McLaughlin v R

IN THE COURT OF APPEAL OF NEW ZEALAND

CA752/2013
[2015] NZCA 339

BETWEEN	JEREMY GEORGE EDWARD MCLAUGHLIN Appellant
AND	THE QUEEN Respondent

Hearing:	23 June 2015
Court:	Randerson, French and Cooper JJ
Counsel:	R M Lithgow QC for Appellant J C Pike QC and M Wilkinson for Respondent
Judgment:	29 July 2015 at 2:30 pm

JUDGMENT OF THE COURT

The appeal against conviction is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Table of Contents

Para No

Introduction
The Crown case at trial
The appellant’s defence
The trial issue
Grounds of appeal
The DNA evidence

Discussion
Conclusions on the DNA evidence

The lies direction

Discussion
Was there a material risk of miscarriage?

Failure to direct in accordance with s 32 of the Evidence Act

Discussion

Unfair summing-up

Discussion

Result

[1]
[6]
[9]
[11]
[12]
[13]
[18]
[31]
[37]
[43]
[48]
[57]
[62]
[65]
[68]
[71]

Introduction

After a jury trial before Panckhurst J, the appellant Mr McLaughlin was found guilty of murdering Jade Bayliss at Christchurch on 10 November 2011. Mr McLaughlin also pleaded guilty at the outset of his trial to two charges of burglary and arson committed the same day at the house where the victim’s body was found.
Mr McLaughlin was sentenced on the murder charge on 9 October 2013 to life imprisonment with a minimum period of 23 years imprisonment.[1] He was sentenced to concurrent terms of four years for burglary and eight years for arson.[2]
[1]R v McLaughlin [2013] NZHC 2625 at [36].
[2]At [37].
Mr McLaughlin initially appealed against both conviction and sentence but we were informed at the hearing that the sentence appeal was abandoned.
Mr McLaughlin was tried along with his friend Mr Jolon Sweeney who faced two charges as an accessory after the fact and one of attempting to obstruct the course of justice. The essence of the case against him was that he assisted Mr McLaughlin to dispose of certain items stolen from the Bayliss family home. Mr Sweeney pleaded guilty towards the end of the Crown case to one charge as an accessory after the fact and one of arson. He did not give evidence.
A feature of the case is that the police were able to obtain extensive detail of the movements of Mr McLaughlin on 10 November 2011. They did so by a combination of CCTV footage, cell phone data and the evidence of eye-witnesses.

The Crown case at trial

Jade was aged 13 at the time of her death. Mr McLaughlin and her mother, Mrs Bayliss, had been in a relationship for a short period in September and October 2011. The relationship came to an end by early November. On 10 November 2011, Jade was unwell and was home from school alone at the Bayliss family home in Christchurch. The Crown case was that Mr McLaughlin entered the property that morning with the intention of stealing certain items. During the burglary, Mr McLaughlin allegedly encountered Jade and murdered her by strangling her with a cord-type ligature and by stuffing a pair of socks into her mouth. After leaving the property, Mr McLaughlin pawned some of the items over the next couple of hours to provide cash to pay rent he owed his landlord. He also visited the Riccarton Mall. Jade’s empty wallet was located in the Mall carpark near where Mr McLaughlin had parked his vehicle.
After buying petrol and a lighter from a Christchurch service station, Mr McLaughlin returned to the property soon after 1 pm the same day. He stole some further items (which he later sold) and set fire to the house. Thereafter, Mr McLaughlin and Mr Jolon Sweeney disposed of other items of property including Bayliss family passports stolen from their home.
Suspicion quickly fell on Mr McLaughlin and he was interviewed by the police on the evening of the day of the killing.

The appellant’s defence

When interviewed by the police, Mr McLaughlin denied going to the Bayliss house that day and denied any involvement in the burglary, arson or murder. However, by his pleas of guilty to the burglary and arson charges and by his own evidence at trial, Mr McLaughlin made a number of admissions. First, he accepted he had visited the house twice during the day on 10 November 2011. Second, he admitted pawning items he stole from the house. Third he admitted deliberately setting fire to the house. But he continued to deny any involvement in the murder.
His evidence at trial was to the effect that Mr Sweeney and he had planned to carry out the burglary together but Mr Sweeney had not turned up. Mr McLaughlin then burgled the house himself. He said he did not see Jade on the day in question and did not kill her. It was submitted on his behalf that the Crown had not excluded the reasonable possibility someone else was responsible for the murder. Mr McLaughlin’s evidence was that he lit the fire in the house to annoy Mrs Bayliss, to cause her distress, or to scare her.

The trial issue

There was no dispute as to the cause of Jade’s death or that, whoever was responsible for her death, had committed murder. The sole issue for trial was whether the Crown had proved beyond reasonable doubt that Mr McLaughlin was the killer. The Crown case was compelling, even overwhelming, as the Judge described it on sentencing.[3] We later set out the reasons for this conclusion in detail. For the present, it is sufficient to summarise the key features of the Crown case:
(a)Mr McLaughlin admitted committing the burglary and arson of the Bayliss home on the day Jade died at the property.
(b)Mr McLaughlin admitted lying to the police when he was interviewed about his involvement.
(c)There was no evidence to suggest anyone else entered the house that day within the very narrow windows of opportunity available.
(d)There was expert evidence that Mr McLaughlin’s DNA was found under Jade’s fingernails suggesting there had been a struggle between the two.
(e)There was no evidence that Jade left the house that day.
(f)Mr McLaughlin could not have taken large items such as televisions from the house without Jade being aware this was occurring, yet she did not contact her mother to report this.
(g)Mr McLaughlin stole Jade’s personal items including a wallet, using the cash to purchase petrol during the day.

Grounds of appeal

[3]At [14].

Mr McLaughlin advances his appeal against conviction on four grounds:
(a)The nature and significance of the DNA evidence was not treated correctly by the prosecutor or by the Judge.
(b)The Judge’s lies direction was inadequate and did not conform to s 124 of the Evidence Act 2006.
(c)The Judge did not correctly direct the jury in accordance with s 32 of the Evidence Act about the inferences that might be drawn from the appellant’s failure to answer police questions during later interviews.
(d)The summing-up was unfair.

The DNA evidence

At trial, the Crown called expert evidence from an ESR scientist, Mr Timothy Power. He gave evidence that a number of reference DNA samples had been obtained. These included one from Jade and one from Mr McLaughlin. The reference DNA profiles were then compared to samples sent to the ESR. It was not in dispute that a mixed DNA profile was obtained from a sample taken from underneath Jade’s fingernails on her right hand. Nor was it in dispute that the analysis conducted by ESR showed that the DNA detected could have originated from The remaining DNA was found to have originated from a male. That DNA profile corresponded to the reference DNA sample from Mr McLaughlin. After removal of any DNA that could have originated from Jade, Mr Power’s evidence was:
A.I considered two propositions. Either, that this male DNA originated from Mr McLaughlin or it originated from someone else unrelated to him selected, at random, from the New Zealand population. The [likelihood] ratio of one million supported the proposition that the DNA originated from Mr McLaughlin rather than from someone else. And this statistic translates into a verbal equivalent of extremely strong scientific support for the proposition that this male DNA originated from Mr McLaughlin.
Prior to trial, Mr McLaughlin’s trial counsel obtained a brief of evidence from a consultant forensic scientist with appropriate qualifications who resided in the United Kingdom, Ms Lynne Hingley. In accordance with best practice at the time, this evidence was referred to the ESR for peer consideration. Ms Hingley was advised that the ESR did not dispute the proposition that the small amount of DNA material located under Jade’s fingernails could have found its way there by transference. That was because of the nature of the sample, the fact that Mr McLaughlin had previously frequented the house, and the fact that items of his clothing were still there. Anticipating that Mr Power would make this concession when giving evidence, trial counsel decided not to call Ms Hingley. Mr McLaughlin agreed with this decision and makes no criticism of it.
Mr Power was asked to explain in his evidence-in-chief how Mr McLaughlin’s DNA profile could have found its way under Jade’s fingernails. He explained that this could occur by direct or indirect transfer. By the former, he meant that a source of Mr McLaughlin’s DNA was transferred straight under Jade’s fingernails by person-to-person contact. By indirect transfer, Mr Power said that Jade could have come into contact with Mr McLaughlin’s DNA from a source not on his body at the time. That could have included, for example, DNA from skin or blood.
As anticipated, Mr Power made concessions along the lines indicated prior to trial. He was referred to Ms Hingley’s brief of evidence although we understand this was not before the Court. The concessions made are best captured in this passage:
Q.You agree that DNA may be lost over time. You’ve given evidence of this and you agree about the various factors?
A. Yes.
Q.That washing or wiping quite clearly, and you’ve referred to sunlight as well, and she [Ms Hingley] proposed that the DNA deposited in the first place, the amount, influences the period of degradation or loss of DNA. Agree with that?
A. Yes, I do.
Q. And I think you have. And she describes the process of an indirect, an indirect transfer, and there is no – you’re ad, ad idem of that, of course, both being experts. And just to confirm that, she makes the point … that it’s not possible from the sample of DNA that you got which identified Mr McLaughlin whether or not skin was present under the fingernail samples?
A. Not, it was not possible to determine that.
Q. Nor was it possible … that blood had contributed to that DNA mixture in any way.
A. That’s correct. We can’t determine if any DNA was detected from that blood.
Q. And she concludes, and I think you agree with this generally, that there was insufficient strength and quality in the DNA profile of Mr McLaughlin to provide a robust opinion as to whether DNA was most likely to have been transferred directly or indirectly?
A. That’s correct.
Q.And as my friend has pointed out it’s going to depend on evidence and the scenario that surrounds in this case, the possible, the transfer of this DNA.
…
A.That’s correct.
(Emphasis added.)
Mr Lithgow submitted in essence that:
(a)The expert witnesses had agreed it was not possible to determine whether Mr McLaughlin’s DNA had been transferred directly or indirectly.
(b)It was not open for the jury in the light of the scientific evidence to reach any conclusion about the provenance of Mr McLaughlin’s DNA in the fingernail samples.
(c)The prosecutor ought to have acknowledged that the scientific evidence could not assist as to how the DNA had found its way under Jade’s fingernails.
(d)Similarly, the Judge should have directed the jury that, in the light of the scientific evidence, the DNA evidence proved nothing and could not be relied upon to identify Mr McLaughlin as the offender.

Discussion

The unchallenged evidence of Mr Power was that the DNA under Jade’s fingernails was one million times more likely to be Mr McLaughlin’s DNA than that of any other male person selected at random from the New Zealand population. This evidence plainly had evidential value. The only issue was how it got there.
The passage particularly relied upon by Mr Lithgow was Mr Power’s agreement that there was “insufficient strength and quality in the DNA profile of Mr McLaughlin to provide a robust opinion as to whether DNA was most likely to have been transferred directly or indirectly”. We are satisfied this meant no more than that the scientists could not express any firm view merely on the basis of the samples analysed as to whether Mr McLaughlin’s DNA had been transferred directly or indirectly under Jade’s fingernails.
At trial, both sides accepted it was a matter for the jury to decide how Mr McLaughlin’s DNA found its way under Jade’s fingernails. The Crown proposition was that Jade’s assailant must have come into close contact with her in order to kill her. It was a matter for the jury to conclude on the whole of the evidence whether the Crown had proved beyond reasonable doubt that Mr McLaughlin was the assailant. In making that assessment, the Crown submitted the jury could reach its own conclusion about the mechanism by which Mr McLaughlin’s DNA had found its way under Jade’s fingernails. In the Crown’s submission, the jury could conclude on the evidence that this occurred by direct transfer by contact between Jade and her assailant during a struggle.
In her closing address, Mr McLaughlin’s trial counsel urged the jury to take heed of the expert evidence on DNA rather than applying their commonsense. However, she did not go as far as submitting that it was simply not open to the jury on the basis of the scientific evidence to conclude that Mr McLaughlin’s DNA had found its way under Jade’s fingernails in the way contended for by the prosecutor. Instead, she canvassed the possibilities for indirect transference including, for example, transference from items of Mr McLaughlin’s clothing left in the house or from other household items such as towels.
The addresses made to the jury in closing reflected the evidence given at trial both by Mr Power and other witnesses. Mr Power explained the ways in which DNA could be left behind by direct transfer. For example, DNA from skin cells or from blood could be transferred directly by various mechanisms from shaking hands to scraping someone else’s skin. In contrast, indirect transfer could occur where an individual has deposited DNA somewhere else and it is later transferred. Mr Power was asked a number of questions about how long DNA would remain on a surface. His evidence was that this depended on the nature of the surface and other factors. In cross-examination on this point he said that while it was possible an indirect transfer of DNA could have occurred if Jade had touched a surface previously touched by Mr McLaughlin, this seemed unlikely. In his view, the mechanics of DNA being transferred from a flat surface and ending up under Jade’s fingernails seemed “quite improbable”.
Mr Power accepted that DNA could be indirectly transferred from clothing but said that if the item had been laundered, it would generally be expected that all the DNA would be removed. In this respect, there was evidence from Mrs Bayliss and another of her daughters that Jade had removed clothes from a tumble drier on the morning of her death. Mr Power’s opinion was variously expressed as being that indirect transfer by this means would be either unlikely or highly unlikely. While it was possible that DNA could be retained following laundering if there were some sort of incomplete washing, he was not aware of any studies where DNA had been detected on clothing after laundering.
Mr Power was also asked about the length of time for which DNA might persist under Jade’s fingernails. He said studies had found that most DNA would be lost within 24 hours. This would depend on the amount of DNA deposited, the cleanliness of the person, their personal hygiene habits and the age of the DNA. DNA persisting under fingernails was generally lost reasonably quickly, within about 24 hours. Bathing would not necessarily remove all the DNA.
Mrs Bayliss gave evidence that the clothes in the tumble drier had been washed the night before by her. Jade had gathered the washing together before it was washed. To her knowledge, no clothing was washed that did not belong to her family. She accepted it was possible that other items belonging to Mr McLaughlin had been at her house. For example, she referred to a t-shirt that belonged to Mr McLaughlin that had been left at the house but said she had been unable to find it.
When Mr McLaughlin gave evidence, he said for the first time that a beanie belonging to him could be seen in photographs produced as exhibits. He said it could be seen on top of a clotheshorse in the lounge. He went on to state that the t‑shirt next to it was his. He explained that he had not seen the relevant photograph until some time during the trial. It was for this reason that Mrs Bayliss was not questioned about these particular items.
Mrs Bayliss also gave evidence that Jade had showered in the morning on the day of her death and generally took her personal hygiene seriously. Mrs Bayliss also said the house was regularly cleaned and this had last occurred on the weekend of 5/6 November with a fuller clean two weeks earlier. Apart from calling at the house on 7 November (when he spoke to Jade at the door but did not come inside), the last time Mr McLaughlin had been inside the house was on Friday 4 November.
In his summing-up, the Judge gave a conventional direction to the jury about how they were to deal with expert evidence. He said the expert opinion evidence was part of the material for the jury to bring to bear in reaching a verdict. The jury had heard all of the evidence and were best placed to reach their conclusions on the critical issues. How the expert opinion was used and what weight to be placed on it was a matter for the jury.
The summing-up on the DNA evidence otherwise reflected the evidence and counsel’s closing addresses. Summarising the prosecutor Ms Bell’s address on this topic, the Judge said:
[63] Lastly, she relied upon the DNA evidence. She acknowledged that transference is something which is possible as the scientists have explained to us. We can apparently pick up DNA, shed skin cells, skin or other things belonging to another individual in the course of our everyday lives. And it is possible for that sort of material to remain under a fingernail for a period of time. But Ms Bell said well, Mr McLaughlin had not been to the address after the 4^th of November, the Friday before, that was his last visit, proper visit inside, except he went back on the Monday and had a discussion with Jade at the doorstep. She reminded you that there was evidence from various sources that Jade had showered that very morning and had wet hair and the like and really suggested that, despite that possibility, it must be very unlikely that those traces of DNA were under her fingernail other than as a result of a struggle on the morning of her death.
The Judge summarised the closing address of Mr McLaughlin’s trial counsel Ms Sewell on the DNA issue in these terms:
[75] Ms Sewell in relation to the DNA evidence said that Dr Mann examined Mr McLaughlin on the evening of the 10^th. He had no scratch injuries consistent with a struggle. He had only a work injury for which there is some independent explanation. And so she said you could not exclude the possibility that transference accounted for the trace of DNA recovered from Jade's fingernail. After all Mr McLaughlin had been a frequent visitor to the house, a part-time occupier and as the scientists have explained, we can pick up DNA from other people, off clothing, or even off a surface, and it can linger on the person of somebody else for a period of time.

Conclusions on the DNA evidence

We are satisfied there was no error either by the prosecutor or by the Judge in relation to the DNA evidence. The approach adopted was orthodox. The jury was entitled to consider the expert evidence in the context of all of the evidence adduced at trial. In doing so, the jury was not invited or allowed to ignore the forensic evidence which went no further than to say that it was not possible on the basis of the samples analysed for the scientists to conclude whether Mr McLaughlin’s DNA found under Jade’s fingernails was deposited there by direct or indirect transfer.
Mr Power was able to offer some expert evidence as to the various means by which direct or indirect transfer could occur, the circumstances in which DNA could be dispersed and the length of time for which the DNA material might persist in different scenarios. But in the end, as he himself acknowledged, it was a matter for the jury to determine in the light of all the evidence, DNA and otherwise, whether Mr McLaughlin was proved beyond reasonable doubt to be the assailant.
We accept the Crown’s submission that the assailant must inevitably have come into close contact with Jade given the means by which she was killed. In these circumstances, it was entirely open for the jury to conclude that Mr McLaughlin’s DNA had been transferred directly in the course of a struggle between Jade and her assailant. Against that, the possibilities canvassed for indirect transfer were no more than speculative.
This is not one of those rare cases where the Crown had to prove beyond reasonable doubt that Mr McLaughlin’s DNA had been deposited under Jade’s fingernails by direct transfer in order to secure a conviction. In Milner v R this Court affirmed the observations of Turner J in Thomas v The Queen that, where a disputed circumstance is not an element of the offence charged, there must be some exceptional reason, particular to the case, to justify a direction that a particular fact must be proved beyond reasonable doubt.[4] In the present case, the Crown relied on a substantial body of evidence to prove that Mr McLaughlin was the assailant. We canvass this evidence later in this judgment. In context, the DNA evidence was simply one strand of evidence the proof of which did not need to be established beyond reasonable doubt.
[4]Milner v R [2014] NZCA 366 at [14]–[16]; leave to appeal declined in Milner v R [2015] NZSC 38, see at [7]–[9]; Thomas v The Queen [1972] NZLR 34 (CA) at 41.
We are also satisfied that the recent decision of this Court in Manoharan v R is of no assistance in determining the DNA issue in the present case.[5] This case dealt with DNA evidence, but the particular facts of the case distinguish it immediately.
[5]Manoharan v R [2015] NZCA 237.
This ground of appeal fails.

The lies direction

It was obvious from the outset of Mr McLaughlin’s trial that the Crown would be submitting to the jury that Mr McLaughlin lied when he was interviewed by the police on the evening of 10 November 2011. His admission by his guilty pleas to the burglary and arson charges and his own evidence at trial admitting those offences was in stark contrast to his police statement in which he flatly denied going to the Bayliss home that day or that he was in any way involved in the offending alleged.
In his evidence-in-chief, Mr McLaughlin was asked to explain why he had denied going to the address when he was interviewed by the police. He said he knew he had done the burglary and the arson and was expecting to be asked about that. However, at the outset, the police had informed him that Jade had died in the house and he “freaked out”. He thought the police would wrongly add two and two together and he just wanted to get the interview over and done with.
Under cross-examination from the prosecutor at trial Mr McLaughlin admitted he had lied when he denied going to the Bayliss home on the day in question. He gave some further explanations. These included that he had spoken to his co-offender beforehand and they thought it would be better not to tell the truth. He was scared and he thought there was a good chance the police were going to blame him for what had happened. He denied he was trying to get away with responsibility for murdering The prosecutor pursued the line in cross‑examination that Mr McLaughlin was being selective in his evidence, telling the truth about some matters while lying about others. It was suggested to Mr McLaughlin that he was tailoring his evidence to fit in with the Crown evidence.
In her closing address, the Crown prosecutor continued this theme submitting to the jury that Mr McLaughlin had lied in his police interview and had also made deliberate omissions. In particular, he denied anything that would link him to being present at the Bayliss home on the day of the offending and had given false explanations on matters such as the purchase of petrol at the Challenge Milton Street service station at about 10.37 am that day. In her closing address, Mr McLaughlin’s defence counsel accepted that he had not told the truth at the interview and reminded the jury of Mr McLaughlin’s explanation that he had an agreement with Mr Sweeney that they were not going to tell the truth and that he adhered to that agreement. It was understandable that Mr McLaughlin would be shaken up because he knew at the time of the interview there had been a death in the house. She suggested it was unsurprising that people who are arrested do not tell the truth when interviewed by the police. Mr McLaughlin had come to court to fill in the gaps about the burglary, the arson and his movements that day and to give evidence that he did not see Jade on that day.
Just prior to the summing-up, Panckhurst J discussed the need for a lies direction with counsel, picking up an observation made by Mr McLaughlin’s trial counsel in her closing address that the Judge would be explaining to the jury “the situation with lies”. It is evident from the transcript of this discussion that the Judge was aware of s 124 of the Evidence Act which relevantly provides:
124 Judicial warnings about lies
(1)This section applies if evidence offered in a criminal proceeding suggests that a defendant has lied either before or during the proceeding.
(2)If evidence of a defendant’s lie is offered in a criminal proceeding tried with a jury, the Judge is not obliged to give a specific direction as to what inference the jury may draw from that evidence.
(3)Despite subsection (2), if, in a criminal proceeding tried with a jury, the Judge is of the opinion that the jury may place undue weight on evidence of a defendant’s lie, or if the defendant so requests, the Judge must warn the jury that—
(a)the jury must be satisfied before using the evidence that the defendant did lie; and
(b)people lie for various reasons; and
(c)the jury should not necessarily conclude that, just because the defendant lied, the defendant is guilty of the offence for which the defendant is being tried.
In his discussion with counsel the Judge agreed that the lies issue had been the subject of a good deal of cross-examination and comment from the prosecutor in her closing address. The Judge raised a concern that defence counsel seemed to be suggesting to the jury in her closing that a lies direction in the “old format” would be given. Although defence counsel did not explicitly request a lies direction the Judge agreed to give a direction. He told counsel it was a matter for him to decide exactly how it would be put in terms of s 124.

Discussion

Prior to the Evidence Act, lies by a defendant in an out-of-court statement were relevant to credibility but could only rarely be relied upon as evidence adding to the Crown case: R v Toia.[6] As this Court has confirmed in at least two decisions, s 124(2) of the Evidence Act now permits the Crown to rely on a defendant’s proven lie as circumstantial evidence of guilt as well as bearing upon the defendant’s credibility.[7] Before the Evidence Act it was a matter for the judgment of the trial judge as to whether a lies direction was required. Such a direction was generally required where an allegation that the defendant had lied was a significant trial issue.[8] The position under s 124 is that the trial judge is not obliged to give a specific direction as to the inference that may be drawn from a defendant’s lie if evidence is offered of a lie. But the judge is obliged to give the jury a warning in terms of s 124(3) if the defendant so requests or if the judge is of the opinion that the jury may place undue weight on the evidence of a lie.
[6]R v Toia [1982] 1 NZLR 555 (CA) at 559.
[7]R v Dewar [2008] NZCA 344 at [16]–[17]; and R v Mann [2010] NZCA 68 at [35].
[8]R v Marshall [2004] 1 NZLR 793 (CA) at [63].
In further submissions provided to the Court at our request, Mr Pike QC submitted on behalf of the Crown that in the absence of any request by defence counsel for a direction in terms of s 124(3), the Judge had impliedly invoked s 124(2). It was submitted that it was now a matter for the Court to determine whether, in terms of s 124(3), the jury might place undue weight on evidence of a defendant’s lie and whether in the circumstances a direction in terms of s 124(3) was required.
We are not persuaded by this submission. Our assessment of the discussion the Judge had with counsel is that defence counsel was expecting some form of lies direction even if she was willing to leave it to the Judge to determine the precise form in which that would be given. Once the Judge decided to give a lies direction, he must be taken to have concluded either that he had effectively been requested to do so by the defendant or he must have formed the opinion that the jury might otherwise place undue weight on evidence of the defendant’s lies. Having decided to give a lies direction, it was incumbent upon the Judge to warn the jury of the three specific matters set out in s 124(3).
Unfortunately, the Judge did not direct the jury in terms of s 124(3). Rather, he directed the jury in these terms:
[26]     There is no dispute that Mr McLaughlin told lies to the police on Thursday 10 November 2011. He admitted as much yesterday. He told Detective Olds that he had not been into Barrington Street, or at least anywhere near number 63 Barrington Street, on that day. He had not been into the house and that he knew nothing of the arson or anything else of that kind. But, of course, for the first time yesterday you heard a completely different account from him, consistent with his pleas of guilty to the burglary and arson at the commencement of the trial. It was he who had gone in on two occasions that day and was responsible for the theft of so many items of property and for setting fire to the house.
[27]     It is for you to consider and weigh the significance of this about face. Why did he lie on 10 November? Particularly when he had been told of Jade’s death at the outset of that interview. Could his lying be consistent, as Ms Sewell argued, with a desire to avoid accepting responsibility for the burglary and the arson, even though he had been told of Jade’s death? Or, is it the case that he just could not face discussing the truth concerning his real actions on that day extending to the killing of this 13 year old?
[28]     It is for you to judge. People lie for various reasons and it is for you to judge the significance of what he had to say on this occasion about this serious incident. One thing, I guess, is clear, and that is his credibility is tarnished as a result because he had every opportunity that night to explain himself, but declined to do so, declined to do so when given further opportunities by the detective as the police unearthed increasing information which revealed his involvement in, particularly, the burglary.
We address later the Judge’s reference to Mr McLaughlin’s failure to take advantage of further opportunities to explain himself. For present purposes, it is clear that the Judge did not direct the jury in terms of s 124(3)(c) that they should not necessarily conclude that Mr McLaughlin must be guilty just because he had lied. Given Mr McLaughlin’s admission that he had lied and the emphasis placed on this by the prosecutor, we are satisfied that the failure to comply with s 124(3)(c) had the potential to give rise to a miscarriage of justice. The real question is whether, considered in the whole context of the trial, there was a material risk of miscarriage.

Was there a material risk of miscarriage?

For the reasons that follow, we are satisfied that the nature of the misdirection in the context of an overwhelming Crown case was not such as to give rise to any material risk of miscarriage.
The first point to make is that the Judge set out Mr McLaughlin’s explanation for his admitted lies when interviewed by the police. This had also been elaborated upon by his trial counsel in her closing address. Second, the Judge was entitled to suggest to the jury that Mr McLaughlin’s credibility was tarnished as a result of the lies. Third, the Judge could have gone further and specifically directed the jury that it was open to them to take into account the lies told as circumstantial evidence of a consciousness of guilt which was capable of supporting the Crown case. Given the blatant and fundamental nature of the lies, it was entirely open to the jury to view Mr McLaughlin’s lies in this light. Fourth, all that was missing was the mandatory direction that the jury should not necessarily conclude that Mr McLaughlin was guilty just because he had told lies. The Judge directed the jury that people lie for various reasons and invited the jury to consider why Mr McLaughlin had lied. It was implicit in this direction that the lie could only be significant if the jury accepted the Crown’s argument as to why Mr McLaughlin lied.
Finally, as we now discuss, the Crown case was so substantial that any potential risk of miscarriage of justice can safely be disregarded.
The facts and circumstances supporting the Crown case can be usefully summarised in the form of a chronology of events:[9]
[9]The Crown accepts that where specific times are established by CCTV they may be inaccurate to a minor degree due to technical issues but any discrepancies are not material.
(a)Mr McLaughlin had been in a relationship with Mrs Bayliss until shortly before the date of Jade’s death. There was evidence that the termination of the relationship was acrimonious and that Mrs Bayliss had warned Mr McLaughlin to stay away from the property.
(b)Mr McLaughlin was familiar with Mrs Bayliss’ home, its layout and contents. He had visited the property on 7 November 2011, three days before Jade’s death. He and Jade had a conversation on the doorstep but Mr McLaughlin did not go into the house on that occasion. Jade informed her mother of this visit. Mrs Bayliss warned Mr McLaughlin to stay away.
(c)On 10 November 2011 Mr McLaughlin’s distinctive motor vehicle was captured by CCTV cameras mounted on buses travelling along the street near the Bayliss home. This occurred on several occasions between 7.54 am and 10.24 am. The Crown case was that Mr McLaughlin was watching the Bayliss home waiting until he believed the coast was clear to enter the property. Mrs Bayliss had left for work at 7.15 am and her other two children had left for school no later than 8.20 am.
(d)A witness observed Mr McLaughlin’s motor vehicle on the move in the street in which the home was situated at 10.25 am and, at 10.37 am, Mr McLaughlin’s image was captured on CCTV at the Challenge Milton Street service station not far away.
(e)The Crown case was that Mr McLaughlin entered the Bayliss home between 10.25 and 10.37 am. He admitted having entered the property and stolen items from it. It had been necessary for him to make a number of trips into and out of the house in order to obtain the goods, some of which were of substantial size such as television sets which the Crown alleged had been taken. One of these was in Jade’s bedroom. Mr McLaughlin admitted making quite a lot of noise during this process. The Crown case was that Jade was in the house and that she confronted Mr McLaughlin. A struggle took place and she was strangled to death. The evidence was that this would have taken only a matter of seconds.
(f)There was evidence from Mrs Bayliss that Jade’s wallet contained three $20 notes and $12 in change. When Mr McLaughlin went to the Challenge Milton Street service station at 10.37 am, he paid the attendant $60 in cash in the form of three $20 notes. The Crown alleged that this money was stolen from Jade, her empty wallet being located later that day as we note below. The Crown also alleged he took her cell phone.
(g)After leaving the service station, Mr McLaughlin went to a pawn shop in Christchurch, arriving at 10.48 am. The owner of the pawn shop knew Mr McLaughlin. He sold the two televisions and other items and received $415 in cash. He then went to another pawn shop arriving at 11.34 am and sold other items stolen from Mrs Bayliss’ home for $200 in cash. He used the cash to pay his landlord $500 for rent between 11.50 am and 12.20 pm.
(h)Between 12.13 pm and 12.25 pm Mr McLaughlin was at the Riccarton Mall. He went there to purchase remote controls for a television and a charger for a gaming console taken from the Bayliss home. Jade’s wallet (later identified by Mrs Bayliss) was found by a member of the public in the mall car park near where Mr McLaughlin had parked his car when purchasing these items. No cash was found in the wallet but items were found that identified it as belonging to Armed with the items he had purchased from the mall, Mr McLaughlin returned to the second pawn shop. He was there between 12.44 pm and 12.50 pm, and was paid $250 for a television and gaming console combined with the items he had purchased.
(j)Mr McLaughlin’s next step was to purchase at a service station $20 worth of fuel (9.6 litres), a lighter and some other items in cash. Again, his image was captured on CCTV shortly before 1 pm.
(k)Mr McLaughlin’s vehicle was then seen in the street near the Bayliss home shortly after 1 pm. Mr McLaughlin admitted that he entered the Bayliss home at that time, spread petrol around in a number of rooms and set fire to the premises. A witness observed smoke from the house and dialled 111 at 1.24 pm. The Crown case was that Mr McLaughlin also stole further items at that time including a bicycle and a lawn mower which he sold at a pawn shop for $650. The evidence established that Mr McLaughlin arrived at the pawn shop for this purpose at approximately 1.40 pm.
(l)Later in the afternoon, at 2.41 pm, Mr McLaughlin’s vehicle was seen heading to McLeans Island where the police later found other items belonging to Mrs Bayliss had been dumped. These included passports stolen from the Bayliss house.
The Crown called evidence from two witnesses employed by Greenacres who were undertaking gardening work at the Bayliss home that day at Mrs Bayliss’ request. The unchallenged evidence was that they arrived at the property at about 10.45 am and left about 12.47 pm. They parked their vehicle and a trailer in the driveway at the front of the house. The vehicle was plainly labelled with the Greenacres logo. The men worked around the back of the property but loaded sacks of rubbish into the trailer at the front by moving them past the side of the house. Mr McLaughlin’s trial counsel did not challenge the evidence of these witnesses who said they did not enter the house.
The Crown case was that Mr McLaughlin entered the house between 10.24 am and 10.37 am and again between 1 pm (or soon after) and 1.24 pm when the smoke was observed coming from the house. Mr McLaughlin had been observing the property since 7.54 am that day and did not give evidence of seeing anyone else at the property before he entered it. If anyone else was the killer, that person was unlikely to have entered the property while the Greenacres vehicle was parked in the driveway between 10.45 am and 12.47 pm. It followed that any other assailant must have entered the property either between a time shortly after 10.30 am and 10.45 am[10] or between 12.47 pm and a few minutes after 1pm.[11]
[10]Between the time Mr McLaughlin left and the Greenacres men arrived.
[11]Between the time the Greenacres men left and Mr McLaughlin returned.

Since Mr McLaughlin admitted entering the house around these times in order to steal property and then setting fire to the house, it was highly improbable that anyone else would have entered within the narrow time periods available and for the sole purpose of killing There was no evidence this did occur or that anyone else might have been the assailant.[12] Rather, the Crown’s entirely plausible proposition was that Mr McLaughlin unexpectedly encountered Jade in the course of carrying out the burglary and killed her to avoid detection. He then returned to the property to take further items and set fire to it in order to cover up his crimes.
[12]Mr Lithgow accepted that the possibility that Mr Sweeney was the killer was excluded on the evidence and, as noted earlier, it was not suggested the Greenacres men were responsible.
Against the weight of Crown evidence, Mr McLaughlin’s evidence that he did not see Jade and did not kill her lacks credibility. It is not in dispute that Jade was home ill that day and there was no evidence she went out during the day at the time of Mr McLaughlin’s admitted visits, only to return when he was not there to be killed by an unknown assailant. Mrs Bayliss’ evidence was that Jade was wearing “man pants” which she would only wear inside the house. She was wearing these when her body was located by members of the fire service. The Crown invited the jury to conclude it was very unlikely Jade would have left the house in other clothes more suitable for the street and then changed back into her “man pants” when she returned. The Crown also relied on Mrs Bayliss’ evidence that Jade did not contact her during the day as she would almost certainly have done if Mr McLaughlin had burgled the house and left Jade alive.
We are satisfied there is no material risk of a miscarriage of justice arising from the Judge’s misdirection on this point.

Failure to direct in accordance with s 32 of the Evidence Act

Mr Lithgow submitted that s 32 of the Evidence Act was engaged in relation to Mr McLaughlin’s first statement to the police in which he denied having visited the Bayliss home on the day in question, and also in subsequent interviews by the police when he declined to make any further comment in the light of further materials becoming available during the police investigation.
Section 32 provides:
32Fact-finder not to be invited to infer guilt from defendant’s silence before trial
(1)This section applies to a criminal proceeding in which it appears that the defendant failed—
(a)to answer a question put, or respond to a statement made, to the defendant in the course of investigative questioning before the trial; or
(b)to disclose a defence before trial.
(2) If subsection (1) applies,—
(a)no person may invite the fact-finder to draw an inference that the defendant is guilty from a failure of the kind described in subsection (1); and
(b)if the proceeding is with a jury, the Judge must direct the jury that it may not draw that inference from a failure of that kind.
(3)This section does not apply if the fact that the defendant did not answer a question put, or respond to a statement made, before the trial is a fact required to be proved in the proceeding.
We have already set out[13] the Judge’s directions when he first addressed the jury on this topic during the summing-up. After the summing-up, the prosecutor raised the s 32 issue with the Judge. She referred particularly to the subsequent interviews when Mr McLaughlin had exercised his right to silence. She invited the Judge to consider whether a direction in terms of s 32(2)(b) was required to the effect that the jury may not draw an inference of guilt from Mr McLaughlin’s failure to answer questions when exercising his right to silence.
[13]At [46] above.
The Judge accepted the point raised by the prosecutor and gave a further direction to the jury in these terms:
The first concerns the interviews with Mr McLaughlin. I discussed with you what he’d said in those and whether or not – what weight if any you were to give to the fact that he had not at that interview on the 10^th of November revealed his visits to Barrington Street and I then added that nor had he revealed it subsequently when Mr Olds spoke to him on other days as the police investigation unfolded. And I’ve just been asked to remind you of a fundamental legal principle and that is – as you are aware I think because you’ve heard it done and seen it done on tele – on screen, he was under no obligation to answer further questions about that when spoken to on subsequent days as the police unearthed more information, because anybody who is a suspect or has actually been in this instance arrested has a right to remain silent if the police seek to ask them questions and that’s why in this instance we didn’t – didn’t even have any evidence as to what was asked on any subsequent occasion because Mr McLaughlin was entitled to maintain silence and apparently did so. So I’m just explaining that to you. Nothing can be read into his silence, because it’s his legal right.
In the light of this further direction, Mr Lithgow accepted that the Judge had correctly directed the jury in relation to the subsequent interviews but submitted he ought to have given the same direction in respect of the first interview. Mr Lithgow relied on the judgments of this Court in McNaughton v R[14] and Blair v R.[15]

Discussion

[14]McNaughton v R [2013] NZCA 657, [2014] 2 NZLR 467.

[15]Blair v R [2012] NZCA 62.

We are not persuaded that s 32 was engaged in respect of the first statement made to the police and we are satisfied that no direction in terms of s 32(2)(b) was required. Mr McLaughlin did not fail to answer any question put to him or to respond to any statement made to him in the course of that interview. Rather, by expressly denying that he went to the Bayliss’ home on 10 November, he told an admitted lie. Nor did Mr McLaughlin fail to disclose a defence which he raised later at trial.[16] Rather, Mr McLaughlin admitted two of the allegations (burglary and arson) but continued to deny he was responsible for Jade’s death.
[16]As occurred in McNaughton, above n 14, at [13] and [18] where the appellant raised self-defence for the first time at trial and in Blair, above n 15, at [34] where the Judge commented adversely where the appellant had offered no comment when interviewed by the police but raised a defence of mistaken identity at trial.
To require the Judge to direct the jury that they may not infer guilt in circumstances such as the present would be the complete antithesis of the direction a Judge would otherwise be entitled to give where a defendant has lied to the police. As this Court noted in McNaughton the dominant purpose of s 32 is to protect a defendant from any adverse comment and prejudice where he or she exercises his or her right to silence.[17] Section 32 is not intended to protect a defendant who lies when interviewed by the police.
[17]McNaughton, above n 14, at [15].
This ground of appeal is rejected.

Unfair summing-up

Mr Lithgow submitted that the summing-up by the trial Judge was unfair. The alleged defects in the Judge’s directions concerning the DNA evidence were a prominent part of Mr Lithgow’s argument. We have already dealt with this point and rejected it. Mr Lithgow accepted a judge is not obliged to strain to achieve balance and that, in many cases, a Judge will necessarily spend more time addressing the Crown case since the Crown carries the onus of proof and will commonly call most, if not all, of the evidence adduced at trial. But Mr Lithgow submitted a summing-up was unfair if it failed to point out obvious flaws in the Crown case, failed to properly address the defence case or unfairly undermined it.
Mr Lithgow identified two weaknesses in the Crown case. The first was the DNA evidence which we have already considered. The second was Mr McLaughlin’s denial that he had seen Jade on the day and his denial that he had reason to kill her. The Judge summarised the submissions made on this point by Mr McLaughlin’s trial counsel but Mr Lithgow’s complaint is that the Judge then undermined that submission by referring to the Crown’s opposing submission on the point. And, Mr Lithgow said, the Judge then “improved upon” the Crown case by inviting the jury to consider whether financial pressures on Mr McLaughlin may have been at play.
Mr Lithgow was also critical of the way the Judge dealt with defence counsel’s submission that Mr McLaughlin’s return to set fire to the house was not incriminating because he knew from a discussion with Mr Sweeney that the amount of petrol he had spread would not have caused the house to be destroyed. Rather, he was simply intending to damage the house to frighten Mrs Bayliss and cause or hasten her return to the United Kingdom. After referring to this submission, the Judge drew the jury’s attention to the evidence of an expert witness (Mr Reid) concerning the characteristics of petrol and the way that burns were spread on carpet. The Judge then added:
I do not know how that evidence impressed you, but is it common understanding that petrol spread in that way would have a much more disastrous outcome for a property?

Discussion

We accept Mr Lithgow’s point that a trial judge in summing up to a jury is obliged to fairly put the Crown and defence cases and that, in dealing with the defence case, should be careful not to unfairly undermine the defence raised. However, considering the summing-up as a whole, we are not persuaded it was unfair for all or any of the reasons advanced by Mr Lithgow. Rather, faced with an overwhelming Crown case, defence counsel made all the points that could reasonably be made in Mr McLaughlin’s defence and the Judge properly put to the jury a fair summary of those points. As Mr Lithgow himself acknowledged, a judge is not obliged simply to repeat the defence submissions without comment so long as it does not usurp the proper function of the jury as the fact finder.
Here the Judge drew attention to defence counsel’s submissions that Mr McLaughlin had generally had a good relationship with the family; dealt with Mr McLaughlin’s explanations for telling a lie at the police interview; covered a submission that Mr McLaughlin’s conduct during the day such as disposing of the property where he must have known he would be photographed on CCTV was not consistent with a person who had been responsible for Jade’s death; pointed to the absence of any obvious motive for killing Jade; summarised a submission that the Crown evidence was unclear as to whether the door to Jade’s bedroom was open and that it would not have been obvious to Mr McLaughlin that her body was in that room when he lit the fire; repeated defence counsel’s point that it was very unlikely within the timeframes that Mr McLaughlin would have had time to carry out the murder as well as the burglary at the same time; and dealt with the submissions made on Mr McLaughlin’s behalf about the DNA evidence as earlier noted.
Viewed overall, we are not persuaded the summing-up was unfair. This ground of appeal fails.

Result

For the reasons given, the appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established