R v ERUERA [2015] NZHC 3004

R v ERUERA [2015] NZHC 3004 [30 November 2015]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.ORDER PROHIBITING PUBLICATION OF NAMES ADDRESSESOCCUPATIONS OR IDENTIFYING PARTICULARS OF WITNESSESVICTIMS AND CONNECTED PERSONS PURSUANT TO S 202 CRIMINALPROCEDURE ACT 2011IN THE HIGH COURT OF NEW ZEALANDROTORUA REGISTRYCRI-2014-070-4650[2015] NZHC 3004THE QUEENvHIAKITA HORI ERUERAPAUL WILLIAM TAKIHYACIN ERUERAHearing: 25 and 26 November 2015Appearances: G C Hollister-Jones and A J Pollett for CrownE R Fairbrother QC and M M Dorset for Hiakita ErueraR M Adams and N M Dutch for TakiA C Balme and T Bailey for Hyacin ErueraRuling: 30 November 2015RULING (No.3) OF WHATA J[Identification Evidence]This judgment was delivered by Justice Whata on30 November 2015 at 3.00 p.m., pursuant tor 11.5 of the High Court RulesRegistrar/Deputy RegistrarDate:Solicitors/Counsel:Crown Solicitor, TaurangaE R Fairbrother QC, NapierAdams Law, Tauranga, A C Balme, TaurangaAn application to admit identification evidence[1] Mr Eruera, Mr Taki and Mrs Eruera, face charges of wounding with intent tocause grievous bodily harm, assault with a weapon and murder. Various witnesses forthe Crown claim to have seen Mr Eruera as an assailant. The Crown sought to admitthis as identification evidence. In a judgment dated 29 October 20151 Brewer Jrejected the application for the following essential reasons:(a) The photo montage created the risk of unfairly drawing attention to MrEruera because of the differences in Tā Moko and the brightness of MrEruera's picture;(b) There was no good reason not to follow the formal identificationprocedure as the images could have been digitally altered to mitigatethe deficiencies; and(c) His Honour could not be sure that the witnesses recognised Mr Eruera.[2] Brewer J observed:[98] That, however, is not necessarily the end of the issue. So far asMr Jobbitt, Mr Wikeepa and Mr Waititi are concerned, the trial Judge, on voirdire, might well conclude that the Crown has discharged its onus. [3] The Crown now invites me to revisit the application because (in short):(a) Brewer J did not have the correct, superior version of the photomontage;(b) The photo montage cannot be digitally altered without compromisingthe integrity of the identification exercise referring to expert evidenceby Dr Brunton not before Brewer J; and(c) The Crown has shown beyond reasonable doubt that the circumstancesin which the identification was made were reliable.1 R v Eruera, Taki & Eruera [2015] NZHC 2655.Background[4] This judgment should be read in conjunction with the judgment of Brewer Jdealing with the background2 and the reasons for declining the Crown's firstapplication.3[5] The Crown alleges the following. On 24 November 2014 Paris Taite (MrEruera's stepdaughter) returned home upset after attending a party. Paris is said tohave complained to Mr Eruera and his partner, Mrs Eruera (her mother), that she hadbeen physically assaulted by Mr Takena Tiepa-Ranapia ("Tarks") and told them thatBrooklyn Ormsby-Ratahi and Guy Wikeepa tried to rape her. This enraged Mr Eruerawho got a hunting knife and together with Mrs Eruera and his friend, Mr Taki travelledto the location of the party. On the way there Mr Ormsby-Ratahi and Mr Wikeepawere seen walking along Ohauiti Road at which point Mr Eruera exited the car andstabbed Mr Ormsby-Ratahi while Mr Taki assaulted Mr Wikeepa with a metal bar.Throughout this Mrs Eruera is said to have encouraged both Mr Eruera and Mr Taki.[6] Mr Eruera, Mr Taki and Mrs Eruera then drove to the location of the party atMansfield Road. At that location Mr Eruera confronted the occupants of the home andthen on departing the premises found Tarks and stabbed him in the neck, severing avein. Tarks then died from the loss of blood.Jurisdiction[7] The defence contend that a proper basis has not been established for me torevisit the identification application. The threshold test was restated by the Court ofAppeal in M v R:4Although it is strictly not necessary for us to decide the point, we express ourview that one District Court judge, prior to the trial, does not have power toformally depart from a pre-trial ruling made by another District Court judge,absent a relevant change of circumstances (either factual or legal).2 R v Eruera, Taki & Eruera, above n 1 at [9] – [23].3 At [96] – [98].4 M v R [2015] NZCA 413 at [13].[8] While the Court refers to District Court judges, I will assume that it applies totrial judges generally.[9] For my part, there has been a change in circumstances. I am satisfied that theCrown tabled the wrong photo montage with Brewer J and that the correct montageshown to the witnesses is materially superior.5 That does not resolve the matter, as Iexplain below at [34]. But it is sufficient to trigger re-examination of the applicationto adduce identification evidence.[10] I also accept that Dr Brunton's new evidence dealing with disguising singularappearance is a material change in circumstances insofar as there was no evidence ofthis nature before Brewer J. I acknowledge Mr Fairbrother QC's complaint that thisis not fresh evidence in the true sense – it could have been produced at the firstapplication.6 But I think this is outweighed by the risk of miscarriage if properidentification evidence is excluded on a scientifically misinformed basis.[11] I am therefore satisfied that I may consider the application.The evidence[12] The four proposed identity witnesses gave evidence in support of theapplication. This is a summary of it.Mr Guy Wikeepa[13] Mr Wikeepa stayed at Paris's house for a night in the two months prior to 29November 2014. The following morning he spent about 20 minutes in conversationwith Mr Eruera in the lounge of Paris' home. He was sitting about 5 metres away from5 It appears that the Crown provided PDF versions to the Court which were then presented to theJudge in black and white. At the pre-trial hearing Mr Fairbrother QC handed up a colour version.I have viewed this version in print and electronic form. As noted, the original is materially superior.6 Mr Fairbrother submitted that I should apply the threshold test for new evidence indentified bythe Privy Council in Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273. But that authority is notconcerned with appeals after trial, not pre-trial rulings. In any event, the Privy Council noted thatthe requirement for freshness may yield to the requirement to ensure that proper scientific evidenceat [119] and [120].him at the time and was sober. He also met Mrs Hyacin Eruera while he was there –"she was like just walking around".[14] On the night of 29 November 2014 Mr Wikeepa was walking along OhauitiRoad and he saw a car pull up. He recognised Mr Eruera "because he had met himbefore". He noticed that he was "tattooed and stuff" with "Maori patterns" and"faded–ish" on "half a side". He said that Mr Eruera spoke to him, saying "come here",and at that point he was only about a metre away from him. He saw Mr Eruera punchBrooklyn, knocking him "two to three metres away". He saw Mr Eruera stab Brooklynand then another guy tried to attack Mr Wikeepa. The assailants then jumped in thecar and left. A short while later Mr Wikeepa said that Mr Eruera and two others,including Mrs Eruera, drove back past them, yelling. He again recognised Mr Eruerain the driver's passenger seat.[15] Mr Wikeepa conceded under cross examination that he was highly intoxicatedat the time and that he did not identify Mr Eruera in his first interview with the police.He explained that he was fearful at the time. In a subsequent interview he identifiedMr Eruera as the assailant who he described a large man with tattoos all over his faceand then subsequently identified him in a formal interview process.Mr Devon Williams[16] Mr Williams was at the party at Alex Waititi's house on 29 November 2014.He had drunk at least two boxes of Cody's cans throughout the afternoon and night.He saw a large man with tā moko on one side of face storm the Mansfield addressbrandishing a knife. He was within a metre of so from him but the man was only inthe room for a minute or two. He reported these basic facts in his second interviewwith the police. He conceded that he was highly intoxicated at the time he saw him.He identified Mr Eruera at the formal identification, but otherwise did not know him.He had not seen the man before or since that evening.Mr Alex Waititi[17] Mr Waititi gave evidence that he had been drinking throughout the evening ofthe 29 of November 2014 and had gone to bed, before being woken by his partner whotold him people had arrived. He says he was confronted by man wielding a knife inhis lounge for about a minute. The lights were on. He says the man came within ametre of him. He initially described the man as having a tattoo of a bull dog on oneside of his face, but later gave a detailed description of a large man with a tā moko onone side of his face. He said he recognised Mr Eruera from a Facebook page he hadseen about three weeks prior to the incident. The photo was only part of the screen, itwas an old photo and it only showed Mr Eruera wearing a chrome helmet. Mr Waititisaid he did not look the Facebook profile again after the confrontation.Mr Steven Jobbitt[18] Mr Jobbitt met Mr Eruera at work on 1 December 2014 for about five minutesand then later in day when Mr Eruera said he had to leave. The first conversation wasan informal introduction, and the second meeting involved just a few sentences ofconversation where Mr Eruera said he needed to leave. Mr Jobbitt identified him atformal identification process, and said he recognised him from their previous meeting.Formal identification process[19] The evidence about the formal identification process for each of the witnesseswas admitted by consent.Dr Brunton[20] An affidavit of Dr Brunton was also tabled without objection. Dr Bruntonworks as the Photo Manager Office for New Zealand Police. She has been in this rolefor 15 years. She describes in some detail the process followed to generate a photomontage generally and in relation specifically to Mr Eruera.[21] Dr Brunton explains:[21] The image of Mr Eruera displays extensive facial tattoos that coverhis forehead, nose, both cheeks and end at his chin. Tattoos are not visible onhis neck, ears, lips and area surrounding his eyes. The tattoos on the left sideof his face have been largely filled in with colour.[22] This would be a difficult line-up for any user of Photo ManagerApplication to create, as there as so few images showing a combination ofoutlined as well as in-filled tattoos. It is likely that there are less than fiveimages in the entire database showing this variation.[22] She describes that she attempted to digitally enhance one image, in a way thatwas suggested by Brewer J (at [89] and [90]), by fading out the tattoos on the rightside of the faces. She observed that the fading was still darker than wished for and anyfurther fading had an undesirable cloudy effect. Attempts then at removing the ink wasunsuccessful as the underlying skin tone was difficult to clone. Dr Brunton also triedan alternative technique, namely by copying Mr Eruera's tattoo onto a man with nofacial tattoos. She said that this enhancement appeared natural but that the image tooktwo and half hours to achieve and all three methods were time consuming and difficult.The photo montages[23] Brewer J identified two primary concerns with the photo montages shown tohim:(a) There were material differences between the tattoos of the other menand Mr Eruera; and(b) Mr Eruera's picture was brighter than all the other photos, other thanthe man in photo five.[24] I have viewed the corrected montages. Mr Eruera's image is still lighter thanfour of the other photos and substantially lighter than two of them. For my part I donot consider than these differences draw undue attention to his image.[25] I am, however, in agreement with the conclusion reached by Brewer J aboutthe marked difference between Mr Eruera's tattoos and the tattoos of the other men.In short, Mr Eruera's tattoos stand out on one side of his face, while the others areclearly symmetrical, except for small part of the tattoo on the face of the man in photofive.[26] In the result, the men in the photos are, in my view, dissimilar in appearance.The statutory frame[27] "Visual identification evidence" is defined in s 4 of the Evidence Act 2006 (theAct) as evidence that is:(a) an assertion by a person, based wholly or partly on what that personsaw, to the effect that a defendant was present at or near a place wherean act constituting direct or circumstantial evidence of thecommission of an offence was done at, or about, the time the act wasdone; or(b) an account (whether oral or in writing) of an assertion of the kinddescribed in paragraph (a).[28] For present purposes I proceed, like Brewer J, on the basis that:(a) Recognition evidence is evidence where "the witness purports toidentify the offender as someone whose appearance the witness isalready acquainted;7 and(b) Observation evidence is evidence that the offender was observed at thescene of the alleged offending.8[29] Section 45 of the Act governs the admissibility of visual identificationevidence. In particular s 45(3) sets out the formal identification process in relation tovisual identification evidence, namely:(3) For the purposes of this section, a formal procedure is a procedure forobtaining visual identification evidence—(a) that is observed as soon as practicable after the allegedoffence is reported to an officer of an enforcement agency;and(b) in which the person to be identified is compared to no fewerthan 7 other persons who are similar in appearance to theperson to be identified; and(c) in which no indication is given to the person making theidentification as to who among the persons in the procedureis the person to be identified; and(d) in which the person making the identification is informed thatthe person to be identified may or may not be among thepersons in the procedure; and7 R v R [2011] NZSC 107, [2012] 1 NZLR 725 at [16].8 R v Peato [2009] NZCA 333, [2010] 1 NZLR 788 and E (CA113/09) v R (No 2) [2010] NZCA 280at [65].(e) that is the subject of a written record of the procedure actuallyfollowed that is sworn to be true and complete by the officerwho conducted the procedure and provided to the Judge andthe defendant (but not the jury) at the hearing; and(f) that is the subject of a pictorial record of what the witnesslooked at that is prepared and certified to be true and completeby the officer who conducted the procedure and provided tothe Judge and the defendant (but not the jury) at the hearing;and(g) that complies with any further requirements provided for inregulations made under section 201.[30] Evidence which does not follow this formal procedure is not admissible unlessthere was good reason not to follow it, or the Crown proves beyond reasonable doubtthat the circumstances on which that identification was made have produced reliableidentification.9 If there is good reason not to follow it then the defence must show onthe balance of probabilities that the identification evidence is not reliable. Goodreasons include a s 45(4)(b):(b) the singular appearance of the person to be identified (being of anature that cannot be disguised so that the person is similar inappearance to those with whom the person is to be compared):[31] As the Supreme Court stated in Harney v Police, judges must be astute toensure that what s 45 requires is strictly followed and that identification evidence isnot admitted except in accordance with the section.10AssessmentSimilar[32] For the reasons expressed at [25] – [27] the formal requirements of s 45(1)were not met insofar as the formal identification process did not include seven men ofsimilar appearance.Singular appearance[33] I am however satisfied that:9 See Evidence Act 2006, s 45(2).10 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [15].(a) Mr Eruera is a man of singular appearance.(b) Mr Eruera's singular appearance cannot be disguised withoutundermining the integrity of the identification process and therefore thepurpose of s 45.[34] Both points require elaboration as to legal principle and fact.[35] As stated by the Court of Appeal in Ah Soon v R the guiding principle must bewhether the photo montage or other formal procedure is such as to avoid any materialrisk of predisposing the witness to identify the defendant.11 In Ah Soon, only thedefendant had blond tips, and only two of the others had blond or bleached patches intheir hair. The Court observed that "the larger patches shown in the hair of the othertwo could not be described as blond tips."12 The Court also found that it would nothave been a difficult matter for the Police to have included in the montage photographsof young men with blond tips of a similar nature to the appellants.13 The formalidentification process was therefore flawed.[36] Like the blond tips in Ah Soon, Mr Eruera's tattoo predisposed the witnessesto identify him. But unlike "blond tips", Mr Eruera's facial tattoo is, in fact, aninherent point of facial distinction. It is not a cosmetic addition that can be easilydisguised. Mr Hollister Jones advises that of the million or so images available to theCrown, the seven men used in the montage are said to be the closest they could get interms of facial tattoos. Yet they are starkly different in terms of coverage andsymmetry.[37] I accept that there may be cases where distinctive facial tattoos might bedisguised by fading. But Dr Brunton's expert evidence is that this cannot be achievedsatisfactorily, or without undesirable effects, in this case. Alternative methods, forexample replicating Mr Eruera's tattoos exactly onto filler images are problematic. Asthe Crown submits this will likely result in an unrealistically difficult and artificial11 Ah Soon v R [2012] NZCA 48 at [23].12 At [24].13 At [25].identification task for the witness to complete and will not achieve the object of s 45,namely reliable identification.[38] I am therefore satisfied that on the evidence before me, that Mr Eruera'ssingular appearance provides a good reason not to follow the formal identificationprocess and qualifies as a specified exception to s 45(1).Outcome for each witness[39] I must now assess whether the defendants have shown on the balance ofprobabilities that direct identification evidence from the witnesses is unreliable.[40] I can dispose of the application in relation to Mr Williams summarily. Hisexposure to Mr Eruera was too brief, and his condition too intoxicated, to be reliable.[41] I am also not satisfied that Mr Waititi's brief exposure to a Facebook photo ofMr Eruera was sufficient to safely qualify as recognition. While his exposure to MrEruera's face on the night in question was direct and in good light, Mr Waititi's highlycharged, intoxicated state at the time creates sufficient doubt in my mind to requireexclusion of direct evidence from him as to identity.[42] By contrast, I am satisfied that both Mr Wikeepa and Mr Jobbitt weresufficiently acquainted with Mr Eruera to provide identification evidence and that thecircumstances of their identification are not such as to render it unreliable on thebalance of probabilities. As Brewer J said, it is very likely that they recognised MrEruera.[43] More specifically, based on the voir dire evidence:(a) Mr Wikeepa had engaged in a conversation with Mr Eruera for about20 minutes in the two months before the day of the alleged assault;(b) Mr Wikeepa had stayed at Paris' house and had observed her mother,Mr Eruera's partner, Hyacin, walking around the house;(c) Mr Wikeepa was only a couple of meters away from the assailant whenhe exited the car on Ohauiti Street, moved to within a metre from himand he saw him attack Mr Ormsby-Ratahi at about a three metredistance; and(d) Mr Wikeepa also recognised Mr Eruera's partner in the car when itpassed again later that evening (and his formal identification of MrsEruera is not disputed).[44] There is also strong circumstantial evidence placing both Mr and Mrs Erueraon Ohauiti Road at the time – including evidence from Paris (Mr Eruera's step-daughter) that she reported to them that she was assaulted by Tarks and that two menon Ohauiti Road had tried to rape her, that Mr Eruera was going to exact retributionfor this and that Paris warned the occupants of the Mansfield address (accessed viaOhauiti Road) that Mr Eruera was on his way.14[45] Overall, the evidence of prior meaningful face-to-face association, the veryclose proximity of his contact with the assailant on the night of the assault, togetherwith the circumstantial evidence satisfies me that there is a credible and plausible basisfor Mr Wikeepa's identity evidence. I accept Mr Wikeepa's intoxication on the nightand inconsistent statements to the police raise reliability concerns. But I am notsatisfied on the balance of probabilities that the evidence is unreliable.[46] As to Mr Jobbitt, he had direct contact with Mr Eruera at his place of work.There is nothing to suggest his recognition of Mr Eruera is unreliable.Result[47] Mr Wikeepa and Mr Jobbitt may identify Mr Eruera.14 As to the relevance of circumstantial evidence refer Boote v R [2013] NZCA 122 at [40] – [41].Addendum[48] Immediately prior to Mr Wikeepa giving his evidence Mr Balme raised anobjection to the following observation contained with Mr Wikeepa's interviewstatement:"Paris's Mum was yelling out the car window, she was yelling things like, "killhim Babe", "Fuck him up".[49] The Crown responded with an application pursuant to s 46 dealing with voiceidentification evidence. Section 46 states:46 Admissibility of voice identification evidenceVoice identification evidence offered by the prosecution in a criminalproceeding is inadmissible unless the prosecution proves on the balance ofprobabilities that the circumstances in which the identification was made haveproduced a reliable identification.[50] The Court of Appeal has recently set out the frame for addressing the reliabilityof voice identification in Hohipa, in particular:15The standard is the balance of probabilities. It is sometimes described asflexible, meaning not that the standard itself varies but that the evidence itdemands may be more or less extensive, depending on the context and thenature of the allegation. Notably, the nature of an allegation may determinethe process by which its proof is attained. So far as the present context isconcerned, three points may be made about the standard of proof. First, s 46presumes that voice identification evidence may be unreliable and a mistakenidentification may have grave consequences: it follows that the court must bealert to that risk. Second, the section also presumes that voice identificationevidence may be accurate and a conviction founded upon it secure: it followsthat, all other prerequisites having been met, the court should admit suchevidence so long as it is reliable. Third, the section holds that reliability maybe established through the circumstances of the identification, leaving it to thecourt to identify and evaluate those circumstances: it is by this means that thestatutory objectives are to be reconciled. These three points together indicatenot that proof is invariably difficult but rather that the court should bear theevidential burden and risk of error in mind and scrutinise the circumstances asclosely as may be necessary to satisfy itself of the identification's reliabilitybefore ruling it admissible .[51] The Court also identifies the circumstances that ought to be taken into account,to the extent relevant in any given case, when assessing voice recognition evidence:1615 Hohipa v R [2015] NZCA 73 at [71] (citations omitted).16 At [73] (citations omitted).(a) the witness's degree of familiarity with the person identified. As notedearlier, there is evidence that familiar voices can be identified with ahigh degree of accuracy;(b) any identifiable properties of the voice that distinguish it from others;(c) the duration of the speech to be identified and anything about it thatmight affect recognition, such as the manner in which the voice wasbeing used and its clarity for the witness;(d) any delay between hearing the speech to be identified and making theidentification, and anything else that might affect the memory of thewitness;(e) the characteristics of any recorded speech used to make theidentification and the quality of the recording;(f) anything about the circumstances of the identification that may createa psychological predisposition to identify a person selected by aninvestigator;(g) whether any police procedure used to make the identification has beenadequately documented;(h) the witness's ability to distinguish among voices;(i) any hesitation in making the initial identification;(j) anything else about the circumstances that bears upon reliability.Procedure[52] Having heard Mr Wikeepa's voir dire account, including of his priorknowledge of Mrs Eruera,17 I resolved to proceed on the basis that Mr Hollister Joneswould be invited to commence his questioning of Mr Wikeepa for the purpose oflaying the foundation for the foreshadowed voice identification evidence. If the properfoundation was laid, then I would invite submissions in the absence of the jury onwhether it can still be adduced.The foundation evidence[53] Mr Wikeepa gave evidence that:(a) He had previously spent time with or near Mrs Hyacin Eruera, havingstayed at her home and observed her "walking around talking". He saidhe had a brief conversation with her where she "asked me where I wasfrom and all that". After that he travelled in her car (a maroon Ford)with her and Paris back to his home address;17 Refer [15] above.(b) The car that pulled over on 29 November 2014 was like Hyacin's carand it pulled over a few metres away from him. He identified threepeople inside it and then "George and some other fulla" got out;(c) The driver of the car was a "blonde lady";(d) The driver was Hyacin and he recognised her face; and(e) Mr Eruera got out of the car, called him over, and attacked Brooklyn.[54] In response to a general question and prior to consideration of whether a properfoundation had been laid, Mr Wikeepa also offered evidence that Mrs Eruera saidsomething. But the content of that was not explored at that point, so there was noserious prejudice to Mrs Eruera.Assessment[55] Given the visual identification evidence, it may be that voice identification isnot strictly in issue as a separate consideration. Indeed it is somewhat artificial toseparately assess the reliability of the voice identification. I note that Mr Balme didnot pursue his objection with full vigour. In any event, having heard the foundationevidence I was satisfied that to the extent it was necessary to resolve the point thevoice identification evidence was reliable and admissible. Mr Hollinger-Jonesrequested that I recorded this outcome together with my reasons.[56] Mr Wikeepa's voice identification is based on a relatively weak priorassociation and the exposure to the voice was short. But it was contemporaneous withhis visual identification of both Mr and Mrs Eruera, which has a clear and properfoundation, based on evidence of recent prior association and, in respect of Hyacin, acompliant formal identification pursuant to s 45.18 Furthermore, the female occupantof the car was reasonably proximate to Mr Wikeepa at the time he saw her in thedriver's seat of the car (which was similar to Hyacin's car), and he also recalled adistinctive feature about her – the blond hair. He saw her on at least two occasions.18 Mr Balme advised the Court that the admissibility of Mr Wikeepa's formal identification of Hyacinwas not challenged.The circumstantial evidence noted at [45], also places Mr Erueara and Hyacin in thecar and on Ohauiti road at the time. The probability of two different people fitting bothMr and Mrs Eruera's description, driving a car like hers, with cause to do harm to twomen walking along Ohauiti street at 11.30 pm on 29 November 2014 must be small.[57] Overall therefore, in terms of the surety envisaged by the Court of Appeal inHohipa, I am satisfied on the balance of probabilities that the voice identificationevidence is sufficiently reliable for admissibility purposes, given the combination ofvisual recognition and circumstantial evidence. Whether that is in fact so, based on MrWikeepa's full testimony and the other Crown evidence is, of course, a matter for thejury.