FLEETWOOD v R [2023] NZCA 429

FLEETWOOD v R [2023] NZCA 429 [7 September 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA378/2022[2023] NZCA 429BETWEEN CAINE FLEETWOODAppellantAND THE KINGRespondentHearing: 23 August 2023Court: Goddard, Whata, Downs JJCounsel: P L Murray for AppellantS C Baker for RespondentJudgment: 7 September 2023 at 11.30 amJUDGMENT OF THE COURTA Leave to appeal is granted.B The appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Fleetwood appeals against his conviction for aggravated burglary andkidnapping. He claims the trial Judge failed to give the jury appropriate directions inrespect of three dock identifications. We disagree for the following reasons.Leave[2] Leave to appeal is required because Mr Fleetwood filed his appeal 70 days late.We are satisfied the dock identification issue is worthy of consideration, and the delayhas not caused any prejudice. Leave to appeal is granted accordingly.Facts[3] On the Crown case, Mr Fleetwood and three others entered a flat onDixon Street. Mr Fleetwood and one of the other offenders, Mr Smith, were armedand entered first. Mr Smith had a knife and Mr Fleetwood had a screwdriver and axe.Another male and female entered the flat shortly after. Mr Fleetwood made threats tothe occupants and was involved in manhandling one of them. He was involved inransacking the address over a period of time. At one point, Mr Fleetwood asked thefemale occupant, Ms Corfield, to remove her clothing. She did not comply.[4] The occupants were detained within the flat including at various times indifferent places in the flat — the lounge and bedrooms — and were not free to leave,as one of the four offenders stayed with them at all times. A substantial amount ofproperty, cash, identity documents and clothing were taken from the address.Further threats were made to the occupants about what would happen to them if theycalled the police either at the time or later.Identification[5] The evidence about identification of Mr Fleetwood included:(a) Formal photo montage identification by two victims of the offending,Mr Vargas-Gonzalez and Mr Drury, together with confirmation by themat the trial that they were "100% sure" about Mr Fleetwood being oneof the kidnappers described as "male number 2".(b) Common descriptive evidence of "male number 2" by Ms Corfield,Mr Vargas-Gonzalez and Mr Drury, including common references to abeard, short shorts, a leg tattoo, and to carrying an axe.(c) Dock identifications of Mr Fleetwood by Mr Vargas-Gonzalez as"male number 2".[6] Only the dock identifications, and the way the Judge directed the jury on thosedock identifications, are in issue in this appeal.Dock identification[7] Mr Vargas-Gonzalez purported to identify Mr Fleetwood from the dock undercross-examination. The transcript records the following exchanges:Q. A fact or detail, when you say you're 100% sure about it you could bemistaken, couldn't you?A. Yeah, if, about a little detail or something like that but, um, of theindividual, I believe I'm 100% confident.Q. Okay and when you say of the individual you're talking about whenyou've gone through and done an identification process with police?A. Yeah, of him, yeah.Q. Sorry, of - when you saw a photograph –A. Of your defendant, sorry?Q. – so a series of photographs with male faces?A. Yeah.Q. With beards?A. Yeah.Q. And you identified someone from that, didn't you?A. Yeah. I identified male number 1 and 2. They were both were in thepictures.Q. All right. And I'm just going to ask you about the series ofphotographs with the ones with the beards. You identified someonesaying that that was the tall guy with the axe?A. Yeah, which is your defendant.Q. And you also say that your'e [sic] 100% sure – sorry, hang on, Sir I'll– I obviously didn't ask the question but obviously he's answered.[8] There were then discussions in chambers about how to deal with this dockidentification. Ultimately it was agreed that Mr Vargas-Gonzalez should be spokento, and the Judge should address the jury about it. Mr Vargas-Gonzalez was warnedby the Judge, in the absence of the jury, not to point out Mr Fleetwood. The Judgethen directed the jury:Thank you Madam Foreperson and members of the jury. I apologise, therehas been a bit of a delay until resuming now. I guess you've had a longerlunchbreak, so hopefully that's been okay but there is something I need to sayto you before the witness comes back in. Prior to breaking earlier today andin response to some questions from Mr Pohiva you heard the witnessMr Gonzalo Vargas-Gonzalez give some evidence that the defendant in thedock is the same person seen by him in a photograph. Now you will havemore evidence about that later, about the witness being shown a set ofphotographs by the police and counsel will refer to it in closing addresses andI will give you directions about it in summing up the case and the evidence,but in the meantime I ask you to please ignore the fact that by implication thatthe witness referred to the defendant in court and that you deal with the totalityof the evidence as it comes out in this trial. So, I just make that point to younow and underline. Thank you.[9] However, late in his cross-examination Mr Vargas-Gonzalez purported toidentify Mr Fleetwood again:Q. At some point in your evidence, you said that someone threatened youto take you away on the back of the truck, is that right?A. Yep, and that's the guy behind you, number two.Q. Mr Vargas-Gonzalez –Mr [Pohiva] addressed the Court - twice nowA. Sorry, I was meant to say dude number 2, my bad, forgot. It's been along day and I kind of want to go home, you know.Q. Understandable.A. Yeah.[10] Once Mr Vargas-Gonzalez had finished giving evidence, the Judge gave thefollowing additional direction to the jury:Members of the jury, you may have noticed that there was, just with that lastwitness there was another one of those answers which was along the lines ofthe warning or the direction that I've given you earlier. I just make the same– give you the same warning now that please put that particular piece ofevidence to one side. You'll get to hear the whole evidence and then you canmake your own conclusions once you've heard that, all right?Summing up[11] During his summing up, the Judge gave an orthodox warning about visualidentification evidence. He said:[76] I want to say something about identification evidence.[77] The Crown case here depends substantially on the correctness ofthe visual identification evidence given by the complainants, Mr GonzaloVargas-Gonzalez and Mr Michael Drury.[78] I am required to and do warn you that there is a special need forcaution before finding a defendant guilty on the basis of visual identificationevidence.[79] The reason for this warning is that experience has shown that it is quitepossible for a perfectly honest witness to be mistaken about identification.If such a mistake is acted on, miscarriages of justice can and have occurred.[80] Remember that a mistaken witness may be convincing. Further,where there is more than one identification witness, as is the case here, bothof them may be mistaken.[12] The Judge then set out the factors that the Crown relied on to support theidentification:[81] There are a number of factors in this case that the Crown relies on tosupport the identification evidence. Both identification complainants had theoffender described as "male 2" under observation for a period of time.They were able to give detailed descriptions about male 2 that you heard,including facial and other features, including build, height, ethnicity andclothing, and on their evidence at the time making a mental note of the featuresof the offender with a view to later giving the most accurate descriptionpossible to the police.[82] The incident occurred in the afternoon, indoors and both of theidentification complainants were on a number of occasions very close to male2. The descriptions they provided to the police and confirmed in evidence are,the Crown say, a reasonably good fit with the defendant in terms of generalheight and build, ethnicity, hairstyle and colour, facial hair, and with a tattooon his calf. They further say that it is supported in some respects by theindependent CCTV footage and stills taken at the time.[13] This was followed by the factors Mr Fleetwood relied upon:[83] The defence, however, rely on the following factors regarding theidentification. Neither Mr Gonzalo Vargas-Gonzalez or Mr Michael Druryhad ever met male 2 before. Both must have been understandably nervous andtraumatised during the incident, and in particular, that Mr Vargas-Gonzalezwas crying for a period.[84] There is evidence that male 2 was moving throughout the addressconstantly and that Mr Drury at the time he made his identification, whilegoing through the process, wrote the words "believe number 5 could be him".Now, of course, Mr Pohiva says to you: "Well, that suggests he was not suredespite what he said in Court some many months later about how certain he isnow."[85] Mr Pohiva also says to you it is significant that Ms Corfield, whoappeared to have spent the most time with male number 2, could not identifythe defendant from the montage, although you may think that to a degree thatmight be explainable due to her attending to her baby.[86] He also refers to the tattoos and the inconsistency there, a descriptionof a half-naked lady on one of his legs.[87] He also refers you to the use of names by other persons, "Ricky" and"Isaiah" who were persons with those names. Male 2 was heard to be referredto by use of the name "Keru" which of course he submits is not the defendant'sname.[88] Mr Pohiva says to you that the complainant[s] who identified thedefendant are mistaken.[14] Later in his summing up when summarising the Crown's case, the Judge said:[111] They say the evidence against him is strong. In particular, they referto the identification evidence of Mr Vargas-Gonzalez, who said he was100 per cent sure and he picked Mr Fleetwood out from the montage ofphotographs after conducting a rigorous process explained by the officer incharge of the case, Detective O'Fee and that was done within a couple of days.She says to you that that can be relied upon.[112] She also says that Mr Drury identified the defendant from a montagea few days later and that is supportive. Although, as I say, at the time herecorded: "Believe number 5 could be him." But, of course, he firmed up onthat position when he gave evidence at trial.[15] When summarising Mr Fleetwood's case, the Judge said:[130] He has urged you to be careful about the identification evidence andrefers to the caution, which I have given you, about such evidence. He saysto you that honest witnesses can be mistaken regardless of their confidence.He says here they are mistaken.[16] The dock identifications were not addressed.Submissions[17] Mr Murray for Mr Fleetwood emphasised that dock identification isimpermissible.1 Furthermore where, as here, the defendant is identified from the dock,the jury must be given a warning pursuant to s 126(2) of the Evidence Act 2006 at thetime the evidence is given. That section states:(2) The warning need not be in any particular words but must—(a) warn the jury that a mistaken identification can result in aserious miscarriage of justice; and(b) alert the jury to the possibility that a mistaken witness may beconvincing; and(c) where there is more than 1 identification witness, refer to thepossibility that all of them may be mistaken.[18] Mr Murray thus submits that the danger inherent in dock identification wasnever correctly addressed by the trial Judge with reference to s 126(2) and it was notenough to simply invite the jury to put that evidence to one side.[19] Mr Baker responds that the combination of the formal photo montageidentification, the clear direction given by the Judge to disregard the purported dockidentification, and the orthodox direction given in summing up obviated the need forthe s 126(2) direction at the time of dock identification.Analysis[20] As stated by this Court in Dey v R:2[31] At a minimum, if an unintended dock identification occurs, the judgemust give a properly tailored direction to the jury in terms of s 126.The factors in subs (2) are mandatory, and a failure to expressly instruct a juryabout the risk of miscarriage is an error of law which may lead to a retrial.[21] While the Judge gave no such direction at the time of the dock identification,we consider that the approach taken by the Judge was sufficient overall to avoid riskof adverse inference to Mr Fleetwood.1 Citing R v Young [2009] NZCA 453 at [26] and [29].2 Dey v R [2021] NZCA 342 at [31], citing Ake v R [2015] NZCA 334 at [10]; and Fukofuka v R[2013] NZSC 77, [2014] 1 NZLR 1 at [38] and [40] (footnotes omitted).[22] First, the dock identification references were fleeting. A low-key response tothem was appropriate to avoid giving them undue significance. Second, the directiongiven to the jury at the time of the identification was clear — they were to put the dockidentifications to one side. There is no reason to think that the jury would have thenattached significance to them. Third, to the extent there was any residual risk of useof the dock identification evidence, the direction given in summing up would havemade clear to the jury the risks associated with identification evidence as required bys 126(2). While this was not specifically directed to the dock identifications, it musthave been obvious to the jury that all types of identification evidence carry the risksidentified by the Judge. Fourth, it would have been inconsistent with the direction tothe jury to disregard the dock identifications, to then go on and warn the jury aboutthe need for caution in relation to those identifications. The Judge was right to confinehis s 126(2) direction in summing up to the formal identifications that the jury wereentitled to take into account.[23] Therefore, we do not consider that the approach taken to the dockidentifications was materially erroneous. We also see no real risk of miscarriage inthis case.Result[24] Leave to appeal is granted.[25] The appeal against conviction is dismissed.Solicitors:Paul Murray, Palmerston North for AppellantCrown Law Office | Te Tari Ture o te Karauna, Wellington for Respondent