessment of eyewitness testimony. However, even such expert evidence has not been unequivocally shown to result in an improvement in juror performance, which is generally at a level akin to that which would be achieved by chance: see Martire and Kemp “The Impact of Eyewitness Expert Evidence and Judicial Instruction on Juror Ability to Evaluate Eyewitness Testimony” (2009) 33 Law Hum Behav 225 at 225.

[29] Evidence from a witness who knows a defendant is regarded as a form of identification evidence. Although evidence of identification by a person who recognises someone he or she has seen before can often be more reliable than identification evidence involving a stranger, that is not always, the case. Much depends on the circumstances in which the identification is made.

[30] The pitfalls of recognition evidence were described in R v Bentley.[9]

Lord Lane CJ, for the Court of Appeal, said:

[Visual identification cases], it scarcely needs stating, may vary from one extreme to another: from the fleeting sight of a stranger in a moving car in indifferent light on the one hand to the purported recognition of a familiar face which has taken place over a considerable period of time in perfectly good conditions of lighting and so on. The former will obviously require the full Turnbull direction. It contains all the classic identification pitfalls to which the human witness is susceptible. But, if the judge were to give that full Turnbull direction in the latter type of case, the jury would rightly wonder whether he, the judge, has taken leave of his senses, because most of the Turnbull direction would in those circumstances be quite unnecessary.

That is not however to say that what is sometimes called the recognition type of identification – as it was in this case – can be treated as straightforward or trouble free. It cannot. Each of us, and no doubt everyone sitting in this Court, has had the experience of seeing someone in the street whom we know, only to discover later that it was not that person at all. The expression “I could have sworn it was you” indicates the sort of warning which the judge should give, because that is exactly what the witness does. He swears

that it was the person he thinks it was. He may nevertheless have been mistaken even where it is a case of recognition rather than one of identification.

[31] In evaluating the quality of Constable Ward’s evidence, I consider it was something of an exaggeration for the Judge to say that Constable Ward “had the oncoming vehicle under observation for an extended period when both cars were travelling at a relatively slow speed”.[10] On the basis that the two vehicles were travelling in opposite directions, each at 30km/h for a distance of about 300 metres, it is overstating the position to say that the time available for observation was “extended”. Nevertheless, there can be no quarrel with the Judge’s observation that Constable Ward was using the opportunity to look carefully at persons in nearby

vehicles to locate the person of interest whom they were seeking.

[32] The fact that Constable Ward was able to identify both Mr Tamati and Ms Kaponga is relevant, though it is not beyond the realms of possibility that, having seen someone whom she thought was Mr Tamati, she concluded (not unnaturally) that the female occupant of the car must have been his partner, Ms Kaponga.

[33] I am conscious that Judge Tompkins is a very experienced District Court Judge. While experience does not confer upon any Judge some special ability to divine whether a person is or is not telling the truth, experience is a good starting point for evaluating competing evidence in context. For example, for present purposes, an experienced Judge will be well aware of the problematic aspects of eyewitness testimony, to which I have referred.

[34] The Judge was alive to the need to take care before convicting the defendant in reliance on Constable Ward’s visual identification. He reminded himself that a convincing witness may still be mistaken. While this Court has an obligation to reach its own view on an issue such as this on appeal, there remains a need to give some credence to the undoubted advantage of a Judge who hears and sees the

_{witnesses in determining questions of credibility.}[11]

[35] I start from the proposition that both Mr Tamati and Ms Kaponga denied being present in the car when Constable Ward saw it. On reviewing their evidence, there is nothing inherently improbable or implausible in it. One must bear in mind that a person who disputes identity can only say once: “It was not me”. Repetition of that single piece of evidence does not assist.

[36] There was nothing arising from subsequent police inquiries to suggest that Mr Tamati had made any error with regard to the ownership of the two white vehicles seen at different times at the Wingate Street property. Nor was there anything to gainsay the evidence that the vehicle in the garage, on the first occasion, “did not go”. For example, no attempt was made by the police to go onto the property to question Mr Tamati and feel the bonnet of the white car to ascertain whether it was warm.

[37] Similarly, with regard to Ms Kaponga’s evidence, she said that, around 7pm, she was watching Shortland Street on television. Of itself, there was nothing implausible or inherently improbable about that evidence. Nor was there anything to challenge the fact that her mother was driving the Toyota vehicle, about which the police prosecutor asked her.

[38] In those circumstances, I find it difficult to understand precisely what Judge Tompkins meant when he said that he “was not particularly impressed by [Mr Tamati’s] blanket denial of driving and so set both his and his partner’s evidence to one side”. In the absence of any comment by the Judge to indicate why he had formed that view, I see no basis on which the evidence of Mr Tamati and Ms Kaponga could properly be put to one side. If a Judge cannot articulate some rational basis for discarding evidence then the evidence should not be rejected.

[39] In considering whether Constable Ward’s evidence was sufficient to demonstrate that Mr Tamati’s and Ms Kaponga’s evidence must have been false, I regard the following factors as telling in favour of accurate identification:

(a) Constable Ward was a police officer who had been trained in observation skills.

(b) At the time that she made her identifications, she was actively using those skills to locate the person who had absconded from the vehicle in which she was travelling.

(c) She identified both Mr Tamati and Ms Kaponga by recognition, adding that Ms Kaponga was wearing the same coloured top when she saw her at the Wingate Street property as she was wearing in the car.

[40] That can be counter-balanced against:

(a) The absence of any reliable identification of the car in which

Mr Tamati and Ms Kaponga were alleged to be travelling.

(b) The limited time that Constable Ward had to observe the driver and passenger of the other vehicle as the cars approached each other and passed.

(c) The real risk that Constable Ward honestly believed that she recognised Mr Tamati but was mistaken; coupled with the risk that having formed the view that Mr Tamati was the driver, she assumed his partner, Ms Kaponga, was the passenger.

[41] In the absence of any objective basis to reject the evidence of Mr Tamati and Ms Kaponga, I am not satisfied beyond reasonable doubt that Mr Tamati was the driver of the vehicle. The evidence may well have been sufficient to establish that Mr Tamati was probably the driver – but that does not go far enough.[12]

[42] Based on the evidence I have read, I consider the Judge erred in holding that the evidence was sufficient to prove Mr Tamati’s identity beyond reasonable doubt. There is nothing in Judge Tompkins’ judgment to suggest that there was anything extrinsic to the transcript that caused him to put the evidence of Mr Tamati and

_{Ms Kaponga to one side.}

Result

[43] For those reasons, the appeal against conviction is allowed. The conviction is set aside.

_{[44] I thank both counsel for their assistance.}

_{P R Heath J}

Delivered at 4.00pm on 25 August 2011

---

[1] Police v Tamati DC Hamilton CRI-2010-019-10303, 28 June 2011
[2] Ibid, at para [8], set out at para [8] above.
[3] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (CA) at paras [75]-[85] (per Elias CJ, for herself, Richardson P, Keith, Blanchard and Tipping JJ).
[4] See paras [3]-[6] above.
[5] _{Evidence Act 2006, s 126(1).}
[6] Ibid, s 126(2).
[7] _{R v Turnbull [1976] 3 All ER 549 (CA).}
[8] _{R v Turaki [2009] NZCA 310 at para [47].}
[9] R v Bentley (1994) 99 Cr App R 342 (CA) at 344.

[10] Police v Tamati DC Hamilton CIV-2010-019-10303, 28 June 2011 at para [8], set out at para [8] _above.

[11] See Austin, Nichols & Co Ltd v Stichting Lodestar [2007] NZSC 61; [2008] NZLR 141 (SC) at para [13].

[12] See R v Wanhalla [2007] 2 NZLR 573 (CA) at [49]-[50] (William Young P, for himself, Chambers and Robertson JJ).