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A Dunedin man accused of attacking someone with a ratchet during a home invasion has walked away from a potential jail term of up to 14 years because of a police mistake.
Shane Bachop (23) was charged with aggravated burglary just days after an alleged break-in at a Wakari home on August 2 last year.
The victim told police he was in his bedroom when a man and woman entered and hit him over the head with the metal tool.
He named the defendant as one of those involved and described the other as a "blonde-headed chick with a pink beanie".
But 11 months later, Mr Bachop left the Dunedin District Court a free man after Judge Kevin Phillips dismissed the charge, identifying significant police shortcomings in the process.
"There is no reliable identification evidence," the judge ruled.
The Crown seemed to accept that, he said.
The complainant spoke to police about the alleged incident two days after it took place and officers interviewed Mr Bachop after he was implicated.
The defendant told police he did not know the man and while he accepted he had been in Dunedin on August 2, he denied any role in the break-in.
"All the lights should have gone off in the officer in charge’s head that there would need to be a formal identification process," Judge Phillips said. "But he did not do that."
The procedure police are supposed to use in such circumstances is commonly referred to as a photo montage.
An officer provides a witness with a board featuring no fewer than seven people who look similar to the suspect.
They are then informed the person may or may not be among those pictured, before they make an identification.
Crown prosecutor Richard Smith accepted there was no good reason as to why this process did not take place when a Detective Sergeant McLean spoke to the complainant at Dunedin central police station.
In his recently-released written decision, Judge Phillips outlined the often "confused" statement given by the Wakari resident during a 72-minute interview.
He said he was hit on the head from behind and claimed Mr Bachop mentioned the Head Hunters gang and he was worried the woman was going to stab him.
Det Sgt McLean asked him how he knew the defendant.
"I don’t, only through, um, other, you know, seeing him with other people," the man said.
"I’ve seen him with groups of people. I haven’t talked to him."
The judge noted the complainant could not describe Mr Bachop or what he was wearing at the time.
The man said he had been drinking a coffee with a friend moments before the home invasion.
"What we also have here is clear contamination of [the complainant’s] position. We have him reciting things that are second-hand as if they are from him.
"We have issues relating to what he actually saw and what he did not see ... He could give no description at all of the person who entered other than repeating the name ‘Shane Bachop’."
The Otago Daily Times attempted to contact the complainant but residents at the house said he no longer lived there.
In response to questions from the ODT, Superintendent Paul Basham said following preliminary discussion with staff regarding the matter, police acknowledged the judge’s decision.
"As always, we will review our processes to see what lessons can be learnt.
"At the time of the investigation, police believed there was sufficient evidence, however subsequent events deemed the identity evidence inadmissible.
"Police will not be appealing the judge’s decision."
Police formal identification procedure
• Police "photo-montage" protocol must be followed, according to the Evidence Act, unless there is good reason not to.
• Onus is on the prosecution to prove an identification made by a witness is reliable.
• Must take place as soon as practicable after an offence is reported.
• The suspect is pictured alongside no fewer than seven similar-looking people.
• No indication is given to the witness as to who the suspect may be.
• Witness is informed the suspect may or may not be among those pictured.