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New Zealand Police v Nash [2019] NZDC 93

Published 01 October 2019

Evidence — male assaults female — identification evidence — admissibility — photo montage — formal procedure for identification evidence — delay in identification — similarity of photos in montage — Harney v Police [2012] 1 NZLR 725, [2011] NZSC 107 — Faifua v R [2011] NZCA 152 — Winitana-Waihirere v R [2018] NZCA 534 — R v Edmonds [2010] 1 NZLR 762, [2009] NZCA 303 — D (CA 714-2014) v R [2015] NZCA 76 — Evidence Act 2006, ss 45(3)(a) & 45(3)(b). The defendant faced a charge of male assaults female. In this pretrial matter he challenged the admissibility of the prosecution's identification evidence. The evidence came from a member of the public who identified the defendant in a formal identification procedure conducted some two months after the alleged assault. The defendant argued that the identification procedure was not conducted as soon as practicable after the alleged offence was reported, as required by s 45(3)(a) of the Evidence Act (the Act) and that the other persons in the photo montage that was used in the identification procedure were not similar to the defendant in appearance, as required by s 45(3)(b) of the Act. The Court pointed out that there is no set time-frame for determining what constitutes "as soon as reasonably practicable" after the offending. Also there were inadequacies in the evidence provided by the prosecution. It was ambiguous as to when exactly the defendant had been arrested and why the delay in conducting the identification procedure had occurred. In the circumstances the Court decided on a strict interpretation of s 45, which meant that the identification was not conducted as soon as reasonably practicable, the police did not properly follow procedure, and the police were unable to show beyond reasonable doubt that the identification was reliable. The Court found that the evidence of the witness was not admissible. Judgment Date: 7 January 2019.