Cassidy v Police [2016] NZHC 457 (16 March 2016)

Last Updated: 24 March 2016

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000411 [2016] NZHC 457

BETWEEN	MATTHEW CASSIDY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	1 March 2016
Appearances:	P Chamberlin and M Allen for the appellant N Dobbs for the respondent
Judgment:	16 March 2016

_{JUDGMENT OF WOOLFORD J}

This judgment was delivered by me on Wednesday, 16 March 2016 at 2:30 pm pursuant to r 11.5 of the High Court Rules 1985.

Registrar/Deputy Registrar

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

Solicitors: Public Defence Service, Manukau City, for Appellant

Kayes Fletcher Walker (Crown Solicitor), Manukau, for Respondent

CASSIDY v NZ POLICE [2016] NZHC 457 [16 March 2016]

Introduction

[1] Following a Judge-alone trial in the Manukau District Court on 14 October

2015, Matthew Ivan Karama Cassidy was found guilty of one charge of burglary by

Judge R Earwaker in an oral decision given on 16 October 2015. On 11 December

2015, Judge Earwaker sentenced Mr Cassidy to two years intensive supervision,

80 hours community work and ordered him to pay $250 reparation. Mr Cassidy now appeals against conviction.

Factual background

[2] At about 6:50 pm on Wednesday, 4 March 2015, a residential property in Stratford Road, Manurewa, was burgled. The offenders attempted to jemmy open a sliding door on the side of the property using a wheel spanner. After failing to gain access to the sliding door, they used the spanner to smash a window next to it. They gained access to the living room of the property by unlocking the sliding door and walking inside. The offenders attempted to uplift a television from the room, but were unable to do so. They then uplifted an Xbox 360 console from the living room along with a black and white Xbox controller and black wallet. They then left through the sliding door.

[3] Neighbours heard breaking glass and went outside to investigate. Two offenders were seen walking towards a white Ford Transit van. One carried a spanner. The other carried electrical equipment. One of the neighbours approached one of the offenders and a short conversation took place on the roadside near the van. Another neighbour also saw the offenders as they exited the property, but from a further distance away.

[4] Both neighbours gave descriptions of the offenders to the Police, who responded immediately. They also gave the Police the registration number of the white Ford Transit van. It was registered to Mr Cassidy’s partner. Accordingly, the Police went round to Mr Cassidy’s address and arrested him at about 10:40 pm for the burglary based on a description of the offenders and Mr Cassidy’s connection to the Ford Transit van. Photographs were taken of Mr Cassidy on arrest showing the clothes he was wearing at the time.

[5] Later that night, both neighbours were shown a photo board containing photographs of eight males of a similar age and ethnicity, each of whom also had some facial hair and the same hair length. One of the photographs was that of Mr Cassidy. One of the neighbours identified Mr Cassidy as being one of the offenders. The other neighbour selected a photograph of another male who was not a suspect.

District Court decision

[6] Five witnesses gave evidence for the Police. First was the complainant whose home was burgled. She was not at home at the time and, accordingly, could not identify the offenders. The two neighbours who had observed the offenders then gave evidence. Their evidence was of importance in identifying Mr Cassidy as one of the offenders. Then two Police officers gave evidence – one who had carried out the photo board identification with the two neighbours and the other who had arrested Mr Cassidy on the evening of the burglary and recorded comments he had made about his activities that night. The second officer had also arranged for photographs of Mr Cassidy to be taken in the clothes he was wearing at the time of his arrest, which were produced as an exhibit.

[7] Having heard evidence on 14 October 2015, Judge Earwaker delivered an oral decision at 9:15 am on 16 October 2015, finding the charge against Mr Cassidy proved beyond reasonable doubt. Unfortunately the oral decision was not able to be located on the Court system and Judge Earwaker therefore provided a memorandum to this Court, dated 15 February 2016. He had retained his handwritten notes of the hearing which he had used for his oral decision and he was, accordingly, able to reconstruct, for the benefit of the High Court on appeal, the basis of his decision to find Mr Cassidy guilty of the charge.

[8] At the outset, Judge Earwaker reminded himself of the burden and standard of proof. He then went through in detail the evidence of the prosecution witnesses, noting in particular the challenge to the reliability of the identification evidence. Having referred to the identification evidence, he reminded himself of the provisions

of s 46A of the Evidence Act and the need for caution before convicting Mr Cassidy in reliance on the correctness of identification evidence.

[9] Judge Earwaker noted that he proceeded with caution, but pointed out that there was also the evidence of Constable Perkins, who had arrested Mr Cassidy a few hours after the burglary, at 10:40 pm on 4 March 2015. He set out the evidence of Constable Perkins, including the questions she asked of him and the answers he gave. The conversation was recorded in her notebook – a copy of which was provided to the Court. The questions and answers took place on route to the Police station in the back of a Police car. At the time it was intended that Mr Cassidy sign the notebook, but because he was handcuffed he could not. The notebook questions and answers were read to Mr Cassidy and he agreed they were correct, but at that stage the notebook remained unsigned.

[10] Further entries were then made in the arresting officer’s notebook by her, including the record that a DVD interview was conducted involving Mr Cassidy, which was not played to the Court as it contained nothing of relevance. At the conclusion of the DVD interview, Mr Cassidy was asked to sign the notebook, but at that point he refused to sign it. Instead, he wrote his own comments:

Some of this info is wrong and part of it is lies.

Part of this statement has been wrongfully written from the lady police officer that interviewed me, plus she is trying to point blame on me. She wrote incorrect information.

[11] Judge Earwaker made the observation that, at that point, it would appear that Mr Cassidy had realised that what he had said to Constable Perkins had amounted to an admission that he was at the address of the burglary. Judge Earwaker observed that Constable Perkins was not challenged in cross-examination about the accuracy of what was recorded in her notebook.

[12] Judge Earwaker noted that Mr Cassidy, as was his right, did not call or give evidence and he observed that no inference whatsoever was taken from that. He then summarised the respective submissions, noting that defence counsel, at the conclusion of the evidence, submitted that the Police had not identified Mr Cassidy

to the required standard as being involved in the burglary. Although Mr Cassidy was linked to the Ford transit van, defence counsel submitted that this was insufficient to link him to the burglary.

[13] Judge Earwaker then recorded that the prosecuting sergeant urged him to look at the totality of the evidence, namely:

(a) The van was identified at the address; (b) The van was linked to the defendant;

(c) The clothing description given by one of the witnesses matched what the defendant was wearing at the time of his arrest; and

(d) One of the neighbours identified Mr Cassidy from the photo board.

[14] At that point, Judge Earwaker again observed the need for caution when identification evidence is relied upon to convict a defendant, but as the prosecuting sergeant had pointed out, that was only part of the evidence against Mr Cassidy.

[15] Having set the evidence out in some detail in the decision, Judge Earwaker noted that when all of the evidence was considered together in its totality, including the comments made by Mr Cassidy himself a few hours later, he was satisfied beyond reasonable doubt that Mr Cassidy had been correctly identified as having committed the burglary. He was not acting alone, but the identity of the other person had not been established. Judge Earwaker noted the following points:

(a) There was a Ford Transit van parked outside the burglary address which was linked to Mr Cassidy and located with him several hours later.

(b) There was a description by one of the neighbours of the clothing of the man inside the house, which was similar to the clothes Mr Cassidy was wearing a few hours later when arrested.

(c) There was identification of Mr Cassidy at the scene by another neighbour via the photo board.

(d) There were also comments of the defendant which clearly placed him at the scene. He accepted he was in the van with his friend in the Mangere area. He admitted that his friend, Hendrix, told him to walk to a house. He admitted that they had ended up banging the windows, although he attempted to distance himself from the burglary and claimed he was not part of the robbery, as he referred to it. He denied carrying electrical equipment from the house, but he did say “He saw a man looking towards me”, which tied into the witness accounts of observing Mr Cassidy leaving the scene. It also contradicted Mr Cassidy’s account that he was drunk and asleep in the van.

[16] Judge Earwaker concluded by saying, taking all the evidence together and considered in its totality, he was satisfied beyond reasonable doubt that Mr Cassidy had entered the property at Stratford Road without authority and with intent to commit an imprisonable offence. He accordingly found him guilty as charged.

Approach to appeal

[17] Section 232 of the Criminal Procedure Act 2011 sets out the approach to be taken by a first appeal court. It provides:

232 First appeal court to determine appeal

(1) A first appeal court must determine a first appeal under this subpart in accordance with this section.

(2) The first appeal court must allow a first appeal under this subpart if satisfied that,—

(a) in the case of a jury trial, having regard to the evidence, the

jury’s verdict was unreasonable; or

(b) in the case of a Judge-alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(c) in any case, a miscarriage of justice has occurred for any reason.

(3) The first appeal court must dismiss a first appeal under this subpart in any other case.

(4) In subsection (2), miscarriage of justice means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a) has created a real risk that the outcome of the trial was affected; or

(b) has resulted in an unfair trial or a trial that was a nullity.

(5) In subsection (4), trial includes a proceeding in which the appellant pleaded guilty.

[18] A recent Court of Appeal decision has set out the principles of interpretation of s 232.¹ For judge-alone trials there are two grounds of appeal:²

(a) An error in the assessment of the evidence to such an extent that a miscarriage of justice has occurred; or

(b) For any reason a miscarriage of justice has occurred.

[19] Once the Court is satisfied a ground of appeal under s 232 is established, no discretion remains. The appeal must be allowed. Conversely, if the Court is not satisfied a ground of appeal is established, the appeal must be dismissed.³

[20] The Court of Appeal then looked at the definition of miscarriage of justice. It said that the inquiry involves a two-step process:

(a) Was there an error, irregularity or occurrence in or in relation to or affecting the trial; and,

(b) If so, did either of the two states of affairs in subs (4)(a) or (b) arise in consequence.⁴

[21] The Court of Appeal dealt first with subs (4)(a) and noted that the terms

“error, irregularity or occurrence” reflect the breadth of matters that might be

_{regarded as giving rise to a miscarriage of justice.}⁵ _{The Court did not attempt to}

¹ _{Wiley v R [2016] NZCA 28.}

² _{At [10](b).}

³ _{At [10](e).}

⁴ _{At [24].}

⁵ At [26].

define the range of matters which could fall within the scope of this part of the definition.

[22] The Court adopted Tipping J’s formulation of the approach to the assessment of what amounts to a real risk in Sungsuwan v R.⁶ In Sungsuwan, Tipping J said that a real risk arises if there is a reasonable possibility that a not guilty verdict might have been delivered if nothing had gone wrong.⁷ The use of the term “real” means that the enquiry is concerned with realistic, rather than theoretical, possibilities.

[23] The Court then turned to the second alternative ground upon which an error may give rise to a miscarriage of justice, which is under s 232(4)(b) where such an error has resulted in an unfair trial or a trial that was a nullity. Not every error irregularity or occurrence will result in an unfair trial. The assessment is to be made

in relation to the trial overall.⁸ If the Court finds there has been an unfair trial in

terms of subs (4)(b), it is unnecessary to consider whether this may have affected the outcome of the trial.⁹

[24] The Court hesitated to give examples of cases of error, irregularity or occurrence that might be appropriately treated as resulting in an unfair trial under subs (4)(b), since the range of such matters may be extensive. However, without in any way limiting the type of cases that might fall into this category, the Court gave as examples the lack of legal representation, failure by counsel to follow the defendant’s instructions on fundamental issues such as plea, the giving of evidence and advancing a defence based on the defendant’s version of events and the appellant

being deprived of an adequate closing address.¹⁰ The Court concluded that the error,

irregularity, occurrence must be of sufficient seriousness to warrant the verdict being set aside without further enquiry.¹¹

Grounds of appeal

_{[25] Mr Cassidy’s grounds of appeal are broadly:}

⁶ _{Wiley v R, above n 1, at [27].}

⁷ _{Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [67].}

⁸ _{Wiley v R, above n 1, at [35].}

⁹ _{At [37].}

¹⁰ _{At [40].}

¹¹ At [41].

(a) The evidence of Mr Cassidy’s identification by one of the neighbours through the use of a photo board was inadmissible because it failed to comply with s 45 of the Evidence Act.

(b) During the hearing of evidence in the Judge-alone trial, photographs of Mr Cassidy taken by the arresting officer at the time of arrest were unnecessarily displayed in view of, and close proximity to, the witnesses the prosecution relied upon to identify Mr Cassidy as responsible for the offending. This occurred prior to and during the tendering of their evidence creating a real risk that the trial was affected, resulting in a miscarriage of justice.

(c) The judge erred in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.

Photo board identification

[26] Constable Javon Beets spoke to the two neighbours shortly after the burglary and took statements from them. He returned later that evening and showed each of them a photo board containing colour photographs of eight men of a similar age and ethnicity, each of whom also had some facial hair and the same hair length. One of the eight photographs was of Mr Cassidy. Constable Beets gave evidence that he followed the procedure set out in s 45(3) of the Evidence Act 2006, which provides:

(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;

_...

[27] One of the neighbours, Mr Barend Pienaar, selected photograph number 8, which was not Mr Cassidy. Constable Beets recorded that the other neighbour, Mr Ronald Charan, initially selected photograph number 1, which was also not Mr Cassidy, but then he changed his mind and selected photograph number 2, which was a photograph of Mr Cassidy. Mr Charan entered the number 2 on the photo board as his final selection.

[28] The admissibility of visual identification evidence obtained by the use of a photo board is governed by subs 45(1) and (2), which provide:

(1) If a formal procedure is followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence or there was a good reason for not following a formal procedure, that evidence is admissible in a criminal proceeding unless the defendant proves on the balance of probabilities that the evidence is unreliable.

(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.

[29] Counsel for the appellant submits that the use of the photo board in this case was not a formal procedure as defined in s 45(3) of the Act as it did not comply with ss (3)(b), which requires the person to be identified to be compared to no fewer than seven other persons “who are similar in appearance to the person to be identified”.

[30] Counsel submits that seven of the photographs on the photo board were similar, but that Mr Cassidy was the only person depicted with obvious grey patches in his hair. He was also the only person depicted with blue coloured eyes. All other photographs depicted persons with dark brown or black coloured hair and eyes.

[31] Counsel submits that this departure from what was intended to be a formal procedure had obvious risks. Potential witnesses could, when feeling obligated to

make a choice, consciously or subconsciously be predisposed to select the photograph of someone different in appearance for no other reason except that the photograph stands out because it is different from the others.

[32] Counsel therefore submits that the formal procedure prescribed in s 45(3)(b) was not followed and that there was not a good reason for not doing so. Counsel acknowledges that failure to follow a formal procedure does not automatically render visual identification evidence inadmissible. Instead, s 45(2) requires the prosecution to prove beyond reasonable doubt that the evidence is reliable.

[33] In this regard, counsel draws a distinction between the two neighbours. He submits that the identification processes for Mr Pienaar and Mr Charan involve significant differences. Counsel acknowledges that the Police could prove beyond reasonable doubt that Mr Pienaar’s photo board evidence was reliable, at least to the extent that it tended to exonerate Mr Cassidy’s involvement. Mr Pienaar did not recognise Mr Cassidy as being involved in the burglary despite being two to three metres away from the suspect who the Police allege to be Mr Cassidy. The appellant, therefore, does not challenge Mr Pienaar’s photo board evidence.

[34] However, counsel argues that Mr Charan’s photo board evidence is unreliable and therefore inadmissible and should have been excluded from consideration. Counsel submits that there are a number of reasons why Mr Charan’s photo board evidence is unreliable:

(a) Mr Charan only briefly observed the face of the offender the Police allege to be Mr Cassidy from 15 – 20 metres away.

(b) Mr Charan also said that the offender had a hoodie on and “when you

have a hoodie on you can’t see his features or anything – right”.

(c) When undertaking the photo board identification, Mr Charan indicated he was woken up and half asleep. The presence of a baby in the household also appeared to affect him and the only lighting was provided by a dim table lamp.

(d) In cross-examination Mr Charan acknowledged that photograph number 2 did stand out because of differences in the photographs.

(e) Mr Charan was not sure that the photo board he was viewing at the hearing was the same one he was shown on the night because he recalled that the one he was shown on the night was black and white, not in colour.

(f) Mr Charan changed his mind during the procedure. He appeared to be unsure about which photograph to select before finally selecting photograph number 2.

[35] I am of the view, however, that a formal procedure (as defined) was followed in the present case and the evidence of both neighbour’s identification is admissible. The requirement that the other photographs should be of persons who are similar in appearance to the person to be identified does not mean that they must be identical.¹²

The guiding principle is whether the photo board is such as to avoid any material risk

of predisposing the witness to identify the defendant.¹³

[36] The fact that the eye colour of the person shown in photograph 2 may have been different from the persons shown in the other photographs did not affect the identification by Mr Charan. He was not close enough to see the offender’s eyes, being some 15 to 20 metres away, and so was not looking for that feature in the photo board.

[37] Furthermore, although in his written submissions counsel for the appellant refers to Mr Cassidy’s eyes as coloured blue, when questioned about Mr Cassidy’s photograph, Mr Charan thought that his eyes looked “kind of hazel”. Counsel also referred to them when questioning Mr Charan as either hazel or green. They are not definitively blue.

[38] I accept that Mr Cassidy is the only person in the photo board with any grey hair. However, on close inspection, I am of the view that that feature does not

¹² _{Ah Soon v R [2012] NZCA 48 at [23].}

¹³ At [23].

dominate the photo board or immediately draw attention from the other photographs. I agree with Crown counsel that it is not the only distinguishing feature on the photo board. There are other features, such as the yellow t-shirts in photographs 1 and 6 and the shadow in photograph 8 that are different and do draw attention. There is also only one photograph of a person wearing a hoodie, although the hoodie is down off the head.

[39] I am of the view that the present case can be distinguished from the case of Ah Soon v R,¹⁴ which is relied upon by the appellant. In that case, one of the identification witnesses had described the offender as having blonde streaks or tips in his hair. This was a significant feature in the description of the offender. In the photo board, only the defendant had blonde tips in his hair. The photo board was held to be inadmissible. In the present case, neither Mr Pienaar or Mr Charan described the eye colour of the offender, nor the fact that he had a little grey in his

hair. These were, therefore, not seen as distinguishing features by the two identification witnesses. I am of the view that this case is more akin to that of Lesa v R,¹⁵ where the Court held that no material risk existed where the defendant was the only person in a photo board who was wearing a red t-shirt. Unlike the distinctive hair colouring in Ah Soon, a coloured t-shirt was said to be commonplace and not an important feature in the witness’s description or identification of the defendant as the

offender. It did not create a risk that the defendant would be wrongly identified.

[40] Mr Charan was questioned at trial about the features of Mr Cassidy as shown in his photograph compared to the other photographs, but he did not concede that the features which were drawn to his attention affected his identification at the time it was made. Mr Charan also recalled that the photo board he was shown was black and white. Constable Beets’ evidence is that it was coloured, but Mr Charan’s recollection may be due to the fact that he viewed the photo board using only a dim table lamp in the middle of the night. In those circumstances, it is quite unlikely that the eye or hair colour affected his identification. Mr Charan maintained that his

_{identification was accurate. He pointed out that the person in photograph 1 had a}

¹⁴ _{Ah Soon v R, above n 12.}

¹⁵ Lesa v R [2015] NZCA 355.

“longer face”, whereas photograph 2 depicted a “round face” consistent with the

offender he had observed.

[41] Having determined that the showing of the photo board to Mr Pienaar and Mr Charan was a formal procedure as defined, the defendant has to prove on the balance of probabilities that the evidence is unreliable in accordance with s 45(1) of the Act if it is to be ruled inadmissible.

[42] In my view, the evidence is not unreliable. The burglary happened in daylight. It was “a nice bright day”. Mr Charan heard breaking glass and came out of his property to see what had caused the breaking glass. He observed an offender coming out of his neighbour’s property and quickly called the Police after seeing Mr Pienaar coming up his driveway, telling him to call the Police. When he first saw the offender he was about 25 to 30 metres away. He then moved half way down his driveway and ended up about 15 to 20 metres away from him. While Mr Pienaar got closer to the offender (only two to three metres away) and did not select number 2 as a photograph of the offender, that does not mean that Mr Charan’s identification is unreliable. The photo board identification was made just five hours after the burglary, when Mr Charan’s recollection would have been fresh. While initially hesitant, Mr Charan wrote down photograph number 2 as the photograph he recognised as a person involved in the burglary of his neighbour’s house.

[43] In those circumstances, the first ground of appeal fails.

Display of arrest photographs

[44] Mr Cassidy was arrested less than four hours after the burglary. He was taken back to the Police station where photographs of him were taken. Two colour photographs were then printed on an A4 size sheet of paper. These were produced by Constable Perkins to show the clothing that he was wearing at the time of his arrest and, inferentially, what he may have been wearing four hours earlier. One photograph was a full length photograph of Mr Cassidy, while the other was more of a close-up photograph of him, showing his head and torso. Mr Cassidy was wearing a very distinctive red or orange short-sleeved t-shirt with light green knee length pants and jandals on his feet.

[45] Identification of Mr Cassidy as one of the offenders was the single issue in the trial. The Police case would have been advanced if the two neighbours, who were summoned to give evidence, described one of the offenders as wearing a red or orange t-shirt.

[46] Counsel for the appellant submits that the arrest photographs were displayed during the hearing in view of the two neighbours, Mr Pienaar and Mr Charan while they were giving their evidence. The display occurred as a result of the prosecuting sergeant moving and reorganising documentary material around on counsel’s benches. Counsel submits that apart from the risk of a conscious and deliberate attempt to elicit evidence from the identification witnesses which matched the photographs, the display also risked influencing the witnesses’ confidence, even sub- consciously, which they otherwise may not have had, that the Police had prosecuted the right man. This in turn may have given the witnesses the confidence to make assertions accompanied by a tone of reliability during the evidence and about which they may have had reservations prior to the display of the arrest photographs.

[47] Counsel submits that the display of the photographs amounted to prosecutional misconduct in that it was improper and departed significantly from good practice. As such, it was sufficiently serious to be categorised as unfairness, in which case it was immaterial whether it may have affected the outcome of the trial.

[48] The Courtroom used for the defended hearing was configured for Youth Court appearances. It was small and rather intimate with only 18 seats in mainly two rows for the public at the rear of the Court. The room itself was a square shape, but had a single horse-shoe shaped table for counsel in the middle of it. The witness box was off to one side of the horse-shoe, against the wall. The witnesses sat with their back to the wall of the room, facing the horse-shoe table.

[49] The prosecuting sergeant sat at the horse-shoe table. He was the closest counsel to the witnesses. At most, he was only three metres away from them. Defence counsel sat on the other side of the horse-shoe table and was approximately six metres away from witnesses.

[50] During the course of the hearing, defence counsel noticed that the arrest photographs of the appellant had been placed on the horse-shoe table from time-to- time by the prosecuting sergeant in such a position that they were able to be seen by the witnesses. He felt uneasy about it, but did not draw it to the attention of the prosecuting sergeant or the Court at the time. However, after the hearing concluded, he was sufficiently concerned to request the CCTV footage from the Court. The appellant’s counsel filed the CCTV footage with his submissions on the appeal.

[51] I have now viewed the CCTV footage. It is in colour and very good quality. Everything that went on in the Court can be seen quite clearly. I have concluded, based on the CCTV footage, that the arrest photographs were indeed inappropriately displayed from time-to-time by the prosecuting sergeant in such a position that they were able to be seen by the witnesses. I have also reached the provisional view that the display of the photographs may not have been inadvertent. I am drawn to this view by two instances in particular.

[52] The first is during the examination-in-chief of the first neighbour, Mr Pienaar. One of the arrest photographs is displayed, but is immediately covered up by the prosecuting sergeant after Judge Earwaker ruled that Mr Pienaar was entitled to refresh his memory from the statement he gave to Police on the evening of the burglary.

[53] The second is during the examination-in-chief of the second neighbour, Mr Charan. During the morning adjournment, the prosecuting sergeant left the arrest photographs displayed on the table. He was the first person back into the Courtroom. Then Mr Charan came back into Court and walked behind the prosecuting sergeant to resume his seat in the witness box. They have a brief word together. Then defence counsel opened the door to come back into Court. The prosecuting sergeant immediately and quite deliberately covered up the photographs before defence counsel came near.

[54] Having carefully considered all the evidence, I am of the view, however, that the display of the arrest photographs did not affect the outcome of the trial. It is unclear whether the witnesses actually saw the arrest photographs or realised that

they were photographs of the defendant on his arrest. Counsel for the appellant submits that Mr Pienaar must have seen the photographs because after describing the offender’s t-shirt in evidence-in-chief as red, he said in cross-examination that it was orange or red.¹⁶ That is, however, speculation. I note that in his original statement to the Police shortly after the burglary, the other neighbour, Mr Charan, described the offender’s t-shirt as red or orange.

[55] The major reason why I am of the view that the display of the arrest photographs did not affect the outcome of the trial is that Judge Earwaker gave both neighbours leave to refer to their original statements when giving evidence. After refreshing their memories from their original statements, Mr Pienaar described the offender as wearing a red shirt, short and jandals. Mr Charan’s description was more detailed. He described the offender as having a round face, a bit unshaved, light brown skin, about five foot 10 inches tall, short black hair with a red or orange long sleeved t-shirt and grey track pants. Furthermore, Judge Earwaker relied on a number of factors other than the descriptions of the offender by the neighbours in finding the charge against Mr Cassidy proven beyond reasonable doubt.

[56] However, the question remains whether the display of the arrest photographs was so serious that it made the trial unfair in terms of s 232(4)(b), such that it would be immaterial whether the display of the photographs may have affected the outcome of the trial.

[57] An inadvertent display of the arrest photographs, although inappropriate, would not, in my view, be so serious as to make the trial unfair. Although I have reached the preliminary view that the display of the photographs may not have been inadvertent, I am, however, unable to conclude that the display of the arrest photographs was deliberate. There is no evidence that the CCTV footage has been referred to the prosecuting sergeant and his comments sought, nor have the identification witnesses been spoken to about the issue.

[58] In those circumstances, I am unable to find that the display of the arrest photographs was so serious as to make the trial unfair. The second ground of appeal

¹⁶ In the arrest photographs the t-shirt looks more orange than red.

fails. I do, however, direct that a copy of this judgment be sent to the Principal Prosecutor, New Zealand Police Prosecutions Service, for his review and further investigation if thought desirable.

Judge’s assessment of the evidence

[59] Counsel for the appellant submits that Judge Earwaker was improperly influenced, both in terms of the evidence and the demeanour of the identification witnesses during the decision-making process, which led to multiple errors, resulting in mistaken findings of fact. Counsel submits there are a number of conclusions reached which the evidence did not support.

[60] First, counsel submits that the Judge failed to appreciate the fact that not a single witness observed the offenders getting into the white Ford Transit van – they were merely observed walking in the direction of it and in close proximity to it.

[61] Second, one of the factors which led Judge Earwaker to find the charge of burglary proven beyond reasonable doubt was Mr Pienaar’s description of the offender seen inside the house compared with the clothing Mr Cassidy was wearing a few hours later when arrested. Mr Pienaar observed one of the offenders wearing shorts and jandals inside the house. He then saw an offender outside the house wearing shorts and jandals. Counsel submits that every second person in South Auckland would wear a t-shirt, shorts and jandals and, accordingly, it was not sufficient enough to draw the conclusion that Mr Cassidy must have been one of the persons Mr Pienaar saw wearing shorts and jandals inside or outside the scene of the burglary.

[62] Third, Judge Earwaker’s comments about Mr Cassidy’s statements to the arresting officer did not take into account Mr Cassidy’s Tourette’s syndrome and other mental health issues and any implications those conditions may have on ordering the events of the day or any trouble remembering things. Looked at individually, each of the comments made by Mr Cassidy could not be used by Judge Earwaker to support his finding that the charge of burglary had been proven beyond reasonable doubt.

[63] Counsel submitted that Judge Earwaker’s broad reasoning without close inspection of all relevant factors resulted in allowing one deficient factor to augment another deficient factor, leading to error. There were, according to counsel, important factors leaning towards a verdict of not guilty. Mr Pienaar did not identify Mr Cassidy as one of the offenders. Mr Charan’s description of the offender changed during the course of evidence and in Mr Cassidy’s comments to the arresting officer he was talking about a gang member’s house in Manukau Heights, not a burglary in Stafford Road, Manurewa.

[64] I am of the view, however, that Judge Earwaker’s assessment of the evidence

was not flawed in that the finding of guilt beyond reasonable doubt was open to him.

[65] First, it is immaterial that the identification witnesses did not see either of the offenders getting into the white Ford Transit van. They were seen walking in the direction of the van and their conduct was sufficient for the identification witnesses to consider the van to be associated with them. The van was registered to Mr Cassidy’s partner. It was driven off very soon after the burglary.

[66] Second, as to the descriptions of the offenders, both Mr Pienaar and Mr Charan’s description of the physical features of the offender are consistent with Mr Cassidy’s appearance at the time of his arrest a few hours later. Both were close enough to observe the offender’s features in broad daylight. Mr Pienaar’s description of the clothing that the offender wore was similar to what Mr Cassidy was wearing when arrested. It may not have been a detailed description, but a description does not have to be detailed to be of relevance and admissible as evidence.

[67] Furthermore, Mr Cassidy’s comments to the arresting officer, when taken together, may be viewed by a fact finder as consistent with his presence at the scene of the burglary and involvement with it. Mr Cassidy told her that he was with his mate, Hendrix, that afternoon. In answer to the question “Where have you been in your van today?” Mr Cassidy answered:

Only in Mangere but I’ve fallen asleep, apart from the time he told me to walk to a house. Oh eh but I can’t remember what that was cause I was half asleep.

He then said that his mate told him:

Hang on bro can you come with me while I climb in the window of my house because I lost my keys. So we ended up banging the windows but then I was like fuck this I’m out of here bro I’ve got a family, I didn’t go in the house, I’m glad I didn’t get involved. I’ve got nothing to hide and I’m glad I didn’t break in. I’ve got fuckn 5 kids to raise bro.

[68] In answer to the question “So you and who else went to the house?”

Mr Cassidy answered:

Me and Hendrix and his mate. I don’t know his real name. I don’t care about this. I wasn’t the one part of the robbery.

[69] Then in answer to the question “Why was someone seen leaving a house

carrying electrical equipment to your van?” Mr Cassidy said:

I didn’t carry no electrical equipment to my van bro, I saw a man looking towards me, but I wasn’t carrying electrical equipment.

[70] I do acknowledge that Mr Cassidy did later say that he went to a Head Hunter’s house in Manukau Heights because a guy there owed Hendrix money, after making the comment that when it came to the defended hearing day he would not remember this at all.

[71] There was no expert evidence about the way in which Mr Cassidy’s mental health issues may have affected his ability to remember events. The only evidence at trial about Mr Cassidy’s mental health issues came from a statement to Police on arrest and a comment made by the arresting officer in cross-examination that she had checked Mr Cassidy’s NIA profile and was aware that he had some mental health history, but to what extent she was not aware.

[72] I am, therefore, of the view that Judge Earwaker was well able to assess the evidence overall and reach a conclusion that Mr Cassidy’s guilt was proven beyond reasonable doubt. Each piece of circumstantial evidence does not have to be proved beyond reasonable doubt, but builds upon one another to reach a finding that can be

made beyond reasonable doubt.¹⁷ That is what Judge Earwaker did in the present case. His approach cannot be faulted. The third ground of appeal also fails.

[73] The appeal is, accordingly, dismissed.

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

_{Woolford J}

¹⁷ Milner v R [2014] NZCA 366 at [15]; Harnett v Police HC Auckland CRI-2008-404-78, 20 May

2008 at [7].