TE HEI v R [2017] NZCA 299

TE HEI v R [2017] NZCA 299 [13 July 2017]IN THE COURT OF APPEAL OF NEW ZEALANDCA615/2016[2017] NZCA 299BETWEEN WARREN CHARLES TE HEIAppellantAND THE QUEENRespondentHearing: 21 June 2017Court: Asher, Venning and Dobson JJCounsel: S K Green for AppellantZ R Johnston for RespondentJudgment: 13 July 2017 at 11.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] This is an appeal against convictions for wounding with intent to cause grievous bodily harm, and assault with intent to injure. The appeal focuses on a number of aspects in which the trial Judge dealt with issues going to the identity of the appellant, Mr Te Hei, as the offender.[2] The appeal was brought out of time, without any explanation at the time it was brought for the delay in the appeal being pursued. Shortly before the hearing the appellant filed an affidavit explaining the delay. The Crown did not object toleave being granted for the appeal to be brought out of time. The granting of leave should not be assumed and that aspect of the appeal was inadequately prepared. However, in the circumstances of this case, we are prepared to grant the requisite leave.[3] The trial was in the District Court at Gisborne before District Court Judge Adeane. Judge Adeane declined jurisdiction on sentencing. On 7 July 2016 Clark J sentenced Mr Te Hei to preventive detention and ordered him to serve aminimum term of five years' imprisonment.1 Mr Te Hei also appealed against that sentence, but no submissions in support of the sentence appeal were filed. It was formally abandoned at the hearing.Circumstances of the offending[4] On 8 August 2014 two cousins, Elsie Collier and Erihi Donnelly, were drinking at the home of one of their aunts in Ranfurly St, Gisborne. The Crown case was that Ms Donnelly walked to the home of another aunt a few doors away and was in the vicinity of the second house when a car containing Mr Te Hei pulled up nearby. Ms Collier had stayed at the first house and went outside upon hearing Ms Donnelly screaming. Ms Collier saw her running back towards the first house, chased by a man. Ms Collier moved towards the man to protect Ms Donnelly. The man went back to the car he had arrived in and took out a machete which he swung towards Ms Collier's head. She put her hands up to defend herself and was woundedseveral times on the hand. That attack was the basis for the charge of wounding with intent to cause grievous bodily harm. The man then hit her in the head with the wooden part of the machete knocking her to the ground. That attack led to the charge of assault with intent to injure.[5] The driver of the car called the attacker to return to it and they drove off. The driver of the car was Nigel Sammons. His evidence at trial was that he had drivenMr Te Hei from Wairoa at the request of Mr Te Hei's partner, Honor Goldsmith. Sheaccompanied them in the car, but was not in it when the attack occurred. After the attack Mr Sammons drove them back to Wairoa.1 R v Te Hei [2016] NZHC 1538.[6] When Mr Sammons was initially spoken to by the police he was reluctant to speak to them and told them that he knew nothing about the incident. It was put to him by the police that they knew he was the driver of the vehicle carrying the attacker to and from the site. They also put to him that Mr Te Hei had suggested he had been involved. In response Mr Sammons provided a statement to the police about what had happened that was essentially consistent with the evidence he subsequently gave at trial.[7] At a later point Mr Sammons purported to retract his statement by swearing a handwritten affidavit asserting that the original statement made to the police was false. At trial Mr Sammons disavowed the affidavit and confirmed the explanation of his involvement and what he had observed in the original statement he had made to the police.[8] Mr Sammons said that the police telling him that Mr Te Hei had implicated him in the attack felt like he was being "put in a corner". He also explained that thedisavowing affidavit had been suggested to him by a cousin who was attempting toput him in a place where "I didn't see nothing, I didn't do nothing".[9] The police interviewed Ms Collier at the Gisborne hospital on the night of the attack. Then, and in a further interview on the following day, 9 August 2014, she did not identify the attacker, but rather described him as being short, of medium to stocky build, of Māori ethnicity and wearing a patched Mongrel Mob jacket. She said she had never seen him before.[10] Four days after the attack, on 12–13 August 2014, the police interviewed Ms Collier again at her home. On that occasion she identified Mr Te Hei as her attacker, having recognised him from a previous awareness of who he was. She had seen him previously at a local dairy with his partner. Ms Collier had also seen apicture of him on someone's wall when she was in prison. She told the police thatshe had not previously named Mr Te Hei because she was scared given the gang connections involved.[11] Ms Collier's evidence at trial was generally consistent with the statement shehad made on 13 August 2014. Cross-examination on the details of the physical features of the attacker as she remembered them revealed inconsistencies in a number of details, by comparison with both her original statements to the police and the evidence of Ms Donnelly as to her recollection of the appearance of the attacker.[12] Ms Donnelly was also spoken to by the police on the night of the attack, and she also said that she did not recognise the attacker. Her initial statement included a description of the attacker as a short Māori man of skinny to medium build, wearing a Mongrel Mob patch. Some of her details were inconsistent with the original description as recalled by Ms Collier. She also said at that stage that she had never seen the attacker before.[13] In subsequent interviews with the police Ms Donnelly similarly explained that she had been too scared to identify Mr Te Hei, but stated that she recognised him at the time of the attack from seeing him around previously. At some point he had lived on Ranfurly St. Her evidence was that she had heard the driver of the vehiclecalling out "Warren, Warren".[14] The evidence of the aunt in the second house visited by Ms Donnelly immediately before the attack was that one of Ms Collier or Ms Donnelly had told her on the night of the attack that the attacker was "Warren".[15] No formal identification procedure was undertaken under s 45 of the Evidence Act 2006 (the Act) in the course of the police inquiry. No issue was taken by defence counsel with the absence of such a procedure before, or at, the trial.The defence[16] Mr Te Hei's defence included raising an alibi to the effect that he wasinvolved in a gang-related confrontation and fight in Wairoa at the time the attack occurred in Gisborne. His counsel called his partner, Ms Goldsmith, to advance thatalibi. The Crown's rejoinder on the alibi acknowledged the confrontation hadoccurred, but that it had occurred earlier in the day. That would leave sufficient time for Mr Te Hei to travel to Gisborne before the time at which this attack occurred.[17] It was put to Mr Sammons in cross-examination that he had been pressuredby the police to name Mr Te Hei, and that his evidence of Mr Te Hei's involvementwas known by him to be false.[18] In addition, cross-examination of Ms Collier and Ms Donnelly included the propositions that they had been put up to wrongly naming Mr Te Hei as the attacker as part of intra-gang rivalries.[19] The planks for the defence included that each of the three witnesses were motivated to lie and had falsely identified Mr Te Hei as the person they recognised as the attacker. Further, the alibi evidence supported the claim that their recognition of him as the attacker must have been false. The defence closing attacked the credibility of all three witnesses who had identified Mr Te Hei as the attacker, emphasising the motives that each of them had to falsely accuse Mr Te Hei.[20] There were also several strands of criticism of the reliability of all three witnesses. Mr Sammons had accepted in cross-examination that he was depressed, under stress, and a frequent user of methamphetamine and cannabis. Both young women were characterised as drunk, loud and abusive at the time of the assault. Their descriptions of Mr Te Hei included that his facial tattoos included gang-associated words. At trial, counsel pointed out that his facial tattoos did notinclude any writing at all. Ms Collier's aggressive response to the attack includedkicking the car as it retreated and attempting to pull pieces off it. Counsel suggested that conduct was inconsistent with her later claim that she was too scared, that night and the following day, to name Mr Te Hei as the attacker she recognised.[21] The Judge gave a conventional warning about the consequences of mistaken identity evidence in somewhat sparse but nonetheless conventional terms. The Judge declined a defence request that he also give the jury a caution under s 122(2)(c) ofthe Act, to the effect that Mr Sammons' evidence came from a witness who had amotive to give false evidence that was prejudicial to the defendant. Defence counsel had also proposed the need for a warning of the same type in relation to the twoyoung women's evidence given the defence proposition that they had namedMr Te Hei as a payback for his confrontation with the gang member in Wairoa withwhom those witnesses were aligned. The Judge issued a minute recording his view that a caution of that type was unnecessary given how clearly the defence position on it had been made throughout the short trial.Grounds of appeal[22] Ms Green's written submissions for Mr Te Hei listed five grounds, as follows:(a) Ms Collier's identification evidence was "mistaken" in that her description of the attacker was inconsistent either with Mr Te Hei'sappearance at trial, or descriptions given of the attacker by other witnesses.(b) The Judge's directions on identification evidence were wrong.(c) The failure of the police to conduct a formal identification procedure under s 45 of the Act was wrong, and ought to have been challenged by defence counsel pre-trial.(d) The Judge gave inadequate directions warning about reasons to doubtthe reliability of Ms Collier's and Ms Donnelly's evidence becausethey were drunk.(e) The Judge erred in telling the jury that "several" witnesses had heard the name "Warren" at the time of the attack, which was wrong.[23] These challenges can be considered under the headings that follow.Failure to follow a formal procedure[24] The first aspect of this ground was argued as a material error on the part of trial counsel. Ms Green argued that the nature of identification evidence from Ms Collier and Ms Donnelly ought to have been challenged pre-trial, because of the absence of a formal identification procedure. Arguably there should have been sucha challenge where the police may well have been found to have no good reason for not following a formal procedure.2[25] Mr Te Hei did not provide a waiver enabling trial counsel to respond to this criticism, including any explanation for not pursuing such challenge pre-trial. There were no sufficient descriptions of the attacker in the initial statements provided by Ms Collier and Ms Donnelly for the police to prepare a photo montage that could lead to the identification of the attacker. Once those witnesses changed their statements to acknowledge that they recognised Mr Te Hei as the attacker from previous acquaintance, then the nature of that identification evidence put the utility of a formal procedure under s 45 in a different light. From that point, the issuewould be the relative credibility of the witnesses' evidence that they recognised him from prior encounters, rather than the reliability of the descriptions of a stranger conforming with a man picked out of a photo montage.[26] Given the evolution of the police investigation, and in particular the sequence in which the complainant and her companion identified Mr Te Hei, we do not consider that any material error was made by trial counsel in omitting to challenge the identification evidence that was to be relied on either pre-trial or at trial. The rationale for not undertaking a formal procedure in cases where the identification is by way of recognition is the same as recognised by this Court in R v Edmonds.3 We are satisfied that the sequence in which Ms Collier and Ms Donnelly's statements tothe police evolved would have afforded a good reason for not following a formal procedure in terms of s 45(1) of the Act.[27] A review of the evidence suggests that the cross-examinations of Ms Collier and Ms Donnelly were competently conducted. Trial counsel made appropriate references to inconsistencies in their evidence that might raise doubts about the reliability of their observations at the time of the attack, as well as the credibility of their evidence that they recognised Mr Te Hei as someone previously familiar to them.2 Per s 45(1) of the Evidence Act 2006.3 R v Edmonds [2009] NZCA 303, [2010] 1 NZLR 762 at [65]–[66].The admissibility of the identification evidence[28] One component of this challenge is the first of Ms Green's points, namely that the identification evidence by Ms Collier and Ms Donnelly was "mistaken", toan extent that it should have either been ruled inadmissible or been the subject of a substantially expanded direction from the Judge about its unreliability.[29] There is no basis on which their evidence or any part of it could have been withheld from the jury as inadmissible. This applies to the descriptions provided inMs Collier's and Ms Donnelly's initial statements to the police, inconsistenciesbetween the recollection of both women, and inconsistencies between their observed description of Mr Te Hei and how he appeared at trial. The quality of each witness'identification evidence required the jury to hear the whole of the narrative of what each witness said about the identification of the attacker, from their first recorded comments on the topic to the giving of their evidence in Court. In each case all of that narrative was appropriately tested in cross-examination. The quality of the evidence in terms of its credibility and reliability was inarguably a factual issue to be determined by the jury.Adequacy of the Judge's directions on identification evidence[30] Ms Green cited the Supreme Court's observations in Fukofuka v R as requiring the Judge to focus on the strengths and weaknesses of the identification evidence in light of the competing cases, so as to adapt the standard elements of the caution required to the facts of the case.4 Ms Green provided the terms of a lengthy direction on the identification evidence which she submitted contained the elements that were necessary in this case.[31] With respect, some elements of Ms Green's suggested directions onidentification evidence were more appropriate for a defence closing than the Judge'ssumming-up. It contained references to the prospect that Ms Collier and Ms Donnelly had colluded, that it was clear they had both initially lied to the police about their ability to identify the attacker, and the need to assess the credibility of their explanations for lying, being their fear of adverse consequences. Her proposed4 Fukofuka v R [2013] NZSC 77, [2014] 1 NZLR 1 at [27] and [35].warning also raised the prospect of evidence from other witnesses that suggested the attacker was identified as "Warren" when the witness giving evidence on that pointsuggested there may have been two Warrens that came to mind.[32] The adequacy of directions about identification evidence is context-specific in each case. The nature and extent of cautions reasonably required depend on the overall impact of identification evidence, the context in which it was provided, the number of witnesses addressing the topic, and the dynamics of the trial including its length and complexity. It is certainly preferable that any warning about identification required under s 126 of the Act be tailored as specifically as possible to the identification evidence in the case. It should be accompanied by a balanced summary of the strengths and weaknesses of the issues going to identification from both the Crown and defence perspectives.[33] Aspects of the Judge's summing-up on the evidence of Ms Collier and Ms Donnelly were possibly too concise. The summary directed the jury, in general terms, to ask themselves about the circumstances of all the identification witnesses. It referenced matters like lighting, distance, time of day, and whether identification was made in calm or tumultuous circumstances. It also asked the jury to consider"to what extent any description of the offender given is consistent with the actualappearance of the defendant". While this part of the summary was implicitly connected to the jury's assessment of Ms Collier's and Ms Donnelly's evidence, itdid not make an express link to that evidence. Nor did it summarise the strengths and weaknesses of the positions of Crown and defence counsel on that point.[34] Inconsistencies in Ms Collier's and Ms Donnelly's identification evidencemay have assumed importance because of the potential for those inconsistencies to raise reasonable doubt as to identity. The circumstances of those inconsistencieswere arguably important for a jury to assess when determining the witnesses'credibility, as well as their reliability. Specific comment on those inconsistencies would ensure the defence position was fairly summarised to the jury. Nonetheless,despite being less than ideal, the Judge's summary brought those matters to theattention of the jury in a general way. The trial was a short one, and the weaknesses in their evidence had been emphasised in the defence closing. The lack of greaterdetail in the summary does not, given the remainder of the evidence and these other factors, reveal the possibility of a material error by the jury. This is particularly so asthe primary assessment of the jury would have been the credibility of both witnesses'recognition of Mr Te Hei as someone they knew from previous experiences, rather than the reliability of their recollection of how he appeared at the time of the attack.[35] On the narrative of events in this case, the most important identification evidence was from Mr Sammons. On his account, he had driven Mr Te Hei from Wairoa to Gisborne, witnessed the attack, and later drove Mr Te Hei back to Wairoa. Given the length of the period for which they were together, including during the attack, there was no tenable prospect that Mr Sammons mistook the identity of the man in his company for that period of time. Either he truthfully described that person as Mr Te Hei, or he lied about that person's identity, for whatever reason.Mr Sammons explained the background of Ms Goldsmith's pleading that he urgentlydrive them from Wairoa to Gisborne after the fight Mr Te Hei had with the president of another chapter of the Mongrel Mob. With recognition-type identification evidence, the necessary caution would be directed towards the credibility of Mr Sammons' identification when he was arguably subjected to police pressure to disclose the person's identity and may have had a motive to lie to deflect the prospect that he would himself be charged.[36] We are satisfied that the Judge's summing-up did provide sufficient warning about the risk of unjustified reliance on identification evidence. We also accept theJudge's reasoning in the ruling he gave for not addressing further with the jury the reasons Mr Sammons may have had for lying about the identity of the attacker. He could, in the circumstances, be satisfied that the issue was readily apparent to the jury, so that provision of a warning might create the risk of giving undue emphasis to the point. That was a legitimate approach for him to take. As Ms Johnston argued for the Crown, the Judge had to undertake an assessment of the need for a caution or warning.[37] An additional criticism of this aspect of the summing-up raised by Ms Green in oral argument was that the Judge had unfairly bolstered the prospects of the juryaccepting Mr Sammons' evidence by describing it as "pivotal". The relevantsentence was as follows:So, obviously, a pivotal matter in this case is going to be whether you acceptthe identification evidence given by Mr Sammons [38] There is nothing in this further point. What the Judge treated as pivotal was the issue of whether the jury accepted Mr Sammons' identification evidence. Thatwas a correct categorisation because the jury's decision on that factual issue would,on any view of the issues, be critical to the outcome in reaching the verdicts. Whether the jury accepted or rejected his evidence is what the Judge was describingas a "pivotal" matter. That is a distinct point from the Judge treating Mr Sammons' evidence as "pivotal", in any sense that suggested the jury would therefore find itmore believable.References to the attacker as "Warren"[39] One specific criticism of the Judge's summing-up was an alleged error in his commenting to the jury that:Several witnesses heard the attacker named by others present as "Warren".Ms Green argued that that was incorrect because only two, rather than several, witnesses had commented on the attacker being named. Ms Green also criticised theJudge's summing-up for not accompanying this reference with specific concerns about the potential unreliability of references to that name where one of the witnesses suggested she knew two Warrens. We see no prospect of these concerns giving rise to any prospect of material error by the jury.Inappropriate leading of a Crown witness[40] Ms Green also criticised the terms of a specific question by Crown counsel in leading the evidence of Ms Collier's and Ms Donnelly's aunt at the second property.In a context where the witness had acknowledged dialogue with the two younger women on the evening of the assault a question was posed in terms:Now when either [Ms Collier or Ms Donnelly] were, when you saw them afterwards, did either of them say who the person was who had done these things to [Ms Collier]?[41] That question was, in the circumstances of the evidence that had gone before, a perfectly legitimate open one.Result[42] The application for an extension of time to appeal is granted.[43] We are satisfied that none of the grounds for challenging the convictions are made out and accordingly the appeal is dismissed.Solicitors:Crown Law Office, Wellington for Respondent