R v Soleymani [2014] NZHC 1406 (20 June 2014)

This judgment was delivered by Justice Duffy on 20 June 2014 at 4.00 pm, pursuant to

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Counsel: M E Goodwin, Auckland Solicitors: Meredith Connell, Auckland Copy To: G Ghahraman, Auckland

[1] On 18 May 2014 during the course of Mr Soleymani’s trial, and after a voir dire hearing taking approximately one and a half days of trial hearing time, I delivered a result ruling on the admissibility of visual identification evidence. I did so to enable the trial to proceed expeditiously.

[2] The Crown had sought to lead evidence from its witness, Mr da Silva that the man whom he met on two occasions in March 2012 and two occasions in April 2012 was the defendant, Mr Soleymani. Mr da Silva had no prior dealings with Mr Soleymani. There had been no formal procedure, as defined in s 45(3) of the Evidence Act 2006. The Crown argued that in terms of s 45(1), no formal procedure was required. The defence opposed the admission of this evidence on the ground that it did not comply with s 45. I allowed its admission. My reasons now follow.

[3] Mr Soleymani was on trial facing three counts of possession of methamphetamine for supply and one count of possession of pseudoephedrine for supply.

[4] Mr da Silva is someone who came to New Zealand from Japan on two occasions for the purpose of accepting deliveries of suitcases containing methamphetamine, extracting the drug from the suitcases, repackaging it and delivering it to a New Zealand based recipient. He was acting under the direction of a man based in the Netherlands whom the New Zealand Police (“police”) referred to as Michael O’Connor.

[5] Mr da Silva first came to New Zealand for the purpose of delivering methamphetamine in February 2012. On that occasion he made the first delivery on or about 10 March 2012 and the second delivery on or about 1 April 2012. A few days after each delivery there was another meeting at which he received a payment of $20,000.

[6] The second time that Mr da Silva came to New Zealand he was apprehended by the police in October 2012. He agreed to assist the police with their enquiries

into the importation and distribution of methamphetamine in New Zealand. He became a protected witness for the Crown. He carried out one further delivery of methamphetamine, on 15 November 2012, under police supervision. On this occasion, the methamphetamine was delivered to Mr Soleymani.

[7] After his arrest, Mr da Silva was first interviewed by the police in October

2012. He told the police about the earlier deliveries of methamphetamine in March and April 2012 and the payment of $20,000 that followed each delivery. At this interview he could not say if he had met the same man on each occasion. The meetings had occurred in daylight, but each was only one to two minutes in length. Mr da Silva said that he did not get a good look at the man whom he dealt with. Mr da Silva’s initial description was of a man between 35 to 40 years old with short hair and a darker complexion than Mr da Silva. Mr da Silva is part Brazilian, part Japanese with dark hair, brown eyes and a light olive complexion. Mr da Silva also described the man as looking Arabian, but he then said that the man looked like someone from Morocco or Turkey. Detective Scott asked Mr da Silva, “would you recognise him again?”, to which he replied, “I don’t know because like ah every Arabian is the same for me”. The only distinguishing feature that he could describe was that on the second delivery in April, the man had a cast on his lower leg and appeared to have a broken leg or injury to his foot. At a second interview on

1 November 2012, Mr da Silva remained unsure as to whether he had met with the same man on each occasion or different men. He could not add to the description that he had given at the first interview.

15 November 2012, Mr da Silva was wearing a police wire that recorded the conversation between Mr da Silva and Mr Soleymani. The recorded duration of their conversation is 11 seconds long. At the time of this meeting, Mr Soleymani was seated in his motor vehicle, which placed Mr Soleymani at about Mr da Silva’s eye level. Despite the brevity of this encounter, after leaving the scene to return to police custody, Mr da Silva volunteered to Detective Scott that Mr Soleymani was the recipient of the earlier deliveries of methamphetamine. The detective attempted to clarify this information by asking if it was the same man at each delivery and Mr da Silva confirmed that it was. She recorded this exchange in her notebook.

Later on 21 November 2012, Mr da Silva was formally interviewed by police for a third time. At this interview he confirmed that all three deliveries of methamphetamine were made to Mr Soleymani.

15 November 2012 meeting, he recognised Mr Soleymani once he looked at his face and spoke with him. Mr da Silva said he was sure that it was Mr Soleymani whom he had met on the four earlier occasions. In his evidence, Mr da Silva’s certainty varied between being “sure”, “pretty sure” and “95% sure”. Mr da Silva also said “95 and 100 per cent for me doesn’t make difference”. However, Mr da Silva accepted that for a brief moment during this 11 second encounter, he looked away from Mr Soleymani and down at the front passenger seat footwell, which is where he deposited a backpack containing methamphetamine. So the opportunity to see Mr Soleymani would have been less than 11 seconds.

[10] Mr Soleymani is Iranian, he has a darker complexion than Mr da Silva and his appearance is consistent with someone from the Middle East. On 30 March

2012, he had an operation to his right ankle, after which his leg was placed in a “back slab”, which is a cast comprised of plaster of paris and bandages. That apart, he has no distinguishing features.

[11] The Crown accepted that by the time Mr da Silva was in police custody, the police had identified Mr Soleymani as a potential suspect for the recipient of the methamphetamine. Further, at this time, the police had a photograph of Mr Soleymani available to them which could have been used in a photographic montage board, for the purpose of a formal procedure. This was the only formal procedure that was potentially available to the police at the time. In October 2012, the police investigations into this methamphetamine operation were ongoing, so it would not have been possible to arrange an identification parade without alerting Mr Soleymani to the fact that he was under police surveillance.

[12] Detective Scott asked Detective Sergeant Beal, who was the officer in charge of the investigation, whether she should prepare a photographic montage board,

which included Mr Soleymani. Detective Sergeant Beal rejected this idea. His explanation for doing so is worth setting out in full. At the voir dire, he said:

Q. And you were saying that you had a particular concern about using a photo montage with Mr Da Silva, can you just explain that?

A. There are actually several. First and foremost was it was my belief in the circumstances of this particular matter it was unfair, unreliable and unreasonable to expect an accurate identification given the duration of the meetings and the time lapse since they had occurred. The meetings were all of short duration, it had been seven or eight months before, in circumstances of a type where people were not looking to engage in a long-term or social relationship. I saw it as akin to attempting to identify from a photo board a barista at a café who had made you coffee eight or nine months prior.

Q. Do you accept that somebody you supplied drugs to might be more memorable than a barista at a café?

A. No, the nature of the transaction, in my experience I respectfully suggest, is you don’t want to know that person. In addition I think this was in good part borne out by the intercepted communications between Mr Da Silva and Mr O’Connor.

Q. The understanding I’ve gained of your last answer to the cross- examination questions, detective sergeant, is that at the time before the delivery on 15 November, so we’re talking about this period between say 21 October and 14 November when Mr Da Silva is in police custody, your belief was that the circumstances in which Mr Da Silva would have had an opportunity to view the person he met with when he delivered the methamphetamine and received the cash payments on the four – being four occasions in all, would not allow him to make a reliable identification of Mr Soleymani?

A. From a photo montage selection I did not believe it was a reasonable expectation of a reliable or fair identification to any party.

[13] The Crown contended that Mr da Silva should be permitted to give evidence identifying Mr Soleymani as the recipient of the methamphetamine for all three deliveries of methamphetamine. The Crown contended that the identification evidence could be admitted under s 45(1) and (2) of the Evidence Act.

[14] Regarding admission under s 45(1), the Crown argued that there were good reasons for not having a formal procedure. The Crown relied on the statements in Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 and R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 that the good reasons in s 45(4) for not conducting a formal procedure are not exhaustive.

[15] For the period before the 15 November 2012 meeting, the Crown relied on Detective Sergeant Beal’s evidence in the voir dire that the use of a photographic montage board, which only shows the facial features of persons, would have been too risky due to Mr da Silva’s inability to give a detailed description of the person he had met with, and his uncertainty about whether the two previous deliveries of methamphetamine had been made to the same person. Further, the ongoing nature of the investigation before 15 November 2012 ruled out the use of including Mr Soleymani in an identification parade.

[16] For the period from 15 November 2012, the Crown argued that there was good reason not to hold a formal procedure because by then there was a risk that Mr da Silva’s recognition of Mr Soleymani, when they met on 15 November 2012, would contaminate any subsequent identification from a formal procedure. In this regard, both the Crown and the defence were of the view that after the meeting on

15 November 2012, the risk of contamination was so great that there would have been no point in having any formal procedure. They referred to the existence of recent authority on this point, but neither identified this authority for me.

[17] Secondly, the Crown argued that Mr da Silva’s recognition of Mr Soleymani occurred in the context of a chance encounter that met the requirements of s 45(4)(f). The Crown had initially conceded that none of the grounds that it advanced as good reasons for not having a formal procedure fell within s 45(4). Instead, the Crown invited the Court to treat what had occurred in this case as being analogous to the type of chance encounter that is covered by s 45(4)(f). However, later in its submissions, the Crown changed its position on this topic and argued that the meeting of 15 November 2012 actually was a chance encounter in terms of s 45(4)(f), despite the meeting having been orchestrated by Mr O’Connor and having taken place under police surveillance. The Crown’s position was that, as Mr da Silva did not know the identity of the person he was to meet with on that day, from his perspective the fact it was someone that he recognised from the earlier deliveries was purely a matter of chance. So his recognising Mr Soleymani was within the scope of s 45(4)(f).

[18] The Crown contended that the evidence showed Mr Soleymani was not the sole target of the police investigation and that potentially Mr da Silva could have met someone else that day. In this regard, the Crown argued that Mr da Silva’s recognition of Mr Soleymani was similar to an undercover police officer meeting an offender for the purpose of receiving drugs and recognising the offender as someone who had attacked him a year earlier.

[19] Thirdly, the Crown contended that even if there was no good reason under s 45(4), the circumstances of the identification met the threshold requirement under s 45(2) for the admission of this evidence. Here the Crown argued that the identification of Mr Soleymani was reliable in terms of the threshold set by s 45(2). It described the identification as a subset of recognition evidence. It submitted that the most that can be said from Harney and Edmonds regarding recognition is that a fleeting glance is not enough (see Edmonds at [34], Harney at [36]), and that those cases recognise that there are an infinite variety of circumstances in which recognition can properly occur.

[20] The Crown argued that prior to the meeting on 15 November 2012, there had been four separate meetings between Mr da Silva and the man it alleged to be

Mr Soleymani. Each meeting was for one to two minutes in length and each occurred in daylight. The meetings were proximate to each other in the sense that following the delivery of methamphetamine on or about 10 March 2012, a couple of days later there was a meeting for Mr da Silva to receive a cash payment of $20,000, and the same happened following the delivery of methamphetamine on or about

1 April 2012. The Crown submitted that it was proper to infer that the interactions between Mr da Silva and the man whom he met on those four occasions involved high stress and so the senses of Mr da Silva would have been heightened. So that his recognition of this man on 15 November 2012 sprang from a sense of familiarity. Mr da Silva had also spoken with the man on each occasion. Thus, the recognition was multi-dimensional rather than just a visual identification.

[21] The Crown submitted that the general description that Mr da Silva had given of the person he met with on the earlier occasions fitted with the appearance of Mr Soleymani. Further, it submitted that Mr da Silva had been observant so, for example, with the 1 April 2012 meeting, he had noted that the person he met with on that occasion had a plaster cast on his lower leg and foot.

[22] The Crown pointed to the fact that on returning to police custody from the meeting on 15 November 2012, Mr da Silva spontaneously uttered to Detective Scott that it was the same man as before. The Crown submitted that the fact Mr da Silva had said in his two earlier police interviews (20 October 2012 and 1 November

2012) that he could not identify the person to whom he had delivered methamphetamine and that he had said that he could not be sure it was the same person on each delivery, did not preclude him from recognising Mr Soleymani when he met him on a fifth occasion. The Crown pointed to the fact that he was able to recognise that another man of Middle Eastern origin, Mr Latifi, was not the person to whom he made the drug deliveries, which showed that Mr da Silva’s comment that all Arabians looked alike to him was overly general and not accurate. Mr Latifi was responsible for providing Mr da Silva with $10,000 in cash to cover expenses while he waited in New Zealand for the meeting on 15 November 2012.

[23] The Crown said there was no pressure from the police on Mr da Silva to identify Mr Soleymani as the person he had dealt with before, and that when it came to this issue, Mr da Silva was an honest and reliable witness.

[24] The defence contended that the identification evidence did not qualify for admission under s 45(1). The defence argued that at the time the police arrested Mr da Silva, a photograph of Mr Soleymani was available to them which could have been used in a photographic montage board. In this regard, the Crown conceded that by the time Mr da Silva was arrested, Mr Soleymani was a suspect. Accordingly, the defence argued that a formal procedure should have been undertaken before the meeting on 15 November 2012.

15 November 2012 could qualify as a chance encounter under s 45(4)(f). The defence argued that s 45(4)(f) was intended to apply to an uncontaminated identification by a witness to a police officer following a random sighting of an offender on another occasion. The defence argued that the circumstances of the identification on 15 November 2012 were inherently contaminated. This was because Mr da Silva was confronted with a person whom he knew to be involved in the type of offending that was subject to the police surveillance. In addition, the delivery on 15 November 2012 was at the same location as the delivery on 1 April

2012. Therefore, Mr da Silva was predisposed to identifying Mr Soleymani as the same man as before.

[26] The defence submitted that what had occurred in the present case was similar to the circumstances in Lord v R [2011] NZCA 117 where an undercover police officer had entered a house expecting to find cannabis offending and he had in mind a particular suspect. In Lord, the Court of Appeal had found that the circumstances of the identification did not qualify under s 45(4)(f).

[27] The defence argued that s 45(4)(f) was confined to a situation where everything about the encounter was random. In terms of risk and prejudice from using the meeting on 15 November 2012 as a foundation for permitting Mr da Silva to give evidence identifying Mr Soleymani, the defence drew an analogy between

the identification that occurred on 15 November 2012 and a courtroom dock identification, arguing that, by analogy, Mr da Silva could readily think that the man he met on that occasion must be the same man that he met on the earlier occasions.

[28] The defence pointed to the meeting on 15 November 2012 as being part of a controlled operation. Whilst it accepted the randomness of the arrival of the other person as being a key ingredient, it argued that there were two problems with treating this circumstance as a chance encounter under s 45(4)(f). First, there was the likelihood of “contamination through context”, and secondly, the problem of “bias”.

[29] The defence also pointed to the late emergence of the s 45(4)(f) argument from the Crown as indicating that it was an argument of last resort.

[30] The defence described the first interview of Mr da Silva on 20 October 2012 as being a lengthy interview with detailed questioning, including questioning about whom he met with on the March and April occasions. The defence argued that because this issue was revisited in the second interview on 1 November 2012, it showed that Mr da Silva was under some pressure from the police to identify the person he had dealt with on the two earlier occasions.

[31] The defence disputed the notion that Mr da Silva’s evidence could be treated as recognition evidence that provided a good reason for dispensing with a formal procedure, given the limited opportunities that Mr da Silva had to see the person he was dealing with on any of the occasions in March and April 2012.

[32] Regarding s 45(2), the defence argued, in reliance on Edmonds, that the type of extraneous factors that could be considered when determining the reliability of an identification under s 45(1) were excluded under s 45(2) and that the sole focus was on the circumstances of the identification: [112]-[114]. The defence argued that Harney recognised the likelihood of contamination in recognition evidence when the person the witness claimed to recognise was not well known to him or her.

[33] Regarding the description Mr da Silva had given of the person he met with on the March and April occasions, the defence emphasised the reservations Mr da Silva expressed in the interviews of 20 October 2012 and 1 November 2012 about his ability to identify that person or those persons again. The defence submitted that Mr da Silva was consistently sure throughout the two interviews before

15 November 2012 that he could not identify the recipient of the deliveries in March or April 2012.

[34] The defence also contended that the circumstances of the identification were such that under s 45(2), the Crown could not establish beyond reasonable doubt that the identification was reliable. Here again the defence pointed to Mr da Silva’s uncertainty about his ability to identify the person/s he met with, as well as the absence of a description that provided distinguishing features for identification. The defence also pointed to the changes in Mr da Silva’s description of the person he met with on the earlier occasions. First he said the man was aged between 35 to 40 years old, then he later changed this to 40 to 42 years old. Mr Soleymani would have been

45 years old in 2012. Then in a later description, Mr da Silva said the man that he met with had “golden teeth”, whereas there was no evidence whether Mr Soleymani had golden teeth or not. Further, under cross-examination, Mr da Silva acknowledged that he only had a limited opportunity to observe the person/s with whom he met in March and April 2012.

[35] The defence submitted that little reliance could be placed on Mr da Silva’s voluntary utterance on 15 November 2012 that it was the same man because following that, Detective Scott then asked him a leading question by asking if it was the same man on the two prior occasions that methamphetamine was delivered. The defence argued that this form of questioning could have triggered agreement by Mr da Silva.

[36] Regarding his ability to recognise Mr Soleymani, the defence argued that the four previous occasions on which Mr da Silva potentially might have seen Mr Soleymani were not sufficient for him to have a proper basis for such recognition.

[37] The relevant provisions are s 45(1), s 45(2) and s 45(4)(f). These provide:

(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.

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

(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.

[38] The absence of a formal procedure meant the Crown was required to show a good reason for not having one. I divided the consideration of this subject into two timeframes. The first covered the period before Mr da Silva met with Mr Soleymani on 15 November 2012; and the second covered what transpired after that meeting.

[39] Regarding the first timeframe, my view was that there was nothing to indicate to the police that Mr da Silva could identify Mr Soleymani as the person to whom the earlier deliveries of methamphetamine were made. First, the earlier descriptions that he had given to the police were too general and imprecise. He had described a short-haired man who looked to be of Middle Eastern origin and in his mid-thirties

to forties. This description could be applied to many persons living in Auckland, so there was little to connect it to Mr Soleymani. There was the additional description that related to the recipient of the April 2012 delivery having a cast on his leg, but there was no evidence to suggest that at the relevant time the police knew that Mr Soleymani fitted this description.

[40] Secondly, the evidence showed that: (a) in the lead-up to the controlled operation on 15 November 2012, the police knew of the two earlier deliveries; (b) they wanted to see if Mr da Silva could identify anyone; but (c) they accepted his uncertainty on this topic. Their attention was focussed on arresting whoever received the methamphetamine on 15 November 2012. So, when Mr da Silva first advised Detective Scott that Mr Soleymani was the man who had received the two earlier deliveries, this identification was unexpected.

[41] Thirdly, I accepted Detective Sergeant Beal’s evidence that in the intervening period between Mr da Silva’s arrest and the delivery on 15 November 2012, the absence of anything from Mr da Silva to connect Mr Soleymani with the earlier deliveries of methamphetamine made it unfair and unreasonable to hold a formal procedure using a photographic montage board. Faced with a photographic montage board showing the faces of eight men of Middle Eastern origin aged between their mid-thirties and mid-forties, one of whom was Mr Soleymani, there was a one in eight chance that Mr da Silva would have picked him out simply by chance. Such an occurrence could not reasonably be excluded. So, until the identification on

15 November 2012, there was nothing to warrant the police holding a formal procedure that involved Mr Soleymani. Indeed, everything pointed against it.

[42] I was satisfied, therefore, that the police had good reason not to hold a formal procedure in the period between Mr da Silva’s arrest and before the controlled operation on 15 November 2012.

[43] Regarding the second timeframe, the potential good reasons for not following a formal procedure were: (a) by the time the Police realised that Mr da Silva could identify Mr Soleymani as the recipient of the earlier deliveries of methamphetamine, it was too late for any formal procedure as there was then the risk that Mr da Silva’s

recognition of Mr Soleymani would have contaminated any formal procedure that followed the last delivery of methamphetamine; and (b) the identification evidence came within s 45(4)(f).

[44] As to the first good reason, in Harney, the Supreme Court recognised that s 45(4) does not provide an exhaustive list of “good reasons” for not following a formal procedure: [25]. The key test established in Harney was whether a formal procedure would have no utility in the circumstances: [27]-[28].

[45] The discussion in Edmonds at [65]-[74] provides helpful guidance on when a witness’ prior acquaintanceship with a defendant will provide good reason for dispensing with a formal procedure. In this case, the prior acquaintanceship was not well developed. Nonetheless, given Mr da Silva’s expressed belief that Mr Soleymani had received all three deliveries of methamphetamine, any positive identification of Mr Soleymani from a formal procedure that followed the last delivery was likely to establish no more than Mr da Silva’s ability to identify the man who received the methamphetamine on that last occasion. Therefore, I was satisfied that a formal procedure would have had no utility in helping Mr da Silva identify the person that he dealt with on the prior occasions. I note that the Crown and defence counsel were of this view as well.

[46] I acknowledge that the Court of Appeal has consistently stated that the Court must exercise caution before extending the list of “good reasons”. In Lord v R, Randerson J said:

[28] Section 45(4) identifies, in defined ways, circumstances which will constitute good reason for not following the formal procedure. We reiterate the view expressed in Tararo that the courts should be cautious in identifying other categories of cases which may constitute “good reason”. The reasons for a cautious approach are obvious. If the types of cases which may provide good reason are opened too widely, the remedial purpose of the formal procedure under s 45(3) will be undermined.

Further, in Tararo v R [2010] NZCA 287, [2012] 1 NZLR 145, the Court of Appeal expressed the same sentiments. At [82], the Court declined to extend the list of good reasons stating that:

While this Court has held that the s 45(4) list is not necessarily closed, the Court should be cautious about extending it, especially when s 45(2) allows an alternative method of rendering identification evidence admissible in circumstances where its reliability is assured. And if the list is to be added to, it seems to us that the extension should be for a generic situation rather than for a situation described by the facts of a particular case; ...

[47] Whilst the individual circumstances may be peculiar to the present case, the principle employed is generic: namely, if there is an accepted or established risk of contamination from an eye witness recognising the defendant from a later encounter with him (that is subsequent to the offence but before the identification), this may be a good reason for not holding a formal procedure.

[48] The principle applied here shares common features with the “chance encounter” good reason in s 45(4)(f). Both reflect a recognition that forces of circumstance have removed from the police the opportunity to hold a formal procedure as well as the utility of doing so. For in both cases if a formal procedure were to be held there would be no way of knowing if any resulting identification was due to the witness recognising the offender, or merely recognising the person who was present at the later encounter with the witness. Secondly, whether or not the eye witness had a good opportunity to view the defendant will not detract from the circumstances providing a good reason for not holding a formal procedure. Instead, such assessments of the quality of the evidence are to be made later when the reliability of the identification comes into consideration.

[49] The next question was whether the defence had persuaded me on the balance of probabilities that the identification was unreliable. I was satisfied that the defence could not so persuade me.

[50] I acknowledge that Mr da Silva’s recognition of Mr Soleymani as the person

he dealt with on all occasions was not strongly based. The four previous meetings

(two to deliver methamphetamine and two to receive cash payments for those deliveries) were brief and did not offer a good opportunity to view Mr Soleymani. Nonetheless, after four such meetings, I think that someone could probably recognise the person with whom he had previous dealings. The sense of familiarity that Mr da Silva described himself having when he met Mr Soleymani on 15 November

[51] On the other hand, the defence was correct to say that once Mr da Silva knew he would be making a third methamphetamine delivery, albeit under police supervision, at the same place as before, this knowledge could have contaminated the impression of familiarity that he expressed after he met Mr Soleymani that day.

[52] Thus, if the identification evidence were entirely reliant on Mr da Silva’s recognition of Mr Soleymani, I would have been satisfied on the balance of probabilities that it was unreliable and should not be admitted. In addition, although it did not form part of the defence argument at the time of the voir dire, it later came to light in the trial (after I had allowed the admission of the identification evidence) that shortly before the 15 November 2012 meeting, Mr O’Connor told Mr da Silva that he would be meeting the same man as before. It would be wrong not to mention the potentially contaminating impact of this additional knowledge.

[53] However, when determining the reliability of the identification evidence under s 45(1), a court can take into account evidence that goes beyond the circumstances of the identification: Harney at [32]:

In carrying out an assessment under subs (1) the judge is able to take into account not only the circumstances in which the identification was made (the Turnbull-type factors) but also any other evidence in the case which supports or raises concerns about the accuracy of the identification.

In the present case, there was a mix of strong circumstantial evidence and direct evidence to prove that the identification evidence was reliable.

[54] Exhibit 7 showed a series of telephone calls between Mr da Silva and two cellphone numbers. Cellphone number 64221709562 had telephoned Mr da Silva five times between 10 March 2012 and 11 March 2012, as well as receiving one

telephone call from Mr da Silva’s cellphone number on 11 March 2012. Cellphone number 64221845872 had telephoned Mr da Silva seven times between 1 April 2012 and 7 April 2012, as well as receiving three telephone calls from Mr da Silva. These timeframes coincided with the dates of each delivery of methamphetamine and each follow-up meeting where payments of $20,000 were handed to Mr da Silva. He had given evidence that the purpose of the telephone calls was to arrange those meetings. There was strong circumstantial evidence to link Mr Soleymani to being the person who made those telephone calls.

64221709562 were set out in exhibit 23 and defence exhibit A. Defence exhibit A was produced by the defence in the course of the cross-examination of Detective Sergeant Beal, before the voir dire hearing. Exhibit A was a fuller version of exhibit 23. Exhibit 23 showed text messages that were sent from cellphone number 64221709562, whereas exhibit A showed the same with the addition of text messages that were sent to that cellphone. The Crown relied on five common misspellings in the text messages sent from exhibit 6A and from exhibit 23, and an idiosyncratic sign-off that was common in the text messages from both cellphones to support the inference that Mr Soleymani was the author of the text messages from both cellphones. A comparative table is attached to this decision as table “A”.

[56] As mentioned before, exhibit A showed the text messages that were both sent and received by cellphone 64221709562. Exhibit A showed the dates of the outgoing and incoming text messages from cellphone 64221709562 in an American form so that the month preceded the day. On a date noted as 3/5/2012, but which is

5 March 2012, four text messages were sent to phone 64221709562 by a third party using cellphone 64221346819. Exhibit 6A showed that on 8 March 2012, Mr Soleymani sent two text messages to 64221346819 from the cellphone that he admitted was his. Then on 15 April 2012, Mr Soleymani sent another text message

to 64221346819 from his cellphone. He did the same on 23 April 2012, when he sent two text messages to 64221346819 and again on 2 May 2012, when he sent a further text message. So the evidence showed that a third party using cellphone

64221346819 received a number of text messages from the cellphone used by Mr Soleymani, and cellphone number 64221346819 sent text messages to the cellphone number that was used to contact Mr da Silva. This level of contact supported the inference that the unknown third party was in contact with the same person on two different cellphone numbers and that this person was Mr Soleymani. It also supported the inference that Mr Soleymani was the person in contact with Mr da Silva in March 2012. Full details of the exchanges between the users of cellphone numbers 64221346819, 64221709562, and the cellphone in exhibit 6A are set out in table “B” attached to this decision.

[57] Exhibit 22 showed that on 30 March 2012, Mr Soleymani had a second or subsequent operation on his right ankle. On 31 March 2012, the user of cellphone number 64221709562 (exhibit A), which was the cellphone number that contacted Mr da Silva to arrange the March delivery of methamphetamine, received a text message from cellphone number 64220530386 asking “how did ur operation go”. On 11 April 2012, the same cellphone sent a text message to the user of cellphone

64221709562 (exhibit A) saying “hope ur recovering after havin ur op on ur leg again”: see table “C” attached to this decision. That the user of the cellphone

64221709562 (exhibit A) should have a further operation on his leg at the same time that Mr Soleymani had a further operation on his right ankle was more than coincidental. This evidence also supported the inference that Mr Soleymani was the user of cellphone 64221709562 (exhibit A).

[58] The total effect of the above circumstantial evidence pointed to Mr Soleymani being involved with the March 2012 meeting with Mr da Silva. The number of connections was such that they could not all be the result of coincidence. This evidence supported the reliability of Mr da Silva’s identification of Mr Soleymani’s presence at the first delivery of methamphetamine.

[59] There was additional circumstantial evidence that pointed to Mr Soleymani being the recipient of the second delivery of methamphetamine. First, there was Mr da Silva’s description of the recipient of this delivery having his leg in a cast, which coincided with the time when Mr Soleymani had his leg in a cast. Mr da Silva said it was the left leg when Mr Soleymani had his right leg in a cast, so to this extent, the description did not match.

[60] Secondly, exhibit 7 showed that a different cellphone was used to contact Mr da Silva to arrange the meeting on 1 April 2012 and the subsequent meeting for the payment of $20,000. This cellphone used the number 64221845872. Text messages sent from this cellphone (shown in exhibit 24/exhibit B) revealed three uses of the same idiosyncratic misspelling as occurred in text messages from the cellphone that Mr Soleymani accepted was his (exhibit 6A), as well as the cellphone in exhibit 23/exhibit A. A further misspelling shown in exhibit 6A also appeared in exhibit 24/exhibit B. The same sign-off was used in the text messages from the cellphone in exhibit 24/exhibit B as was used in text messages from the cellphones in exhibit 6A and in exhibit 23/exhibit A. The common features of the misspellings in the text messages from the three cellphones pointed to Mr Soleymani being their user. Full details of these misspellings are set out in table “A” attached to this decision.

[61] Finally, the user of the cellphone 64221845872 (exhibit 24/exhibit B) had called a telephone number in Iran. The same Iranian telephone number had been called by a Telecom calling card found in Mr Soleymani’s possession.

[62] The totality of the circumstantial evidence relevant to the second delivery of methamphetamine connected Mr Soleymani to being the person who arranged to

meet, and who met with Mr da Silva on that occasion. The strength of the connections was such that I considered they could not be put down to coincidence.

[63] I concluded, for the reasons set out above, that the overall strength of the circumstantial evidence relating to counts one and two made Mr da Silva’s identification of Mr Soleymani for those counts reliable. It followed that the defence could not show under s 45(1) that on the balance of probabilities, the identification evidence was unreliable. It followed that this evidence was admitted under s 45(1).

[64] Some comment is necessary on the background to how the admission of the visual identification evidence came to be considered. The admission of this was determined at a voir dire because until a few days before the trial commenced, the defence was unaware of the later police interviews (after the meeting on

15 November 2012) in which Mr da Silva, said that he recognised Mr Soleymani as the recipient of all the deliveries of methamphetamine. This was the Crown’s basis for leading identification evidence from Mr da Silva. In his earlier police interviews, which were disclosed in good time to the defence, Mr da Silva was reported as being unsure of the identity of the recipient/s of the methamphetamine deliveries in March and April 2012. Thus, the Crown’s intention to have Mr da Silva identify Mr Soleymani as the person that he dealt with on the earlier deliveries for counts one and two would have come as something of a surprise to the defence.

[65] Both counsel accepted that the issues raised in the voir dire would have been better dealt with by a pre-trial application under s 344A of the Crimes Act 1961. However, the late notice to the defence made this approach impossible. The unexpected need for the voir dire hearing meant that everyone had less time than they needed to deal with the issue that was raised. This had an impact that was not apparent to me until the time for delivering reasons for the ruling.

[66] At the voir dire, the Crown argued that the fact that Mr da Silva encountered Mr Soleymani on 15 November 2012 was, from Mr da Silva’s perspective, a matter of chance and something that was not known to Mr da Silva beforehand. The defence argued that this was not the type of chance encounter that s 45(4)(f) was intended to cover. But the defence did not dispute the Crown’s suggestion that Mr da Silva had no knowledge beforehand of the identity of the person he was to meet that day.

[67] When it came to reliance on s 45(4)(f) as a good reason for not holding a formal procedure, developments later in the trial removed the factual basis for me finding that the identification also came within this good reason. When the Crown came to address the jury, which was almost two weeks after the voir dire, the Crown drew the jury’s attention to a transcript of an intercepted communication between Mr da Silva and Mr O’Connor shown in exhibit 2, “Intercepted Communications Booklet”. In that discussion, Mr O’Connor told Mr da Silva he would be meeting with the same person at the same place as before. This was said almost immediately after Mr O’Connor had spoken by telephone with someone using a Telecom calling card that was found on Mr Soleymani when he was arrested. Further, the police surveillance had noted Mr Soleymani calling from the telephone booth from which a call was made to Mr O’Connor at the time this calling card was used. This circumstantial evidence pointed to Mr Soleymani being in contact with Mr O’Connor very shortly before Mr O’Connor spoke with Mr da Silva. The Crown told the jury that it could infer from this chain of events that when Mr O’Connor told Mr da Silva he was to deliver the methamphetamine to the same place as last time and to the same man as before, Mr O’Connor must have known this fact from speaking with Mr Soleymani. It followed that Mr Soleymani was the person who met with Mr da Silva on the earlier occasions. There is nothing wrong with the Crown’s reasoning here, but it does undercut the position that the Crown took at the voir dire that Mr da Silva had no idea who would be there to meet him on

15 November 2012 and that the meeting was, therefore, a chance encounter. The haste with which counsel had to deal with the challenge to the admission of the identification evidence has led to this outcome.

[68] At the time I delivered the result ruling, I considered that the identification evidence would fit within s 45(4)(f). I accepted the Crown’s argument that provided Mr da Silva had no prior knowledge (from his perspective) of the identity of the person he was to meet on 15 November 2012, that meeting would qualify as a chance encounter for the purpose of identifying the recipient of the earlier deliveries. However, the reference in the Crown’s closing address to the jury to evidence showing that Mr da Silva had such prior knowledge changed this factual position. Accordingly, I consider that it is no longer open to me to rely on s 45(4)(f) as an alternative good reason for admission of the identification evidence.

[69] Section 45(2) was only relevant if I was wrong regarding the admission of the identification evidence under s 45(1). The Crown argued that the identification evidence could be admitted under this provision as well. The defence argued against this. For completeness, I have considered their arguments. I was satisfied that the identification evidence would not qualify for admission under s 45(2).

[70] The basis for admitting identification evidence under s 45(2) is narrower than under s 45(1). The Crown must satisfy the Court beyond reasonable doubt that the identification evidence is reliable. Thus, the bar for assessing reliability is raised higher and it rests on the prosecution. Further, the circumstances that the Court can consider when making that assessment are narrower than is the case under s 45(1). Section 45(2) requires the Court to confine its assessment to the circumstances of the identification: see Harney at [32] and Edmonds at [112]-[113].

[71] The evidence of Detective Sergeant Beal showed that there were few opportunities for Mr da Silva to have a good look at the person he met with on the first two deliveries of methamphetamine. Further, the period of time between the sighting (March/April 2012) and the identification (November 2012) made the identification less reliable. Then there was Detective Sergeant Beal’s evidence that persons who carry out deliveries of illicit substances usually do not want to become known to each other.

[72] Before the meeting on 15 November 2012, Mr da Silva was of the view that he could not identify the person or persons he had met with earlier. He could not describe any distinguishing features regarding the person he had met on the first occasion, though the general description that he gave did fit with Mr Soleymani’s appearance. Regarding the second occasion, Mr da Silva described a man having a general appearance like Mr Soleymani’s and with a cast on his left leg. This was at the same time that Mr Soleymani had a cast on his right leg. This suggested that the man Mr da Silva met on the second delivery was Mr Soleymani. However, the mistake as to which leg the cast was on undermined the reliability of what might otherwise have been a good description of a distinguishing feature. So whilst this description left me suspecting that Mr da Silva had reliably identified Mr Soleymani as the recipient of the second delivery of methamphetamine, I could not be sure of that.

[73] There remained Mr da Silva’s recognition of Mr Soleymani after the last delivery on 15 November 2012. As mentioned earlier, by then Mr da Silva said he had five opportunities to view Mr Soleymani. After five encounters, even if brief, I would expect Mr da Silva to have some reliable sense of familiarity of meeting someone that he had met before. On the other hand, there was the possibility of contamination, as the defence pointed out. Mr da Silva may have been in the position of an honest but mistaken witness who had wrongly assumed that the Middle Eastern man he met on the last delivery was the same man of Middle Eastern appearance that he met on the two earlier deliveries. I thought that it was highly probable that the identification evidence was reliable, but I could not be sure that it was. The possibility of contamination from the last meeting was something that I could not exclude, and it was enough to leave me with an honest and reasonable doubt about the reliability of the identification.

[74] It followed that under the more restricted test imposed by s 45(2), the identification evidence of Mr da Silva would not be admitted.

Common spelling errors in texts sent from Mr Soleymani’s phone (exhibit 6A) and texts sent from phone 64221709562 (exhibit 23 and exhibit

Phone Number / Evidence	Phone Number / Evidence	Phone Number / Evidence	Spelling Mistake
6421635363 Exhibit 6A	221709562 Exhibit 23 and Exhibit A		“bake” for back
6421635363 Exhibit 6A	221709562 Exhibit 23 and Exhibit A	221845872 Exhibit 24 and Exhibit B	“buzy” for busy
6421635363 Exhibit 6A	221709562 Exhibit 23 and Exhibit A	221845872 Exhibit 24 and Exhibit B	“puik” for pick
6421635363 Exhibit 6A	221709562 Exhibit 23 and Exhibit A	221845872 Exhibit 24 and Exhibit B	“piuk” for pick
6421635363 Exhibit 6A		221845872 Exhibit 24 and Exhibit B	“mints” for minute
6421635363 Exhibit 6A	221709562 Exhibit 23 and Exhibit A		“whit” for with
Exhibit 6A	221709562 Exhibit 23 and Exhibit A	221845872 Exhibit 24 and Exhibit B	“Th u” for thank you (used as sign-off at end of text)

User of phone 64221346819 receives text messages from Mr Soleymani’s phone (exhibit 6A) and sends text messages to the phone used by the person who telephoned Mr da Silva in early March 2012 (see exhibit 7):

Evidence	Phone Sender	Phone Receiver	Content
Exhibit A Exhibit 23	64221346819	64221709562	Four text messages on 5 March 2012
Exhibit 6A	0216353633 Mr Soleymani	64221346819	Two text messages on 8 March 2012
Exhibit 7	64221709562 (Exhibit 23 and Exhibit A)	64210609942 Mr da Silva	Five telephone calls between 10 - 11 March 2012
Exhibit 7	64210609942 Mr da Silva	64221709562 (Exhibit 23 and Exhibit A)	One telephone call on 11 March 2012
Exhibit 6A	021635363 Mr Soleymani	64221346819	Text message on 15 April 2012
Exhibit 6A	021635363 Mr Soleymani	64221346819	Two text messages on 23 April 2012
Exhibit 6A	021635363 Mr Soleymani	64221346819	Text message on 2 May 2012

Mr Soleymani has second or subsequent operation on his ankle around the time the user of telephone 64221709562 is asked about a subsequent operation on his or her leg:

Evidence	Content
Exhibit 22	30 March 2012: Mr Soleymani has second or subsequent operation on his right ankle.
Exhibit A 64221709562	31 March 2012: User of telephone 64221709562 received text from 64220530386 asking “how did ur operation go”.
Exhibit A 64221709562	11 April 2012: User of telephone 64221709562 received text from 64220530386 saying “hope ur recovering after havin ur op on ur leg again”.

Hearing:	5-6, 8 and 13-16 May 2014
Counsel:	S L McColgan for the Crown M E Goodwin and G Ghahraman for the Defendant
_Judgment:	_{20 June 2014}

High Court of New Zealand Decisions

R v Soleymani [2014] NZHC 1406 (20 June 2014)