Lelei v Police [2015] NZHC 2110 (2 September 2015)

Last Updated: 7 September 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2015-404-163 [2015] NZHC 2110

BETWEEN	HOPE LELEI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	31 August 2015
Counsel:	K Hamblin and G Harvey for Appellant E T Fletcher for Respondent
Judgment:	2 September 2015

_{JUDGMENT OF ANDREWS J}

This judgment was delivered by me on 2 September 2015 at 10.15 am pursuant to

Rule 11.5 of the High Court Rules

Registrar/Deputy Registrar

Solicitors:

Public Defence Service, Manukau

_{Crown Solicitor, Manukau}

LELEI v NEW ZEALAND POLICE [2015] NZHC 2110 [2 September 2015]

Introduction

[1] Ms Lelei was convicted in the Manakau District Court on 8 May 2015, following a Judge alone trial before Judge H M Simpson, on one charge of theft, relating to an incident where she and an associate are said to have taken property valued at more than $4000.¹

[2] Ms Lelei has appealed against her conviction. The appeal requires consideration of the conviction decision, and a pre-trial decision delivered by Judge G Andrée-Wiltens on 19 April 2015, to admit identity evidence.²

Relevant Facts

[3] On 23 October 2013 at about 2:30pm, two women went to the AMAX Laser Clinic. While the employees were distracted, the two women took a cell phone, a digital camera and cash. These facts are not disputed. The only issue is the identity of the women, one of whom was alleged to be Ms Lelei.

[4] After the items were taken, an employee of the clinic came out to see a car driving away and noted down the number plate. That car is registered in the name of Ms Lelei.

[5] In addition, there was CCTV footage of the clinic showing the two women. Sergeant Grant, of the Manurewa Police, showed an acquaintance of Ms Lelei, Mr Hussein, still photographs from the footage, then the CCTV footage itself. Mr Hussein was asked if he could identify either of the women. He said that one of them was Ms Lelei. When shown the still photographs, he said that he could not be certain, as the photographs were blurry. Later, after viewing the CCTV footage,

_{Mr Hussein said he was 100 per cent certain that it was Ms Lelei.}

¹ _{Police v Lelei [2015] NZDC 8560 (“the conviction decision”).}

² Police v Lelei [2015] NZDC 7005 (“the pre-trial decision”).

District Court Decisions

Pre-trial decision

[6] In the pre-trial decision, Judge Andrée-Wiltens referred to the judgments of the Court of Appeal in R v Tipene,³ and the Supreme Court in Harney v Police.⁴ The Judge accepted that Mr Hussein’s evidence was visual identification evidence⁵ and that as Mr Hussein knew Ms Lelei (as she had previously been in a relationship with the brother of Mr Hussein’s partner), there was good reason not to follow a formal

identification procedure under s 45 of the Evidence Act 2006. He further held that the evidence was highly relevant and not unduly prejudicial. He noted that, at trial, the defence would have the opportunity to challenge the reliability of Mr Hussein’s evidence.

“No case” decision

[7] The only live issue at trial was the identity of the women shown in the CCTV footage. At the end of the prosecution case, the Judge heard a submission from Ms Hamblin that there was no case to answer. This was based, in large part, on a submission that Mr Hussein’s evidence was highly prejudicial and unreliable. The grounds for that submission were that it had been disclosed in the prosecution evidence that a third party who was thought by the Police to be prejudicial to Ms Lelei had been with Mr Hussein when he was shown the still photograph, and when he was shown the video. This person did not give evidence, and did not wish to be identified. Ms Hamblin also submitted that it had been disclosed in the prosecution evidence, for the first time, that a second police officer had been with Sergeant Grant when the still photograph and CCTV were shown to Mr Hussein.

[8] The “no case” application was opposed. The prosecution submitted that Mr Hussein was a credible witness, and had recognised Ms Lelei on her mannerisms and features rather than any underlying animosity towards her. It was submitted that

_{Mr Hussein had rejected any suggestion that his identification of Ms Lelei was in}

³ _{R v Tipene (2001) 19 CRNZ 93 (CA).}

⁴ _{Harney v Police [2011] NZSC 107, [2012] 1 NZLR 7.}

⁵ As defined in s 4 of the Evidence Act 2006.

order to get back at her, and the reliability of Mr Hussein’s account was supported by the fact that Ms Lelei’s car was identified as being involved in the incident, and Sergeant Grant’s evidence that he took care that Mr Hussein was not influenced in his identification.

[9] There is no record of the Judge’s ruling, but counsel advised me at the appeal hearing that the “no case” application was dismissed without detailed reasons being given.

Conviction decision

[10] In her conviction decision, Judge Simpson accepted that Mr Hussein was a truthful witness and concluded on the basis of his evidence and the link with the number plate that Ms Lelei was one of the women. The Judge referred to the third person who was present when Mr Hussein looked at the photos and CCTV footage, and Sergeant Grant’s evidence that there was no discussion between the third person and Mr Hussein about the photos or anything to do with the enquiry. Her Honour rejected evidence given by an alibi witness who said she had been with Ms Lelei for most of the day (although Ms Lelei had left the house to pick her children up from school in the early afternoon).

[11] The following comment of the Judge is of particular note:

[7] Today in his evidence [Mr Hussein] described himself as being 100 percent certain of that identification and this is something on which I place a great deal of weight because, Mr Hussein explained that he had known Ms Lelei for about three years. He operated a shop business for some time and over a period of time Ms Lelei called into the shop with her partner 15 or 20 times, he could be precise as to the exact number. Furthermore, he knew Ms Lelei because her partner was the brother of his partner, so there was a sort of a family connection there.

[12] The appeal was filed out of time. The respondent does not oppose an extension of time being given.

Approach to Appeal

[13] Under s 232(4)(a) and (b) of the Criminal Procedure Act 2011, the High Court can only allow an appeal from a Judge alone trial if it is satisfied that the District Court Judge “erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred”, or that “a miscarriage of justice has occurred for any reason”. As s 232 makes clear, not every “error or irregularity”

causes a miscarriage of justice.⁶ The error or irregularity must lead to either of the

consequences listed in s 232(4)(a) or (b).

Appeal Issues

[14] On behalf of Mr Lelei, Ms Hamblin raised three grounds of appeal:

(a) Judge Andrée Wiltens was wrong to admit Mr Hussein’s evidence;

(b) There was a real risk that Mr Hussein’s evidence was tainted by prejudice against Ms Lelei, leading to a real risk of a miscarriage of justice having occurred; and

(c) Judge Simpson failed to direct herself properly as to identification evidence, and did not correctly apply the onus and standard of proof.

[15] I note that Ms Hamblin did not argue that the evidence of Mr Hussein was inadmissible opinion evidence under s 24 of the Evidence Act 2006.

The pre-trial decision as to the admissibility of Mr Hussein’s evidence

[16] Ms Hamblin submitted that Mr Hussein’s evidence is not visual identification evidence (rather it was opinion evidence), and even if it were identification evidence, there was no good reason to dispense with a formal procedure and the evidence is unreliable. She further submitted that Mr Hussein’s evidence was unduly prejudicial

_{and should have been excluded under s 8 of the Evidence Act.}

6. “A miscarriage is more than an inconsequential or immaterial mistake or irregularity”: Matenga v R [2009] NZSC 18 at [30].

[17] For the Police, Mr Fletcher submitted that Mr Hussein’s evidence is visual identification evidence under s 45 of the Evidence Act. He submitted that there were good reasons not to follow a formal procedure and Judge Andrée-Wiltens was correct to admit the evidence. He also submitted that the evidence was reliable, probative and not unduly prejudicial.

[18] “Visual identification evidence” is defined in s 4 of the Evidence Act as:⁷

visual identification evidence means evidence that is—

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

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

[19] Where the prosecution seeks to adduce visual identification evidence, s 45 of the Evidence Act applies. That section relevantly 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.

(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.

[...]

[20] It is now generally accepted that visual identification evidence is a form of opinion evidence.⁸ As such, it is generally not admissible except as provided in ss 24 and 25 of the Evidence Act. However, visual identification evidence is also

_{expressly provided for in s 45 of the Act.}

⁷ _{Evidence Act 2006, s 4, definition of “visual identification evidence”.}

⁸ See Hohepa v R [2015] NZCA 73 at [58]–[59]; Harney v Police, above n 4.

[21] In the present case, Mr Hussein was not identifying a person he claimed to see at the scene of the offending, he was seeking to identify a person shown in a still photograph, and in CCTV footage. It is evidence that a particular image is of a particular person. Nonetheless, evidence of this nature has been held to be visual identification evidence. In R v Royal the witnesses were police officers who knew the defendant, and who were able to identify him as the person in a video of a bank

robbery. In that case, the Court of Appeal observed:⁹

We see no reason in principle why a witness should not give evidence as to the identity of the accused based on a video recording a robbery. The weight to be given to such evidence is for the jury but if a witness is able to add his or her evidence that their evidence of identification is supported by a recognition of that person as one known to them then their identification carries greater weight.

...it can make no difference whether the recognition was when the officer happened to be an eyewitness of a crime or when he happened to see a video recording of a crime.

[22] Similar conclusions were also reached in R v Tipene which involved still photographs of the defendant.¹⁰ On the authority of these decisions, albeit that they predate the passage of the Evidence Act, I accept that Mr Hussein’s evidence is visual identification evidence, and Judge Andrée-Wiltens did not err in holding it to be so. The question is then whether it is admissible under s 45.¹¹

[23] Section 45 sets a different standard for admitting visual identification evidence in different circumstances. If a formal procedure is followed, or if there are good reasons for not following one, then in order to exclude it the defence must prove that the evidence is unreliable. Otherwise, it is for the Crown to prove beyond a reasonable doubt that it is reliable.

[24] As no formal procedure was followed in the present case, it is necessary to consider whether there was a good reason for not doing so. In Harney v Police the Supreme Court concluded that the fact that the defendant was well known to a witness may be a good reason for not conducting a formal procedure (but held that

_{the circumstances of that case did not provide a good reason as the officer had only}

⁹ _{R v Royal (1993) 10 CRNZ 1 (CA) at 2.}

¹⁰ _{R v Tipene (2001) 19 CRNZ (CA).}

¹¹ There being no submission that the evidence was inadmissible under s 24 of the Evidence Act.

seen the defendant twice).¹² The degree of familiarity is, therefore, an important factor.

[25] In the present case, Ms Lelei was previously in a relationship with the brother of Mr Hussein’s partner. He saw her several times over the course of some three years, but they had not met recently. The degree of familiarity in this case is much higher than in Harney and I am not persuaded that Judge Andrée-Wiltens was wrong to find that that it amounted to a good reason for not following a formal procedure. It was therefore for the appellant to prove on the balance of probabilities that the circumstances surrounding the evidence make it unreliable.

[26] On this point, the Judge said:¹³

... While I have some submissions as to this by Ms Hamblin, the reality is that the trial Judge will be better able to assess this after cross-examination of Mr Hussein and taking into account other evidence. The weight to be attached to that opinion is the real issue here – not whether or not he should be permitted to give such evidence. In the event, there was no evidence before me which indicated the claimed animosity or lack of familiarity between Mr Hussein and the defendant, which might have undermined reliability. I am therefore not able to exclude the proposed evidence due to Ms Lelei failing to establish, on the balance of probabilities, that the evidence is unreliable.

[27] Ms Hamblin submitted that Judge Andrée Wiltens was not aware of the third person who was with Mr Hussein when he made the identification: she submitted that that did not come to light until the trial. She submitted that, at the pre-trial hearing, there was no evidence as to how it happened that the Police contacted Mr Hussein for a possible identification.

[28] I am not persuaded that Judge Andrée Wiltens erred in finding that it was not

established that Mr Hussein’s evidence was unreliable. This ground of appeal must fail.

¹² _{Harney v Police, above n 4 at [3] and [26].}

¹³ Pre-trial decision, above n 2 at [23].

Was there a real risk of a miscarriage of justice?

[29] Secondly, Ms Hamblin submitted that two matters led to a concern that Mr Hussein’s evidence was tainted. The first was the presence of a second (unidentified) police officer when Sergeant Grant met with Mr Hussein. The fact that there was a second police officer with Sergeant Grant did not come to light until the trial. However, while it is undoubtedly the case that there should have been a record of the presence of a second police officer, I reject the proposition that the presence of that police officer leads to any concern that Mr Hussein’s evidence was tainted.

[30] Ms Hamblin’s focus was on the second matter, which was the presence of the third party when Mr Hussein was shown the still photograph and the CCTV footage. Sergeant Grant gave evidence that he contacted Mr Hussein as a result of a suggestion by a person known to have had previous interaction with Ms Lelei. The Sergeant was concerned that that person might be prejudiced against Ms Lelei, and considered that Mr Hussein would be less prejudiced. Sergeant Grant confirmed in cross-examination that the person who gave him Mr Hussein’s name was the person who accompanied Mr Hussein when he made the identification.

[31] As a preliminary point on this appeal issue, Ms Hamblin submitted that Ms Lelei’s defence was prejudiced by the failure by the Police to give proper disclosure as to, in particular, the events surrounding Mr Hussein’s identification. She then submitted that it could be concluded from the evidence given by Sergeant Grant that there was a real risk that Mr Hussein’s identification evidence was tainted by prejudice against Ms Lelei and, therefore, a real risk that the verdict was unsafe.

[32] Mr Fletcher first submitted that the issues as to disclosure were raised at trial, but not pursued further. He then submitted that both Sergeant Grant and Mr Hussein were closely cross-examined as to the possibility of animosity towards Ms Lelei, and possible influence over the identification, and that the Judge was entitled to conclude that Mr Hussein’s identification evidence was truthful and reliable.

[33] As Mr Fletcher submitted, both Sergeant Grant and Mr Hussein were cross- examined as to the identification. Sergeant Grant said that he used the Police computer system to identify people who had previous interactions with Ms Lelei. As noted earlier, one of those people led to his contacting Mr Hussein. He made a “cold call” to Mr Hussein to ask for a meeting, but did not say what he wanted to ask. When he met Mr Hussein, he showed him still photographs and asked if he knew anybody in the photographs. He said he was careful to ensure that Mr Hussein’s judgment was not coloured or influenced. He was acutely aware of the need for such care, due to the sensitivities around identification evidence.

[34] Mr Hussein said that Sergeant Grant did not tell him, when he was first contacted, what it was he wanted to talk about. When they met, the Sergeant said he wanted Mr Hussein to look at some photographs to see if he could identify anyone. In cross-examination he said that the third party did not tell him that the Sergeant was going to call him. He also said that the third party had not told him who was in the photographs and that, while both he and the third party had been shown both the still photographs and the CCTV footage, they had not talked about them.

[35] In answer to questions as to possible prejudice against Ms Lelei, Mr Hussein said:

Q. Mr Hussein, you don’t like Ms Lelei, do you?

A. Ah, it’s not that I don’t like her but, ah, and I don’t, it’s not that I, I dislike her but the situations where we met was not, ah, not a good ones. I mean the problems was not with me.

Q. Is it correct that you told Ms Lelei that she had ruined your family? A. No.

Q. Do you agree that this is not the first time you’ve been the source of

an allegation against Ms Lelei? A. No

Q. Do you agree with me that you were not that impartial person when it comes to Ms Lelei?

A. When you say impartial what do you – I mean basically mean? Q. I put it to you that you have a negative view of Ms Lelei?

A. It’s not a, a negative view of her. I mean, ah, I won’t say that, that I have a negative view of her because she hasn’t done anything to harm me and I mean if nobody has done anything to harm me I would never put a negative view on that particular person.

Q. You want the person in that picture to be Ms Lelei, don’t you?

A. Well that’s what I recognised.

[36] It would have been preferable for the third party not to have been involved at all in the process of showing the photographs to Mr Hussein, and obtaining his evidence. I accept that it would have been better procedure for Mr Hussein not to have been accompanied by the third person.

[37] However, I am not persuaded that there is a real risk that Mr Hussein’s evidence was tainted by prejudice against Ms Lelei, and that there is a risk of a miscarriage of justice having occurred. As was foreshadowed in the pre-trial decision, the defence challenge to the evidence was squarely before Judge Simpson at trial. Both Sergeant Grant and Mr Hussein were cross-examined, and both maintained their evidence under that cross-examination.

[38] I am satisfied that the Judge was entitled to conclude that Mr Hussein’s

evidence was truthful and reliable. This ground of appeal must also fail.

Did the trial Judge fail to consider directions as to identification evidence and as to the onus and standard of proof?

[39] In this regard Ms Hamblin submitted that Judge Simpson did not remind herself as to any caution to be applied to identification evidence. She submitted that it is not clear from the conviction decision that the Judge properly considered the risk of a mistaken identity, and proceeded with caution, taking the possibility of a

mistaken identification into account.¹⁴ Ms Hamblin further submitted that, having

rejected the defence evidence, the Judge failed to properly assess the Police case, and to consider whether the case was proved.

¹⁴ Counsel cited Te Heu Heu v Police [2014] NZHC 329 at [24]–[26]. I note that this case addressed a substantially different situation where no mention was made of the identity issue in the District Court.

[40] Mr Fletcher submitted that the judgment makes it clear that the Judge correctly addressed her role and applied the law correctly.

[41] Her Honour identified the issues at the outset:¹⁵

... The issue in this case is one of identification. It is necessary for the prosecution to prove the elements of the charge beyond reasonable doubt and this includes proof of identification beyond reasonable doubt.

[42] Judge went on to set out the evidence, including the presence of the third party, the circumstances of Mr Hussein’s identification, and the defence evidence. The Judge then reached conclusions as to the evidence. The judgment is succinct, clear and well reasoned. The Judge was specific about the basis on which her conclusion was reached. There can be no concern that the Judge has neglected to apply the appropriate onus and standard.

[43] This ground of appeal must therefore also fail.

Conclusion

_{[44] Time is extended for the appeal to be brought, but the appeal is dismissed.}

_{Andrews J}

¹⁵ Conviction decision, above n 1 at [1].