Dey v R
| Jurisdiction | New Zealand |
| Judge | Thomas J |
| Judgment Date | 28 July 2021 |
| Neutral Citation | [2021] NZCA 342 |
| Docket Number | CA623/2019 |
| Court | Court of Appeal |
[2021] NZCA 342
Collins, Thomas and Muir JJ
CA623/2019
IN THE COURT OF APPEAL OF NEW ZEALAND
I TE KŌTI PĪRA O AOTEAROA
Criminal Sentence. Criminal Evidence — appeal against convictions for aggravated burglary and assault with a weapon and sentence of three years imprisonment — formal visual identification procedure not followed — dock identification evidence — appropriate discounts for mental health issues and substance abuse — nexus between offending and metal health
P V C Paino for Appellant
J E Mildenhall for Respondent
The appeal against conviction and sentence is dismissed.
(Given by Thomas J)
On 5 November 2019, Mr Dey was sentenced in the Wellington District Court to three years' imprisonment for aggravated burglary and assault with a weapon, after having been found guilty by a jury. 1 He now appeals both his conviction and sentence, on the grounds that the District Court Judge erred in his handling of identification evidence, and took a starting point on sentencing that was too high and then made an
insufficient deduction for Mr Dey's mental health and alcohol issues. 2 The Crown opposes the appealThe evidence at trial was that, on 17 November 2018, Mr Dey was living at his address in Strathmore, Wellington and had been drinking since the early morning. At 3.00 pm, Mr Dey entered the next door flat where the victim was living in a downstairs bedroom. Mr Dey was carrying a 15 cm knife that had a grey handle and holes down the blade.
Mr Dey knocked on the victim's bedroom door and, when the victim opened it, Mr Dey tried to push his way into the bedroom. The victim resisted. Mr Dey raised the knife above his shoulder and tried unsuccessfully to strike the victim with it. The victim was able to close the door and hold it shut. Mr Dey started shouting at him, saying, “Come outside. I'm not going to leave you”. The victim was on the telephone at the time. He told his friend what was happening and his friend called the police.
Eventually Mr Dey went upstairs and the victim went outside. When the victim was standing on the street, he saw Mr Dey at a window on the top floor of the block of flats. The police then arrived.
The victim told the police the offender had facial tattoos and long hair, and described the knife. Based on that description, the police arrested Mr Dey at the scene. The police located a knife matching the victim's description of it in Mr Dey's kitchen.
The victim said that he saw the offender three times: at his bedroom door, when he was outside and saw the offender at an upstairs window, and when the offender was being taken away by police.
Mr Paino, for Mr Dey, made three submissions:
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(a) The victim's identification evidence was inadmissible as there had been no formal visual identification procedure and any identification he purported to make was contaminated by the victim seeing Mr Dey being taken from his address by the police in handcuffs following his arrest.
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(b) A dock identification should not have been permitted.
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(c) The Judge's warning in the summing up did not mitigate the prejudice of the dock and post-arrest identification.
Mr Paino noted the evidence of Constable Mitchell, who arrested Mr Dey, to the effect that he considered there was no need to undertake an identification procedure as the police believed they found the right person at the scene. Mr Paino conceded that there may be good reason not to undertake a formal identification procedure when an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence occurred and in the course of that officer's initial investigation. 3 But he questioned whether Mr Mitchell's evidence met that test. If not, then the victim's identification evidence was prima facie inadmissible. The onus was then on the prosecution to prove beyond reasonable doubt that the circumstances of the identification were reliable.
Mr Paino then submitted that the circumstances in which the victim saw the person he claimed committed the offence — namely in the custody of the police at the scene — were an unreliable basis on which Mr Dey could be identified as an offender. Furthermore, while the Judge cautioned the jury about the dock identification in his summing up, he did not discuss whether s 45 of the Evidence Act 2006 had been complied with. And there should have been, but there was not, a pre-trial application or ruling during the trial as to the admissibility of the victim's identification evidence.
If the victim's dock identification was inadmissible, and his other identification evidence was tainted by seeing Mr Dey arrested, then Mr Paino questioned whether there was sufficient evidence for Mr Dey to be convicted.
Ms Mildenhall, for the Crown, referred to the evidence of Constables Mitchell and Tolkun, who arrived at the scene in response to the emergency call. Upon arrival they could both see Mr Dey looking at them through the window of his property and then walking out towards the gate between his property and the victim's. Meanwhile, another police officer had spoken to the victim, who described the offender as having facial tattoos and long hair. When this was transmitted over police radio, Mr Mitchell arrested Mr Dey.
Ms Mildenhall submitted that, while the police did not follow a formal identification procedure, there was good reason to not do so, s 45(4)(e) being “squarely applicable”. She said, in a situation where the police had promptly attended the scene and the alleged offender was effectively immediately identified to them, there was no purpose to be served by undertaking a formal procedure. The fact the victim saw Mr Dey after he was arrested did not undermine the reliability of the identification evidence.
Finally, Ms Mildenhall submitted that, while the Judge's direction to the jury about the dock identification could have been firmer, there was no risk of a miscarriage in the circumstances because the Crown case did not rest on the victim's identification of Mr Dey as the offender. Instead, the Crown case was based on a range of circumstantial factors, including that the knife found in Mr Dey's flat matched the description given by the victim.
The Act defines visual identification evidence as: 4
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(a) an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the
commission of an offence was done at, or about, the time the act was done; or -
(b) an account (whether oral or in writing) of an assertion of the kind described in paragraph (a).
The victim's evidence that he saw the offender standing at an upstairs window
and when arrested by the police is therefore visual identification evidence.
Section 45(1) and (2) of the Act provide:
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(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.
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(2) If a formal procedure is not followed by officers of an enforcement agency in obtaining visual identification evidence of a person alleged to have committed an offence and there was no good reason for not following a formal procedure, that evidence is inadmissible in a criminal proceeding unless the prosecution proves beyond reasonable doubt that the circumstances in which the identification was made have produced a reliable identification.
There is no dispute that a formal procedure was not followed. 5 Section 45(4) then provides a non-exhaustive list of circumstances that might constitute good reason for not following a formal procedure, 6 including, relevantly: 7
(b) the singular appearance of the suspect (being of a nature that cannot be disguised so that the person is similar in appearance to those with whom the person is to be compared):
…
(d) no officer involved in the investigation or the prosecution of the alleged offence could reasonably anticipate that identification would be an issue at the trial of the defendant:
(e) if an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the
offence occurred and in the course of that officer's initial investigation:…
As discussed above, s 45(4)(e) provides that a formal identification procedure might not have to be followed when an identification of a person alleged to have committed an offence has been made to an officer of an enforcement agency soon after the offence occurred and in the course of that officer's initial investigation. This recognises that, in some cases, a witness will identify an offender shortly after the occurrence of the offence, and report this to the police. 8
The police officers arrived at the scene shortly after the reported aggravated burglary. Constable Mitchell arrested Mr Dey after hearing the description of the offender which the victim had given to another police officer and which was then conveyed over the police radio. However, we do not consider that the circumstances supported the application of s 45(4)(e) because the victim did not identify Mr Dey.
Mr Paino conceded that Mr Dey's appearance is highly distinctive. Mr Dey participated at the appeal hearing by video link and we concur with that assessment. In saying that, we do not...
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