WINDERS v R [2016] NZCA 350

WINDERS v R [2016] NZCA 350 [22 July 2016]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS IN NEWS MEDIA OR ON THE INTERNETOR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINALDISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAWDIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA292/2016[2016] NZCA 350BETWEEN QUINTON PAUL WINDERSAppellantAND THE QUEENRespondentHearing: 12 July 2016Court: French, Collins and Fogarty JJCounsel: J P Temm and C B Wilkinson-Smith for AppellantM D Downs and C H Macklin for RespondentJudgment: 15 July 2016 at 2.00 pmReasons: 22 July 2016JUDGMENT OF THE COURTA The application for leave to appeal is granted.B The appeal is dismissed.C Order prohibiting publication of the judgment and any part of theproceedings in news media or on the internet or other publicly availabledatabase until final disposition of trial. Publication in law report or lawdigest permitted.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] Mr Winders is to stand trial for murder in the High Court at Rotorua beginning8 August 2016. He sought leave to appeal a pre-trial ruling of Toogood J regardingthe admissibility of certain evidence the Crown wishes to adduce at trial.1[2] The Crown did not oppose leave being granted.[3] In a results decision issued on 15 July 2016 we granted Mr Winders leave toappeal but dismissed the appeal.2[4] Our reasons now follow.The Crown case[5] On 19 March 2013 Mr George Taiaroa was working at a road construction siteoperating a stop-go sign when he was fatally shot in the head with a .22 calibre rifle atclose range. A Jeep Cherokee was seen driving away from the scene at speedimmediately after the shooting.[6] The Crown allege the shooter was Mr Winders and that he murderedMr Taiaroa because of a minor traffic accident that had occurred a week earlier forwhich he held Mr Taiaroa responsible. The case against Mr Winders is acircumstantial one.1 R v Winders [2016] NZHC 1056 [Results judgment]; R v Winders [2016] NZHC 1147 [Reasonsjudgment].2 Winders v R [2016] NZCA 333. We note the application for leave to appeal was filed out of time,having been filed 24 working days after the date of the results judgment: Criminal Procedure Act2011, s 220. In light of the appeal being filed promptly after the release of the reasons judgmentand the fact the Crown did not oppose the extension, we grant the application for an extension oftime. This order is implicit in our order granting the application for leave to appeal.[7] On appeal, there were three categories of evidence at issue.Propensity evidence[8] The Crown wishes to adduce evidence of alleged past conduct by Mr Windersthat the Crown submits "demonstrates an apparent tendency on his part to reactdisproportionately and violently to perceived slights through the use of a firearm andmore particularly by shooting at or near the apparent provocateur in circumstances thatcould well prove to be fatal".[9] Justice Toogood ruled evidence of four such incidents admissible under s 43 ofthe Evidence Act 2006.3[10] The first of these occurred in January 2009 when a Mr Ford and three teenageboys were lawfully pig hunting one morning on property adjoining that occupied byMr Winders. Mr Ford says two shots were fired at or near him and the boys in quicksuccession from the direction of the Winders' property. According to Mr Ford, thefirst was about three metres over the top of his head and the second struck the trackabout three metres directly in front of him. Mr Ford and his party fled for cover,believing they were under attack. Mr Ford identified the gun being used to fire theshots as being from a high-powered unsuppressed rifle like a .223 or higher calibre.[11] Mr Winders is alleged to have later bragged to his neighbour about the incident,saying he had chased poachers off the neighbour's property.[12] The second incident also took place in 2009. A Mr Gleeson and his father werepossum shooting between 10.00 pm and 11.00 pm near Mr Winders' farmhouse.Suddenly, four or five shots were fired behind them and up into a row of pine trees onthe public road where they were standing. They took it as a warning to stop and leftquickly. Mr Gleeson says that when he subsequently spoke about the incident to MrWinders, the latter's response was to say "Oh, I just didn't know that it was you".Mr Gleeson says he is sure the shots came from a .22 rifle.3 The Judge excluded evidence of a fifth incident that involved Mr Winders in a vehicle confrontingpoachers with a firearm in his lap. No shots were fired and the Judge concluded thosecircumstances lacked probative force. The Crown did not challenge that ruling on appeal.[13] The third incident involved a Mr Kuriger. He was a neighbour of Mr Windersand was spotlighting one evening in April 2011 for deer on a public road. Mr Kurigersays that when he shone a spotlight in the direction of Mr Winders' property, thinkinghe heard deer, a .22 shot whizzed over the cab of his vehicle. He shone the spotlightin the direction of the shot and then another shot whizzed over. The shots came fromapproximately 30 metres away and from the direction of Mr Winders' property.[14] The fourth incident again involved Mr Kuriger. He was deer hunting at nighton his own property in April 2012, having told Mr Winders he would be doing that,when a couple of shots were shot over his head from the direction of the Winders'property. Mr Kuriger says he heard the crack of the gun and the whizz of the bulletpassing by.[15] On appeal, counsel for Mr Winders, Mr Temm, challenged the admission ofthis evidence on three grounds.Insufficient evidence establishing the identity of the shooter[16] Messrs Kuriger, Gleeson and Ford all gave evidence before Toogood J. TheJudge said he was satisfied beyond reasonable doubt that on each occasion the shotshad been fired from property occupied by Mr Winders and that it was highly probableMr Winders was the shooter.4[17] For the purposes of the appeal, Mr Temm accepted Mr Winders was the shooterin the 2009 incidents, but submitted there was insufficient evidence in relation to thetwo Kuriger incidents. Mr Temm emphasised that Mr Kuriger never saw the shooterand there was no evidence of any admission by Mr Winders to being the shooter. Thatwas, in Mr Temm's submission, fatal to the evidence being able to be used as evidenceabout any propensity of Mr Winders.[18] We do not accept that submission. We agree with the Judge that on theevidence he heard it is highly probable the shooter was Mr Winders. The shots camefrom the direction of Mr Winders' property, he was the only person occupying the4 Reasons judgment, above n 1, at [43]–[44].property in a relatively remote rural area and he had a history of firing at people hebelieved were poaching. Contrary to a submission made by Mr Temm, the factMr Winders may have been away from his property for periods of time does not detractfrom that analysis to the point of rendering the evidence inadmissible. There was noevidence that anyone else was there during his absence.Other evidence negating the existence of the alleged tendency[19] Mr Temm drew our attention to six witness statements obtained by the policethat he contended showed Mr Winders did not have the tendency alleged. Thestatements are from people who say they had no concerns about Mr Winders'behaviour around firearms. Although Toogood J said he took these statements intoaccount,5 Mr Temm argues the Judge failed to give them sufficient weight.[20] We disagree. The fact a person may not always act upon their propensity is notof itself grounds for excluding propensity evidence.Insufficient linkage between the propensity evidence and the charge[21] The issue at trial is the identity of the person who shot Mr Taiaroa with a.22 rifle.[22] Mr Temm submitted there was a "disconnect" between the conduct evidencedby the propensity evidence and the killing of Mr Taiaroa. Mr Temm emphasised thatthe murder involved a cold-blooded execution of someone at close range. Yet in noneof the other incidents had Mr Winders actually shot at the witnesses, let alone injuredthem. Firing warning shots in a rural setting at persons suspected of being poacherswas, in Mr Temm's submission, wholly different from the circumstances ofMr Taiaroa's homicide. The probative force of the propensity evidence was thus veryweak and outweighed by its highly prejudicial effect.[23] In our view, Mr Temm's argument takes too benign a view of the propensityevidence. Mr Ford clearly considered he was under attack. Further, although some ofthe hunters involved in the incidents may have been more stoic than others, shooting5 Reasons judgment, above n 1, at [37].at or near another person, endangering their safety, is very unusual behaviour. Theincidents involved, at least in three cases, the discharge of a firearm of the same calibreas the murder weapon. And they occurred in circumstances where, if the evidence isaccepted, Mr Winders must have made the deliberate decision to discharge the firearmbecause of some perceived wrong. Taken together, the four incidents present adisturbing picture of an individual who is prepared to endanger others with firearmsfor very little reason.[24] In terms of coincidence reasoning, it might be thought a remarkablecoincidence that a person with that propensity should only seven days before themurder be involved in an incident with the murder victim for which he appears to haveheld the murder victim responsible. As Toogood J also noted, the propensity evidencehas probative value in tending to rebut what might be a natural inclination on the partof the jury to reject as implausible the asserted motive for the killing.6[25] The propensity evidence is recent and there is no suggestion of any collusion.[26] We accept — as did Toogood J — that there is a risk the jury might givedisproportionate weight to this evidence and engage in impermissible reasoning.However, we consider this risk can be managed by a strong and comprehensivedirection from the trial judge. It is an aspect of the trial that will demand particularcare and attention.[27] We conclude that the probative value of the propensity evidence is notoutweighed by its prejudicial effect and therefore agree with Toogood J that theevidence should be put before the jury.Visual identification evidence[28] Mr Taiaroa was killed in the afternoon of 19 March 2013. The policeconsidered Mr Taiaroa's murderer was likely to have fled the scene by driving southon a road called Tirohanga Road. On the day of the murder a Ms Walker contactedpolice. She told them while she was driving south on Tirohanga Road at6 Reasons judgment, above n 1, at [18].approximately 3.10 pm that afternoon a distinctive Cherokee vehicle had driven upquickly behind her, tailgated her and then passed her before speeding away. She gavepolice a description of the driver.[29] The police interviewed Ms Walker on 22 March 2013 and she provided aformal written statement.[30] On 5 April 2013 police prepared a photo montage, which was shown toMs Walker on 12 April 2013. It included photos of Mr Winders and seven other men.Ms Walker identified Mr Winders as the driver of the vehicle.[31] The Crown want to adduce evidence of Ms Walker's identification at trialunder s 45 of the Evidence Act. The effect of s 45(1) is that if police follow a formalprocedure for obtaining visual identification of a suspect, then the evidence isadmissible unless the defendant proves on the balance of probabilities the evidence isunreliable. If, however, a formal procedure is not followed, then s 45(2) applies andthe evidence is inadmissible unless the prosecution prove beyond reasonable doubtthat the circumstances in which the identification was made have produced a reliableidentification. Determining whether a formal procedure has been followed isaccordingly critical.[32] In order to constitute a "formal procedure" for the purposes of s 45, certainrequirements must be satisfied.7 Two of those requirements are that the proceduremust take place "as soon as practicable" after the alleged offence is reported and thatit must comprise a process in which the person to be identified is compared to no fewerthan seven other persons who are similar in appearance to the person to be identified.[33] In the High Court and again on appeal, Mr Temm sought to argue that the sevenother photos used in the montage were not of people similar to Mr Winders becausethe age range was too wide and because the skin tone in the photo used of Mr Winderswas markedly different from the photos of all the other people, thereby unfairlydrawing attention to his photo. We have examined the photo montage that was shown7 Evidence Act 2006, s 45(3).to Ms Walker and do not accept those criticisms. We agree with Toogood J that alleight men in the montage appear sufficiently similar to provide a fair test.8[34] Although Toogood J found the images were sufficiently similar, he did notaccept the photo montage procedure had been followed as soon as practicable asrequired by s 45.9 Having made that finding, it then became necessary for the Judgeto consider under s 45(2) whether the prosecution had proved beyond reasonable doubtthat the circumstances in which the identification was made had produced a reliableidentification. The Judge concluded that it had and the evidence was thereforeadmissible, notwithstanding the failure to follow a formal procedure.[35] On appeal it is common ground that the Judge erred in his assessment ofreliability under s 45(2) in that he did not limit his inquiry to the circumstancessurrounding the making of the identification. The Judge wrongly took into accountexternal evidence that Mr Winders owned a Jeep Cherokee, saying he considered it tobe "particularly compelling" that the man Ms Walker identified in the montage justhappened to be a man who also owns a Jeep Cherokee.10 While such considerationsare permissible under the s 45(1) inquiry, they have been held to be outside the scopeof s 45(2).11 The authority cited by the Judge to support his reasoning, R v Aleki, wasa s 45(1) case, not a s 45(2) case.12[36] It has not been necessary for us to consider afresh whether the prosecution hasproved beyond reasonable doubt that the circumstances in which the identification wasmade have produced a reliable identification. That is because we are satisfied ToogoodJ should not have embarked on the s 45(2) inquiry in the first place. In our view, theidentification procedure was held as soon as practicable and therefore qualified as aformal procedure for the purposes of s 45(1).[37] The photo montage procedure took place 24 days after the murder and 11 daysafter Mr Winders became a suspect on 1 April. Having regard to the time it took to8 Reasons judgment, above n 1, at [88].9 At [71].10 At [89].11 Harney v Police [2011] NZSC 107, [2012] 1 NZLR 725 at [32]; R v Edmonds [2009] NZCA 303,[2010] 1 NZLR 762 at [110]–[115] and [139].12 At [90]; R v Aleki [2010] NZCA 442.prepare the photo montage (five hours), 2 April was the earliest date on which itbecame possible to include Mr Winders in a montage and show the montage to MsWalker. The photo montage was prepared on 5 April 2013. Ms Walker was shownthe montage on 12 April 2013.[38] In Malone v R this Court held the phrase "as soon as practicable" means "theformal procedure must be carried out as soon as it is feasible to do so in thecircumstances" (emphasis added).13[39] The evidence in this case was that during this period in early April 2013 theofficers investigating the murder of Mr Taiaroa were working 10 to 12 hour days. Itwas a complex, wide ranging and ongoing investigation. The murder had receivedsignificant media attention and the information coming into the police wasvoluminous. There were numerous lines of inquiry that had to be followed. Givenpublic safety must have been a paramount consideration, the police could have beencriticised had they not followed all leads.[40] In those circumstances, we consider a delay of 10 days was reasonable and thatthe identification procedure was conducted as soon as practicable. To hold otherwise,in our view, is to ignore the practicalities and require a counsel of perfection. Althougheach case must turn on its own facts, it is noteworthy that far longer delays have beenheld to be reasonable in other cases.14[41] Mr Temm submitted that even if we were to hold that a formal procedure hadbeen followed, the identification evidence should nevertheless be excluded unders 45(1) on the grounds it is unreliable. In support of that submission, Mr Temm reliedon the limited opportunity Ms Walker had to observe the driver, whom she had neverseen before, as well as various inconsistencies and inaccuracies in her statements topolice and the composition of the photo montage.[42] Ms Walker gave evidence before Toogood J. The Judge said she struck him asbeing an observant and careful person.15 He found Ms Walker had good cause to get13 Malone v R [2010] NZCA 59 at [19].14 See, for example: Tahitangatatarei v R [2013] NZCA 293; Harrison v R [2013] NZCA 644.15 Reasons judgment, above n 1, at [82].a good look at the driver of the passing vehicle because he had alarmed her by themanner of his driving.16 She focused on his face and made eye contact. In the Judge'sassessment, that focus meant it was less likely she would have a clear and accuraterecollection of peripheral matters such as those relied upon by Mr Temm.17[43] The Judge also considered that after becoming aware of Mr Taiaroa's deathlater that same evening, Ms Walker had good cause to keep the image of the driver inher mind as she said she had done.18 The Judge considered that was a very differentsituation from one where a witness only gets a fleeting glimpse and has no need torecall the event until long afterwards. The description given by Ms Walker of thedriver was relatively detailed and was consistent with Mr Winders' appearance.Further, while her description of the vehicle did not precisely match that ofMr Winders' vehicle, it was a close match as to make, model and colour.[44] In determining the reliability of Ms Walker's observation and subsequentidentification, Toogood J also took into account that although Ms Walker looked at allthe photos in the montage before expressing an opinion — as instructed — she did nothesitate in her identification of the driver.19 She told the Judge that "it hit me like aton of bricks that this was the person that matched who I had seen". As already noted,we consider the photo montage was fair.[45] The reliability of the identification is further supported by other extrinsicevidence — something we are entitled to take into account under s 45(1). It issupported by, for example, Mr Winders' ownership of a vehicle matching Ms Walker'sdescription and also matching the description given by other witnesses of a vehiclelikely to have been the killer's vehicle, evidence Mr Winders changed the appearanceof his Jeep Cherokee and cleaned it after the murder, his ownership of a .22 rifle andstatements to an associate suggesting knowledge of the murder that had not, at the timeof the statements, been made public.16 At [83].17 At [79].18 At [83].19 At [89].[46] The appellant has failed to satisfy us on the balance of probabilities that theidentification evidence is unreliable.[47] We therefore rule it is admissible under s 45(1) of the Evidence Act.Evidence of police interview[48] Mr Winders was arrested on 4 April 2013 after being tackled to the ground andhandcuffed in a public shopping area.20 He was informed of his rights and told he wasunder arrest for reckless driving the previous night. He had been seen driving at aspeed of up to 150 km per hour and accelerating when an unmarked police car keepinghim under surveillance had tried to pass him. After arresting Mr Winders, the policetook him to the Rotorua Police Station. There he was held in custody until the arrivalof a Detective Dunn, who had been assigned to interview him.[49] During the course of the ensuing interview, Mr Winders answered questionsabout Mr Taiaroa's homicide, including Mr Winders' whereabouts on the day of thehomicide, about the encounter he had had with Mr Taiaroa the week before thehomicide and about his possession of firearms. The interview ended whenMr Winders said he wanted a lawyer.[50] Justice Toogood found the sole purpose for the arrest was to confineMr Winders in order to question him on the murder.21 The reference to the recklessdriving allegation was just a pretext. As at 4 April 2013 the police did not havesufficient evidence to arrest and charge Mr Winders with murder. There being noproper basis for the arrest and no power in New Zealand to detain a suspect forquestioning, the Judge held the arrest and detention was unlawful and a breach of s 22of the New Zealand Bill of Rights Act 1990 (the right to be free from arbitrary arrestor detention).22[51] The Judge went on to find that, notwithstanding the breaches, the evidence ofwhat Mr Winders told the police was nevertheless admissible at trial. The main reason20 The explanation given for the tackle was that the arresting officer had been told Mr Winders wasunpredictable and dangerous.21 Reasons judgment, above n 1, at [105].22 Reasons judgment, above n 1, at [110]–[111].for that ruling was that, in the Judge's view, there was no causal nexus between theimpropriety and the obtaining of Mr Winders' statements.23 The Judge also found thateven if he was wrong and there was a causal nexus, the evidence should still beadmitted under s 30 of the Evidence Act on the grounds its exclusion would bedisproportionate to the impropriety, taking into account the need for an effective andcredible system of justice.24[52] On appeal, Mr Temm challenged those findings. He submitted that, havingbeen actively misled by police as to the reason he was there (in breach of s 23 of theBill of Rights Act), Mr Winders was confused and did not fully appreciate why itwould be in his interests to seek legal advice until after he had made the statementsthe Crown now seek to adduce. Mr Temm submitted there was accordingly a clearcausal nexus between the unlawful detention and the obtaining of the evidence.Mr Temm further argued the Judge had minimised the seriousness of the breaches andthe absence of any alternative remedy, as well as overstating the importance of thestatements to the Crown case.[53] The admission of improperly obtained evidence is governed by s 30 of theEvidence Act. It is well established that under s 30 proof of a causative link betweenthe improper police conduct and the making of a statement is generally an essentialelement of the admissibility inquiry.25[54] We acknowledge on the facts of this case that had Mr Winders not been incustody, the police would not have been in a position to interview him. However, thecritical question is whether the statement itself was obtained as a result of theimpropriety. We are satisfied it was not and that therefore the necessary causal link isabsent. We have reached that conclusion for the following reasons.[55] Prior to the interview commencing, Mr Winders was specifically informed thepolice needed to talk to him about the Taiaroa homicide as well as the reckless drivingincident. He was again advised of his rights, including his right to remain silent and23 At [128]–[130].24 At [136].25 R v Chetty [2016] NZSC 68 at [46]–[47]; Boskell v R [2014] NZCA 497 at [9].his right to speak to a lawyer without delay. Mr Winders confirmed he was happy totalk about both matters.[56] As Toogood J found, the interview itself was conducted fairly. Mr Windersshowed no reluctance to speak to the detective about the Taiaroa homicide andconfirmed on a number of occasions that he was happy to help with the inquiries. Attimes Mr Winders talked at length without prompting. In those circumstances, weagree with the Judge that it was not Mr Winders' detention nor the reasons given tohim for his detention that led to his making the statement but rather his willingness tospeak.[57] We note Mr Winders chose not to give evidence at the hearing before ToogoodJ. The transcript of the interview and the DVD do not support counsel's contentionthat Mr Winders was confused or surprised to be asked about Mr Taiaroa. We alsoagree with the Crown submission that the most likely inference from the transcript isthat Mr Winders' request to see a lawyer only arose when Mr Winders realised thepolice were not accepting his version of events and that it was no longer to hisadvantage to continue.[58] We also agree with Toogood J that even if the evidence was improperlyobtained, it would still be admissible under the balancing process of s 30. Thebreaches were undoubtedly serious but against that must be weighed the weakness ofany causal link (assuming one existed), the absence of bad faith on the part of thepolice (a finding of Toogood J we see no reason to disturb),26 the seriousness of theoffence, and the importance of the statement to the Crown case. Of particularimportance is Mr Winders' account of his earlier encounter with Mr Taiaroa and hisaccount of his movements on the day of the murder.Outcome[59] The application for leave to appeal is granted.[60] The appeal is dismissed.26 The Judge was satisfied the police genuinely believed they had the right to arrest Mr Winders:Reasons judgment, above n 1, at [134].[61] For fair trial reasons, we make an order prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of trial. Publication in lawreport or law digest permitted.Solicitors:Crown Law Office, Wellington for Respondent