Kirby v R
[2013] NZCA 451
•2 October 2013 at 11.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA667/2012 [2013] NZCA 451 |
| BETWEEN | CRAIG RAY KIRBY |
| AND | THE QUEEN |
| Hearing: | 8 July 2013 |
Court: | Stevens, Heath and Cooper JJ |
Counsel: | I M Brookie for Appellant |
Judgment: | 2 October 2013 at 11.30 am |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS
Stevens and Cooper JJ [1]
Heath J (dissenting) [81]
STEVENS AND COOPER JJ
(Given by Stevens J)
Table of Contents
Para No
Introduction [1]
Factual background [4]
The course of the trial [17]
Opening addresses [18]
Closing addresses [22]
The question trail and summing up [25]
The burglary charge [29]
The arson charge [32]
Discussion [36]
The burglary count [38]
The arson count [46]
Intoxication direction [54]
Legal principles [55]
Application to the facts [57]
Application of the proviso [66]
The arson charge [71]
The burglary charge [77]
Result [80]
Introduction
The appellant was tried in July 2012 before Judge de Ridder and a jury in the District Court at Whangarei on one count of burglary, one of arson and one of wilfully attempting to pervert the course of justice. The jury returned verdicts of guilty on all three counts. The appellant was convicted on each. On 25 September 2012, he was sentenced to an effective term of imprisonment of four years.[1]
[1]R v Kirby DC Whangarei CRI-2009-088-5828, 25 September 2012.
Initially, the appellant appealed against both conviction and sentence. A formal abandonment of the sentence appeal has been filed.[2]
[2]The notice of abandonment was handed up in Court.
On the conviction appeal, Mr Brookie submitted that the trial Judge had failed to direct the jury adequately on mental elements of the burglary and arson charges. In addition, Mr Brookie submitted that the Judge should have directed the jury on intoxication.
Factual background
The appellant and Ms Johnson had lived together for some time in a property at 9 Kohe Street, Whangarei. Their relationship ended in September 2009. The separation was acrimonious. The appellant moved out of the property. Ms Johnson continued to live there. Around the time of separation, she met Mr Ogle. A short time later, they formed a relationship and Mr Ogle moved into the Kohe Street property with her.
Not long after that the appellant visited Ms Johnson at that address. He began to talk to Ms Johnson about their friendship, he said, for the purposes of closure. Ms Johnson gave evidence that when she made it clear that she did not wish to have any further contact with him, he became verbally abusive. Mr Ogle was present and called his brother as a precautionary measure because he “had no idea what [the appellant] might do”. The appellant refused to leave until Ms Johnson began to dial the police. As a result of this visit and other communications from the appellant, Ms Johnson and Mr Ogle complained to the police in November. The police told the appellant to stop contacting Ms Johnson and initially he complied.
However, on the evening of 18 December 2009 the appellant began contacting Ms Johnson again. The appellant was at an end-of-year work function, over the course of which he consumed between 15 and 20 beers. The appellant began sending Ms Johnson text messages, initially asking how she was. At around 9.00 pm, the appellant called Ms Johnson to be told that she was in Auckland that night attending a concert. The appellant says that when he asked her about the concert, she hung up on him. He continued to try to text her but he did not think his messages were getting through as he was “too drunk” and his mobile telephone battery was running low.
Around midnight the appellant sent Ms Johnson an abusive text. We will refer to the details of this and another text later in this judgment.
The Crown case at trial was that when the work function ended, the appellant left with a friend, Mr Bowmar, who had been nominated as designated driver for the night. As Mr Bowmar drove him home, the appellant became agitated. He started to speak about his dog, which had remained at Ms Johnson’s home. That led him to get angry about his separation from Ms Johnson. The appellant’s behaviour in the car was such that he had to be restrained by another passenger. Eventually, Mr Bowmar stopped on Memorial Drive, not far from Kohe Street. The appellant got out of the vehicle.
Mr Bowmar took his other passenger home then drove to his own house, in Kamo. After Mr Bowmar arrived there, the appellant telephoned him, apologised for his behaviour and asked Mr Bowmar to collect him. Mr Bowmar returned to Whangarei to do so. The appellant got into the vehicle in Kauri Place, a location relatively close to Kohe Street.
Between the time that the appellant was dropped off at Memorial Drive and picked up at Kauri Place, the Crown alleged that he went to a BP station on Riverside Drive and then to 9 Kohe Street. The appellant had purchased a lighter at the service station. The Crown case was that it was used by the appellant to start a fire in the garage at Ms Johnson’s property. The fire was first noticed by both Mr Ogle (who had remained in Whangarei) and a neighbour, at some time between 1.10 am and 1.15 am. The appellant’s presence at the BP service station had been captured on CCTV footage at 1.07 am.
At the time of the incident, the appellant was living with a friend and his wife. The friend, Mr Coutts, went to collect the appellant from Mr Bowmar’s house on the morning of 19 December 2009. Mr Coutts gave evidence that, during a conversation with him, the appellant said that he had done something “stupid” the previous night. He told Mr Coutts that he had gone to Ms Johnson’s home, messed around with a car in the driveway (by taking the petrol cap off) and tried to light a fire with some cardboard. He was alleged to have told Mr Coutts that because his own lighter would not work, he went to the BP service station to buy another one.
Those events gave rise to two of the charges. The first was burglary. The appellant was alleged to have broken into and entered the garage without authority, with the intention of committing arson.[3] The second was arson, the allegation being that the appellant had deliberately lit the fire in the garage with the intent of causing loss to Ms Johnson.[4]
[3]Crimes Act 1961, s 231(1)(a).
[4]Crimes Act, s 267(1)(c).
The third charge was attempting to pervert the cause of justice. On 21 December 2009, the appellant had several telephone conversations with Mr Bowmar. During the course of one of these conversations, the Crown alleged, the appellant asked Mr Bowmar to provide an alibi for him. Mr Bowmar gave evidence at trial that the appellant had asked him to tell the police that he had taken the appellant straight home. Mr Bowmar refused to do so.
The appellant’s defence was that he did not enter the garage and did not set fire to it. Whoever deliberately lit the fire (a matter that was not challenged at trial), it was not him. He elected to give evidence and confirmed those denials on oath. In those circumstances, if the jury either accepted the appellant’s evidence or had a reasonable doubt as to its correctness, verdicts of not guilty on the burglary and arson charges should have been returned. If the appellant’s evidence were rejected, it remained necessary for the Crown to prove beyond reasonable doubt, on the balance of the evidence, that the appellant was the person who entered the garage and deliberately lit the fire, with intent to cause loss to Ms Johnson.
On the charge of attempting to pervert the course of justice, the appellant acknowledged that Mr Bowmar was an honest man and did not challenge what he said. In his closing address at the trial Mr Fairley said:
Now the [defence] case is quite simple as I’ve said, “I didn’t do it”. That’s on counts one and two. On count three, “Yes, I let myself down, I was a fool, I panicked, I said the words that the honest Mr [Bowmar] said. “I’m not going to say Mr [Bowmar] is a liar”, says the accused, “I know him, he’s a friend, he’s a fishing mate, he’s an honest guy, he’s a good guy”, and he’s right on that. Now it’s a matter for you, um you don’t – in other words you have no factual dispute on the words used. His Honour will direct you on the law of what constitutes or what makes up count three. Um, if those words were used and you are satisfied they come within His Honour’s legal direction you’ll probably, would not be terribly bothered by the verdict in count three, to be blunt to you, but that’s for you, not for me.
In written submissions filed in advance of the appeal hearing, the appellant raised an issue about whether the nature of the conversation between the appellant and Mr Bowmar was sufficient to constitute the crime of attempting to pervert the course of justice. However, the point had no prospect of success and was not maintained by the close of oral submissions. Moreover, there was ample evidence for the jury to reach its conclusion on that count. There can be no real complaint about the Judge’s summing up on it. We need say no more about it. The appeal on the conviction for attempting to pervert the course of justice (count 3) must be dismissed.
The course of the trial
Because of its relevance to the issues of whether there was a misdirection and the application of the proviso to s 385(1) of the Crimes Act 1961, it is necessary to describe the course the trial took in the District Court.
Opening addresses
When the Crown prosecutor opened to the jury, the address identified the essential elements of the burglary (count 1), including the allegations that the accused entered the garage at the Kohe Street address “without authority and with intent to commit a crime therein”. With respect to the element of intent to commit a crime the prosecutor added that “the crime that the Crown points to is arson”.
With respect to the arson charge (count 2), the prosecutor referred to the requirement that the Crown prove that the accused “intentionally damaged, by fire, immoveable property, namely the garage”. The requirement of proving an intent to cause loss to Ms Johnson was separately identified. The prosecutor said: “The two main elements of that [the arson] charge are first that he intentionally damaged the garage and second that he intended to cause loss to Ms Johnson”.
When Mr Fairley presented the defence opening, he made it abundantly clear that from the defence perspective this was a one issue case. Counsel referred the jury to the indictment and invited jury members to tick the elements not disputed. He said: “just tick what’s accepted by me and cross what’s not so you know what the issues are”. Defence counsel took the jury through each of the burglary and arson counts and said:
In count number 1 the real issue here is the Crown say well we reckon Mr Kirby entered that garage with the intention of lighting this fire. He said, “Wasn’t me, didn’t enter it”. So that’s the issue really, it’s that simple. … so that’s the issue on count 1.
Count 2, same issue, different trial remember but same issue so you can again tick the name, the date, Whangarei, garage, her name, but you can’t tick the rest, you put a cross with intentionally damaging by fire and … [inaudible] because the defence again is, “It wasn’t me”. That’s count 2, trial number 2. That simple.
We observe that the presentation of the evidence, including the evidence from the appellant (who was the only witness called on behalf of the defence), focussed on the key question for counts 1 and 2 of whether it was the appellant who entered the garage.
Closing addresses
When the Crown prosecutor closed to the jury, reference was made to the reliance by the Crown on circumstantial evidence to prove its case on counts 1 and 2. As to the key issue in the trial, the prosecutor said:
First of all a couple of things that we do know about this trial. There’s no doubt that there was a fire at 9 Kohe Street overnight on the 18th, 19th of December 2009. You’ve seen the photographs, exhibit 3, it’s not in dispute. There’s secondly no dispute really that it was a deliberately lit fire and we’ve had the evidence from the fire safety officer, Craig Bain, who stated that there was nothing to indicate that this was an accidental fire whatsoever, and there’s been no other evidence that it was caused by any accidental force.
And the primary issue which is quite clear to you now is who lit the fire. And it’s the Crown case that the accused lit the fire between being dropped off on Memorial Drive, around the corner from Kohe Street, in between being dropped off there and being picked up at Kauri Place off Riverside Drive.
Consistent with this single issue trial approach, the prosecutor in closing then outlined the five strands relied upon by the Crown as part of the circumstances pointing to the appellant as the perpetrator. Having done this the prosecutor addressed the charges and the law in reverse order, dealing first with the charge of attempting to pervert the course of justice. The prosecutor said:
Count 3
… count 3, that was the attempting to pervert the course of justice, and you’ve heard my learned friend discuss that count. He suggests you may not have very much trouble with it. Mr Kirby accepts that he contacted Mr [Bowmar] and tried to get him to lie so perhaps I don’t need to address you further on that, but it is still a matter for the Crown to prove, irrespective of what the accused says. So the burden remains with the Crown.
Count 1
The first and second counts are interlinked. Relates to entering the – the first count relates to entering the garage with intent to commit the crime. Perhaps if he lit the fire in the garage he had to have entered the garage. And he would have intended to commit the crime. That’s an inference that you can draw. I’ll talk a bit about inferences later on.
Count 2
The second count relates to the actual fire itself and that’s whether he intentionally damaged the garage with the intention to cause loss to Ms Johnson. People don’t announce their intentions when they make these types of decisions and when you’re ascertaining just what Mr Kirby’s intention was, if you do reach the conclusion that he entered the garage you can have a look to see what he was doing around that time. And perhaps the best reference point are those two texts and the accounts that Mr [Bowmar] gave as to how Mr Kirby was behaving.
The single issue trial theme was reinforced by Mr Fairley in the defence closing. He said: “what this trial is about the Crown say this man did it, and that’s what we have to focus upon”. Mr Fairley, appreciating the circumstantial nature of the Crown case as to proof of the identity of the burglar and arsonist, referred to the requirements of proof beyond reasonable doubt. Then he said:
So that’s what this trial is not about, please, what this trial is about is as I’ve said, and it’s very simple. What it’s about is the Crown say this man, and I’m using – I’m not using a legal term cos we all know what we’re talking about – goes into that garage without permission, which of course he didn’t have ‘cos he wasn’t the tenant, and he arsons the garage, thereby causing loss to Ms Johnson.
The question trail and summing-up
In summing up to the jury, the trial Judge made use of a written question trail as a framework for the jury’s deliberations.[5] The question trail posed factual questions which, the Judge said, if answered by the jury would deal with the legal elements of the charges. The jury is typically directed that if they are sure that each question should be answered “yes”, a verdict of guilty on the relevant charge should be returned. They are also instructed that if any question is answered “no”, a verdict of not guilty is required. As was the case here, the question trail normally makes a short reference to the burden and standard of proof.
[5]The form of the question trail used for the burglary charge is set out at [31] below. The relevant part of the question trail for the arson charge is at [34] below. It is now standard practice for judges to provide jurors with such documents: R v Cunningham [2008] NZCA 569 at [28].
When dealing with the question trail the judge will usually direct the jury orally on the legal elements of the particular offence with which an accused has been charged. Each juror will have a copy of the question trail available to him or her. Some judges will incorporate into the question trail a written explanation of difficult concepts with which a jury will have to grapple. If that is done, supplementary oral directions are frequently given to accompany the written material. However, that did not occur in this case.
In the summing up, Judge de Ridder elected not to direct orally on the elements of each of the particular charges. Rather, he said:
[11] I want to turn now to the indictment or the charges themselves and to assist you in your process of deliberations shortly I am going to now ask my registrar to distribute a document that I have prepared and discussed with counsel. The purpose of this document I have just distributed to you is to enable you to focus on the issues that you have to consider to ensure that you apply the relevant law when considering these charges. If you work your way through those questions as I have set them out for you, you will properly deal with the issues of law that you are required to deal with. Can I just stress at the outset please that this is not a “who done it” case. Your task is not to cast around and find out who may have set fire to this garage and then consider who is the most likely. That is not the approach you are to adopt. In this case the Crown has charged [the appellant] so your task is to focus on the evidence and determine whether or not you are satisfied that the Crown has proved the charges against him.
[12] As you can see, and as you know, the indictment contains three counts against the accused and it is important that you consider each count separately and come to a separate decision about each. Of course there is some linkage between count 1 and 2 but nevertheless you must consider each one separately and you will be asked for separate verdicts on each of the counts and you may reach different verdicts on different counts. For convenience the counts are heard together at one trial but where there is evidence that relates only to one count be careful not to use that evidence when considering any of the others and it is helpful to think of it in terms of holding a separate trial for each count. This means that you should isolate the evidence and the issues of law that are relevant to that count and make a decision about it.
[13] Turning then to the document I have just handed out to you, count 1 of course is the charge of burglary and as I have said if you simply work your way through those questions you will deal with the issues of law that relate to a charge of burglary. Count 2, of course, is the count of arson and again if you work your way through those questions again you will deal with the legal elements of that charge.
(Emphasis added.)
Although the point was not taken by trial counsel in the District Court, the appellant challenges the way in which the Judge left the burglary and arson charges with the jury. The issue is whether the written material alone was sufficient to enable the jury to understand and apply the elements of the offences and to determine whether the Crown had proved each one beyond reasonable doubt. The specific complaints arise out of the Judge’s alleged failure to alert the jury to the various types of intent required to be proved before each of those crimes could be proved.
The burglary charge
In relation to the burglary charge, Mr Brookie points to the terms of s 231(1)(a) of the Crimes Act. Relevantly, that states:
231 Burglary
(1)Every one commits burglary and is liable to imprisonment for a term not exceeding 10 years who—
(a)enters any building ... without authority and with intent to commit a crime in the building ...
Section 231(1)(a) requires proof of an unauthorised entry at a time when the accused had an intent to commit a crime inside the building. The Crown must prove that the offender knew the entry was unauthorised, or was reckless as to lack of authority.[6] An intent to commit a crime is also required.[7] Mr Brookie submits that those aspects of the offence were not clearly articulated to the jury by the trial Judge. The question trail, he submitted, was not sufficient on its own to bring these points home to the jury.
[6]Regina v Collins [1973] QB 100 (CA).
[7]From 1 July 2013, the words “an imprisonable offence” were substituted for “a crime”: s 6 of the Crimes Amendment Act (No 4) 2011, which came into force on that day. That reflects the previous definition of “crime” in the Crimes Act as an offence that can be proceeded on by way of indictment and the abolition of the use of indictments as from that date: see ss 14 and 16 of the Criminal Procedure Act 2011 for the use of charging documents to commence all criminal processes.
The question trail on the burglary charge was in these terms:
NOTE: On all issues, the burden of proof beyond reasonable doubt lies on the Crown.
Count 1 – BURGLARY
1. Are you sure that Mr Kirby entered the garage at 9 Kohe Street?
If ‘yes’ go to question 1.2
If ‘no’ find Mr Kirby not guilty and go to count 2
1.2 Are you sure that Mr Kirby had no authority to enter the garage?
If ‘yes’ go to question 1.3
If ‘no’ find Mr Kirby not guilty and go to count 2
1.3Are you sure that Mr Kirby intended to commit a crime in the garage?
If ‘yes’ find Mr Kirby guilty and go to count 2
If ‘no’ find Mr Kirby not guilty and go to count 2
The arson charge
The crime of arson is created by s 267 of the Crimes Act. Relevantly, for present purposes, s 267(1)(c) states:
267 Arson
(1)Every one commits arson and is liable to imprisonment for a term not exceeding 14 years who—
...
(c)intentionally damages by fire ... any immovable property, or any vehicle, ship or aircraft, with intent to obtain any benefit, or to cause loss to any other person.
The specific terms of the arson charge against the appellant were set out in the indictment, in count 2:
2. THE SAID CROWN SOLICITOR further charges that CRAIG RAY KIRBY on or about the 19th day of December 2009 at Whangarei intentionally damaged by fire immovable property, namely the garage at 9 Kohe Street, with intent to cause loss to [Ms] Johnson.
On the arson charge, Mr Brookie contends that a compound question blurred two different types of criminal intent and could have caused the jury to misunderstand what they had to decide. The relevant part of the question trail read:
2.2Are you sure that Mr Kirby intended to damage the garage by fire with the intention of causing loss to Ms Johnson?
If ‘yes’ find Mr Kirby guilty on this count and go to count 3
If ‘no’ find Mr Kirby not guilty on this count and go to count 3
The issue is whether the Judge erred in allegedly failing to explain to the jury that they must be satisfied both that the appellant intended to damage the garage by fire and to cause loss to Ms Johnson. The second aspect of intent to cause loss is a specific intent that comprises an element of the offence. The Crown therefore had to prove that the appellant had a specific intent to cause loss to Ms Johnson before the jury could return a guilty verdict on the arson charge.
Discussion
For the Crown, Mr Johnstone accepted, so far as the mental elements of the charges were concerned, that generally speaking there may have been inadequacies in Judge de Ridder’s summing up. We will refer to the nature of such inadequacies later. Mr Johnstone, however, submitted that even if we were satisfied that some misdirection or miscarriage had arisen through deficiencies in the directions given to the jury, the Crown case was so strong that the proviso to s 385(1) of the Crimes Act should be applied to uphold the conviction.[8]
[8]R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [30]–[33]. The nature of the proviso is explained at [67] below.
We deal first with whether the directions gave rise to a wrong decision on a question of law under s 385(1)(b) or a miscarriage of justice for the purposes of s 385(1)(c) of the Crimes Act. The directions on the burglary and arson counts require to be addressed separately.
The burglary count
On the burglary charge, there were two distinct intents. The first is an intent to enter the garage. The second is an intention to commit a crime while there.[9] The jury had to be sure that the Crown had proved both elements. Here, the only possible crime referred to throughout the trial as a prospect for commission in the garage was that of arson. Indeed, it was the second count in the indictment. In opening the Crown prosecutor identified arson as the offence that the appellant intended to commit. The defence at no stage identified any alternative explanation for the accused’s purpose in the garage. To have done so would have been wholly inconsistent with the defence of “I was not there”.
[9]There is also the element of lack of authority to enter the garage, but the appellant accepted in evidence that he had no authority to do so.
Mr Fairley referred in closing to the Crown theory of the case, which was that the appellant “[went] into the garage without permission, which of course he didn’t have” and then “arsons the garage, thereby causing loss to Ms Johnson”.[10] But we accept that the Judge did not either in the question trail or in his directions refer to the crime in issue when summing up to the jury.
[10]This passage is quoted above at [24].
In R v Berking,[11] the Court of Appeal considered the way in which the allegation of an intent to commit a crime should be put to the jury, on a charge alleging burglary. While it is unnecessary for the indictment to particularise the crime alleged,[12] more specificity is required by the time the issue goes to the jury. Delivering the judgment of the Court in Berking, Randerson J summarised the required particularisation:
[26] In summary:
(a)An indictment for burglary need not state the crime intended to be committed by the accused after gaining entry to the premises.
(b)But the trial Judge should ensure at the outset of the trial that the Crown specifies the intended crime for the purposes of the burglary charge. The Judge has a discretion to grant leave to the Crown to amend the particulars given at a later stage should the interests of justice so require.
(c)While the Judge may properly direct the jury that any intended crime is sufficient for burglary under s [231], the Judge should stipulate exactly what intended crime the Crown relies upon for the purpose of the charge.
(d)If a written statement of elements is given to the jury, it is desirable in order to avoid the risk of confusion to specify the intended crime rather than simply stating as here that “it can be any crime”.
(e)Generally, it is not necessary to give any detailed statement of the elements of the intended crime for the purposes of a burglary count. It may be helpful to explain the issue to the jury by reference to the facts of the case. For example, a jury could be directed that if they were to conclude that the accused intended to enter a dwelling house to beat up the occupant then this would amount to an intention to enter for the purposes of committing the crime of assault. This is however a general rule and it may be necessary to give more detail in other cases. For example, where theft is the intended crime it may be necessary to direct on colour of right if that could be an issue in the circumstances of the case.
[11]R v Berking CA56/06, 4 September 2006.
[12]At [14], citing R v Borland (1907) 10 GLR 241 (SC); The King v O’Meara [1943] NZLR 328 (CA); R v Tracy [1978] 2 NZLR 91 (CA); and R v Hoko CA457/00, 24 July 2001.
We note that, as required by [26](b) of the decision in Berking, in the present case the Crown did specify the intended crime for the purposes of the burglary charge: the Crown’s opening made that plain at the outset of the trial. While the Judge did not stipulate precisely in the summing up, or in the question trail, that the crime was arson, we do not think that was significant in the circumstances of this case.
The requirement in [26](c) and (d) of Berking that there be explicit reference in the summing up and the question trail to the crime intended to be committed was based on the concern that, in the absence of such directions, a jury “may be left to speculate as to whether the intended conduct amounted to a crime”.[13] In that case, there was evidence that the jury had indeed engaged in such speculation.[14] No such concerns arise here. That is because while, as noted, the question trail did not refer specifically to the crime in issue, everyone in the courtroom knew what it was: arson.
[13]At [22].
[14]At [23].
When the Judge summed up he referred to the three counts in the indictment. He then said “of course there is some linkage between count 1 and count 2 …”. Having referred, albeit somewhat laconically, to the existence of the link, the Judge returned to refer to the respective cases for the Crown and for the defence in respect of counts 1 and 2. He then repeated the comment about a link stating that “there is a certain degree, obviously, of linkage between those two counts”. In this context the Judge indicated that he was not going to repeat what had just been explained in the closing addresses of counsel.
Given the way in which the trial was conducted, and the various references throughout to the fact that the intended crime was arson, as well as the Judge’s two references to the linkage between the burglary and arson counts, we do not consider that the failure to mention arson in explicit terms in the summing up or the question trail was significant. We do not consider there was a misdirection on a significant matter. Nor did the failure amount to a miscarriage of justice for the purposes of s 385(1)(c) of the Crimes Act. If anything, the direction falls into the category set out by the Supreme Court in Matenga of an “inconsequential or immaterial mistake or irregularity”.[15]
[15]R v Matenga, above n 8, at [30].
Our views on this aspect are reinforced by the fact that at no point throughout the trial did the defence ever engage with the issue of the intention to commit a crime in the garage. No credible alternative narrative was put forward either in evidence or by defence counsel in closing. To the contrary, it was accepted from as early as the defence opening, that this aspect was not in issue. We are satisfied that the defence had implicitly treated this as an appropriate concession.[16] Defence counsel, Mr Fairley, was plainly untroubled by the terms of the summing up on this aspect as he did not challenge what the Judge had said before the case was left with the jury.
The arson count
[16]This Court has accepted that it is open to defence counsel to make “relevant concessions”: see R v Keremete CA247/03, 23 October 2003 at [12] and R v Sharma [2009] NZCA 540 at [26].
The next question is whether there is a problem with the question trail on the arson charge.[17] It is true that at 2.2 of the question trail the Judge put a compound question that rolled up two requisite intents; namely, intention to damage the garage by fire and intention to cause loss to Ms Johnson. It is also true that in neither the question trail nor his oral directions did the Judge specifically explain the nature of the companion intent of causing loss to Ms Johnson. The jury was not explicitly told that it had to be sure that the appellant’s intention, when damaging the garage by fire, was to cause loss to Ms Johnson, rather than to do damage to the property. While the former might reasonably be thought to flow from the latter, it is the intent to cause loss to Ms Johnson that must be proved.
[17]See [34] above.
The issue for determination is whether, in a context where the defence did not engage with this element at trial, the failure to direct on both of the intention elements constitutes a misdirection on a significant matter.[18] In an appeal raising an error in a question trail or on a direction in a summing up this Court is required to determine whether s 385(1)(b) of the Crimes Act is engaged. The directions concerned may also give rise to the possibility of a miscarriage of justice under s 385(1)(c). If there is such an error or miscarriage the question is whether the proviso to s 385(1) should be applied.[19]
[18]See The Queen v Hyde-Harris [1968] NZLR 315 (CA).
[19]See generally R v Sungsuwan [2006] 1 NZLR 730 (SC) at [114].There is an overlap in practice between subss (1)(b) and (1)(c): see Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CAS385.08].
The analysis of this issue is complicated by the fact that the question trail presented the two aspects of intention within the one question: “are you sure that Mr Kirby intended to damage the garage by fire with the intention of causing loss to Ms Johnson?” Although Mr Johnstone was content to accept, for the purposes of argument, that there were “inadequacies” in this aspect of the summing up, it is nevertheless the case that both aspects of intention, the intention to damage the garage by fire and the intention of causing loss to Ms Johnson, were adverted to. The two aspects of intention were separated by the preposition “with”, indicating a degree of separation.
Given that both of the intention elements were referred to, and were referred to in the question trail (albeit without being separated out into two separate component parts), and given that neither aspect of intention was challenged by the defence, we do not consider that there was a misdirection on a significant element. Neither did the directions (or lack of them) give rise to a miscarriage of justice under s 385(1)(c). Once again, the error is better categorised as an inconsequential or immaterial mistake or irregularity.
In this regard the jury would have been well aware that the garage was full of the belongings of Ms Johnson. There is no doubt (because it was not challenged) that the fire was deliberately lit. Once the issue of identity was determined, the element of intention to damage the garage by fire followed as a matter of inevitable inference from all of the circumstances of the case. The same is so of the separate intention of causing loss to Ms Johnson. In particular it should be recalled that no credible narrative to explain the appellant’s presence in the garage was advanced. Nor could it have been as it would have been inconsistent with the defence being run at trial. The relevant issues on appeal have to be considered on the basis that the jury rejected the appellant’s defence and decided that he entered the garage and lit the fire.
Accordingly, we are satisfied that although it would have been preferable for the question trail to have separated out the two intention elements, both were adequately referred to. Also, the use of the word “with” would have indicated to the jury that this was an additional separate requirement of proof. We do not consider that on the intention elements there was any misdirection on a significant matter. In the particular circumstances of this case, the Judge gave sufficient directions.[20]
[20]We acknowledge that the trial Judge must direct the jury on all elements of the offending unless a particular element has been “expressly conceded”: see R v Batt CA47/00, 3 August 2000 at [32]. This is consistent with the obligation to direct the jury on all defences which are reasonably open: see R v Tavete [1988] 1 NZLR 428 (CA) at 431. However, in the circumstances of this case we are satisfied that the directions sufficiently addressed all of the elements of the offending.
In summary, our conclusion on the question of whether there was a misdirection on a significant matter is that in relation to neither the burglary count nor the arson count was there such a misdirection. The implicit concession by the defence that the intention elements were not in dispute is significant. In any event there was no evidential foundation, nor any credible narrative, requiring an expanded direction on these elements. Accordingly the provisions of s 385(1)(b) and (c) are not engaged. The appellant has not succeeded in demonstrating that the convictions should be set aside on the ground of a wrong decision on any question of law or on the ground of a miscarriage of justice.
If we are wrong on either or both of these conclusions then the question arises whether the appeal should be dismissed on the basis that no substantial miscarriage of justice has occurred.[21] Before dealing with that topic, we address the further ground of appeal that the Judge was required to direct on the relevance of intoxication.
Intoxication direction
[21]Crimes Act, s 385(1).
The appellant submits that there was overwhelming evidence of his intoxication yet no guidance at all was given to the jury about how that might affect the assessment of the very specific intentions required to be proved by the Crown in relation to the burglary and arson charges. Counsel submits that on this issue alone the jury, when considering the guilt of the appellant, had been inadequately directed such that the convictions were unsafe and ought to be set aside.
Legal principles
There is no dispute that intoxication is not a defence to a charge, but it may go to an accused person’s state of mind. As this Court said in R v Kamipeli:[22]
Drunkenness is not a defence of itself. Its true relevance by way of defence … is that when a jury is deciding whether an accused has the intention or recklessness required by the charge, they must regard all the evidence, including evidence as to the accused’s drunken state, drawing such inferences from the evidence as appears proper in the circumstances. It is the fact of intent rather than the capacity for intent which must be the subject matter of the inquiry.
[22]R v Kamipeli [1975] 2 NZLR 610 (CA) at 616.
The Court later added:[23]
It is also proper, and often it will be necessary, for the Judge to say that an absence of intent because of drunkenness is a conclusion not to be lightly reached. And if there is no evidence of intoxication which could reasonably be thought to have affected an accused’s capacity to form an intent, a trial Judge should so rule and thereby exclude drunkenness from the jury’s consideration. But if drunkenness is truly raised on the evidence, the jury must be left free to decide whether intent has been established on all the evidence, including that of intoxication.
Application to the facts
[23]At 619; see also R v Tihi [1990] 1 NZLR 540 (CA) at 544–545.
In the present case the appellant’s state of mind (knowledge and/or intention) was potentially relevant in relation to both the burglary and arson charges. At least in theory intoxication could have been a relevant consideration on which the Judge might have addressed the jury.
We accept that the mere fact that the defence did not raise the issue does not mean that the Judge was not required to instruct on intoxication. A judge is obliged to instruct the jury where there is a plausible or credible narrative supporting a possible defence, even if defence counsel does not advance it.[24]
[24]R v Tavete, above n 20, at 431. This is subject to an apparent exception where there is a relevant concession on behalf of the accused: see R v Sharma, above n 16, at [26].
The first point is that intention in either the burglary charge or the arson charge was never in issue in this trial. As discussed, the course the trial took demonstrated that this was a single issue trial.[25] Parties may choose to approach criminal litigation in this way.[26]
[25]See the reference to “single issue trials” in Fukofuka v R [2013] NZSC 77 at [37].
[26]For example, ss 87 and 88 of the Criminal Procedure Act (which provides that the defendant may file a “trial callover memorandum” setting out, inter alia, “any indication the defendant wishes to give of (i) any fact ... that the defendant will, or will not, dispute at the trial, and (ii) any issue that the defendant will, or will not, dispute at the trial or on which the defendant intends to rely at the trial”). See also (24 November 2010) 669 NZPD 15753.
Irrespective of this, we do not base our reasoning solely on any relevant concession by defence counsel, although we note that experienced trial counsel had not sought an intoxication direction. The key point is that there was an insufficient evidential foundation to require the Judge to direct on the effect of the appellant’s intoxication on the intention elements. Here there was no plausible narrative that might lead the jury to conclude that there was a reasonable possibility that the intent or state of mind necessary to constitute the crimes of burglary and arson may have been lacking through intoxication.
For example, the appellant was asked in examination in chief about how he felt “in terms of the drink”. He described his state as “all good, I was jovial, happy, happy-go-lucky”. Moreover, the appellant, despite having drunk a number of beers had done so over a relatively extended period of time. He was still able to telephone Ms Johnson and send a number of text messages to her.
We are also satisfied that the appellant’s case was inconsistent with being affected by intoxication and the level of detail of his evidence told against the proposition that his mind was not accompanying his physical actions.[27] The appellant gave a detailed account of what he claimed had taken place that evening. Defence counsel closed on the appellant’s accurate recall of where Mr Bowmar had dropped him off.
[27]See Simpson v R [2010] NZCA 140 at [65]–[67] and R v Craig CA142/02, 11 December 2002 at [38]–[44].
The appellant’s primary defence was that he was never at the complainant’s address. This required the appellant to describe what had happened and where he had been after he left the work function after midnight. He said that he was dropped off by Mr Bowmar, had walked up Kauri Place as he felt safer there and then wanted to have a smoke and bought a lighter from the BP service station. From there he went back to Kauri Place to wait to be picked up. Self-evidently this account reflects conscious decision-making and is inconsistent with the appellant being so intoxicated as to be able to form the necessary intents.
In summary, we accept that there was evidence that the appellant was intoxicated. Yet an intoxication direction of the type now raised on appeal could well have impacted adversely on the appellant’s defence that he was never at the address.[28] We are satisfied that the trial Judge was not required to give an intoxication direction. Even if there had been an evidential foundation that the appellant was extremely intoxicated, there was no evidential foundation for the proposition that such intoxication meant that he did not and could not form the intentions relevant to the charges of burglary and arson.
[28]Compare Shadrock v R [2011] NZCA 388, [2011] 3 NZLR 573 at [115].
We are satisfied that the Judge’s failure to give an intoxication direction did not give rise to a miscarriage of justice. Accordingly, this ground of appeal must fail.
Application of the proviso
We are satisfied that none of the alleged errors amounts to a miscarriage of justice. However, in case this conclusion is incorrect, we now consider whether the proviso to s 385(1) might nevertheless apply.
The nature of the power available to the appellate court under the proviso was explained by the Supreme Court in R v Matenga.[29] Delivering the judgment of that Court, Blanchard J said:
[28] It is artificial to say that judges, while holding one view themselves, may ascribe a different view to the hypothetical jury. Therefore, in reality, and this should be reflected in the test, the decision to confirm a jury verdict, despite something having gone wrong, depends upon whether the appellate court considers a guilty verdict was inevitable on the basis of the whole of the admissible evidence (including any new evidence). The Court must also be satisfied that overall there has been a fair trial. The Bill of Rights Act guarantees of a trial by jury and an appeal do not require that a further jury trial should necessarily be ordered if a miscarriage at the first trial has been identified. Nothing in that Act prevents the appellate court from considering whether, despite the miscarriage, the verdict already rendered by a jury should stand.
[29] Following conviction, after a fair trial by jury, Parliament has given the appeal courts an ability to uphold the conviction despite there being a miscarriage of justice in some respect. While the jury is in general terms the arbiter of guilt in our system of criminal justice, the very existence of the proviso demonstrates that Parliament intended the judges sitting on the appeal to be the ultimate arbiters of guilt in circumstances in which the proviso applies. The general rule that guilt is determined by a jury rather than by judges does, however, mean that the proviso should be applied only if there is no room for doubt about the guilt of the appellant; and, as we will mention again below, considerable caution is necessary before resorting to the proviso when the ultimate issues depend, as they frequently will, on the assessment of witnesses.
[30] The Weiss Court accepted that a miscarriage under our para (c) is anything which is a departure from applicable rules of evidence or procedure. We have hesitated about whether in its statutory context that is the meaning which should be given to the word, lest it might lead to the application of the proviso in a large number of cases. Few trials are perfect in all respects. Frequent use of the proviso may create the false impression that the appeal court is too ready to resort to it despite the existence of a miscarriage of justice. In the end, departing in this respect from Weiss, we consider that in the first place the appeal court should put to one side and disregard those irregularities which plainly could not, either singly or collectively, have affected the result of the trial and therefore cannot properly be called miscarriages. A miscarriage is more than an inconsequential or immaterial mistake or irregularity.
[31] Proceeding in this way and having identified a true miscarriage, that is, something which has gone wrong and which was capable of affecting the result of the trial, the task of the Court of Appeal under the proviso is then to consider whether that potentially adverse effect on the result may actually, that is, in reality, have occurred. The Court may exercise its discretion to dismiss the appeal only if, having reviewed all the admissible evidence, it considers that, notwithstanding there has been a miscarriage, the guilty verdict was inevitable, in the sense of being the only reasonably possible verdict, on that evidence. Importantly, the Court should not apply the proviso simply because it considers there was enough evidence to enable a reasonable jury to convict. In order to come to the view that the verdict of guilty was inevitable the Court must itself feel sure of the guilt of the accused. Before applying the proviso the Court must also be satisfied that the trial was fair and thus that there was no breach of the right guaranteed to the accused by s 25(a) of the Bill of Rights Act.
(Emphasis added, footnotes omitted.)[30]
[29]R v Matenga, above n 8, recently confirmed in Fukofuka v R, above n 25.
[30]The reference in [30] to Weiss is to a decision of the High Court of Australia in Weiss v R [2005] HCA 81, (2005) 224 CLR 300, to which much reference was made by the Supreme Court in Matenga.
The appellant’s defence was that he did not light the fire. Obviously, any defence inconsistent with that position would have been untenable before the jury. Given his denial, this was not a case in which the appellant could plausibly say that he did not commit the act on which the offence was based but, if he did, he did not have the requisite knowledge or intents to do so. Consideration of the substantial miscarriage of justice point must, therefore, proceed on the footing that the jury rejected the appellant’s evidence that he did not enter the building and light the fire.
On the burglary charge, the jury had to be satisfied, beyond reasonable doubt, that the appellant entered the garage and that, at the time he entered the building he had an intention to commit the crime of arson, necessarily involving an intent on his part to cause loss to Ms Johnson. The latter intent had to be present at the time that the building was entered. On the arson charge, the jury needed to be satisfied beyond reasonable doubt that the appellant intended to damage the garage by fire and to cause loss to Ms Johnson.
The Crown case was circumstantial in nature. The jury had to be satisfied that those elements had been proved through drawing appropriate inferences. It is clear that where an inference is able to be drawn to establish an element of an offence that the jury must be satisfied that there is proof of the element concerned beyond reasonable doubt. We therefore consider the evidence and whether it supports the application of the proviso, dealing first with the evidence on the arson charge.
The arson charge
We are satisfied that in this case, it is inescapable on the evidence that, in setting the fire, the appellant intended to cause Ms Johnson loss. There is no presumption that a person intends the natural consequences of their actions but the facts may nevertheless establish that the accused had the requisite intent. Proper inferences may be drawn by the appellate court and circumstantial evidence may be relied upon.
We have regard to the evidence before the jury establishing a clear narrative of aggression and hostility on the part of the appellant towards Ms Johnson in the two months preceding the fire and particularly on the night in question. Immediately following the breakdown of their relationship, the appellant contacted Ms Johnson both by telephone and text messages. Ms Johnson said in evidence that these communications often began with the appellant seeking to resume their relationship, or asking after her generally, but would quickly deteriorate into abuse. He would call Ms Johnson a “bitch”, “slut”, or “fucking whore”. Ms Johnson said that on one occasion the appellant threatened to slit the throat of a dog they had acquired when together, and which had remained with Ms Johnson following their split.
We have already referred to the visit by the appellant to Ms Johnson’s home shortly following the end of their relationship.[31] More immediately on the night of 18 December 2009 the appellant sent Ms Johnson a text message which read, “I’m gonna pick up my dog, fuck you, cold cunt. If anyone stops me God help them, fuck you cold bitch.” The appellant said in evidence that he sent this text because he thought the complainant had left the dog at home on its own, and he was concerned for the dog being left outside in the cold. He considered he should have been called to take care of it. Upon receiving this message, Ms Johnson turned off her mobile phone.
[31]At [5] above.
The appellant then got into a vehicle with two friends, Mr Bowmar and Mr Tauranga. During the journey, the appellant said he wanted to go to Ms Johnson’s address and pick up the dog, saying he was worried that it was home alone. Mr Bowmar’s evidence was that, at this point, the appellant became aggressive, speaking about Ms Johnson in abusive terms. The appellant began kicking the dashboard of the car and throwing his arms around. Mr Tauranga, who was seated directly behind the appellant, restrained the appellant by putting his hands around the appellant’s throat. This further aggravated the appellant, and so Mr Bowmar stopped the car. He told the appellant to behave himself, and then resumed the journey. However, the appellant continued to behave aggressively, and so Mr Bowmar stopped the car again and physically removed the appellant from it. At this point the vehicle was, according to Mr Bowmar’s evidence, located on Memorial Drive, just around the corner from Ms Johnson’s home.
It was following this that, according to Crown case, the appellant set fire to the garage on the property Ms Johnson was renting. The evidence was that the majority of the garage’s contents belonged to Ms Johnson, and that her vehicle was parked directly outside (as was a motorcycle owned by Mr Ogle). Her lounge suite was stored there, as were her gardening tools, lawn mower, spare vacuum cleaner, and television. There was a small amount of property belonging to others, such as some paintings, art material and clothes belonging to Mr Ogle. There was also some property which the appellant had left behind following their break-up.[32]
[32]Ms Johnson considered this was her property, as they had “divvied up” property acquired during their relationship: anything left behind belonged to her.
In circumstances in which the appellant arrived at Ms Johnson’s home, drunk and aggressive, struggling with the break-up of his relationship and angry at the possibility that she may have left the dog home alone, the conclusion that he intended to cause her loss when he then set fire to a garage containing largely her property and in very close proximity to her car is inevitable. This is also consistent with a text message the appellant sent Ms Johnson after the fire at 1.53 am, which clearly suggests that he had intended to cause her loss. That message read, “[y]ou call me unpredictable you ain’t seen nothing bitch it’s only just begun you best move eh”.
The burglary charge
We are also satisfied on the evidence that, at the time the appellant entered the garage, he intended to commit arson. A friend of the appellant, Mr Coutts, gave evidence that at 10 am on 19 December, the appellant confessed to him that he had “done something stupid that night”. Mr Coutts gave evidence of that confession as follows:
A...he said he’d gone up to see his ex’s place but there was no one there so he’d um, messed around with the car, taken the fuel cap off the car, thrown it away, pulled a hose off a motorbike and tried starting a fire with some cardboard but he said that didn’t work so buggered off.
QDid he mention to you whereabouts he tried to light a fire or?
ANo.
QAnd just – what did he tell you about, the lighter?
AThe lighter wouldn’t work so he buggered off down and got a new lighter.
The fact the appellant had tampered with Mr Johnson’s vehicle was corroborated by the evidence of Mr Ogle, who said that after the fire the gas flap to Ms Johnson’s car was open and the cap missing. He was able to locate the cap in the backyard.
The only logical explanation for the appellant taking the fuel cap off the vehicle and pulling the fuel hose off the motorcycle was that he was looking for a flammable substance for the purposes of starting a fire. These actions, crucially, took place outside of the garage directly next to which Ms Johnson’s vehicle and Mr Ogle’s motorcycle were parked, before the appellant attempted to start a fire with some cardboard. Therefore, his intention to start a fire preceded him entering the garage. For the reasons set out in relation to the arson charge, the purpose for setting the fire must ineluctably have been to cause Ms Johnson loss.
Result
We are satisfied that none of the errors identified by counsel amounted to wrong decision on a question of law (under s 385(1)(b)) or a miscarriage of justice (under s 385(1)(c)). Even if either of those subsections were engaged, we are satisfied that there was no substantial miscarriage of justice. This is a case in which the proviso to s 385(1) of the Crimes Act can properly be applied. The convictions on the charges of burglary and arson were inevitable and thus the appeal cannot succeed in relation to the burglary and arson charges. As already noted, the appeal on the charge of perverting the course of justice must also fail.
HEATH J
Summary of conclusions
I agree with Stevens and Cooper JJ that:
(a)The appeal against conviction on count 3 (attempting to pervert the course of justice) must be dismissed.[33]
(b)There was no need for a substantive direction on the topic of intoxication.[34]
[33]At [16] above.
[34]At [54]–[65] above.
However, on my analysis, the appeal against conviction on counts 1 (burglary) and 2 (arson) should be allowed and a retrial ordered because:
(a)The Judge’s directions on the element of “intent to cause loss” (on the arson charge) were inadequate and represented a material misdirection giving rise to a miscarriage of justice.
(b)This is not an appropriate case in which to apply the proviso to s 385(1) of the Crimes Act to save the convictions on each of those counts.
These are my reasons for concluding that the appeal against conviction on counts 1 and 2 should be allowed.
Directions on “intent to cause loss”
In this type of case, in order to commit the crime of arson, a person must have both an intention to damage property by fire and an intention to cause loss to another person. Because arson was the crime on which the Crown relied to establish one of the elements of burglary,[35] any material deficiency in directions given on the arson charge necessarily affects the burglary count. As I agree with Stevens and Cooper JJ that the Crown case was plainly put on the basis that “arson” was the offence that Mr Kirby intended to commit when entering the garage, I can focus on the “intent to cause loss” element alone.
[35]See [38] and [39] above.
There was no oral direction on this element. Nor did the written question trail identify it discretely. Rather, two different types of criminal intent, both of which had to be proved, were covered in a single compound question. Question 2.2 read:
2.2 Are you sure that Mr Kirby intended to damage the garage by fire with the intention of causing loss to Ms Johnson?
If ‘yes’ find Mr Kirby guilty on this count and go to count 3
If ‘no’ find Mr Kirby not guilty on this count and go to count 3
The object of a question trail is to ensure that the jury has a framework for its analysis of the evidence. Its utility lies in identifying a series of factual questions, each designed to reflect one of the elements of the crime in issue. The intention is to ensure that the jury understands the discrete inquiries they must make before determining whether a charge has been proved to the requisite standard.
De-coupling the two elements with which Question 2.2 actually deals, the jury should have had a question trail reading something along these lines:
(a)Are you sure that Mr Kirby intended to damage the garage by setting fire to it?
(b)Are you sure that Mr Kirby lit the fire with the intention of causing loss to Ms Johnson?
In my view, there was a real risk that, by bundling the two discrete elements into one question, the jury might have, illegitimately, thought that Mr Kirby was necessarily to be taken as intending the natural consequences of his actions. The jury had to understand that its function was to determine whether the Crown had proved beyond reasonable doubt that Mr Kirby lit the fire with the intention of causing loss to Ms Johnson. While a jury may infer an intention to cause loss if it is clear that an accused realises, for all practical purposes, that his or her actions will result in such loss, the question whether the inference should be drawn is one for the jury to determine, based upon a consideration of all evidence.[36]
[36]See R v Woollin [1999] 1 AC 82 (HL) at 96 (Lord Steyn) and 97 (Lord Hope), with whom other members of the House of Lords agreed.
Stevens and Cooper JJ have concluded that there was no material misdirection because the relevant part of the question trail[37] encompassed both the intention to damage the property by fire and the intention of causing loss to Ms Johnson. They consider that the use of the phrase “with the intention of causing loss” was a sufficient indication of the need to separate out proof of each intent. The fact that neither intent was put in issue by the defence is advanced as support for that proposition.[38] With respect, I disagree.
[37]At [85] above.
[38]At [48] and [49] above.
In my view, in the absence of clear oral clarification of the question by the trial Judge, there was a material misdirection. The jury received no guidance on the nature of the requisite intent to cause loss, or the nature of the intents that Mr Kirby might have had. They were not told, for example, that an intention to damage property by fire was not, of itself, sufficient to prove the crime.[39] Nor were they told that an intention to harass, to intimidate, or to threaten a person did not equate to an intent to cause loss to him or her. The fact that the issue was not raised by the defence is beside the point. It was an issue to be determined by the jury.[40]
[39]“Intent to cause loss” is a distinct element of the offence of arson. See Crimes Act, s 267(1)(c), set out at [32] above.
[40]At [95], [98] and [99] below.
In my view, a miscarriage of justice arises. On the directions given, the convictions are unsafe.[41] Unless the convictions can be saved by application of the proviso to s 385(1) of the Crimes Act, the appeal must be allowed.
The proviso
[41]See s 385(1)(c) of the Crimes Act (set out at [92] below) and R v Sungsuwan, above n 19, at [7]–[9] (Elias CJ), [45]–[49] (Gault, Keith and Blanchard JJ) and [110]–[114] (Tipping J).
Section 385(1) of the Crimes Act relevantly provides:
385 Determination of appeals in ordinary cases
...
(1)On any appeal to which subsection (1AA) applies, the Court of Appeal ... must allow the appeal if it is of opinion—
...
(c)That on any ground there was a miscarriage of justice;
...
and in any other case shall dismiss the appeal:
provided that the Court of Appeal ... may, notwithstanding that it is of opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred.
The test for application of the proviso was articulated by Blanchard J, for the Supreme Court, in R v Matenga.[42] Applying that test, Stevens and Cooper JJ have decided that this is a case in which it was inevitable that Mr Kirby would have been convicted, even if a misdirection of the type I have identified had occurred. I have reached a different view.
[42]R v Matenga, above n 8. The relevant extracts from the judgment are set out at [67] above.
In my view, it cannot be said in this case, that, had the correct direction been given, there is “no room for doubt” about Mr Kirby’s guilt or that his conviction on the arson and burglary charges was “inevitable”.[43]
[43]At [29] and [30], set out at [67] above.
Mr Kirby elected to run his defence on the ground that he was not the perpetrator. Having decided to follow that path, it would have been inconsistent with, and detrimental to, the defence for his experienced trial counsel to put in issue any question of relevant criminal intent. To deal with the possibility that an accused might put forward an identity defence for some extraneous reason and to ensure that the Crown retains its burden of proving all elements of the particular charge to obtain a conviction, the law has developed two discrete mechanisms to minimise the risk of an injustice occurring. Usually, they work in tandem.
The first is evidential in nature. It is commonly referred to as the “tripartite” direction. This is designed to explain to a jury the consequence of accepting some or all of the accused’s evidence, rejecting all or part of it or having doubt about its veracity or reliability. In general terms, the direction tells the jury to reach a verdict of not guilty if the defence evidence is credible, reliable and a convincing answer to the Crown’s case, or if it were left in a situation of being uncertain of the real position; the latter raising a reasonable doubt.
The jury is instructed that, if they were to reject all or part of the defence evidence as unconvincing or unworthy of belief, it should not jump to the conclusion that the accused is guilty, or even regard such rejection of evidence as adding to the case against him or her. The jury is told to put to one side the rejected portions of the defence evidence and to examine all of the evidence which they do accept to decide whether it establishes the accused’s guilt beyond reasonable doubt.[44] On that topic, Judge de Ridder gave an unimpeachable direction to the jury.
[44]R v McI [1998] 1 NZLR 696 (CA) at 708 (Keith and Tipping JJ).
The second is the requirement for trial Judges to direct a jury on any aspects of fact or of law which, on the evidence, are reasonably open to the jury to consider in reaching their verdict. This requirement commonly arises in sexual cases where a person may, for reasons of (for example) embarrassment, not be prepared to accept that sexual contact occurred. Defences involving consent may still arise on the evidence.[45] Another example is where murder is charged and matters of justification or excuse, such as self-defence or accident, arise from the evidence, even though there is a denial that the accused was the perpetrator.
[45]For example, see R v Stojanovich [2009] NZCA 210 at [33].
Having referred to relevant authority, in R v Tavete,[46] Somers J, for this Court, said:[47]
... A trial according to law requires an adequate direction by the Judge to the jury of all matters, whether of fact or of law, which, upon the evidence, are reasonably open to the jury to consider in reaching their verdict. In a trial for murder this includes matters of defence such as self-defence, provocation, manslaughter or accident, notwithstanding that such matters are not raised or are even expressly disavowed on behalf of the accused. The failure to press such a defence is usually for tactical reasons; it would weaken, perhaps destroy, the main defence relied on. This does not in our judgment exonerate the Judge from directing on such matters if there is a sufficient evidential foundation. A careful and dispassionate direction by the trial Judge will put the issue in a balanced perspective.
[46]R v Tavete, above n 20.
[47]At 431.
Stevens and Cooper JJ take the view that no such foundation exists in this case. As a result, they consider that an inference that Mr Kirby intended to cause loss to Ms Johnson was “inescapable” on the evidence.[48] As I understand it, that conclusion is based on the proposition that an inference of “intent to cause loss” must inevitably be drawn from the following pieces of circumstantial evidence:[49]
(a)A clear narrative of aggression and hostility on the part of Mr Kirby towards Ms Johnson, during the period of two months between their separation and the fire.[50]
(b)The tone and content of text messages forwarded by Mr Kirby to Ms Johnson, during that period.[51]
(c)Mr Kirby’s aggressive conduct during the time that he was being driven home by Mr Bowmar, and the abusive nature of his comments about Ms Johnson.[52]
(d)The majority of the contents in the garage belonged to Ms Johnson. Also, her vehicle was parked directly outside, as was a motorcycle owned by her present partner.[53]
(e)Mr Kirby’s state when he arrived at Ms Johnson’s home on the night in question: drunk, aggressive, struggling with the break-up of his relationship, and angry at the possibility that the dog had been left alone.[54]
(f)A text sent after the fire was lit.[55]
[48]At [71] above.
[49]I have endeavoured to summarise the facts on which the majority rely. However, to avoid the possibility of incorrect paraphrasing, I have cross-referenced each to the full discussion of the issue in their judgment.
[50]At [72] above.
[51]At [5], [72] and [73] above.
[52]At [74] above.
[53]At [75] above.
[54]At [76] above.
[55]At [76] above.
The facts on which the majority rely to draw an inference of an intention to cause loss to Ms Johnson are, in my view, capable of more than one conclusion. It seems to me that a jury, properly directed, could equally conclude that Mr Kirby was an angry man, affected severely by the break-up of his relationship with Ms Johnson and determined to make her life very difficult. Such a conclusion would leave open the possibility that his actual intent at the time was to threaten, intimidate or harass her; or indeed simply to do damage to the property. As to the latter, even though Ms Johnson was always going to suffer loss, Mr Kirby would have lacked an intention to cause loss if he lit the fire with only an intention of damaging the property.[56] In those circumstances, the second mental element of the crime of arson would not have been proved.
[56]Crimes Act, s 267(1)(c), set out at [32] above.
In determining whether an inference of an intent to cause loss was to be preferred over those other three alternatives, a properly directed jury would take account also of Mr Kirby’s drunken state, at the time the fire was lit. Although I accept that there was no sufficient evidential foundation to put a defence of intoxication to the jury, on the basis that Mr Kirby was so drunk that he did not form any relevant intent,[57] his state of drunkenness remained relevant to the type of intent that he may have formed.
[57]R v Kamipeli, above n 22, at 616–619, set out at [55] and [56] above.
Because “intent to cause loss” is an element of the offence of arson, the jury had to be satisfied beyond reasonable doubt that an inference of such intent was available. In R v Puttick, the Court of Appeal said:[58]
The extent of directions on inferences, as on any topic, will vary according to the significance of that topic in the particular case. In the present case the only significant inference the jurors were called upon to consider was as to the accused’s state of mind and knowledge that the goods were stolen when he received them. This being an essential element of the offence, they were correctly directed they must be able to infer that fact beyond reasonable doubt.
(Emphasis added.)
[58]R v Puttick (1985) 1 CRNZ 644 (CA) at 647.
In those circumstances, while I agree that the Crown case was strong and that a jury (even if properly directed) could well have found Mr Kirby guilty on each charge, I am not satisfied that convictions were inevitable. For those reasons, I would have allowed the appeal and ordered a retrial on counts 1 and 2.
Solicitors:
Crown Law Office, Wellington for Respondent
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