King v Police [2014] NZHC 1380 (19 June 2014)

Last Updated: 26 June 2014

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2013-404-000392 [2014] NZHC 1380

BETWEEN	MALCOLM RICHARD KING Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	3 June 2014
Counsel:	JW Griffiths for Appellant NJ Small for Respondent
Judgment:	19 June 2014

_{JUDGMENT OF ASHER J}

This judgment was delivered by me on Thursday, 19 June 2014 at 11am pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors/Counsel:

Public Defence Service, Auckland.

Crown Solicitor, Auckland.

KING v NZ POLICE [2014] NZHC 1380 [19 June 2014]

Introduction

[1] This is an appeal that turns on the admissibility and cogency of CCTV footage taken allegedly of the appellant, Mr King, as he crept around a property occupied by the complainants.

[2] Mr King and the first complainant had lived together for approximately nine years but the relationship came to an end in early 2013. Since that time the first complainant maintained that there had been ongoing difficulties with Mr King who had not left her alone and at one time he had slit his wrists in front of her and her daughter.

[3] The second complainant is a good friend of Mr King’s former partner and had got to know him during their relationship. She had been present during incidents with Mr King, and asserted that the wrist slitting incident occurred at her house.

[4] Following these incidents, that occurred after the separation, the first complainant obtained a protection order against Mr King. After this the complainants served Mr King with two trespass notices in respect of both of their home addresses.

[5] On 28 April 2013 the first complainant was at the address of the second complainant. That night, shortly after midnight, the CCTV camera that at the address captured 10 seconds of footage showing a man creeping towards the house, looking around the outside of the house and then turning and leaving. Having looked at the CCTV footage the two complainants both identified the man as Mr King.

[6] At the trial it appears that the CCTV footage was admitted as evidence without objection. In this appeal Mr Griffiths for Mr King submits that the evidence should not have been admitted and should, for the purposes of the appeal, be regarded as inadmissible. He also submits that the evidence clearly fell short of the required standard in establishing that the person on the CCTV footage was Mr King. At times in his submissions the two issues of admissibility and proof to the required standard were conflated.

[7] There were four limbs to Mr Griffiths’ submissions. The first two related to threshold admissibility under ss 7 and 8 of the Evidence Act 2006. The third related to admissibility under s 45 of the Evidence Act. The fourth was an assertion that identification was not proven beyond reasonable doubt.

Was the CCTV footage admissible under ss 7 and 8?

[8] Mr Griffiths argued that the evidence was not admissible under s 7 of the Evidence Act because it was irrelevant and did not tend to prove or disprove anything. For reasons that I will elaborate on later in this decision, the CCTV footage did show a man, and certain features of that man. The fact that it was footage taken on the night alleged, and did show a person by the second complainant’s house on that night was not contested. Therefore there can be no doubt that the CCTV footage was relevant as evidence showing a person who was alleged to be subject to a protection order at prohibited premises. This point must fail.

[9] Second, Mr Griffiths argued that the admission of the CCTV footage could have an unfairly prejudicial effect on the proceeding and should be excluded under s 8 of the Evidence Act. However, there was no conceivable unfair prejudice on the proceeding arising from the admission of the CCTV footage. The trial was before a Judge-alone. The Judge was likely to be immune from prejudice, but in any event there was nothing unfairly prejudicial in the footage. It was not salacious and did not show any unduly bad behaviour of a type that might elicit prejudice. Any prejudice to Mr King was only that it might lead to his identification. This was legitimate prejudice and not unfair. The evidence could be considered on its merits. This argument cannot succeed.

[10] Mr Griffiths’ third argument related to identification evidence in s 45 of the

Evidence Act. This is a more complex issue.

[11] The approach to be taken on a general appeal is set out by the Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar.¹ The appellant bears the onus of satisfying the appellate court it should differ from the original decision,² but the appellate court must come to its own views of the merits.³ The weight the appellate court gives to the original decision is a matter of judgment.⁴ Deference to the assessment of the original decision-maker is not necessary, even where the assessment requires a value judgment.⁵ However, where the original decision-maker (in this case the District Court) has the benefit of assessing credibility, the Supreme Court considered that an appellate court “may rightly hesitate to conclude that findings of fact or fact and degree are wrong.”⁶ But the customary caution, which is appropriate when facts found by the original decision-maker turn on issues of credibility, should not be read as a general requirement of deference to the original decision-maker’s assessment of the acceptability and weigh to be accorded to evidence.⁷

Was the evidence admissible under s 45?

[12] The evidence was undoubtedly visual identification evidence as defined in s 4 of the Evidence Act in that it involved assertions by the complainants about what they saw to the effect that Mr King was at the property committing a breach of the protection order and trespass. The accuracy of their visual identification was the core issue. Section 45(1) applied which provides:

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.

1. Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103; [2008] 2 NZLR 141; restated in Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31] – [32] per Tipping J.

² _{At [4].}

³ _{At [3] and [5].}

⁴ _{At [3] and [5].}

⁵ _{At [16].}

⁶ _{At [5].}

⁷ At [13] and [16].

[13] It was recognised in the Supreme Court decision of Harney v Police that where the visual identification evidence takes the form of a recognition by the eye witness of someone already known to the witness, that can constitute a good reason for not following a formal procedure.⁸

[14] Mr Griffiths rightly conceded that given the fact that both complainants knew Mr King well, there was good reason for not following the formal procedure. It would have been a waste of time as they knew Mr King and had already decided it was him. Therefore, in terms of s 45(1) the evidence was admissible unless Mr King proved on the balance of probabilities that the evidence was unreliable.

[15] It is clear that the “unreliable” enquiry (s 45(1)) is a broad enquiry which can take into account all the relevant circumstances.⁹ The section is best seen as imposing a preliminary threshold, of prime importance in jury trials, where the Judge can be asked to make an initial assessment and exclude evidence if it is shown by the defence that on the balance of probabilities it is unreliable. This obviates the risk of a guilty verdict by the jury on the basis of unreliable identification evidence.

[16] It was observed by the majority in the Court of Appeal decision of

Harney v R that:¹⁰

[36] Before leaving this question we return to the application of s 45(2) in the context of a summary trial. While in the context of indictable offences the divide between the screening role of the Judge and the role of the jury as the ultimate decision-maker is obvious, it is more difficult to apply in the case of a summary trial where identification is the primary issue and the same Judge is performing both roles.

[37] If a Judge presiding over a summary trial is satisfied in his capacity as the ultimate decision-maker, and taking into account the totality of the evidence, that the prosecution has proved the reliability of the identification beyond reasonable doubt, it must logically follow that the more limited inquiry as to admissibility has also been satisfied. But the reverse will not necessarily be the case (unless in the particular case the totality of the evidence relevant to identification also equates with “the circumstances in which the identification was made” in terms of s 45(2)).

8. Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [17] and [26]; R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [65].

⁹ _{R v Edmonds, above n 2, at [103]–[105].}

¹⁰ Harney v R [2010] NZCA 264 at [36]–[38].

[38] Given those matters we consider that it would be advisable for Judges involved in summary hearings where identification is the critical issue to explain the approach that they have adopted in the particular case. In particular an appellate Court will need to be satisfied that the Judge has either taken two discrete steps (representing the screening and adjudicative roles) or the finding of guilt on the strength of identification evidence is based on the totality of the evidence relevant to that issue.

[17] In his separate judgment William Young J observed that where the identification evidence is the only evidence given at trial, there cannot be much distinction between a decision under s 45(2) as to reliability and the substantive determination of the charge. As he points out the confidence of the identifying witness may be relevant to the reliability analysis. Indeed that was the position in this case. William Young J considered that it was understandable that counsel did not challenge the admissibility of the identification evidence as a ruling in favour of

admissibility would have made conviction inevitable.¹¹

[18] He did go on to say:¹²

Understandable though counsel’s tactics were, I think it not desirable for admissibility challenges to be deferred until closing submissions. In part this is because I am uncomfortable about the conflation of admissibility and substantive decisions. As well, where the admissibility challenge has not been fairly signalled, evidence which is relevant to the challenge but inadmissible on the substantive issue might well not be called.

[19] The appeal against the unanimous decision to admit the evidence in that case was successfully appealed to the Supreme Court.¹³ Blanchard J observed that identification evidence is a species of opinion evidence, and that opinion evidence is generally admissible under s 24 of the Evidence Act 2006.¹⁴ However, he confirmed that where identification evidence takes the form of a recognition by the eyewitness or someone already known to the witness, that can constitute a good reason for not following a formal procedure.¹⁵

[20] However, the formal procedure would even then only be dispensed with if the alleged offender was sufficiently known to the witness before the time of the alleged

¹¹ _{At [42].}

¹² _{At [43].}

¹³ _{Harney v R [2011] NZSC 107.}

¹⁴ At [15].

offending so that a formal procedure would be of no utility, and that the issue of familiarity would have to be gauged in the individual case.¹⁶ It was held that there should have been a formal identification process adopted, because in that case the police officer who had identified the defendant only had limited familiarity with the defendant, and the observation was relatively fleeting.¹⁷

[21] The Supreme Court appeared to consider that there should have, in that case, been a voir dire conducted by the trial Judge even though he was sitting alone, as to whether there was good reason to not undertake a formal procedure.¹⁸ The issue of good reason was raised after the prosecution case had been closed and the Supreme Court considered that the Judge could have then conducted a voir dire, although it noted that in fairness to the trial Judge that the prosecution had not applied for such a hearing. The Supreme Court nevertheless was of the view that there was at least an

implicit challenge to the lack of a formal procedure. It did not comment on the views of the majority in the Court of Appeal as to whether two discrete steps were required.

[22] In my view in a case of a trial before a Judge-alone depending on identification evidence where the conclusion on guilt beyond reasonable doubt necessarily means the evidence was admissible, and where it is accepted that there was good reason to dispense with a formal procedure, the assessment of whether or not the evidence is probably unreliable can be subsumed into an assessment of whether the defendant is guilty. It is unnecessary for the Court to consider the evidence under one threshold of proof, and then to go on to consider it under another higher threshold. It is more efficient to consider that evidence only under the higher second threshold, an affirmative resolution of which will mean that it must have crossed the first lower threshold. By definition if the Judge-alone is satisfied that the Crown has established identification beyond reasonable doubt, and that is the key issue, then it would be a pointless exercise to consider whether the identification evidence is unreliable. Similarly, if the Judge has held that a charge turning on

_{identification is not proven because the Judge is not satisfied beyond reasonable}

¹⁶ _{At [28].}

¹⁷ At [34]–[38].

doubt of identification, then again a separate s 45(1) reliability assessment would be unnecessary and a waste of resources.

[23] The Judge here was not asked to and did not make a s 45(1) assessment. For the reasons I have given, particularly because this was trial before a Judge alone and it was accepted that there was no need for a formal procedure, I do not consider this to have been an error. He adopted the second approach referred to by the Court of Appeal in Harney v R and looked at the totality of the evidence. It would have been

advisable for him to have explained his approach to s 45(1),¹⁹ but the issue was not

raised with him, and the failure to do so is not fatal. I therefore do not accept Mr Griffiths’ submission that the appeal should be allowed because of a failure to carry out a s 45(1) assessment. This was incorporated in his general assessment.

[24] I conclude that for the reasons set out below, this evidence would have been treated as admissible under s 45(1) in any event, and no separate s 45(1) exercise was necessary.

Proof of identification

[25] It is now necessary to consider Mr Griffiths criticisms of the Judge’s conclusion that the person shown on the CCTV footage was in fact Mr King. He argues that there was insufficient evidence of identification and that the Judge’s conclusion to the contrary was an error. It was his submission that the evidence of the two complainants that they were certain that the person shown on the CCTV footage was Mr King should not have been accepted by the Judge. He submits that as an appellate Judge I am in a position to find the trial Judge to be in error on this point because I am able to view the CCTV footage. He submits that it is clear from that footage that there must be a doubt as to the identity of the person shown. Mr Griffiths focused in his submissions on the grainy nature of the footage and the inadequate display of facial features and other details.

[26] The Judge warned himself about the reliability of identification evidence thereby meeting the requirements of s 45 of the Evidence Act. He specifically noted

that honest witnesses can be mistaken and turned his mind to whether a formal identification procedure was necessary. He dealt with the issue of identification as follows:²⁰

[8] The Court is always concerned at evidence which purports to identify a particular person in a particular situation. An honest witness can be mistaken and more than one witness can be mistaken in their identification of another person. This is more accurately described as recognition evidence. It is not a case where a formal identification process would needed to have been carried out. There is no issue here of photo montages or line ups. This is a case of whether a person who says that they are intimately familiar with a person can recognise them in circumstances such as we have today.

[9] I have viewed the video clip twice. It is not for me to substitute any view of my own for that of the witnesses. I can say though that in my view there is a general physical resemblance to the defendant in the sense that it is not an exceedingly tall blonde haired person or an exceedingly short person with long hair, if I can take extreme examples. The most that I could say would be that it bears some general resemblance to Mr King but it is not, as I have said, for me to substitute my own opinion for that of the witnesses. They have identified Mr King from that footage on CCTV. [The first complainant] in particular has known Mr King intimately for nine years and [the second complainant] has seen him on many occasions as a friend or associate with [the first complainant] over that period of time as well. They are both well placed, in my view, to express their recognition of Mr King as the person in the CCTV footage.

[10] I am satisfied that even bearing in mind the brevity of the clip, the fact that it was at night and at least for some of it showed the person retreating down the driveway at [the first complainant’s address], that they are not mistaken in their view that this is Mr King. In these circumstances, as I am satisfied that they are correct in their identification, and all other matters having been proved to the required standard, that is to say beyond reasonable doubt ...

(emphasis added)

[27] When the evidence provides the Judge with an opportunity to assess the identification evidence, as was the case here with the CCTV footage being available, that opportunity should be seized. The Judge should make an assessment of whether the identification evidence that has been adduced is in her or his view consistent with the CCTV footage. If it is not, then the Judge may decide to reject the identification evidence.

[28] It is clear from these paragraphs set out above that the Judge did this. The Judge in particular notes that the person shown in the footage “... bears some general resemblance to Mr King”. He appears to have assessed whether he should accept the identification evidence given his own analysis of what appeared in the CCTV footage.

[29] I have taken this opportunity and viewed the CCTV footage both continuously and pausing it at various placed. Unlike the trial Judge I cannot comment on whether there is a “general resemblance” with Mr King as I have not seen Mr King. However, I am able to make an assessment of the level of detail shown in the CCTV footage.

[30] The footage shows a person of a distinctive body type, and distinctive clothing and moving in an unusual and distinctive way. While specific features are not made out, matters such as hair, posture and clothing can be discerned. It is possible to see some grainy outline of the face, although not particular features. I am satisfied that it would be possible for a person who knew a person well to identify him from that footage.

[31] Both of the complainants were challenged firmly and specifically on what they could see in the video clip. Both adamantly maintained that they could perceive from the hair, posture, the method of carriage, size, build, mannerisms and clothes, a person they could recognise as Mr King. In particular the first complainant who had been in a nine year relationship with Mr King, pointed to the nature of Mr King’s hair and his bald patch, his posture, the way he walked and carried himself and his facial appearance, in particular, his big nose. There is nothing incredible in such evidence. The footage was in my view sufficiently clear for a person such as the complainants, who knew the subject well, to determine that person’s identity.

[32] I note that the Judge would have had the added benefit of having actually seen Mr King in court. Mr King indeed gave evidence before him.

Conclusion on the finding of proof of identification

[33] Had this been a jury trial the Judge would have concluded under s 45(1) that no formal procedure was required, and that it had not been shown on the balance of probabilities that the identification evidence was unreliable and should not be placed before the jury. However, this being a Judge-alone trial, the Judge was not asked to carry out this exercise and given that it was considered that no formal procedure was necessary it would have been pointless for him to do so.

[34] For the reasons given, I find that the CCTV footage was sufficiently clear, and the complainants’ knowledge of Mr King’s appearance sufficiently extensive, for their evidence of identification to be credible. They were not shown in cross- examination to be biased. Their evidence of identity was adamant and consistent. The Judge, who had the benefit also of seeing the CCTV footage and assessing it against Mr King’s appearance in court, was prepared to accept it.

[35] These factors satisfy me that there was a proper basis for Judge Field to conclude that Mr King was the person shown on the CCTV footage, and that he had therefore committed the offences.

Result

[36] The appeal is dismissed.

...................................

Asher J