R v Winders [2016] NZHC 1147 (31 May 2016)

Last Updated: 3 August 2019

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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI-2015-043-001723 [2016] NZHC 1147

THE QUEEN

v

QUINTON PAUL WINDERS

Hearing:	9 - 12 May 2016
Counsel:	A Gordon and C Macklin for the Crown J Temm and K Patterson for the Defendant
Results:	20 May 2016
Reasons:	31 May 2016

REASONS JUDGMENT OF TOOGOOD J

[Pre-trial applications about propensity evidence, eye-witness identification and admissibility of defendant's statement to Police]

This judgment was delivered by me on 31 May 2015 at 1:30 pm Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

R v Winders [2016] NZHC 1147 [31 May 2016]

Table of Contents	Paragraph Number
Introduction	[1]
Summary of the evidence and the Crown’s assertions of the essential facts	[7]
Brief summary of the Crown’s allegations	[8]
Evidence relied upon to prove the identity of the offender	[12]
Challenge to admissibility of alleged propensity evidence	[13]
The Ford pig hunting incident in January 2009	[20]
The Gleeson possum shooting incident prior to April 2009	[25]
The first Kuriger incident (spotlighting) in April 2011	[29]
The second Kuriger incident (April 2012)	[31]
The Jane/Law goat poaching incident in August/September 2012	[32]
Submissions on behalf of Mr Winders	[37]
Discussion and conclusions	[39]
Risk of prejudice	[53]
Decision on propensity evidence	[56]
Challenge to admissibility of evidence of visual identification of the defendant by Ms Corina Walker	[58]
Challenge on grounds no formal identification procedure followed	[61]
When was it feasible to follow the formal procedure?	[64]
Has the Crown proved beyond reasonable doubt that Ms Walker’s identification is reliable?	[73]
Discussion and conclusions	[79]
Decision on visual identification evidence	[92]
Challenge to admissibility of the video recording and transcript of a Police interview of the defendant on 4 April 2013	[93]
The Crown’s case for admissibility	[96]
Discussion – no proper grounds for arrest for reckless driving	[99]
Table of Contents	Paragraph Number
Detention for ulterior purpose unlawful even if arrest justifiable	[110]
Alternative claim of unlawfulness – failure to inform of right to legal advice	[112]
Unfair questioning	[122]
No causal link between the unlawful detention and the evidence obtained in the interview	[125]
Balancing test under s 30(2) Evidence Act	[131]
Decision on admissibility of evidence obtained in Police interview	[137]
Non-publication order	[138]

Introduction

[1] Quinton Paul Winders is charged that on 19 March 2013, at Atiamuri, he murdered George Taiaroa.

[2] Following notification that challenges would be made by the defendant to certain evidence which the Crown proposes to lead at trial, the Crown Solicitor made three applications under s 101 of the Criminal Procedure Act 2011 for orders ruling that the challenged evidence is admissible.

[3] The evidence falls into three categories:

(a) evidence of alleged prior conduct by the defendant which the Crown argues is admissible as propensity evidence under s 43 of the Evidence Act 2006 (the Act);

(b) evidence of visual identification of the defendant by Ms Corina Walker, as the driver of a car alleged to be speeding away from the scene of the murder on 19 March 2013, which the Crown submits is admissible under s 45 of the Act; and

(c) the video recording and transcript of a Police interview of the defendant on 4 April 2013 which the Crown says is admissible under s 27(1) of the Act and which should not be excluded under ss 28, 29, or 30 of the Act.

[4] I heard evidence from some of the relevant witnesses, who were cross- examined, and received other evidence by consent, including relevant exhibits. I also received helpful written and oral submissions for counsel for both Crown and defence.

[5] On 20 May 2016, I issued a results judgment¹ in which I made the following rulings:

¹ R v Winders [2016] NZHC 1056.

Propensity evidence

[6] I rule that the proposed evidence about:

(a) the Ford pig hunting incident in January 2009;

(b) the Gleeson possum shooting incident prior to April 2009;

(c) the first Kuriger incident (spotlighting) in April 2011; and

(d) the second Kuriger incident in April 2012, is admissible as propensity evidence in the trial.
[7] I rule that the proposed evidence about the Jane/Law goat poaching incident is not admissible as propensity evidence in the trial.

Visual identification evidence

[8] I rule that the proposed evidence of Ms Corina Walker, and the proposed evidence of other witnesses about her identification of Mr Winders in a photo montage, is admissible evidence in the trial.

Evidence about Police interview of Mr Winders on 4 April 2013

[9] I rule that the proposed evidence about a Police interview of Mr Winders on 4 April 2013, including the video recording and the transcript of it, is admissible evidence in the trial.

[6] These are my reasons for those rulings.

Summary of the evidence and the Crown’s assertions of the essential facts

[7] The summary below of the Crown’s allegations of the essential facts and the evidence upon which the Crown intends to rely to prove its case is taken from: the prosecution summary of facts and a summary of the Crown case provided at the hearing by the Crown Solicitor; witness statements specifically referred to by counsel in the course of the hearing on pre-trial matters; and the evidence given and produced at the pre-trial hearing on 9 – 12 May 2016. I was provided with folders containing 148 witness statements but, while they have been available for my consideration, counsel did not suggest that it would be necessary for me to read them all in coming to my decisions on the pre-trial applications addressed in this judgment.

Brief summary of the Crown’s allegations

[8] It is alleged Mr Winders killed Mr Taiaroa by shooting him in the head with a
.22 calibre rifle, at close range, while Mr Taiaroa was manning the “Stop/Go” sign at one end of a single lane bridge being used as a detour during the construction of the Atiamuri Bridge on State Highway 1 between Taupo and Tokoroa.

[9] The Crown alleges that the catalyst for the murder was a chance encounter between Mr Winders and Mr Taiaroa during a minor traffic incident which occurred a week earlier, on 12 March 2013, at a nearby location. It is common ground that Mr Winders was a passenger in his father’s vehicle when it approached Mr Taiaroa while he was working at road works on State Highway 1 near the Atiamuri Bridge construction site. It is said that Mr Winders’s father failed to see the “Stop” sign being displayed by the victim and overran the spot where he should have halted. As he reversed the vehicle, Mr Winders’s father backed the trailer he was towing into the vehicle immediately behind. Mr Winders seems to have laid blame on the victim for this minor incident. The owner of the damaged vehicle, a Mr Lane, was uninsured. The Crown’s assertion is that Mr Lane made many attempts over the next few days to get confirmation from Mr Winders’s father that an insurance claim had been made but he was fobbed off. An insurance claim was made on 22 March 2013, however, and Mr Lane was given the claim number. The cost of the repairs to Mr Lane’s vehicle was $989.58.

[10] The Crown alleges that this matter consumed the attention of Mr Winders for a week before he travelled to Stratford to collect his blue Jeep Cherokee, which was being repaired. He purchased $132 worth of fuel, and then drove directly to the scene of the homicide, some 275 kilometres away, where the victim was standing at a one- lane bridge at a different, but nearby, location to the one where the traffic incident occurred on 12 March. Mr Winders is said to have shot Mr Taiaroa as he leaned through the passenger’s window of Mr Winders’s vehicle.

[11] It is alleged that Mr Winders then drove from the scene at speed, using forestry roads instead of major routes, to get to an associate’s farm block on the outskirts of Benneydale. He then returned to his home near Stratford under the cover of darkness.

Evidence relied upon to prove the identity of the offender

[12] For Mr Winders, Mr Temm stresses that the sole issue at trial will be whether the Crown can prove beyond reasonable doubt that Mr Winders was the offender. As to that, and to put the challenged evidence into context, I summarise the evidence on which the Crown relies to prove the identity of Mr Winders as the offender:

(a) The blue Jeep Cherokee used by the offender in the commission of the offence was seen by witnesses as it headed towards the scene, at the immediate scene, and as it sped away from it.

(b) Descriptions of the offender’s vehicle by eye witnesses match the description of Mr Winders’s vehicle.

(c) At a relevant time prior to the time of the offence, Mr Winders’s blue Jeep Cherokee was positively sighted in Taumarunui heading towards the scene, in the opposite direction to that in which Mr Winders told Police he had gone when he left the town.

(d) The timing of the sightings of Mr Winders departing Taumarunui in his vehicle correlate with the time it would take for him to travel to the murder scene and arrive at the time the offence was committed.

(e) On 11 April 2013, a witness made a positive identification of Mr Winders as the driver of a blue Jeep Cherokee driving south at speed at a location and in a direction consistent with his having come from the scene of the offending, at a relevant time after the offence was committed on 19 March 2013. The witness, Ms Corina Walker, gave evidence at the hearing. She said she thought that the driver of the vehicle was driving dangerously because he had driven right up behind her vehicle; that she had a good look at his face as his car passed hers; and that she subsequently identified Mr Winders as being the driver of that vehicle from a photo montage she was shown. The admissibility
of this evidence is the subject of one of the applications determined in this judgment.

(f) After the time of the offence, Mr Winders is said to have removed several identifiable items from his vehicle; including the tow bar assembly, JEEP badge on the bonnet and spare wheel. A red reflector was also placed onto the rear of the vehicle. The tow bar assembly was located near railway lines within sight of Mr Winders’s previous rural address, along with other items of property which Mr Winders admitted he owned.

(g) When spoken to, Mr Winders told Police the tow bar had previously been stolen from his address some five years previously. The Police investigation, however, has produced CCTV footage taken on the day of the victim’s death which shows Mr Winders’s vehicle with a tow bar fitted. It is said that the tow bar located near Mr Winders’s address has been linked by forensic examination to Mr Winders’s vehicle.

(h) The Crown submits Mr Winders’s actions in altering the appearance of his vehicle after the day of the victim’s death were deliberate acts to avoid his vehicle being identified as the vehicle used in the offending.

(i) It may be assumed that, as the victim was shot while leaning into or near the offender’s vehicle, there would have been blood and human tissue on the vehicle. Mr Winders’s vehicle was located at his parents’ rural Rotorua address on 4 April 2013. The Police say that, upon examination, it appeared that Mr Winders’s vehicle had been extensively cleaned, as well as having had its appearance changed as described.

(j) It is said there is evidence that, after the day of the homicide, Mr Winders told an associate that he was not driving his blue Jeep Cherokee at the relevant time as it had a flat battery. CCTV footage is said to prove this to be untrue. It is also said that, speaking to this
associate on another occasion, Mr Winders stated that he had panicked and driven back to Taranaki when he heard on the radio that the Police were searching for a blue Jeep Cherokee and a .22 rifle. The Police say this information was never released to the media on the day of the murder, and the nature of the weapon the Police allege was used in the murder has never been made public.

(k) Further, the Crown relies on the fact that Mr Winders has previously owned two .22 calibre rifles which he told Police, during the investigation, had been stolen. However, he never reported the thefts to Police. The serial numbers of Mr Winders’s rifles were recorded during a firearms vetting procedure in 2008. Forensic testing of bullets fired from firearms within five serial numbers of Mr Winders’s rifle determined that the bullets were of the identical sub-class to that of the bullet fragments retrieved from the victim’s skull. Other tests of bullets fired from rifles of the same model, having serial numbers many digits apart from Mr Winders’s allegedly stolen rifle, showed they had the same class characteristics of the retrieved bullet fragments but different sub-class characteristics. The Crown says that when combined with other evidence obtained during the investigation, the ballistics evidence points strongly to Mr Winders as the offender, having used his .22 rifle to shoot the victim in the head.

Challenge to admissibility of alleged propensity evidence

[13] The Crown seeks to adduce, as propensity evidence, evidence of alleged past conduct by Mr Winders which, the Crown says, demonstrates that he has a tendency to overreact by the use of firearms in response to relatively innocuous events in which he is involved.

[14] Propensity evidence is defined in s 40(1) of the Evidence Act as follows:

40 Propensity rule

(1) In this section and sections 41 to 43, propensity evidence —

• (a) means evidence that tends to show a person's propensity to act in a particular way or to have a particular state of mind, being evidence of acts, omissions, events, or circumstances with which a person is alleged to have been involved; but

(b) does not include evidence of an act or omission that is—

(i) 1 of the elements of the offence for which the person is being tried; or

(ii) the cause of action in the proceeding in question.

[15] Section 40(1)(a) defines propensity evidence in terms of a tendency to act in a “particular” way or to have a “particular” state of mind. The Supreme Court held in Mahomed v R that the propensity must have some specificity about it which, in order to be probative, must be able to be linked in some way with the conduct or mental state alleged to constitute the offence for which the person is being tried.²

[16] In the present case, Mr Temm submitted that, because the single issue at trial will be the identity of the offender, the Crown should not be permitted to adduce the claimed propensity evidence to prove that the shooting of Mr Taiaroa was not accidental and that the offender had a murderous intent. Mr Temm said that, if necessary, Mr Winders would file a formal admission at trial under s 9 of the Act, which I understood would be to the effect that the Crown had proved beyond reasonable doubt that the shooting of Mr Taiaroa on 19 March 2013 was an intentional act which killed him and that the offender meant to cause Mr Taiaroa’s death.³ I accept that, in that event, it would be irrelevant and therefore unduly prejudicial for propensity evidence to be led unless it was evidence which the jury might properly regard as relevant to prove that Mr Winders was the offender.

[17] In endeavouring to prove the offender’s identity, however, the Crown is entitled to invite the jury to draw certain inferences as to the characteristics of the offender and then consider what evidence demonstrates that Mr Winders had some or all of those characteristics. Drawing proper inferences about the characteristics might properly lead the jury to conclude that the offender:

² Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145 at [3].

³ Crimes Act 1961, ss 158, 160(2)(a) and 167(a).

(a) drove a blue Jeep Cherokee;

(b) had access to a .22 calibre rifle;

(c) had some connection to the deceased which might provide a motive for the killing; and

(d) was the type of person who might discharge a firearm at or in the vicinity of another person, as opposed to confining the use of firearms to hunting animals or target shooting.

[18] In my view, cogent evidence which is accepted by the jury as demonstrating that Mr Winders has a tendency to overreact to the behaviour of others which he considers inappropriate or of which he disapproves, by discharging a firearm at them or in their direction, is reasonably capable of being regarded by a jury as evidence tending to prove characteristic (d) above. It may also support the Crown’s case as to Mr Winders’s motive for killing Mr Taiaroa by rebutting what might be the natural inclination of jurors to think that it is just not credible to suggest that Mr Winders could have been motivated to kill Mr Taiaroa, three hours by road from Mr Winders’s home, simply because of a minor traffic incident a week earlier.

[19] The Crown seeks to adduce evidence of five separate incidents involving the alleged use of firearms by Mr Winders which, it is submitted, would come within the category which I have noted at [16] and which could be relied upon by the jury as relevant propensity evidence to prove the identity of the offender. I refer to the incidents as:

(a) the Ford pig hunting incident in January 2009;

(b) the Gleeson possum shooting incident prior to April 2009;

(c) the first Kuriger incident (spotlighting) in April 2011;

(d) the second Kuriger incident in April 2012; and
(e) the Jane/Law goat poaching incident in August/September 2012.

The Ford pig hunting incident in January 2009

[20] Mr Nigel Ford is a friend of Mr Winders’s former neighbour, Mr Kenneth Lobb. Mr Ford had been pig hunting on Mr Lobb’s property for approximately 25 years. On a day in January 2009, Mr Ford was pig hunting on the Lobb farm in an area known as Garlick’s swamp, which is on the eastern edge of the Lobb farm. It borders land (“the Lowick Holdings block”) which was then owned by Lowick Holdings Limited, a company owned by Mr Winders’s parents, and is separated from it by a 10-foot high deer fence. At all times, Mr Ford remained on Mr Lobb’s property. Hunting with him at the time were his son and two nephews. Mr Ford had a rifle (which was slung over his shoulder), a knife and five hunting dogs with him. As the group began walking towards a good hunting spot, Mr Ford heard a rifle shot. At the same time, he saw blades of grass splatter about 3m above where he was and to his left. He said the shot came from the direction of the Lowick Holdings block.

[21] Mr Ford looked in the direction of the gunshot but could not see anyone. A second shot was then fired. This shot landed about 3m directly in front of Mr Ford. The group immediately ran up the track until they reached the cover of the bush line. Mr Ford, from his experience with firearms, was of the view that the shots came from a high powered unsuppressed rifle, such as a .223 or higher calibre. Mr Ford’s evidence was that there were no animals in the area at the time, and the person shooting would have had a clear view of their surroundings.

[22] The group continued their hunting trip, but returned via a different route, in fear that they may be shot at again. Mr Ford reported what had happened to Mr Lobb later in the day. Mr Lobb said in evidence that he recalled the occasion when Nigel Ford came to the house with his son and two other boys, after they had been for a hunt. Mr Ford told Mr Lobb that they had been shot at. The description of where the incident had happened led Mr Lobb to suspect Mr Winders had fired the shots.

[23] Approximately two weeks later, Mr Lobb was speaking with Mr Winders by telephone in connection with an unrelated matter. During the phone call, Mr Winders
bragged about chasing poachers off Mr Lobb’s property and said that he had done that “the other day.” When Mr Lobb explained to Mr Winders that the person had been his friend, and that he was on the property with his permission, Mr Winders immediately went very quiet. The incident was not discussed further.

[24] Mr Bryan Kuriger is Mr Winders’s neighbour. He purchased the Lowick Holdings block in April 2009. He has had various dealings with Mr Winders since that date. Mr Kuriger said he had heard about the incident where shots were fired at Mr Ford. Mr Kuriger confronted Mr Winders about it, and Mr Winders replied that he thought Mr Ford was poaching. Mr Kuriger told Mr Winders that he only needed to get the registration number of people if they are poaching or shooting from a vehicle, and that he did not need to shoot at them.

The Gleeson possum shooting incident prior to April 2009

[25] Mr Leighton Gleeson and his father were driving along Ohura Road towards Whangamomona one evening between 10pm and 11pm. Mr Gleeson is not sure exactly when the event occurred, but says it must have been prior to the sale of the Lowick Holdings block to Mr Kuriger in April 2009.

[26] As they were driving, the pair stopped at various locations to spotlight and shoot possums that were up in trees. One place they stopped at was adjacent to a stand of pine trees by a gravel pit directly across the road from, and in sight of, a farmhouse which was occupied by Mr Winders when he was at the property.

[27] Mr Gleeson’s father was spotlighting and he fired one shot at a possum in the pine trees, in a direction away from Mr Winders’s house. About a minute later, there were four or five shots fired from behind the pair, from the direction of Mr Winders’s house, and up into the same area of pine trees. The shots sounded to Mr Gleeson as though they had come from a .22 rifle. Mr Gleeson regarded the shots as a warning to “cut it out”, so they got back into the vehicle and drove away.

[28] A couple of days later, Mr Gleeson spoke to Mr Winders about the shots. When asked Mr Winders, “What did you do that for?” Mr Winders replied, “Oh, I just didn’t
know that it was you.” Mr Gleeson was satisfied with that answer and the issue never came up again.

The first Kuriger incident (spotlighting) in April 2011

[29] At approximately 9:30 pm on one evening around April 2011, Mr Kuriger was spotlighting for deer with a friend. They were on Ohura Road, close to a shed erected by Mr Winders after his parents sold the Lowick Holdings block and which he used for accommodation when he was at the property, known as “Quin’s shed”. Mr Kuriger drove his truck past Mr Winders’s shed and down the road, and then turned around. While doing this Mr Kuriger was shining a spotlight into the bushes. He heard the sound of a branch breaking, and thinking that it might be a deer shone the spot light in that direction. This was towards Mr Winders’s property.

[30] Mr Kuriger then heard a “crack” of a gun and a shot was fired over the top of his truck. Mr Kuriger recognised this as a .22 shot, and believed it came from about 30 metres away – back towards Mr Winders’s property.

The second Kuriger incident (April 2012)

[31] In April 2012, Mr Kuriger was looking for a deer on his property, that he had seen go up the ridgeline. Mr Kuriger heard two shots come over his head from a distance. Mr Kuriger said both shots came up the valley towards him from the direction of Mr Winders’s property.

The Jane/Law goat poaching incident in August/September 2012

[32] In August or September 2012, Mr Aaron Jane was with his friend, Mr Glen Law. The pair were driving past Mr Winders’s property and towards Mr Jane’s home. By this time, Mr Winders’s parents had sold the Winders block to Mr Kuriger. Mr Winders owned an adjacent block on which he had built Quin’s shed. Mr Jane saw some goats about 1km down the road from Mr Winders’s shed, and stopped his vehicle.
[33] With a .22 rifle, Mr Jane and Mr Law shot three of the four goats they could see. Two of the goats were on the roadside, and the other two were in a paddock on Mr Winders’s property. In total, approximately six shots were fired. Mr Jane accepts that he should not have shot the goats.

[34] After shooting the goats, the pair drove a short distance to a friend’s house. A short time later, Mr Winders arrived at the address in his blue Jeep Cherokee. He slammed on the brakes and, still seated in his vehicle, accused the men of shooting his goats. Mr Jane described Mr Winders as agitated and swearing a lot. He could see that Mr Winders had what looked to him to be a shotgun in his possession. The shotgun was placed between his legs with a barrel pointed towards the roof of the car. Given how angry Mr Winders appeared, Mr Jane lied and said that he had just travelled in from town to price a building job. He denied shooting Mr Winders’s goats.

[35] It appeared that to Mr Jane that Mr Winders was unsure whether he should accept that explanation. Mr Winders remained at the property for a short time longer, arguing the point but left eventually. Although Mr Winders had a firearm in his possession, he never made any threats with it nor did he point the firearm at anyone.

[36] Mr Law confirmed Mr Jane’s evidence except that Mr Law says he thought the firearm was a rifle.

Submissions on behalf of Mr Winders

[37] Mr Temm directed my attention to five other witnesses from whom the Crown had obtained statements but who did not give evidence at the hearing. I was invited to assume the truth of the content of those statements for present purposes. The witnesses speak generally about their contact with Mr Winders, particularly in relation to firearms, and indicate that they have never had any issues with his behaviour. I do not know whether the Crown intends to call those witnesses to give evidence at the trial; but they would appear to be available to be called by the defence, if necessary. I have taken that evidence into account.
[38] While reminding me that, to be admissible, the propensity evidence needed to be probative of a fact in issue, Mr Temm presented two principal arguments against the Crown’s proposition that the evidence, if proved to be cogent evidence of the past conduct of Mr Winders, might be relevant to prove the identity of Mr Winders as the offender. First, counsel submitted that the evidence did not sufficiently establish that Mr Winders was the person who fired the shots on those occasions where there was no acknowledgement by him that he had done so. Second, Mr Temm argued that the evidence did not establish a sufficient similarity to what the offender is alleged to have done in shooting Mr Taiaroa.

Discussion and conclusions

[39] It was agreed by counsel that the Crown was not required to prove beyond reasonable doubt that Mr Winders was the shooter on each of the occasions relied upon. Without referring to authority, I accepted during the hearing that, given the importance of the issue in the case, it would be appropriate for the jury to be instructed that they would need to be satisfied to a high degree of probability that Mr Winders was the shooter on any occasion before they could take that conduct into account as propensity evidence. I accepted I should adopt a similar standard of proof in determining whether the evidence is admissible and I have approached the issue on that basis in considering the application. I note, however, the observations of the Court of Appeal in R v Holtz⁴ to the effect that no standard of proof is required for the acceptance of evidence or for findings of fact in order to support reliance on the evidence as propensity evidence.⁵ The Court held that:⁶

... in a particular case the evidence of pattern may be just another strand of circumstantial evidence pointing towards the accused. In that event, to require proof beyond reasonable doubt, would be quite inconsistent with the proper approach to circumstantial evidence. Accordingly we do not accept as of universal application that, where identity is in issue, similar fact evidence cannot be used unless it is found to the standard of beyond reasonable doubt that the accused was responsible for the past conduct and that the same person was responsible for the offence charged.

⁴ R v Holtz [2002] NZCA 323; [2003] 1 NZLR 667.

⁵ Although Holtz was decided before the Evidence Act 2006 came into force, the general

propositions in that case apply to propensity evidence under the current legislation: T v R [2013] NZCA 505 at [15].

⁶ At [38].

[40] The Court added:⁷

No standard of proof is required for the acceptance of evidence or for findings of fact. In analytical terms it may be appropriate to apply a standard of proof to the drawing of inferences from evidence even where such inferences are barely distinguishable from findings of fact and may relate merely to facts preliminary to the assessment of whether the elements of the offence have been proved. However, because we have rejected a general requirement that pattern or the like must be found beyond reasonable doubt before similar fact evidence may be used, we consider it would tend more to confuse than to clarify to insist that juries be directed expressly on a standard of proof in this respect. Directions to the effect that the jury must “find” “conclude” or be “satisfied” of the pattern, link, underlying unity or whatever is appropriate to the particular case are sufficient. Of course, it is important to emphasise in jury directions that where similar fact evidence is used the elements of the offence still must all be proved beyond reasonable doubt.

[41] In that case, as in this, there was other evidence tending to incriminate the defendant.⁸ As the Court of Appeal said in Holtz,⁹ where there is other identification evidence the similar fact evidence is in the nature of circumstantial evidence. It is to be considered as part of the whole. The Court’s task at this stage is to determine whether the evidence of the other incidents (or one or more of them) is capable of being found by the jury to disclose a pattern indicating that the same person was responsible to the point of constituting a credible strand of circumstantial evidence pointing to the defendant as the offender. If so, a finding that the evidence is probative of identity is appropriate. The probative value then needs to be weighed against the prejudice to Mr Winders of having the prior conduct disclosed.

[42] In coming to my views on proof of the identity of Mr Winders as the shooter on the challenged occasions, I have taken into account the photographs, including aerial photographs and, particularly, the boundaries of the various relevant properties bordering Ohura Road and the paper road designated as Matirangi Road.

[43] I am satisfied beyond reasonable doubt that:

⁷ At [39].

⁸ Summarised above at [12].

⁹ R v Holtz above, n 4 at [43].

(a) in the case of the Ford pig hunting incident in 2009, the shots were fired from the land on the western side of Matirangi Road on the land I have called the Lowick Holdings block;

(b) the shots fired in the direction of Mr Gleeson and his father prior to April 2009 were fired from the Lowick Holdings block in close proximity to the house used by Mr Winders and subsequently occupied by Mr Kuriger after he purchased that land;

(c) the shots fired in the first Kuriger incident in April 2011 were fired from Mr Winders’s property, only 200 metres or so from the new shed frequently occupied by Mr Winders at the time; and

(d) that the shots fired over Mr Kuriger’s head in the second incident in April 2012 were fired from the direction of Mr Winders’s property.

[44] I am also satisfied that it is highly probable that Mr Winders was the shooter on each occasion. In coming to that conclusion, I have taken into account the combined force of the evidence of witnesses all identifying, independently and in respect of different occasions, the locations from which the shots were fired and that, in each case, they were fired from property frequently occupied by Mr Winders. That evidence renders it more than probable that the same shooter was involved on each occasion. The conclusion that Mr Winders was the shooter is reinforced by the subsequent conversations between Mr Lobb and Mr Winders, and between Mr Kuriger and Mr Winders, about the Ford pig hunting incident, and the conversation between Mr Gleeson and Mr Winders about the possum shooting incident. Although Mr Temm submitted that Mr Winders did not actually admit that he had fired shots at Mr Ford, I am satisfied from the context of the discussion with Mr Lobb that Mr Winders acknowledged shooting near them, rather than merely chasing them away.

[45] The admissions that Mr Winders was responsible for those shots tend to confirm also that he was responsible for shots alleged by Mr Kuriger to have been in his direction in April 2011 and April 2012.
[46] The evidence establishes that Mr Winders was frequently on the various pieces of land from which the witnesses said the shots were fired, including the Lowick Holdings block, working the land, building fences and carrying out other farming duties. I accept that Mr Winders may not have been a permanent resident of the house on the Lowick Holdings block or the shed on the Block to the east of it, near Ohura Road, but there is no doubt that he was a regular occupant. The evidence established that that much if not all of the property was bordered by high deer fences and that the gates into the property were usually locked. This indicates that strangers could not easily have access to the various pieces of land. There was no evidence of people other than Mr Winders and his father being seen on the property.

[47] I found that it would be open to a jury to be satisfied that Mr Winders was the shooter on each of the four occasions upon which the Crown relies. Mr Temm submitted that, even if I should make such a finding, I should hold nevertheless that the evidence did not have sufficient similarity with the evidence of the offender’s conduct at the time Mr Taiaroa was shot to justify an inference that Mr Winders was the offender. He argued that, put at its highest, the propensity evidence described conduct in which:

(a) no one was injured, let alone killed;

(b) the shooting was in response to the actions of others rather than proactive or provocative conduct;

(c) the conduct was not premeditated and was not followed up by further shooting at closer range;

(d) the descriptions of the firearms involved varied from a .22 calibre to a
.223 or higher calibre weapon;

(e) that the distances were not comparable to the point blank range of the shot which killed Mr Taiaroa;

(f) the propensity evidence did not involve the use of a vehicle; and
(g) the propensity evidence referred to shots being fired both during the day and at night.

[48] Mr Temm also submitted that the Court should be cautious about accepting as probative of a deliberate killing at point blank range the actions of a farmer, experienced in the use of firearms, firing warning shots in the direction of persons whom he thought were poaching on or near his land. Mr Temm referred to the apparent lack of concern among the witnesses, all of whom considered that the shots were merely warning shots; only Mr Ford appeared to be concerned about the proximity of the shots fired in his direction forcing him to run for cover. Mr Temm suggested that it would be necessary for the jury to be directed that they should consider the evidence from the perspective of Mr Winders, a person very experienced with firearms, and in the context of an acknowledgement in the rural community that the firing of warning shots was not wholly inappropriate. He submitted that what occurred in the propensity incidents was of a wholly different character from the circumstances of Mr Taiaroa’s death.

[49] I acknowledge that those are submissions which counsel is able to make to the jury. I considered, however, that it is equally open to a properly directed jury to regard the propensity incidents involving shooting in the direction of, and in close proximity to, other persons not only during the day but at night, as proof that Mr Winders had a tendency to respond inappropriately through the actual firing of shots on occasions which did not reasonably call for that kind of response.

[50] It follows from my conclusions on the incidents just discussed, that I do not regard the Jane/Law goat poaching incident to be in the same category. The evidence shows that on that occasion Mr Winders was prepared to respond to the shooting of goats on his land by approaching the supposed poachers in his vehicle with a firearm either on his lap or between his knees. But that one incident merely proves that, on that occasion, Mr Winders responded to actual poaching by carrying a firearm in his vehicle. He may have intended only to intimidate. Unlike the other evidence, it is not sufficiently probative of a relevant characteristic of the offender who killed Mr Taiaroa.
[51] In coming to my view that the evidence of the four shooting incidents has sufficient probative value to be admissible, I took into account:

(a) that there were four separate incidents in similar, although not identical, circumstances;¹⁰

(b) that the incidents, having occurred between 2009 and 2012, were sufficiently proximate in time to the date of the alleged offence to be probative;¹¹

(c) that there were three separate “complainants” in the propensity incidents and no allegation of collusion or suggestibility;¹² and

(d) that it would be open to the Jury, notwithstanding the arguably indifferent attitude of the “complainants” to the firing of shots in their direction, to regard the conduct as being sufficiently unusual to assist in the establishment of one of the characteristics of the offender.

[52] Moreover, the witnesses who gave evidence of shots being fired in their direction had relevant firearms experience which entitled them to express an opinion as to the nature of the firearm from which the shots were fired. On two occasions they identified a .22 rifle and on one a .223 or higher calibre rifle. The Crown’s ballistics evidence identifies that a .22 calibre rifle was used to kill Mr Taiaroa. Given the number of .22 rifles legitimately in the possession of people living in rural New Zealand, that evidence by itself demonstrates consistency but it is not strongly probative.

Risk of prejudice

[53] Mr Temm argued that the propensity evidence would be highly prejudicial to Mr Winders and that such prejudice would outweigh any direction that the Court might

¹⁰ Evidence Act 2006, s 43(3)(a).

¹¹ Evidence Act 2006, s 43(3)(b).

¹² Evidence Act 2006, Ss 43(3)(d) and (e).

give as to the proper basis upon which the Jury might take it into account. The risk here is that the jury will give this evidence disproportionate weight, instead of considering it alongside the rest of the evidence pointing to Mr Winders’ identity as the offender.

[54] I was satisfied, however, that a sufficiently strong direction about the proper approach to the use of propensity evidence as proof of identity, and the need for the jury to consider the evidence merely as a part of the Crown’s overall circumstantial case, would address any improper prejudice that might arise from the evidence.

[55] I also considered Mr Temm’s submission that the evidence would unreasonably extend the duration of the trial and that it would create a distraction from the real issues in the case, in the sense that the jury would have to satisfy itself, first, whether the incidents or any of them occurred and then determine what, if any, role Mr Winders played. I was satisfied, however, that the evidence would not occupy much more than a day and that, because it arguably goes to proof of the sole issue in the trial, the jury would not be inappropriately distracted by having to consider it.

Decision on propensity evidence

[56] I ruled, therefore, that the evidence of:

(a) the Ford pig hunting incident in January 2009;

(b) the Gleeson possum shooting incident prior to April/May 2010;

(c) the first Kuriger incident (spotlighting) in April 2011; and

(d) the second Kuriger incident in April 2012, is admissible as propensity evidence in the trial.
[57] I ruled that the evidence of the Jane/Law goat poaching incident is inadmissible.

Challenge to admissibility of evidence of visual identification of the defendant by Ms Corina Walker

[58] On the evening of 19 March 2013, the Police received a telephone call from a Ms Corina Walker to say that while she was driving south along Tirohanga Road at approximately 3:05 to 3:10 pm that day a Cherokee vehicle had driven up behind her very fast and “tail gated” her for a time – travelling at around 95 kilometres an hour – before passing and speeding away. She gave a description of the driver. It is common ground that the location of Ms Walker’s observation of the vehicle and driver, not far from her then home, occurred on a stretch of road which was on a route the offender could have taken if he had left the scene of the murder, in the direction observed by eyewitnesses, and headed for Mr Winders’s farm at Whangamomona in Taranaki.

[59] Ms Walker was interviewed by Police on 22 March 2013 and gave a formal written statement. On that occasion she said that she felt she would be able to identify the driver if she saw him again. On 12 April 2013, Ms Walker was shown a montage of photographs as part of a purported formal identification procedure. It is said she identified the defendant as the driver of the vehicle she had seen on 19 March 2013. The Crown relies on the evidence as admissible under s 45 of the Act.

[60] Section 45 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.

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

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

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

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

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

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

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

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

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

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

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

(c) a substantial change in the appearance of the person to be identified after the alleged offence occurred and before it was practical to hold a formal procedure:
(d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:

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

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

Challenge on grounds no formal identification procedure followed

[61] For Mr Winders, Mr Temm submitted that the identification evidence should be ruled inadmissible on the basis that the Police did not follow the formal procedure in s 45(3) of the Act in that:

(a) they did not obtain the visual identification evidence as soon as practicable after the alleged offence – s 45(3)(a); and

(b) the other subjects in the montage are not similar in appearance to Mr Winders – s 45(3)(b).

[62] Consequently, Mr Temm submitted, the evidence is inadmissible because the Crown failed to prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification – s 45(2) of the Act. Alternatively, if a formal identification procedure was followed, Mr Winders proved on a balance of probabilities that the evidence is unreliable – s 45(1).

[63] For the purposes of the admissibility hearing, Ms Walker’s statement of 22 March 2013 was taken as read. She gave oral evidence of her observations on 19 March 2013 and of her part in the identification procedure, and was cross- examined. Under cross-examination, the job sheet from her initial phone call to the Police on 19 March 2013 was produced, together with job sheets for subsequent telephone calls she made to the Police on 20 March 2013 and 31 March 2013. I also heard evidence from Ms Dianne Brunton who compiled the photograph montage
shown by Police to Ms Walker, and Detective Steven Dunn who undertook the identification procedure.

When was it feasible to follow the formal procedure?

[64] In submitting that the Police had followed a formal procedure for obtaining visual identification evidence from Ms Walker, Mr Macklin argued that the earliest date on which it would have been feasible to prepare a photo montage and show it to Ms Walker must necessarily be a date after Mr Winders was first identified as a suspect.¹³ Although Ms Walker had provided her written statement describing Mr Winders and the circumstances of her observation of the driver of the dark blue Jeep Cherokee on 22 March 2013, Mr Winders did not become a person of interest to the Police until 29 March 2013. On that date, Ms Amanda Harris, who knew Mr Winders, informed the Police that he owned a dark blue Jeep Cherokee that looked like the one which had been shown on television in connection with an item about the Police investigation into Mr Taiaroa’s death. After making further inquiries, senior Police officers directed that Mr Winders should be placed under surveillance by members of the Special Tactics Group. Because of the nature of the homicide and the possibility that the vehicle used by the offender would provide relevant evidence, the Police were concerned to monitor Mr Winders’s movements.

[65] Late at night on 3 April 2013, Mr Winders’s Jeep Cherokee was being followed by a member of the Special Tactics Group on a route between Stratford and Rotorua. The Jeep was travelling at around 130km/h when the Police vehicle moved to overtake it in a dedicated passing area. Mr Winders’s vehicle is said to have sped up to such an extent as to require the Police vehicle to reach 170 km/h to effect the passing manoeuvre. Mr Winders was not apprehended at the time but senior Police officers resolved subsequently that he would be arrested for reckless driving. Police officers located Mr Winders on 4 April 2013 outside a Repco store in Rotorua where he had travelled with his mother in her car. On 4 April 2013, in circumstances which are described more fully below in relation to the challenge to the admissibility of evidence

¹³ Malone v R [2010] NZCA 59 at [13]-[21].

of a Police interview, Mr Winders was arrested, spoken to, and released without charge.

[66] On 5 April 2013, Ms Brunton was requested by the Police to prepare a photo montage of persons similar in appearance to Mr Winders’s appearance in a photograph taken in 2008 at the time he applied for a firearm’s licence. The photo montage was prepared that day and forwarded to the investigation headquarters in Rotorua. Mr Macklin submitted that it is by reference to 4 April 2016 that the Court should determine whether the showing of the photo montage to Ms Walker could be considered to have been undertaken as soon as practicable after Mr Winders was identified as a suspect.

[67] I adopted Mr Temm’s argument, however, that the latest date at which it would have been feasible for the Police to request a montage for a formal identification procedure was 1 April 2013, the date on which the Police declared their interest in Mr Winders as a possible suspect and placed him under surveillance. The evidence establishes that Ms Brunton was able to produce the photo montage within five hours of the request to do so. It follows that the montage could have been available to the senior Police officers investigating the homicide on 2 April 2013.

[68] There is no evidence explaining why Ms Brunton was not asked to prepare the montage until 5 April 2013, and no explanation why Ms Walker was not shown the montage earlier than seven days after that.

[69] Mr Macklin submitted that despite the absence of an explanation for the delay, the Court may infer that the exigencies of the investigation, given that the Police did not have infinite resources, required the Police to focus on other aspects of what was a major inquiry.

[70] I am mindful of the observations in Malone that the examination of the steps taken by the Police after an alleged offence is reported does not call for a detailed examination of the investigation which led to producing a named suspect.¹⁴ I note also the suggestion that it could be contrary to the public interest to place the Police in the

¹⁴ Malone at [15].

difficult position of being obliged to disclose confidential investigation techniques or information from informants or other sources. However, the position here is that Mr Winders had been identified as a suspect on 1 April 2013, and was arrested and interviewed on 4 April 2013. Search warrants were executed at his home and his parents’ home at the same time. Given the focus of attention on Mr Winders and his vehicle from that date at the latest, it might have been thought that the Police would afford some priority to following up reported sightings of the Jeep Cherokee and checking whether an eye-witness such as Ms Walker could positively identify the driver of the vehicle. If the Police had a reasonable explanation for waiting another eight days before showing the photo montage to Ms Walker, they did not provide it to the Court.

[71] It is acknowledged in the cases that the reliability of identification evidence is likely to be weaker the longer the delay between observation and identification. Here the period of that delay was 24 days. In the circumstances, I find that the identification was not carried out as soon as was practicable after Mr Winders had been identified as a named suspect and that the Police did not, therefore, follow a formal procedure.

[72] That places the onus of establishing admissibility on the Crown which must prove beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification, notwithstanding the delay.

Has the Crown proved beyond reasonable doubt that Ms Walker’s identification is reliable?

[73] Ms Walker said in her evidence that she did not get a good look at the driver of the Jeep Cherokee while the vehicle was “tail-gating” hers. She said, however, that, as the vehicle drew alongside hers as part of the passing movement, she turned to look at the driver and that he looked at her. She said she gestured to him to protest about his manner of driving. His vehicle then cut sharply back in front of hers and sped away. Although Ms Walker said that the driver passed her quickly, she “got a good look at him.” She said that the “person looked quite wired up ... Sort of sitting forward over the steering wheel” and that she made eye contact with him and he stared back at her.
[74] Ms Walker said that when she was shown the montage of photographs the person she picked out was the person she saw on 19^th March. When asked why she was so positive about that identification, Ms Walker said:

Because as soon as I saw that person, it hit me like a ton of bricks that this was the person that matched who I had seen.

[75] When asked how long it had taken her to pick a person from the montage Ms Walker said:

1. Um, I looked at those – that paper very carefully but one person stood out to me as soon as I put my eyes on the paper.

Q. Why did they stand out?

A. As being the person I had seen that day, driving that vehicle.

Q. Was there anything that stood out for you in particular?

1. Their face mainly, um, I just remembered it from my look at him and the face.

Q. What about the face?

1. Quite the sort of cheek bones, in my mind I still have a very good image of that person and that is the person I felt I saw on that piece of paper.

[76] Mr Temm submitted that:

(a) the circumstances of the observations (as described by Ms Walker in her statement of 22 March 2013) raise doubts as to the reliability of her montage identification 24 days later on 12 April 2014;

(b) the description by Ms Walker of the driver of the motor vehicle in her prior statements is not reflected in the photographs provided, a matter going to unreliability under s 45(2); and

(c) obvious errors in Ms Walker’s description of the vehicle and the driver, and inconsistencies between her descriptions and other evidence, demonstrate unreliability.
[77] In cross-examining the witness, Mr Temm was able to establish a number of discrepancies between Ms Walker’s evidence of the events at the time of her observation of the vehicle and driver on 19 March 2013 and other Crown evidence, including photographs of Mr Winders’s Jeep Cherokee and CCTV images of him taken while he was in Taumarunui around 1:30 pm that day.

[78] The purported inconsistencies teased out by Mr Temm included:

(a) Inconsistencies between Ms Walker’s estimation of the time of her observation being between 3:05 and 3:10 pm, based on her husband leaving their home to go to the milking shed for “cups on” at 3:00 pm and her getting her children into her car, and the evidence of another eye witness (Ms Morunga) seeing a blue Jeep Cherokee heading in the same direction at the same vicinity but at 3:25 pm. Mr Temm pointed out that on the Crown’s evidence of the time at which Mr Taiaroa was shot, it could not possibly have been the offender driving the vehicle at the time estimated by Ms Walker;

(b) Mr Winders’s hairline as depicted in the photo montage is at the top of his forehead and not “mid-brow” as described by Ms Walker;

(c) Ms Walker’s description of the driver being bare-headed and wearing a black T-shirt is inconsistent with the description given by Ms Morunga, who said the driver was wearing a red cap and sunglasses, and with the CCTV footage from Taumarunui;

(d) Ms Walker’s initial description of the Jeep Cherokee as being purple which she altered to a “shiny and metallically purple/navy colour” demonstrated uncertainty. Further her later description of it as navy blue all over was inconsistent with Mr Winders’s vehicle which has black trim over the wheel arches;

(e) There were inconsistencies between Ms Walker’s evidence of having seen the driver appearing to be dark skinned, while acknowledging that
was possibly because she was looking at him through a tinted window, and her subsequent evidence that the driver was a tanned Pakeha and that the front passenger window of the vehicle must have been partially down so that the tinting did not obscure the driver;

(f) The description by Ms Walker of the wheel rims of the Jeep Cherokee as being shiny with five spokes (consistently with a sketch drawing she prepared for the Police) does not match the wheel trim of Mr Winders’s vehicle which has three spokes. I observe, however, that Ms Walker’s recollection of five spokes is not wholly inconsistent with the appearance of the wheel rims on Mr Winders’s vehicle which have three spokes forking into a total of six points of contact with the outer wheel rim; and

(g) Ms Walker’s description of the headrests on the vehicle as being tan, square old-style headrests is not consistent with the more rounded grey headrests on Mr Winders’s vehicle.

Discussion and conclusions

[79] In coming to my view on the reliability of Ms Walker’s identification, I considered the Turnbull factors¹⁵ addressed by Mr Temm, including the distance between the drivers of the two cars and the obvious fact that Ms Walker was observing a stranger. Ms Walker’s evidence was that she was particularly disconcerted by the manner of driving of the blue Jeep Cherokee; at least, in part, because she had her young children in the car with her and she thought at first that the vehicle might collide with the rear of her vehicle. As Ms Walker described the view of the driver’s face as his vehicle passed hers, she was focusing on his face and made eye contact with him. In those circumstances, I accept that she is less likely to have a clear and accurate recollection of peripheral matters such as the colour and shape of the headrests or whether there was anything covering the wheel arches. Even making those allowances

¹⁵ Discussed in R v Turnbull [1977] QB 224 (CA) at 228 and consistently applied by the New Zealand courts since then. See Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [30] and R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [111].

for error, and acknowledging that Ms Walker’s description of the vehicle does not precisely match that of Mr Winders’s vehicle, it is a very close match as to make, model and colour. When interviewed on 4 April 2013, Mr Winders described the colour of his Jeep Cherokee variously as being “purple”, “purply blue”, and “a dark sort of purple.”

[80] Ms Walker’s estimate of the time at which she first saw the Jeep Cherokee was based on her estimate of the lapse in time after her husband left the house to go milking while she got her children organised to depart, settled them into their car seats and then departed from her farm, and her agreement that the place where she first saw the Jeep was about 5 minutes down the road from her home. When asked under cross- examination to confirm that she set off from the house between 3.05pm and 3.10pm, she said she did not know what time she left the house but that “it was in that vicinity”. I am not persuaded that any established inconsistencies between Ms Walker’s evidence about the time she first saw the Jeep Cherokee and other Crown evidence is material to the circumstances and reliability of her identification.

[81] Mr Temm argued that after 3pm on a mid-March day, the sun would have been behind the passing car as Ms Walker, travelling south, looked across at the driver. But she did not say that the sun was in her eyes and it would not have been low to the horizon at that time. Mr Temm emphasised that the moment when Ms Walker had the driver’s face in her view must have been only fleeting and that she would have been distracted by the need to watch the road ahead.

[82] Ms Walker struck me as being an observant, careful person and an honest, straightforward witness; she did not embellish her evidence or give the impression that she was grand-standing. Although she made proper concessions under questioning, Ms Walker was not shaken from her identification of Mr Winders as the driver when the apparent inconsistencies in her evidence were put to her. Mr Temm referred to two other sightings of vehicles by Ms Walker, after 19 March 2013, which she reported to the Police. That evidence reinforced my impression of Ms Walker as a good citizen who simply reported what she had observed, leaving it to the Police to decide what to do with the information.
[83] On 19 March 2013, Ms Walker had good cause to get a good look at the driver of the passing vehicle; he had alarmed her by his manner of driving. And she had good cause, after becoming aware of Mr Taiaroa’s death that evening, to keep the image of the driver in her mind, as she said she had done. That is very different from a fleeting glimpse by a witness who had no need to recall the event until long afterwards.

[84] I considered, in the context of the reliability of Ms Walker’s identification, the submission by Mr Temm that the seven other persons whose photos were used in the montage were not similar in appearance to Mr Winders.

[85] Whether the photographs of the eight men shown in the photo montage were similar in appearance is a matter of impression calling for assessment; what the Court of Appeal has called “a fact-dependent evaluative exercise ... [and] a question of degree.”¹⁶ The Court in Ah Soon made it clear that similar does not mean identical and that the Police are not required to go to extraordinary or impractical lengths to ensure that those shown are similar in appearance. The Court said:¹⁷

The guiding principle must be whether the photo montage or other formal procedure is such as to avoid any material risk of predisposing the witness to identifying the [defendant].

[86] Mr Temm has suggested that the photograph of Mr Winders shows a distinctively lighter skin colour around each eye consistent with protection from sunglasses, a feature evident in only one of the other photographs. It is my impression that the facial characteristics of the two men (Mr Winders and the man in photo 8) are very similar in terms of both having a high brow, short hair at the sides with a relatively straight hairline across the top of the forehead, and hair of a similar length. The only distinction is that Mr Winders’s ears protrude less than those of the other man. The other photographs all show men who appear to be of similar age having the similar characteristics described by Ms Brunton, a very experienced Police employee who specialises in sourcing photographs of Police databases and preparing montages. They include hair colour, shape of the face and general appearance, even though it is clear

¹⁶ Ah Soon v R [2012] NZCA 48 at [23].

¹⁷ Above.

that the ages of some of the other men whose photographs are shown fall outside the Police guidelines for similarity. As Ms Brunton said, it is much more important to use comparators who appear to be of a similar age to the suspect than it is that their actual ages should be similar.

[87] Mr Temm was critical that the photograph of Mr Winders appeared to have been darkened or had a darker appearance than the other men, but I am satisfied that the photographs of two of the other men (photographs 4 and 8) have a similar shade and that all but one of the others are reasonably comparable. The one facial image which stands out from the others at first glance is a photograph in which the image of the face (not Mr Winders’s) is rather lighter than the others.

[88] There is nothing in Mr Winders’s photograph to draw particular attention to it and I was satisfied that the eight men in the montage appear sufficiently similar to provide a fair test.

[89] In determining the reliability of Ms Walker’s observation and subsequent identification, I took into account that, although Ms Walker looked at all of the photographs in the montage before expressing an opinion – as instructed – she did not hesitate in her identification of the driver.¹⁸ I am influenced also by the aspects of her early description of the driver’s face on 19 March 2013 – as that of a tanned white male, about 35–40 years old, with short hair and a straight fringe – which match Mr Winders’s description. Further, there was no risk that Ms Walker’s description and subsequent identification had been contaminated in any way. Moreover, I considered it to be particularly compelling that the man she identified in the montage just happens to be a man who owns a dark purple/navy blue Jeep Cherokee with shiny wheel trims and who was seen driving it in Taumarunui, only 110 kilometres away, approximately 2 hours before her observation.

[90] Those features of the case were sufficient to satisfy me that the Crown has displaced the burden of proving the reliability of the identification to the required standard. Since it was not discussed by counsel at the hearing, I did not need to address the support which might also be obtained from the other circumstantial evidence which

¹⁸ R v Edmonds above, n 15 at [117]-[119]; Harney v Police above, n 15 at [32]-[33].

I understand to be available and which the Crown says points to Mr Winders as the offender.¹⁹ On the authority of R v Aleki, such evidence can also be considered as relevant to determining the reliability of an eye-witness identification.²⁰

[91] Acknowledging that honest mistakes can be, and have been, made in the identification of criminal suspects, and that particular care needs to be taken to avoid injustice, I was satisfied beyond reasonable doubt that Ms Walker’s identification of Mr Winders as the driver of the speeding vehicle which passed hers on 19 March 2013 is reliable.

Decision on visual identification evidence

[92] I ruled that the proposed evidence of Ms Corina Walker, and the proposed evidence of other witnesses about her identification of Mr Winders in a photo montage, is admissible evidence in the trial.

Challenge to admissibility of the video recording and transcript of a Police interview of the defendant on 4 April 2013

[93] As discussed above, Mr Winders was placed under surveillance by the Police from about 2 April 2013. A Police officer, Detective Ngata, reported that between midnight and 1:00 am on 3 April 2013 he was in a vehicle tailing Mr Winders’s vehicle on dedicated passing lanes at an unidentified point between Putaruru and Rotorua. He estimated Mr Winders’s vehicle travelling at approximately 120 kph – 130 kph, but said that Mr Winders sped up to around 150 kph as the Police vehicle endeavoured to pass him. He said that it was necessary for the Police vehicle to reach a speed of approximately 170 kph to complete the manoeuvre. Mr Winders was not apprehended at the time.

[94] On 4 April 2013, members of the Armed Offenders’ Squad were deployed to apprehend Mr Winders. The briefing they received was that he was to be arrested for driving erratically the previous night. At about 11:00 am on 4 April 2013, Mr Winders

¹⁹ Discussed above at [12](f) to (k).

20. R v Aleki [2010] NZCA 442 at [26], applying R v Edmonds above, n 15 and R v Turnbull above, n 15.

travelled with his mother in her vehicle to the Repco in Old Taupo Road, Rotorua. Mrs Winders stayed in the vehicle while Mr Winders went inside. He was followed into the store by Constable Roe who approached Mr Winders from behind and tackled him heavily to the floor. He informed Mr Winders he was arrested for reckless driving and gave Mr Winders his Bill of Rights warning. Mr Winders was taken to the Rotorua Police Station where he was held in custody until the arrival of Detective Dunn who had been assigned to conduct an interview.

[95] The Crown proposes to adduce as evidence a video recording of the interview of Mr Winders conducted by Detective Dunn, and the transcript. Mr Temm argued that the evidence was obtained illegally because:

(a) Mr Winders was unlawfully arrested and detained in breach of s 22 of the New Zealand Bill of Rights Act 1990 (“NZBORA”);

(b) He was not afforded his rights under s 23(1)(a) and (b) of NZBORA in a manner that allowed effective exercise of rights to a lawyer; and

(c) Guidelines 1, 2 and 3 of the Chief Justice’s Practice Note on Police Questioning, issued for the purposes of s 30(6) of the Evidence Act 2006, were breached.

The Crown’s case for admissibility

[96] Evidence offered by the prosecution in a criminal proceeding of a statement made by a defendant is not admissible if it is excluded under s 30 of the Evidence Act.²¹

[97] Section 30 of the Act provides:

30 Improperly obtained evidence

(1) This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—

²¹ Evidence Act 2006, s 27.

(a) the defendant [or, if applicable, a co-defendant] against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or

(b) the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.

(2) The Judge must—

(a) find, on the balance of probabilities, whether or not the evidence was improperly obtained; and

(b) if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.

(3) For the purposes of subsection (2), the court may, among any other matters, have regard to the following:

(a) the importance of any right breached by the impropriety and the seriousness of the intrusion on it:

(b) the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:

(c) the nature and quality of the improperly obtained evidence:

(d) the seriousness of the offence with which the defendant is charged:

(e) whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:

(f) whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:

(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:

(h) whether there was any urgency in obtaining the improperly obtained evidence.

(4) The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5) For the purposes of this section, evidence is improperly obtained if it is obtained—

(a) in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or

(b) in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or

(c) unfairly.

(6) Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.

[98] For the Crown, Mr Macklin argued Mr Winders’s arrest was lawful as authorised by s 315(2) of the Crimes Act 1961 because the arresting officer had good cause to suspect that Mr Winders had committed an offence punishable by imprisonment.²² In making that submission, Mr Macklin relied on Constable Roe having been briefed that the defendant had been seen to be driving recklessly.²³ Constable Roe gave evidence that Mr Winders was regarded as unpredictable and dangerous and it was suspected that he might be armed. Mr Temm’s challenge to the lawfulness of the arrest focuses on the question of whether the arresting officer had good cause to suspect that Mr Winders had committed an offence punishable by imprisonment.

Discussion – no proper grounds for arrest for reckless driving

[99] I am not persuaded that proper grounds for the arrest by Constable Roe existed. The arresting officer had scant information about the circumstances of the alleged offending. He did not know where the alleged offence had occurred other than that it was the State Highway between Stratford and Rotorua, nor did he know anything of the alleged circumstances except that the defendant was alleged to have been travelling at speeds of between 110 – 130 kph. When it was put to him in cross-examination that

²² Crimes Act 1961, s 315(2)(b).

23. The offence of operating a motor vehicle in a reckless manner is an offence punishable by three months’ imprisonment under s 35 of the Land Transport Act 1998.

such actions would properly be regarded merely as speeding which would attract an infringement offence notice, Constable Roe added that he understood there had been erratic driving. He did not appear to have received any further information.

[100] It is clear that Constable Roe did not turn his mind to whether there were reasonable grounds for arresting Mr Winders; he simply followed orders. The alleged offence for which Mr Winders was to be arrested was a driving charge of a kind which would not normally result in enforcement by arrest unless there was some roadside evidence such as a refusal by Mr Winders to comply with lawful instructions of a Police officer. Unlike the situation where the suspected offence was a serious offence for which arrest would almost invariably be appropriate, a direction that a Police officer should arrest a suspect on a minor charge might give rise to a need for the arresting officer to have actually exercised a discretion to refuse to arrest on the grounds that he did not reasonably suspect the commission of an offence for which arrest was permitted.

[101] In the present case, the Police were engaged in a homicide inquiry in which, by 4 April 2013, Mr Winders was a strong suspect and one who was considered to represent a risk to the community. Constable Roe was initially briefed, in his role as a member of the Armed Offenders Squad, to locate Mr Winders and his vehicle as part of the homicide inquiry. He was subsequently redirected simply to locate and arrest Mr Winders on the reckless driving charge.

[102] It is clear to me that although Constable Roe had been provided with a limited amount of information which, at face value, might give rise to a suspicion that Mr Winders had committed an offence which rendered him liable to arrest without warrant under s 315, Constable Roe acted as he did merely because he had been instructed to do so. He had not turned his mind at all to any question of whether reasonable cause to suspect the commission of an offence existed. I was influenced, however, by the observations of the Court of Appeal in Neilsen v Attorney-General that the Courts are bound to recognise that Police officers are members of a command service and that effective policing often requires the pooling of information obtained
from different officers from various sources.²⁴ The constable was entitled to rely on the information provided to him by his superiors.

[103] I am more than satisfied, however, that the arrest of Mr Winders at the Repco store was designed solely to take him by force to the Rotorua Police Station where he could be questioned by Detective Dunn on matters arising from the information obtained by the Police in the course of their investigation. These included:

(a) exploring the circumstances of the collision involving Mr Winders’s father’s car on 12 March 2013, and seeking to establish that he may have had a motive to kill Mr Taiaroa;

(b) exploring Mr Winders’s possession and use of firearms and, particularly, the location of any .22 rifle belonging to or possessed by him; and

(c) obtaining information from him about his movements on 19 March 2013.

[104] It is clear that on 4 April 2013, the Police did not have sufficient information implicating Mr Winders to charge him with murder. While they might have been in a position to arrest him if he admitted being the offender in the course of the interview, it is much more likely that the sole purpose of the interview was to obtain information from Mr Winders which the Police could investigate subsequently. The interview might either provide useful lines of inquiry into matters which might implicate Mr Winders or, at least, result in the obtaining of contradictory evidence which would establish that he had lied to the Police when spoken to. If any proof is needed that the Police did not have sufficient evidence to arrest and charge Mr Winders with murder at that time, it lies in the fact that they did not arrest and charge him until 19 November 2015.

[105] I am satisfied that the sole purpose for the arrest was to confine Mr Winders for the purposes of questioning him on the murder charge, and I do not consider that

²⁴ Neilsen v Attorney-General [2001] NZCA 143; [2001] 3 NZLR 433 at [24]- [43].

the senior officers who directed his arrest had any genuine concern that he had committed a serious offence for which arrest was appropriate. Even if Constable Roe was entitled to assume that his superior officers had justification for directing him to carry out the arrest, I am not satisfied that any of the senior officers who directed that course properly turned their minds to having reasonable cause to suspect that he had committed an offence justifying an arrest. It may be arguable that driving at 150 kilometres an hour could properly found a charge of reckless driving, but there was no evidence to suggest that Mr Winders presented any danger to other traffic. Constable Ngata’s evidence about the circumstances of the driving was that it was on an open road with no other vehicles in the vicinity, that the weather was fine and the road surface dry. Dedicated passing lines provided adequate room between the Police vehicle and Mr Winders’s vehicle and the Police officers themselves considered they could safely drive at a speed of up to 170 kilometres an hour in order to complete the passing manoeuvre, without creating any particular danger. Constable Ngata did not give evidence of any erratic driving by Mr Winders. Putting aside the ulterior purpose of interviewing Mr Winders about the homicide, arresting him for reckless driving would be an extreme response in a case where there was no evidence of a continuing danger to other road users.

[106] After his arrest, Mr Winders was taken to the Rotorua Police Station, arriving there at 11:15 am. The plastic handcuffs which had been placed on him at the time of his arrest were removed and he was placed in a custody facility. Constable Roe remained with him until 11:30 am when Detective Sergeant van Kempen remained with him, having discussion about general matters until Detective Dunn arrived at 12:08 pm and began the interview.

[107] At 1:40 pm, Mr Winders requested that he speak to a lawyer and arrangements were made to contact his counsel. Mr Temm arrived at approximately 2:45 pm. Although Detective Dunn had told Mr Winders that he would be questioning him about the “traffic stop” towards the end of the interview, that topic was never returned to and the allegations, such as they were known to Detective Dunn, were never put to Mr Winders at any time. Having been arrested for reckless driving, Mr Winders has never been charged with that offence.
[108] An argument that Mr Temm’s arrival at the Police station and his advice to Mr Winders brought the interview to a premature end cannot assist the Crown. Detective Dunn had no information about the alleged reckless driving which would have enabled him to conduct any interview. He had not spoken to the Police officer who observed the defendant’s driving or any other senior Police officer who may have authorised the arrest. He did not know anything about the alleged circumstances other than “generalised information ... that [Mr Winders had] driven in an erratic manner, speeding up and slowing down from Taranaki up the coastline and then there had been a period of speed ... prior to him arriving at his parents address”.

[109] Section 22 of the New Zealand Bill of Rights Act provides that “[e]veryone has the right to be free from arbitrary arrest or detention”. I was satisfied that arresting Mr Winders on 4 April 2013, not because he had committed a serious crime which the Police considered they had a duty to prosecute, but because they wished to detain him for questioning as a suspect in a murder inquiry, amounts to an arbitrary arrest.

Detention for ulterior purpose unlawful even if arrest justifiable

[110] If there was a justifiable basis for his arrest for reckless use of a motor vehicle, and I was wrong in deciding that the arrest of Mr Winders was not lawful under s 315 of the Crimes Act, I was satisfied that the lawfulness is vitiated by the ulterior purpose for which he was subsequently detained. Although I accepted, as Fisher J did in R v Dacombe,²⁵ that the legitimate purpose of apprehending and confining a suspect in order to facilitate a prosecution against him justifies an arrest without warrant, this is a case where the sole or dominant purpose for his detention was to question Mr Winders; the arrest was merely a device to facilitate that objective, there being no right in New Zealand to detain a suspect for questioning.

[111] I concluded for these reasons that Mr Winders was detained in breach of his rights under s 22 of the New Zealand Bill of Rights Act.

Alternative claim of unlawfulness – failure to inform of right to legal advice

²⁵ R v Dacombe HC Whangarei, T990189, 1 April 1999.

[112] Before considering whether the unlawfulness of the arrest and/or detention is sufficient to render the evidence of the Police interview on 4 April 2013 inadmissible, I addressed for completeness Mr Temm’s alternative grounds for challenge. First, it was argued that, having been arrested and detained, Mr Winders was entitled under s 23(1) of the New Zealand Bill of Rights Act to be informed at the time of his arrest or detention of the reasons he was being held and of his right to consult and instruct a lawyer without delay. Mr Temm submitted that these two rights should be considered together for the purposes of this case because, he argued, the Police did not fairly inform Mr Winders that the real reason for his detention was so that he could be interviewed about the circumstances of Mr Taiaroa’s death. Mr Temm put it on the basis that a failure to fairly explain the reasons for the questioning meant that Mr Winders was not able effectively to exercise his right to consult a lawyer at the start of the interview.

[113] It is plain that Mr Winders did not understand at the start of the interview why he had been arrested. No one had been in a position to tell him how and when the allegation of reckless driving arose; and Detective Dunn further compounded the uncertainty by referring in his preliminary remarks to Mr Winders to “the traffic stop
... which happened today ... and also in relation to a Police investigation in relation to a death which occurred at Atiamuri on the 19^th March 2013”.

[114] Of course, there had been no traffic stop on 4 April 2013 when Mr Winders was arrested, nor earlier at around 1am that morning when the alleged reckless driving was said to have occurred. Mr Winders said that he did not understand what Detective Dunn meant by traffic stop, but when Detective Dunn said that he was going to “talk about the whole, sort of, how you were stopped”, Mr Winders replied:

QW: Oh you mean that oh that okay, that’s what you call a traffic stop okay, okay, I’m familiar with that.

It is plain that they were talking at cross-purposes and that Mr Winders appeared to have forgotten the allegation of reckless driving and was thinking about the arrest an hour or so earlier. But a short time later Detective Dunn made a reference to the vehicle, and “the matter relating to your driving last evening”. Detective Dunn then repeated that he was talking to Mr Winders in respect of the death of a road worker
near Atiamuri on 19^th March, and Mr Winders confirmed that he was happy for the detective to carry on with his questioning.

[115] When Mr Winders then questioned the relevance of his driving when he was pulled over he was deflected from pursuing that matter any further by Detective Dunn who said: “I’ll tell you what we’ll deal with the driving toward the end.” The detective then began his purposeful questioning by telling Mr Winders that he wanted to talk about Mr Winders’s movements over the last couple of weeks and the first thing was in respect of a minor traffic accident he was involved in with his father back on 12^th March.

[116] In Mr Temm’s submission, Mr Winders was entitled to be told at the outset that he was the primary suspect in the homicide inquiry. He says the first clear explanation of the purpose of the interview was not given until a point, at page 74 of a transcript comprising a total of 107 pages, where Detective Dunn began to explain that the person the Police believed to have been involved as the offender in the killing of Mr Taiaroa was a person driving a blue Jeep Cherokee. After more questions about Mr Winders’s movements on 19 March 2013, the following exchange appears at page 92 of the transcript:

SD: Okay we’re at the crossroads right now. QW: Yeah.

SD: Okay okay, you have to think long and hard about the responses [to] the questions I’m going to put to you.

QW: Well I’d better get a lawyer or something if it’s getting like this. Yeah, I’ll have to make other comment, stop making comments or something if this like this is serious you know.

SD: It is particularly serious.

QW: Yeah it’s very serious so I’ll have to talk to a lawyer. I’ll have to get a lawyer in.

SD: Okay so you’d like to talk to a lawyer would you?

That exchange finished at 1:40 pm.
[117] Mr Temm submitted that it was only when Detective Dunn told Mr Winders that they were at a crossroads in their discussions and that the meeting was particularly serious, Mr Winders fully appreciated the need for him to take legal advice.

[118] I was satisfied, however, that the detective was not obliged to preface his initial advice to Mr Winders about his right to obtain legal advice and about his not being obliged to say anything by informing Mr Winders that the matter was serious and that he was a suspect in the murder inquiry. Effective questioning by Police officers investigating alleged offending would be hampered by requiring the Police to reveal to a suspect what they know about an alleged offence before conducting an interview. No unfairness occurred on that account.

[119] It is clear to me, from my viewing of the DVD recording of the interview and a careful reading of the transcript, that Mr Winders was happy to continue talking to the detective throughout the ensuing period of over an hour, knowing that he was being spoken to about matters related to Mr Taiaroa’s death on 19 March 2013. Having been informed that he did not have to speak to the detective and that he was entitled to obtain legal advice, he was happy to do so and, at times, at considerable length without prompting.

[120] Confirmation that Mr Winders was aware of his right to speak to a lawyer is provided by the fact that it was he who raised the question of access to legal advice when Detective Dunn informed him that they were at a crossroads and that he should think very carefully about his answers. It was not necessary for the detective to remind Mr Winders at that point of his right to speak to a lawyer.

[121] I was satisfied, therefore, that Mr Winders was sufficiently informed of the purpose of his detention, namely to question him about the murder at Atiamuri, and about his right to consult and instruct a lawyer without delay for the interview to have been conducted fairly in accordance with Mr Winders’s rights on that account.

Unfair questioning

[122] Largely for the same reasons, I was satisfied that the interview was not conducted in breach of the Chief Justice’s Practice Note as to the manner of questioning.

[123] Detective Dunn made it clear to Mr Winders on a number of occasions that he was grateful to Mr Winders for his co-operation and sought confirmation that Mr Winders was happy to continue to talk to him. The questioning was focused on matters of importance to the Police in their inquiry, particularly in relation to the possibility that Mr Winders may have had a motive to feel aggrieved by Mr Taiaroa’s involvement in the collision on 12 March 2013, but there was no badgering or questioning in the form of cross-examination. I rejected Mr Temm’s submission that by means of being in “a compulsory setting” Mr Winders was compelled to answer questions.

[124] I was not persuaded that the interview was conducted unfairly.

No causal link between the unlawful detention and the evidence obtained in the interview

[125] I was satisfied, therefore, that the only basis upon which it is arguable that the statement was improperly obtained is that the interview was conducted and the statements obtained while Mr Winders was unlawfully detained. As Mr Temm properly conceded, however, that is not an end to the matter because the mere fact of Mr Winders’s unlawful detention does not render the evidence inadmissible.

[126] Section 30(5)(a) of the Evidence Act provides that evidence is improperly obtained if it is obtained “in consequence” of a breach of a defendant’s rights under the New Zealand Bill of Rights Act or unfairly. It is necessary to show that there is a causal connection between the obtaining of the statement and the unlawfulness, in this case, Mr Winders’s detention.²⁶

[127] Having rejected Mr Temm’s argument that the interview was conducted in circumstances in which Mr Winders did not understand why he was being questioned

²⁶ R v Hennessey [2009] NZCA 363, Boskell v R [2014] NZCA 497.

and did not, therefore, fully appreciate why it would be in his interests to obtain the advice of a lawyer, I confined my consideration of causation to the question of whether the statement was obtained by reason of the unlawful detention. Mr Temm’s succinct argument was that, had Mr Winders not been in custody as a result of what I have held to be an unlawful arrest and detention, the Police would not have been in a position to interview him. While that point has some initial attraction, I do not think it withstands closer scrutiny.

[128] The unlawful arrest and detention provided the Police with an opportunity to interview Mr Winders but Mr Winders showed no reluctance to speak to the Police officer and confirmed on a number of occasions that he was happy to help Detective Dunn with his inquiries. I have found that he understood that a principal focus, if not the focus, of the questioning up to the point where he sought and obtained legal advice, was that the Police wished to question him because his father and he had been involved in a minor traffic collision a week before Mr Taiaroa’s death. Given his involvement in that incident, the fact that the Police wanted to interview him cannot have been a surprise and he expressed none.

[129] I was satisfied that the reason Mr Winders spoke to the detective and answered the questions put to him about a topic which had been identified was because of his acknowledgement that, at least so far as the incident on 12 March 2013 was concerned, he had relevant information to provide. It was not Mr Winders’s detention which led him to speak to the detective but his willingness to co-operate on that matter. It was only when Mr Winders appreciated that he was the focus of Police attention as a suspect in a homicide inquiry, rather than simply as a witness, that he elected to exercise the right to consult and obtain advice from a lawyer.

[130] I was satisfied, therefore, that the evidence of the statements made by Mr Winders during the interview with Detective Dunn on 4 April 2013 was not improperly obtained and is admissible under s 27 of the Evidence Act accordingly.

Balancing test under s 30(2) Evidence Act

[131] That being the case, it was strictly unnecessary for me to consider the second limb of s 30(2) and determine whether exclusion of the evidence would proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.

[132] For completeness, however, I considered the factors which s 30(3) articulates as being those to which I might have regard, if the evidence was obtained improperly. That exercise necessarily required a determination, first, of the nature of the impropriety. I was wholly satisfied that, if there were any breaches of Mr Winders’s rights to be fully and fairly informed of his right to silence and to take legal advice, or if the manner of questioning was improper, the breaches would be of a relatively inconsequential nature and not such as to justify exclusion of the evidence. Applying all of the s 30(3) factors to that type of impropriety, I considered it would be unreasonable to exclude the evidence in relation to a very serious charge in circumstances where Mr Winders confirmed on a number of occasions that he was happy to continue providing the information.

[133] A finding that the evidence was improperly obtained by reason of Mr Winders’s unlawful detention, however, is more problematic.

[134] The right breached by the impropriety was the right to be free of arbitrary arrest and detention. That is a serious right of fundamental importance to citizens in a free society, as s 22 of the NZBORA recognises. Moreover, the breach in this case amounted to a serious intrusion, given that it involved Mr Winders being taken in a rugby-style tackle, by surprise, and forced to the ground in circumstances where the arresting officer was concerned he might have been injured. He was then removed into a Police car with his hands in plastic restraints and held in a Police station for approximately two hours. I am satisfied, however, that the breach was not deliberate in the sense that it was done knowing that the Police did not have the right to effect the arrest and that none of the officers concerned were acting in bad faith. My view that the arrest was contrived and an artifice, given that the Police had no real concerns about Mr Winders’s driving in the early hours of that morning, is not inconsistent with that finding.
[135] The evidence obtained is important to the Crown’s case in that it provides confirmation of the defendant’s involvement in the incident at Atiamuri on 12 March 2013, and an account of the defendant’s movements at relevant times on 19 March 2013. It also provides important evidence about Mr Winders’s possession and use of firearms.

[136] Although other remedies for the breach of Mr Winders’s right to be free of unlawful arrest and detention are limited, I was satisfied that they are available. Giving greater weight to the importance of the evidence in what is undoubtedly a very serious case, I would have found as a matter of fine balance that the exclusion of the evidence would be disproportionate to the impropriety and would hold that the evidence was admissible, notwithstanding that it had been improperly obtained.

Decision on admissibility of evidence obtained in Police interview

[137] I ruled that the proposed evidence about the Police interview of Mr Winders on 4 April 2013, including the video recording and the transcript of it, is admissible evidence in the trial.

Non-publication order

[138] It is necessary to protect the right of Mr Winders to a fair trial. I direct that, until the further order of the Court, there shall be no publication of any part of this judgment in the news media or on the internet or other publicly available database, except in a law report or law digest, until the completion of the trial.

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Toogood J