May v Police [2016] NZHC 806 (28 April 2016)

Last Updated: 13 May 2016

IN THE HIGH COURT OF NEW ZEALAND GREYMOUTH REGISTRY

CRI-2015-418-000009 [2016] NZHC 806

BETWEEN	HOLLY ROSE MAY Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	19 April 2016
Appearances:	M Zintl for Appellant A C Trinder for Crown
Judgment:	27 April 2016
Reissued:	28 April 2016

_{JUDGMENT OF DUNNINGHAM J}

[1] The appellant, Ms Holly Rose May, appeals her conviction on a charge of driving while suspended. At issue was whether the identification evidence of a police constable, which was pivotal to convicting Ms May, was properly admitted by the District Court Judge.

Background

[2] On 11 June 2015, at about 12.15 pm, Constable Horridge was driving a marked police vehicle on Tainui Street, Greymouth. Shortly after he exited a roundabout, and while still accelerating to 50 kilometres per hour, he saw a car and trailer approaching the roundabout from the opposite direction. He said that when the car was about 30 metres from him he recognised the defendant, Ms May, as the driver. Although there is a grass median strip between the opposing lanes, and there are palms planted at intervals along the median strip, the constable gave evidence

_{that he had an unobscured view of the driver and was sure that it was Ms May.}

MAY v NEW ZEALAND POLICE [2016] NZHC 806 [27 April 2016]

[3] He explained that he first met Ms May when she was still attending school. In the intervening years he had had a number of interactions with her in the course of his work as a highway patrol officer, usually on routine stops of motor vehicles. He said he knows her well enough that, in more recent years, he has not needed to request a driver licence for identity from her. He said the last time he dealt with her was probably within six months of the events that gave rise to the present charge.

[4] On the day in question he said that once he saw who the driver was, he looked at the number plate and undertook a radio check of her licence status. That confirmed that it was Ms May’s vehicle and that her licence was suspended. He then attempted to do a U-turn with a view to stopping the vehicle, but could only do so further down the road where there was a gap in the median strip. After he had completed the U-turn he could not locate the vehicle. Nevertheless, based on his identification of her, the constable subsequently charged Ms May with driving while suspended.

The District Court hearing

[5] In the District Court, the defence challenged the admissibility of Constable Horridge’s identification evidence. As a consequence, Judge MacAskill heard the evidence of the constable and of the defendant and her mother, Joanne Elizabeth Ross, by voir dire, to determine if the identification evidence should be admitted under s 45 of the Evidence Act 2006.

[6] In his subsequent written decision setting out his reasons for ruling the evidence admissible, the Judge explained that he approached the issue on the basis that the evidence would be inadmissible under s 45(2) (because no formal procedure for confirming the identification of Ms May had been followed), unless the prosecution proved beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification.¹ Judge MacAskill concluded that the prosecution had proved beyond reasonable doubt that the circumstances in which the identification was made had produced a reliable

identification.

[7] In reaching this conclusion, he referred to the Supreme Court’s decision in Harney v Police.² He considered that the particular circumstances in which Constable Horridge had previously seen the defendant demonstrated that he had capacity to identify the defendant with accuracy. He was satisfied that the constable knew the defendant well enough to identify her with a high degree of reliability in the circumstances in which the actual identification took place. He concluded there

was nothing in the circumstances of the identification, such as lighting, distance, duration of observation and the eye sight of the constable that called the reliability of his recognition of the defendant into question. In those circumstances, he held a formal identification procedure would have been of no utility.

[8] He noted that the constable made his identification of the defendant with a high degree of confidence at the time of his identification, although he “[did] not place much weight on this factor”. He also noted that one of the factors that gave some assurance of the reliability of the constable’s evidence was that he recognised the defendant in a context that did not otherwise point to her as being the driver. It was only after the constable decided to check her driver status that he ascertained the vehicle being driven was her vehicle.

[9] As the parties confirmed that the only issue in dispute was whether the constable reliably identified Ms May, the evidence presented at the voir dire was also the evidence relied on by the prosecution and defence for the charge itself. Because the Judge was satisfied the officer did not make an error in his recognition of the defendant, and he did not accept the defendant’s denials or her mother’s evidence that suggested that she might have been the driver on the occasion in question. He went on to find the charge proved beyond reasonable doubt.

Appeal against conviction

[10] The appeal is governed by s 232 of the Criminal Procedure Act 2011. The appellant must satisfy this Court that a miscarriage of justice has occurred, for any reason, including because the Judge erred in his assessment of the evidence.

[11] In the present case, the appellant’s submission is that the Judge erred when he found that the prosecution had proved beyond reasonable doubt that the circumstances in which the identification was made produced a reliable identification.³

[12] In the present case, the prosecution turned on visual identification evidence. Section 4 of the Evidence Act 2006 defines “visual identification evidence” as evidence that is:

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

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

[13] In Harney v Police, the Supreme Court held that this definition includes recognition evidence, where the witness purports to identify the offender as someone with whose appearance the witness is already acquainted.⁴

[14] The admissibility of visual identification evidence is governed by s 45. That section provides a formal procedure for obtaining visual identification evidence which, in summary, requires the person to be identified from no fewer than seven other persons who are similar in appearance to the person being identified.

[15] There is no dispute that the formal procedure provided for in s 45(3) was not followed in this case. However, identification evidence of a person alleged to have committed an offence can be admissible where:

(a) there was a good reason for not following a formal procedure unless the defendant proves, on the balance of probabilities, that the evidence

_{is unreliable;}⁵ _or

³ _{As required by s 45(2) of the Evidence Act 2006.}

⁴ _{Harney v Police, above n 2, at [16].}

⁵ Evidence Act 2006, s 45(1).

(b) if a formal procedure was not followed, and there was no good reason for not following a formal procedure, the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.⁶

[16] Although s 45(4) sets out a range of circumstances which constitute good reasons for not following a formal procedure, that list is not exhaustive. In Harney, the Supreme Court accepted that where visual identification evidence takes the form of recognition by the eye witness of someone already known to the witness, that can also constitute a good reason for not following a formal procedure.⁷

[17] However, the Judge in the present case did not proceed on the basis that a good reason existed for not following the formal procedure. Instead he took an appropriately conservative approach by assessing the identification evidence under s 45(2), where the obligation was on the prosecution to prove, beyond reasonable doubt, that the circumstances in which the identification was made produced a reliable identification.

The appellant’s submissions

[18] Mr Zintl, for the appellant, accepted that the appellant was known to Constable Horridge. However, he emphasised that the Courts still approach such identification evidence with caution. In Harney, the Court emphasised that too much weight should not be given to a witness’s confidence.⁸ Confidence alone cannot satisfy a reliability test. Instead the Court should focus on the circumstances of the identification, and decide whether these support the identification being reliable. Relevant considerations were explained in R v Turnball as follows:⁹

How long did the witness have the accused under observation? At what distance? In what light? Was the observation impeded in any way, as for example by passing traffic or a press of people? Had the witness ever seen the accused before? How often? If only occasionally, had he any special reason for remembering the accused?

⁶ _{Section 45(2).}

⁷ _{Harney v Police, above n 2, at [26].}

⁸ _{At [33].}

⁹ R v Turnball [1977] QB 224, [1976] 3 All ER 549 (EWCA Crim) at 228, 552.

How long elapsed between the original observation and the subsequent identification to the police? Was there any material discrepancy between the description of the accused given to the police by the witness when first seen by them and his actual appearance? ...

Recognition may be more reliable than identification of a stranger; but even when the witness is purporting to recognise someone he knows, the jury should be reminded that mistakes in recognition of close relatives and friends are sometimes made.

[19] In the present case Mr Zintl submitted that the circumstances of the purported recognition did not produce a reliable identification for the following reasons:

(a) The constable only observed the driver of the car for a short period of time as the motor vehicles were moving and his observation of the driver would have been fleeting. The notes of evidence record the constable as saying:

I, I wouldn’t be able to put a precise time on it. I was still accelerating up to 50 km an hour (inaudible) when I saw the vehicle I would estimate it would have been slowing down. It certainly didn’t record any high speed than 50 on my radar so it was a matter of (inaudible).

(b) Constable Horridge was inconsistent regarding when he says he recognised the appellant as the driver. Twice in evidence the constable said he recognised the appellant as the driver as soon as he saw her but, further on, when asked if he recognised the appellant straight away the constable replied “I recognised her, yes, as she drove past me”.

(c) Constable Horridge had his view of the driver impeded at times by the median strip planting and appears to have conceded that his view was impeded at the time the two vehicles were level. In support of this submission, the appellant points to evidence that the constable saw the driver on the opposite side of a grass median strip which had palms planted at intervals, and the constable accepted it, at times these palms would have been between him and the vehicle and, that the vehicles crossed where there were palm trees between the two vehicles.

[20] For all these reasons, the appellant submits that the Judge was incorrect in his assessment of the visual identification evidence when he held the prosecution had proved beyond reasonable doubt that the circumstances in which the identification was made had produced a reliable identification.

The respondent’s submissions

[21] The respondent’s submissions were simply that the Judge’s conclusions were entirely open to him on the evidence. First, there was adequate time for the constable to observe the driver. His evidence was that when he first saw the appellant it was at a distance of approximately 30 metres. At that stage he had not reached 50 km per hour and the other vehicle would have been slowing down as it was approaching the roundabout which he had just left. At the point where the cars directly passed each other, the distance was only approximately five metres and the constable was able to look “directly across to my right as she drove past me”. Thus the Judge’s conclusion that there was “nothing in the circumstances of the identification, such as ... duration of observation ... of the constable that calls the reliability of his recognition of the defendant into question”, was clearly open to him.

[22] In relation to the suggestion that the constable’s view of the driver was impeded by the median strip planting, the respondent says the constable’s evidence was that the palms were spaced some distance apart and the constable and the driver looked directly at each other as the cars passed. The exchange in cross-examination, where he accepted they passed “where the palm trees are”, could not be taken as a suggestion there was a palm tree obstructing his view at the relevant time. Furthermore, that was not directly put to him and it would contradict his evidence that he and the driver looked directly at each other as the cars passed.

[23] The appellant’s suggestion that the constable’s evidence was inconsistent because he said that he immediately recognised her, but later that he recognised her as she drove past him, should be rejected. He had not altered his position but was merely emphasising his evidence that he also had a much closer view when the vehicles passed each other.

Discussion

[24] None of the concerns raised by the appellant as to the reliability of the identification evidence suggest that there was any error in the Judge’s assessment. The evidence was that the constable recognised the defendant, on a fine day, and where the constable had a clear view of the defendant as the cars travelled towards each other.

[25] Furthermore, the reliability of the identification evidence was significantly bolstered by the fact that the constable did not initially recognise the vehicle, but rather the driver and then it subsequently transpired that the vehicle belonged to the appellant. As the Judge said, the constable “recognised the defendant in a context that did not otherwise point to her being a driver. It was only after he decided to check her driving status that he ascertained that the vehicle being driven was her

vehicle”.¹⁰

[26] In addition, the incident happened on a Thursday and when the car was towing a trailer, and the defendant acknowledged “Thurday’s my payday and I usually get coal and that’s probably what we were doing was getting coal from the coal yard out Kaiata”. Those factors, in my view, greatly reduced the possibility of it being a mistaken identification of someone who looked similar to the appellant, particularly where there was no credible suggestion that a person of similar age and appearance was driving the car that day.

[27] In conclusion, I am satisfied that the Judge’s decision to admit the visual identification evidence was readily available to him on the evidence. There has been no miscarriage of justice, and the appeal is dismissed.

Solicitors:

Hannan & Seddon, Greymouth

Raymond Donnelly & Co., Christchurch

¹⁰ New Zealand Police v May, above n 1, at [10].