CASSIDY v NEW ZEALAND POLICE [2016] NZCA 549

CASSIDY v NEW ZEALAND POLICE [2016] NZCA 549 [23 November 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA168/2016[2016] NZCA 549BETWEEN MATTHEW IVAN KAREMA CASSIDYApplicantAND NEW ZEALAND POLICERespondentHearing: 14 November 2016Court: Winkelmann, Duffy and Whata JJCounsel: M I Koya for ApplicantR D Butler for RespondentJudgment: 23 November 2016 at 10.30 amJUDGMENT OF THE COURTThe application for leave to bring a second appeal against conviction is declined.____________________________________________________________________REASONS OF THE COURT(Given by Winkelmann J)[1] Mr Cassidy was found guilty on 16 October 2015 of one charge of burglary following a judge-alone trial before Judge Earwaker in the Manukau District Court.1In December 2015 Judge Earwaker sentenced Mr Cassidy to two years' intensive supervision, 80 hours' community work and ordered him to pay $250 in reparation.1 Judge Earwaker delivered an oral decision convicting Mr Cassidy on the charge of burglary. The recording of that oral decision was lost. Judge Earwaker completed a memorandum dated 15 February 2016, drawing upon his handwritten notes prepared for delivery of the oral judgment, setting out the matters he took into account when convicting Mr Cassidy.Mr Cassidy appealed that conviction. On 16 March 2016 Woolford J dismissed his appeal.2[2] Mr Cassidy now seeks leave under s 237 of the Criminal Procedure Act 2011 to commence a second appeal against conviction. He seeks to advance three grounds of appeal:(a) that identification evidence was wrongly admitted in the District Court and the High Court Judge erred in finding that was not so;(b) that the evidence did not support a conviction; and(c) that there was prosecutorial misconduct which resulted in a miscarriage of justice.[3] Section 237(2) of the Criminal Procedure Act provides that this Court must not give leave for a second appeal unless satisfied that:the appeal involves a matter of general or public importance; or a miscarriage of justice may have occurred, or may occur unless the appeal is heard.[4] Mr Koya for Mr Cassidy accepts he cannot argue that the proposed appeal involves a matter of general or public importance — Mr Koya grounds the application for leave squarely upon the contention that a miscarriage of justice may have occurred. As this Court made clear in R (CA176/2016) v Police,3 the threshold for leave to bring a second appeal is high:In particular, not every error at trial will amount to a miscarriage. This Court is slow to grant leave where success for an appellant would require this Court to reverse concurrent findings of fact below. That is particularly so where, as here, the trial was before a judge alone, giving the applicant the benefit of two judgments giving reasons for those factual findings.2 Cassidy v Police [2016] NZHC 457.3 R (CA176/2016) v Police [2016] NZCA 403 at [26].Background[5] We gratefully adopt the summary of facts set out in the judgment of Woolford J:4[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 todo 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 registrationnumber of the white Ford Transit van. It was registered to Mr Cassidy'spartner. Accordingly, the Police went round to Mr Cassidy's address andarrested him at about 10:40 pm for the burglary based on a description of theoffenders and Mr Cassidy's connection to the Ford Transit van. Photographswere 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 [Mr Charan] identified Mr Cassidy as being one of the offenders. The other neighbour [Mr Pienaar] selected a photograph of another male who was not a suspect.First proposed ground of appeal: the evidence of identification was wrongly admitted[6] This ground relates to the evidence of a photo board visual identification of Mr Cassidy by one of the two neighbours, Mr Charan, who witnessed the burglary. It is common ground that the procedure followed by the police to obtain that identification complied with the requirements for a formal procedure to obtain visual4 Cassidy v Police, above n 2.identification evidence.5 That being the case, the issue for Judge Earwaker, and for Woolford J on appeal, was whether the threshold in s 45(1) of the Evidence Act 2006 had been met.[7] Section 45(1) provides:45 Admissibility of visual identification evidence(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.[8] Counsel for Mr Cassidy in the District Court (counsel other than Mr Koya) did not object to the admissibility of this evidence. Nevertheless, as Mr Koya says, counsel for Mr Cassidy did cross-examine extensively in relation to the reliability of the identification evidence. Indeed, that was a central plank of his defence. But because the admissibility of the evidence was not challenged before Judge Earwaker, it is not surprising that he did not address the issue in those terms. Nevertheless, the issue was squarely addressed by Woolford J.[9] Woolford J outlined a number of arguments directed to undermining the reliability of the formal identification evidence but concluded the evidence was not unreliable. In particular he said:6[42] In my view, the evidence is not unreliable. The burglary happenedin daylight. It was "a nice bright day". Mr Charan heard breaking glass andcame 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 aphotograph of the offender, that does not mean that Mr Charan'sidentification is unreliable. The photo board identification was made justfive hours after the burglary, when Mr Charan's recollection would havebeen fresh. While initially hesitant, Mr Charan wrote down photograph number 2 as the photograph he recognised as a person involved in theburglary of his neighbour's house.5 Evidence Act 2006, s 45(3).6 Cassidy v Police, above n 2.[10] Mr Koya now argues the Judge failed to take into account various matters when he addressed the s 45(1) admissibility issue. In large part the arguments advanced by Mr Koya are no more than an attempt to reformulate or re-argue the matters advanced before Woolford J and taken into account by him in reaching the view he expressed at [42] of his judgment. Mr Koya does add two additional matters— the differences in the description of the offender given by Mr Charan and Mr Pienaar, and Mr Pienaar's failure to identify Mr Cassidy on a photo board. While these facts were relevant when deciding whether or not the prosecution had proved its case against Mr Cassidy, they were not such as could cause a different view to be taken of the admissibility of the formal identification evidence under s 45(1).[11] This ground is not seriously arguable. We are satisfied that the s 237 threshold is not met in respect of this proposed ground of appeal.Second proposed ground of appeal: has there been an erroneous assessment of the evidence?[12] Mr Koya for Mr Cassidy argues that Woolford J overlooked instances where the District Court Judge made findings unsupported by the evidence. He urges upon us the possibility that a different view is available on the evidence as to whether the prosecution proved the charge against Mr Cassidy beyond reasonable doubt.[13] In pursuing an application in respect of this ground, Mr Koya faces theconsiderable hurdle of two concurrent findings that Mr Cassidy's guilt has beenproved beyond reasonable doubt. Our review of the evidence satisfies us that the Crown case against Mr Cassidy was strong. A white Ford Transit van was observed at the scene of the burglary. Mr Pienaar confronted one of the offenders in the vicinity of the white Transit van. He was able to take down the registration of that van, which enabled it to be traced and found at an address associated with Mr Cassidy.[14] Both Mr Pienaar and Mr Charan described an offender wearing a red or an orange shirt when they were first interviewed by the police. When police arrested Mr Cassidy, he was found to be wearing a red shirt with a logo. Mr Pienaar alsoreferred to the intruder as wearing shorts and jandals. Mr Cassidy was wearing shorts and jandals when arrested.[15] Finally, Mr Cassidy made inculpatory statements to the police; although Mr Koya tried to urge a different view upon us, we consider that when his statements are read as a whole they are clearly inculpatory.[16] Mr Koya points to various discrepancies in the evidence, particularly the discrepancies in eyewitness descriptions. However, all these factors were considered by both the District Court Judge and Woolford J in reaching the view that the charge against Mr Cassidy was proved. Again, this proposed ground of appeal cannot meet the high s 237 threshold.Third proposed ground of appeal: prosecutorial misconduct[17] The final proposed ground of appeal is based upon an allegation of prosecutorial misconduct — that the prosecuting sergeant inappropriately displayed photographs of Mr Cassidy in an attempt to influence surreptitiously the identification witnesses.[18] This ground of appeal was fully considered by Woolford J. The Judge viewed the CCTV footage of the hearing. He concluded that the arrest photographs were inappropriately displayed from time to time by the prosecuting sergeant and reached the provisional view that the display may not have been inadvertent.7However, he was unable to conclude that this conduct was deliberate because the footage had not been referred to the prosecuting sergeant and nor had the sergeant'scomments been sought in relation to the conduct.[19] In any case he was of the view that the display of the arrest photographs did not affect the outcome of the trial.8 Although counsel for Mr Cassidy submitted before Woolford J that the display of the photographs had given each witness an opportunity to see that on arrest Mr Cassidy was wearing a red t-shirt, each identification witness had given a description of a red or orange t-shirt in their7 Cassidy v Police, above n 2, at [57].8 At [58].original police statement. Each was given the opportunity to refresh their memory from that original police statement. Therefore there was no real chance that theprosecutor's conduct influenced the outcome of the trial.[20] Not every error in a trial will render it unfair; the error must be of sufficient seriousness to warrant the verdict being set aside without further inquiry.9 This was the test applied by Woolford J. Woolford J concluded that the display of photographs was not so serious as to make the trial unfair.10 Mr Koya now invites us to make a different assessment by advancing essentially the same arguments as were considered by Woolford J. We do not think his propositions seriously arguable. Again, the high threshold of s 237 is not met.Result[21] The application for leave to bring a second appeal against conviction is declined.Solicitors:Crown Law Office, Wellington for Respondent9 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [41].10 Cassidy v Police, above n 2, at [57].