LINTON v NEW ZEALAND POLICE [2019] NZHC 1696

LINTON v NEW ZEALAND POLICE [2019] NZHC 1696 [18 July 2019]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2018-485-78[2019] NZHC 1696BETWEEN JACOB FREDRICK LINTONAppellantAND NEW ZEALAND POLICERespondentHearing: 12 June 2019Appearances: S J Iorns for the AppellantR M A Kos for the RespondentJudgment: 18 July 2019JUDGMENT OF CULL J[1] This is an appeal challenging the admissibility at trial of the visualidentification of Mr Linton under s 45 of the Evidence Act 2006, when no formalprocedure of identification was undertaken by the police. On 27 August 2018, MrLinton was convicted of one charge of assault with intent to injure following a judge-alone trial.1 He was later sentenced on 3 October 2018 to 100 hours' community work,nine months' supervision and ordered to pay $750 as emotional harm reparationpayment to the complainant.2[2] Mr Linton appeals his conviction on the grounds that the District Court erredin fact and in law in convicting him on the basis of one eyewitness, the complainant,who was under attack, having just been struck with sufficient force to render himunconscious with severe concussion and who gave conflicting statements on the visual1 New Zealand Police v Linton [2018] NZDC 26154; Crimes Act 1962, s 193. The maximumpenalty for this offence is three years' imprisonment.2 New Zealand Police v Linton [2018] NZDC 24335.identification of Mr Linton. Mr Linton submits the Judge erred in failing to cautionhimself on the possibility of a mistaken assertion as to identity, and in allowing inevidence that was inadmissible under s 45 of the Evidence Act 2006 (the Act).[3] The police oppose the appeal.[4] The issue on appeal is whether the Judge was in error in finding the police hadgood reason not to follow a formal identification procedure and/or that the visualidentification of Mr Linton by the complainant was proved beyond reasonable doubtto be reliable.3Factual background[5] The following facts are taken largely from the summary in the District Courtjudgment.4 On 24 June 2017, the complainant was at the tavern in Rimutaka where awake was underway. The bar was very full. The complainant had had two beers andwas just pouring his third when something caught his eye which he described as a flashof movement. He then woke up on the floor of the bar being stomped on his rightknee, ankle and hip. He said in his evidence before the District Court that he saw MrLinton's aggressive face looking down at him. The police were called and ConstableMiddleton attended.[6] By the time the Constable arrived, the complainant was sitting in a backstoreroom area with ice, or something similar, on his head and with a large red lumpon his forehead. The Constable described him as being "dizzy and shaken up".However, the complainant identified Mr Linton as his assailant because he recognisedhim, and described how he knew him. This was noted in the Constable's notebook atthe time of the incident. The complainant was later taken to hospital, where he wastold he had concussion. He was off work for three months as a result.[7] The Constable was unable to obtain co-operation from any of the bar staff orany members of the public who were present in the bar that day. However, CCTVfootage was obtained from behind the bar which does not show the initial punch3 Evidence Act 2006, s 45(1) and (2).4 Police v Linton, above n 1, at [2]–[6].described by the complainant, but does show him crashing through the door whichleads from the public area in front of the bar into the staff area behind the bar, followedclosely by another male. The second male was then shown clearly stomping threetimes on the complainant's lower body as he lay on the floor, before being ushered outof the door and back into the public area of the bar by bar staff.[8] When the complainant spoke to Police a day or so later, he said the following:I had a couple of beers and was just pouring myself a third beer when out ofthe corner of my eye I saw a flash of movement and the next thing I rememberI was waking up on the floor of the bar.The bar manager told me that [Mr Linton] had king hit me in the side of thehead. He hit me a few times but I don't know how many.[9] In his evidence during the District Court trial, the complainant said that afterhe saw a flash of movement, he "came to" on the bar floor, where his right leg wasbeing stomped on by a person wearing a burgundy-coloured shirt. He said herecognised this person as Mr Linton because he saw Mr Linton's face looking downat him, and the aggression on it.[10] When cross-examined about the apparent discrepancy in his evidence at thehearing and his statement to the police that it was the bar manager who told him whohad hit him, the complainant accepted that he did not give the detail of seeing MrLinton stomping on him when he made his statement to the police, but was "100percent positive" that the person who was stomping on him was Mr Linton. He alsoheard the female bar manager mention Mr Linton's name when he was being usheredout of the bar area.[11] At the time of the offence, Mr Linton was 29 years of age.District Court decision[12] At the District Court, Mr Iorns, for Mr Linton, submitted there was insufficientevidential foundation for a clear identification of Mr Linton as the assailant.[13] The Judge disagreed. The Judge held that despite cross-examination, thecomplainant was adamant that he had seen Mr Linton, whom he had previouslyknown, as the assailant, and his evidence also was that he saw Mr Linton's"aggressive" face looking down on him as he lay on the floor.[14] The Judge concluded:5 In those circumstances and despite the absence of evidence from any otherof the very many people, both working or attending at the bar that day, I amsatisfied that the police have proved identity beyond reasonable doubt. Thatbeing so it is very clear from the CCTV footage that after having taken [thecomplainant] to the ground the defendant [Mr Linton] then stomped on hislower body area at least three times before turning and walking, and beingshepherded through the door by a somewhat startled bar staff.[15] Identity being the only issue, the Judge convicted Mr Linton.Approach to appeal[16] An appeal against conviction in a Judge-alone trial is a general appeal. Thisappeal is governed by s 232 of the Criminal Procedure Act 2011. The appellant mustsatisfy the Court that a miscarriage of justice has occurred, either because "the Judgeerred in his or her assessment of the evidence to such an extent that a miscarriage ofjustice has occurred" or for any other reason.6 A miscarriage of justice is "any error,irregularity, or occurrence" that "has created a real risk that the outcome of the trialwas affected" or "has resulted in an unfair trial or a trial that was a nullity".7[17] The Supreme Court has recently re-examined the role of s 232(2)(b) and thegeneral function of an appellate court.8 In Sena v Police, the Supreme Court held thatthe appellate court should re-evaluate the evidence, and an appellant is entitled to theappeal court's determination of whether the first instance Judge was right or wrongsubstantively on the outcome.9 The previous review function of whether a finding wasopen to the trial Judge therefore has no application. On this approach, if the appellatecourt comes to a different view on the evidence, the trial Judge necessarily will haveerred in their assessment.105 Police v Linton, above n 1, at [10].6 Criminal Procedure Act 2011, s 232(2).7 Section 232(4).8 Yusuke Sena v New Zealand Police [2019] NZSC 55.9 At [34] and [38].10 At [38].[18] The Court cautioned, however, that this approach does not mean the role of theappellate court is to consider the issues de novo as if there had been no hearing at firstinstance.11 As it is an appeal, it is for the appellant to show that an error has beenmade. In assessing whether there has been an error, an appellate court must take intoaccount any advantages a trial judge may have had.12 Where the challenge is tocredibility findings based on contested oral evidence, an appellate court will exercise"customary caution".13[19] The onus is on the appellant, Mr Linton, to satisfy the Court that the Judgeerred in his assessment of the evidence to such an extent that has created a real riskthat the outcome of the trial was affected.Applicable law[20] The admissibility of visual identification evidence is governed by s 45 of theEvidence Act 2006, which provides:45 Admissibility of visual identification evidence(1) If a formal procedure is followed by officers of an enforcementagency in obtaining visual identification evidence of a person allegedto have committed an offence or there was a good reason for notfollowing a formal procedure, that evidence is admissible in a criminalproceeding unless the defendant proves on the balance of probabilitiesthat the evidence is unreliable.(2) If a formal procedure is not followed by officers of an enforcementagency in obtaining visual identification evidence of a person allegedto have committed an offence and there was no good reason for notfollowing a formal procedure, that evidence is inadmissible in acriminal proceeding unless the prosecution proves beyond reasonabledoubt that the circumstances in which the identification was madehave produced a reliable identification.(4) The circumstances referred to in the following paragraphs are goodreasons for not following a formal procedure:...11 Sena v New Zealand Police, above n 8, at [38].12 At [38].13 At [38]; and Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR141 at [13] (footnote omitted).(e) if an identification of a person alleged to have committed anoffence has been made to an officer of an enforcement agencysoon after the offence occurred and in the course of thatofficer's initial investigation:[21] Section 126(3) of the Act adds:If evidence of identity is given against the defendant in any criminalproceeding and the defendant disputes that evidence, the court must bear inmind the need for caution before convicting the defendant in reliance on thecorrectness of any such identification and, in particular, must bear in mind thepossibility that the witness may be mistaken.[22] The first issue is whether there was a good reason for not following a formalprocedure. If there was, the evidence is admissible unless Mr Linton can prove on thebalance of probabilities that the evidence is unreliable.14 If there was no good reason,the evidence is inadmissible unless the police can prove beyond reasonable doubt thatthe circumstances in which the identification was made have produced a reliableidentification.15The parties' positions[23] Mr Iorns for Mr Linton submits that s 45(1) does not apply as a formalprocedure was not followed and there was no "good reason" for not following a formalprocedure. He submits s 45(4)(e) could not be relied upon, because the identificationwas made by someone in need of immediate medical attention for concussion. Evenif s 45(4)(e) could be relied on and s 45(1) applied, he argues that Mr Lintonestablished on balance that the identification evidence was not reliable and thereforeit should not have been admissible. Further, he submits, it is unclear whether the Judgeexercised caution before convicting Mr Linton on the identification evidence.[24] Ms Kos for the police submits the appeal should be dismissed because thecomplainant's visual identification evidence was properly admitted at trial through s45(1). Any failure of the Judge to expressly address s 126 of the Act did not have animpact on the case, and there is no risk of a miscarriage of justice.14 Section 45(1).15 Section 45(2).Was there "good reason" not to undertake a formal identification procedure?[25] Under this limb, the focus is on the strength of the visual identification itself.Here, there is significant evidence on visual identification and recognition.[26] Constable Middleton gave evidence in the District Court of the details of theoffending that he recorded in his notebook at the scene. Leave was granted toConstable Middleton to refer to his notebook, which was not produced, and he said:A. The first thing he said was – well, I think I asked him, "You know,who's done this to you?" and ...He's said, "Jake Potter." He said he was about 30 years old. I alsocovered off how many drinks he's had because he appeared quite sortof beside himself and I guess concussed potentially.[27] The Constable was then asked if he knew who Jacob Potter was, and heconfirmed it was Jacob Linton. No issue was taken with the reference to Mr Lintonbeing Jake or Jake Potter, as it appears both names are a reference to Mr Linton.[28] In the hearing before me, following a discussion about the evidence ofConstable Middleton's notebook, a copy of the notebook entries was provided to meby consent. The entries made by Constable Middleton in his interview with thecomplainant that night records the following: - Was punched by Jake/POTTER, approx 30 yrs- had two drinks beers- Was standing near doorway- someone ran at him- Hit him, knock him into bar- Blacked out/felt woozy- Recognised male to be Jake POTTER- He was wearing a bergendy shirt- I remember 3 punches- My feet left the floor- I know Jake because my son knows him.[29] The complainant, therefore, identified Mr Linton as his assailant straight afterthe offence occurred and in the course of Constable Middleton's investigation.[30] It is also plain from the notes taken at the time of the incident and thecomplainant's evidence during the hearing that Mr Linton was known to thecomplainant because of his association with the complainant's son. The complainantgave evidence, both in evidence-in-chief and in cross-examination, that he was certainthat it was Mr Linton who had hit him. He says he recognised Mr Linton's facelooking down on him while Mr Linton was "stomping on" the complainant's right leg,on his knee, his ankle, and the top of his hip, as the complainant "came to".Throughout his evidence, the complainant referred to Mr Linton as "Jake", which isMr Linton's first name. When asked how he knew it was Mr Linton when he came tothat night, the complainant said, "He's a bigger build than his brother so I knew it wasdefinitely him."[31] Therefore, not only did the complainant identify Mr Linton as his assailantsoon after the offence took place, thus engaging s 45(4)(e), he also knew andrecognised Mr Linton personally. In Harney v Police, the Supreme Court said that, inaddition to the factors under s 45(4), the recognition by the witness of someone alreadyknown to the witness can provide a further good reason for not following a formalprocedure of identification.16 The Court said:[26] We are satisfied that where the visual identification evidence takes theform of a recognition by the eyewitness of someone already known to thewitness (whether through personal contact or from photograph or film andwhether or not the person is known by name to the witness), that can constitutea further good reason for not following a formal procedure.[32] In Harney, the Court held that the police officer's previous knowledge of thedefendant was not sufficiently strong to permit the officer to reliably identify thedefendant while driving.17 By contrast, the Court of Appeal in Thornton v R foundthat a formal procedure "would have been valueless because the complainant hadalready concluded that Ms Thornton's appearance was familiar to her and that she wasthe attacker."18 Similarly, in R v Edmonds, the Court of Appeal held that an additional16 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [26].17 At [34]–[38].18 Thornton v R [2017] NZCA 256, at [28].reason not to conduct a formal identification procedure is where the witness identifiessomeone well-known to them.19[33] The facts of this case are distinguishable from Harney. In Harney, there hadbeen two previous occasions where the witness had dealt with the defendant seven andfive years respectively before identifying him in respect of the alleged offending.Here, the complainant has known Mr Linton through his son and was sufficientlyfamiliar with him to identify Mr Linton's build, so as to differentiate Mr Linton fromhis brother. Further, in Harney, the police officer identified the defendant while hewas driving in a motor vehicle. Here, the complainant was looking up directly at theperson he identified as Mr Linton, who was stomping on him at the time.[34] Because the complainant had identified Mr Linton as his assailant at the timeof the incident, I consider the carrying out of a formal identification procedure wouldhave been of no practical utility. It seems clear the complainant would have identifiedMr Linton from such a process. If a formal procedure had been held, there is a dangerthat it may have created a false impression of the reliability of the identification, whenin reality the complainant had simply pointed to a person previously known to him.Lord Hoffmann, in Goldson v R, observed that if the accused is accepted to be a personwell known to the identifying witness, no formal procedure need be held:20 The witness will naturally pick out the person whom he knows and whomhe believes that he saw commit the crime. In fact, the evidence of the parademight mislead the jury into thinking that it somehow confirmed theidentification, whereas all that it would confirm was the undisputed fact thatthe witness knew the accused. It would not in any way lessen the danger thatthe witness might have been mistaken in thinking that the accused was theperson who committed the crime.[35] I conclude there was good reason for the police not to conduct a formalidentification procedure because the complainant identified Mr Linton as his assailantat the time of the offending when he was interviewed by Constable Middleton at thescene, and the complainant both knew and recognised Mr Linton personally. I turn,then, to consider the question of reliability.19 R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [73].20 Goldson v R [2000] UKPC 9, [2000] 4 LRC 460 at [11].Has Mr Linton proved on the balance of probabilities that the evidence isunreliable?[36] Mr Linton submits the evidence is unreliable because the complainant madeinconsistent statements to the police and in his evidence about the identity of hisassailant, and because the complainant was incapacitated to such an extent that herequired a three-month rehabilitation period to recover from the concussion hereceived. Other factors relied on by Mr Linton to show how unreliable thecomplainant's identification evidence is include:(a) The complainant had consumed two beers on the night of the assault.(b) The initial strike on the complainant was with such force as to requirea three-month rehabilitation period due to the concussion he received.(c) A review of the CCTV footage shows that at the point the complainantclaims to have identified the attacker, he was incapacitated on theground where he remained immobile for some three minutes beforebeing helped to his feet.(d) The complainant was told by a bar staff member the name of Mr Linton.(e) When the Constable arrived, an ambulance had already been called asthe complainant was in clear need of medical attention. He wasdescribed as "dizzy and shaken up".[37] The starting point is the complainant's evidence at the scene. The complainanthas told Constable Middleton at the time of the incident that he knew his assailant andrecognised him to be Mr Linton. This was recorded by Constable Middleton in hisnotebook. Several days later, the complainant made his statement to the police,omitting what he said to Constable Middleton but stating that the bar manager toldhim that Mr Linton had hit him in the side of the head.[38] When the complainant was cross-examined about the inconsistency, and MrIorns put to the complainant that what he said in his police statement was the truth, thecomplainant said that he accepted that what he had said in his earlier statement wasdifferent from what he said both at the scene and in Court. It was then put to thecomplainant that he could not tell who his assailant was and he was simply relying onthe bar manager's advice. The complainant was firm in his response. He said:A. Yeah, I knew it was the same person I'd seen when I walked in.Q. But you can't be sure who that was, can you?A. It was Jake.Q. You can't be sure of that can you?A. I'm positive, 100% positive.When asked if he accepted he could be mistaken, the complainant was adamant thathe did not accept that he could be mistaken.[39] In Harney v R, Justice Blanchard explained the operation of s 45 as follows:21[30] In order to assess whether the identification evidence should beadmitted under subs (1), the judge will also need to determine whether theability of the witness to recognise the defendant from prior contact hastranslated into a reliable identification in the particular circumstances. All thecircumstances in which the witness claims to have recognised the defendantand which may have enhanced or detracted from the quality of the recognition(lighting, distance, duration of observation, eyesight of the witness, and so on)will need to be taken into account. The remarks in the leading English caseof R v Turnbull, although discussing directions to a jury, are apposite to aconsideration by a judge under s 45:How long did the witness have the accused under observation? Atwhat distance? In what light? Was the observation impeded in anyway, as for example by passing traffic or a press of people? Had thewitness ever seen the accused before? How often? If onlyoccasionally, had he any special reason for remembering the accused?How long elapsed between the original observation and thesubsequent identification to the police? Was there any materialdiscrepancy between the description of the accused given to the policeby the witness when first seen by them and his actual appearance?[40] In carrying out an assessment under s 45(1), the Judge is able to take intoaccount not only the circumstances in which the identification was made but also anyother evidence in the case which supports or raises concerns about the accuracy of theidentification.22 The confidence with which the witness made the identification mustaccordingly be treated as one of the circumstances under s 45(1). However, too muchweight should not be given to this factor, especially when it is not an expression ofconfidence at the time the identification was first made.2321 Harney v Police, above n 16 (footnotes omitted).22 At [32].23 At [33].[41] In Harney, the Supreme Court warned that a Judge should consider whetherthe identification evidence has been contaminated by someone else's advice oropinion.24 The Judge's mind should be turned to whether the identification may havebeen contaminated in some way, either at the time of the offending or later, perhapsbecause of an opinion as to identity expressed by someone else to the witness.25[42] The issue of contamination of identification evidence was also discussed in theCourt of Appeal decision Boote v R.26 In that case, the complainants had been toldthat the defendant was the assailant by "multiple sources", and then searched him outon Facebook. The Court of Appeal considered this was contamination of theevidence.27[43] I consider the complainant's response in cross-examination reconciles theseemingly inconsistent statements. He had told Constable Middleton at the time whohe saw and how he knew Mr Linton. Several days after, he made a police statementin which he refers to a bar manager telling him who his assailant was. He explains incross-examination that when he came to on the floor, Mr Linton was stomping on himand he gives reasons why he was 100 percent positive that it was Mr Linton, bydescribing his build and what he was wearing. He also was in close proximity to MrLinton when he looked up into his face. I do not consider the inconsistency in his tworespective oral and written statements to the police to be irreconcilable.[44] Although the complainant heard the bar staff member call Mr Linton by hisname, the description that the complainant gives and his familial reference to MrLinton distinguishes this from both Harney and Boote, and removes any doubt that thecomplainant's evidence may have been contaminated. I take into account that even ifthe bar manager had told the complainant that his assailant was Mr Linton, this doesnot contaminate the complainant's immediate response to Constable Middleton at thetime, nor his positive identification of Mr Linton during the hearing and the fact thathe knew and recognised Mr Linton.24 Harney v Police, above n 16, at [31]–[33].25 At [31].26 Boote v R [2013] NZCA 122.27 At [38].[45] Further, I am not persuaded that because of his concussion, the complainant'sidentification evidence is unreliable. There was no evidence that the concussion orhead injury had an effect on the complainant's ability to recognise a person. I also donot consider that the consumption of two beers, as submitted by Mr Iorns, would makeany difference to the complainant's ability to identify someone he knew, particularlywhen he was capable of talking to Constable Middleton at the scene.[46] Having considered the factors above and the identification of Mr Linton at thetime of the incident, I find there was good reason for the police not to undertake aformal procedure and I am satisfied that Mr Linton has not proved, on the balance ofprobabilities, that the evidence is unreliable.Judge's approach to the evidence[47] For completeness, I now deal briefly with Mr Iorns' submission based on thecomments in the Court of Appeal decision in Harney, that the Judge in a Judge-alonetrial should either take two discrete steps (concerning the screening of evidence foradmissibility and then adjudication) or make clear that the finding of guilt on thestrength of identification evidence is based on the totality of the evidence relevant tothat issue.28 Mr Iorns submits that here, it was not clear which approach the Judgetook.[48] In his decision, the Judge made a finding of guilt on the strength ofidentification evidence, based on the totality of the evidence relevant to the issue. Hesaid:[10] Despite cross-examination [the complainant] was adamant that he hadseen Mr Linton whom he had previously known as the assailant, and hisevidence also was that he saw the defendant, what he described as anaggressive face looking down on him as he lay on the floor. In thosecircumstances and despite the absence of evidence from any other of the verymany people, both working or attending at the bar that day, I am satisfied thatthe police have proved identity beyond reasonable doubt. That being so it isvery clear from the CCTV footage that after having taken [the complainant]to the ground the defendant then stomped on his lower body area at least threetimes before turning and walking, and being shepherded through the door bya somewhat startled bar staff.28 Harney v R [2010] NZCA 264 at [36]-[38].[49] The Judge's finding accords with the following statement in the Court ofAppeal:[37] If a Judge presiding over a summary trial is satisfied in his capacity asthe ultimate decision-maker, and taking into account the totality of theevidence, that the prosecution has proved the reliability of the identificationbeyond reasonable doubt, it must logically follow that the more limited inquiryas to admissibility has also been satisfied. [50] I consider that the Judge did not simply rely on the expression of confidenceby the complainant in the identification he made, but in his past association with MrLinton and the circumstances in which he described seeing him, including the detailof what he was wearing and the expression on his face at the time of the incident.The s 126(3) caution[51] Although the Judge did not expressly remind himself of the considerationsoutlined in s 126(3) of the Act, he expressly considered whether the identification hadbeen reliable. He noted that Mr Linton was known to the complainant, and that thecomplainant had described seeing his face while he lay on the floor. This is in linewith Nagel v Police, where the High Court noted:29[19] It is correct that the Judge did not explicitly refer to [the equivalent ofs 126]. However, he noted Mrs M's concessions, and he set out the evidencerelied on before accepting her evidence as to whether it was Mr Nagel she sawon the motorcycle. I am not persuaded that the Judge failed to exercise therequisite care as to the identification. I therefore reject this ground of appeal.[52] I consider that there has been no error in respect of the Judge failing toexpressly state he was aware caution was required when considering visualidentification evidence. He was clearly alive to the issue that the identification maynot be reliable as that was the basis of the defence case at trial. There is no "real risk"that a different outcome could have eventuated had the Judge explicitly directedhimself on the possibility of a mistaken identity. The Judge clearly considered andoutlined the basis on which he found the identification evidence to be compelling.29 Nagel v Police [2014] NZHC 2962.Conclusion[53] There are six factors which satisfy me that the visual identification of MrLinton by the complainant was admissible. They are in summary:(a) there was no evidence that the complainant suffered mental incapacityfollowing the attack such that his cognition was affected to the extentthat he could not explain what he saw;(b) the complainant gave a clear identification at the time to theinvestigating constable at the scene;(c) the complainant's omission to repeat what he said at the time two tothree days later in a statement to the police was satisfactorily explainedby the complainant at the hearing, that he had been told the attacker'sidentity by a bar staff member as well as his own identification at thetime;(d) the defendant's identification was confirmed, albeit by hearsay, fromthe bar staff worker who called Mr Linton by name in the complainant'shearing;(e) although the complainant was knocked unconscious and did not seewho hit him, he stated several times in his evidence-in-chief and undercross-examination that he knew who was stomping on him because he"came to on the floor while [Mr Linton] was stomping on [him]."(f) the constable's notebook provides the detail of what the complainantdescribed and is compelling evidence of the complainant recognisingMr Linton, whom he knew;(g) the complainant's evidence was not impeached at the hearing and hisanswer "I'm positive, 100% positive" that it was Mr Linton, waselicited in cross-examination and is unassailable.[54] On a re-evaluation of the evidence, I am satisfied the Judge was correct infinding that the visual identification evidence by the complainant was admissible.Under s 45(1) of the Act, there was a good reason for the police not to follow a formalidentification procedure, because the complainant recognised Mr Linton and identifiedhim, and his evidence was reliable.Result[55] The appeal is dismissed.Cull JSolicitors:Luke Cunningham & Clere, Wellington for the Respondent