Guthrie v The Queen
[2011] NZCA 202
•27 May 2011
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA382/2010 [2011] NZCA 202 |
| BETWEEN JAMES ROBERT GUTHRIE |
| AND THE QUEEN |
| Hearing: 19 May 2011 |
| Court: Harrison, Simon France and French JJ |
| Counsel: C M Ruane for Appellant |
| Judgment: 27 May 2011 at 10 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
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REASONS OF THE COURT
(Given by Simon France J)
Introduction
Mr Guthrie appeals his conviction on four counts of arson. The grounds of appeal are that there was insufficient instruction to the jury on the possibility that Mr Guthrie may have committed some but not all of the offences, and second, that the summing up of Judge Callaghan was unbalanced and did not adequately deal with the defence case.
An appeal against sentence[1] was abandoned.
Facts
[1] R v Guthrie DC Timaru CRI-2009-076-56, 9 June 2010.
In the early hours of 19 December 2008, four fires were lit in or around Temuka. The first fire was to a utility vehicle. A can of petrol, taken from the back tray of the vehicle, was used to ignite the fire. The next three fires were to conifer trees on various properties dotted along the highway. One tree on each property was lit, seemingly by igniting junk mail.
Mr Guthrie, on the Crown case, could be directly linked to the first fire (the ute) and to the last of the three conifer fires. It was accepted that there was no known motive why Mr Guthrie, who was 44 years old and had no previous convictions, would light these fires.
Mr Guthrie had been drinking that evening at the Crown Hotel. CCTV footage showed him, throughout the evening, lighting cigarettes with a lighter. It seems he left the hotel just after midnight, intending to walk home to Geraldine. The fire to the ute happened about six minutes later. CCTV footage from a nearby store showed Mr Guthrie to have walked off in the direction of the ute, about four minutes before the fire.
The last fire, being to the third conifer tree that was attacked, was noticed by a truck driver, who saw a person wearing a white singlet and blue jeans walking away from near the tree. The driver pulled over 300 metres up the road and called the police. In the interim he kept an eye on the man he had seen. The police arrived and found Mr Guthrie, wearing a white singlet and blue jeans, about two hundred metres from the scene of the last fire. Based on timings of how long the fire service took to arrive and then extinguish the fire, together with the condition of the tree afterwards, it can be estimated that it had been burning for only one to two minutes at the time when Mr Guthrie was seen by the truck driver.
Mr Guthrie was arrested and taken to the police station. There was contested evidence of a conversation in the police car on the way. If the evidence of the two officers was accepted, Mr Guthrie spoke to them about “four” fires at a time when the police knew of only two.
The defence was one of challenge to the sufficiency of the evidence. In an opening statement, counsel (not Mr Ruane) accepted that the jury may well end up suspicious of Mr Guthrie, but emphasised more was needed. In the closing address, the matters primarily focussed on were:
(a) Challenges to the reliability of the truck driver who had varied in his evidence about what distance he was from the scene when he first saw the glow, and therefore whether he did really see the fire.
(b) The reliability of the police officers concerning what they heard in the car. This involved the possibility of mishearing “four” for “fire”, the differences in the accounts of the officers, differences between their evidence and their job sheets, and finally Mr Guthrie’s intoxicated state.
(c) The significance, or lack thereof, of lies told by Mr Guthrie, if they were lies.
(d) The fact that no lighter or match was found on Mr Guthrie, and the lack of any opportunity for him to have disposed of them. And if he did dispose of the lighter, where was it?
(e) The suggestion of an early conclusion by the police that Mr Guthrie was the offender and thereafter inadequate investigation into other options.
Structure of summing up
The structure was orthodox. The claim of imbalance comes from the section where Judge Callaghan dealt with the respective cases. The Crown had identified sixteen factors on which it relied. The Judge chose to go through each of these in turn. On each point he identified the defence position in reply.
Following the summing up, defence counsel raised several aspects of his defence that he considered had been inadequately covered. The Judge accepted the concern, recalled the jury, and covered them. They were:
(a) the differences in the officers’ testimony from that which is recorded in their job sheets;
(b) the proposition that the officers may have misheard what Mr Guthrie said;
(c) the point about where the truck driver was when he first saw the glow which the prosecution says was the fourth fire; and
(d) the minimal evidence about the unsuccessful search for a lighter in the vicinity.
Submissions
Mr Ruane began by analysing the Crown case. The focus was to highlight, in his submission, the generally weak nature of the case, and then the evidence that was applicable to each charge. This was done to buttress the underlying complaint that the summing up did not sufficiently bring out the alleged deficits in the prosecution evidence.
In relation to directing on the particular counts, Mr Ruane accepted there was strength in the prosecution case in relation to the last of the fires. This was the occasion when Mr Guthrie was seen near the tree at the time of the fire. However, he submitted there was no real evidence about the other two trees, and noted that for one of them Mr Guthrie, if he were the arsonist, would have needed to deviate from his obvious walking route. It is the weakness on some of the charges that was submitted to necessitate a detailed summing up on each individually.
Concerning the alleged imbalance in the summing up, it was accepted that there was no particular defence point that was omitted. The complaint was one of “emphasis”.
Decision
We address the latter point first. It lacks merit both as a ground of appeal, and in relation to the particular direction that is criticised. This Court has frequently observed that since the prosecution leads most of the evidence and carries the burden, there is inevitably a greater focus on its case.
The defence here led no evidence. Its case was to point to matters which collectively might lead the jury to a reasonable doubt. Mr Ruane accepts that all these points were highlighted by the Judge, so we cannot really understand what the complaint is. It is not possible for us to set out what was a lengthy summing up, so we content ourselves with observing that the claim of imbalance lacks merit.
The Judge chose to address the competing cases in some detail. As noted, the prosecutor had identified sixteen points on which she relied to establish that Mr Guthrie was the person who lit the fires. The Judge repeated these sixteen points, interspersing them with the defence position in relation to each. Once it was decided by the Judge to go into that much detail, the method he followed was the correct one. We add that while he did not err, it was unnecessary for the Judge to go into such detail.
The criticism that the Judge failed to direct the jury in terms of four individual counts is both unfair and incorrect. It is an unfair submission because trial counsel expressly made no issue of dividing up the charges. In his opening remarks, defence counsel said it was not contested the fires were likely lit by one person and he was not going “to get into that debate”. The trial was then conducted consistently with this. Furthermore, it is also an incorrect submission because the Judge did in fact spend some considerable time focussing on the differences in the evidence between count one (the utility vehicle) and the three conifer trees (counts two to four). Despite trial counsel’s concession, the Judge expressly directed the jury not to just conclude that the person who lit the conifer trees also set fire to the utility vehicle.
Nor do we accept Mr Ruane’s submission about the strength of the available evidence. Concerning counts two and three (the first two conifer trees), an expert gave evidence that in his opinion all three were lit by the same method (junk mail being ignited and pushed into them). There was next the timeline which compellingly pointed to a single perpetrator. Finally, there was Mr Guthrie’s alleged comment in the police car about four fires. If it was accepted by the jury that he said this, it plainly applied to the other trees. There was evidence led that there were no other fires in Temuka that night.
Result
In our view the criticisms of the summing up are without merit. The appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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