R v Dixon Ca443/02

[2003] NZCA 403

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 443/02

THE QUEEN

v

MILES ROBERT DIXON

Hearing:         28 May 2003

Coram:McGrath J Doogue J Panckhurst J

Appearances: JHM Eaton for Appellant

F E Guy for Crown

Judgment:

JUDGMENT OF THE COURT DELIVERED BY DOOGUE J

Introduction

[1]      This is an appeal against conviction for attempted arson and obtaining by false pretences following a jury trial in the District Court at Christchurch.  There is no appeal against sentence.

[2]      The appellant alleges a miscarriage of justice upon the grounds:

1.That an unfair trial resulted from the manner in which an alibi notice prepared by junior counsel at the trial disadvantaged

him.

R V MILES ROBERT DIXON CA CA 443/02 []

2.The summing-up by the trial Judge to the jury erred in relation to:

(a)  lies and the consequence of a false alibi notice and

(b)  circumstantial evidence and motive.

Background

[3]      There was no dispute that someone set fire to curtains in a residential rental property owned by the appellant in Somerfield Street, Christchurch on 2 February

2001.   It was this event which led to the appellant being charged with attempted arson of his own property.  There was a subsequent claim by the appellant against his insurance company in respect of the requisite repairs to his property which led to the second charge against him of obtaining by false pretences, as he claimed that he was not responsible for setting fire to the curtains in the property.

[4]      As is common enough in arson cases the Crown case against the appellant was a circumstantial one.  The critical evidence against the appellant was that of two of his immediate neighbours, who knew the appellant and his vehicle with a distinctive personalised number plate “DIXON”.  The husband and wife neighbours spoke  of  individually  viewing,  from  different  rooms  of  their  residence,  the appellant’s vehicle exit from his driveway towards the street very shortly before they heard an alarm at the appellant’s house.

[5]      The male neighbour had a medical appointment.  He thought the alarm was a security alarm and asked his wife to telephone the appellant.  Later that day he had a telephone call from the appellant.  In the course of the ensuing conversation he told the appellant he had advised the police that he had seen the appellant’s vehicle at his property.  The appellant told the witness that he was mistaken and said he had not been there that day but had been there the day before.  The witness was certain that he had seen the appellant’s vehicle.  The appellant told him “not to worry about it, that he had been with a client in town.”

[6]      The female neighbour gave evidence that after her husband departed she went to the appellant’s house to check as the alarm was still going.   She looked in a

window and could see smoke.  As a result she immediately went back to her home and telephoned the appellant on his cell phone.  She said that the appellant answered and that she told him his alarm was ringing and that there was smoke in the dining room.  She said that he asked her to have another look and that he would telephone her in five minutes.  She did go back to the appellant’s home and found the smoke was  thicker.    She  ran  back  to  her  own  home  and  immediately  telephoned  the appellant again.  She said she told the appellant there was a lot of smoke and that she thought there was something burning.  She said that the appellant replied that he was not far away and would be there in five or ten minutes.

[7]      The female neighbour then waited for the appellant who arrived in less than ten  minutes  and  had  a  young  woman  with  him.    The  fire  brigade  was  then telephoned.

[8]      The Crown case relied in addition on evidence of the timings of various telephone conversations and other matters.  Such evidence supported the proposition that the appellant had the opportunity to have lit the fire.  One of those witnesses was the young woman who was in the appellant’s vehicle when it went to his property after the telephone conversations already narrated.  She gave evidence which in part supported the evidence of the female neighbour but was in part in conflict with it as to the nature of the conversation between the female neighbour and the appellant. Both this witness and the appellant  accepted the female neighbour spoke  about hearing an alarm but denied that the female neighbour had said anything about there being smoke in the appellant's house.   The Crown case was that as the female neighbour had no other reason to be calling the appellant she had to be correct on that issue.  The alarm was not a burglar alarm but a smoke alarm.

[9]      There was no evidence of a forced entry to the appellant’s property so that any person who had lit the fire had to have known of the combination for the particular lock which gave entry or had the necessary garage door opener to the garage in the property.  The appellant had the means of access through both of those methods.

[10]     Evidence as to cell phone conversations and cell phone transmitters placed the appellant in the vicinity at the time when the fire had to be lit.  The appellant in statements indicated that he knew a further person had been to the address that day. That  was  consistent  with  his  vehicle  having  been  at  the  property  at  the  time mentioned by the neighbours as upon their evidence the vehicle of the other person had been in the driveway just a few minutes before the appellant’s vehicle.

[11]     The Crown case also relied upon the failure of the appellant to mention to the officer in charge when questioned by him on 19 March 2001 that at about the time when the fire was lit he was at another property in the general vicinity.  The officer in charge had asked him where he was prior to uplifting his female companion.  He had mentioned a different part of Christchurch.   The appellant had also failed to mention that he had been in the vicinity of his property, according to the record of his cell phone calls, when asked what his movements were in the half hour prior to receiving a telephone call from the female neighbour.

[12]     What had happened after the appellant gave the officer in charge a statement on 19 March 2001 was critical to the appellant’s case.   The appellant engaged a private investigator.  On 18 April 2001 the appellant went with that investigator and retraced the steps which the appellant said he took on the day.  Amongst those steps was a call to a street, Deloraine, in the general vicinity of the appellant’s property.  It is not clear whether by that time the appellant was aware that the telephone calls relating to his cell phone had been traced as emanating from that area and not from the other side of town which was where he had told the officer in charge that he had come from at about the time the fire was lit.  It is certainly clear from an affidavit filed in this Court by junior counsel for the appellant that within a few days of 18

April 2001 the investigator had told junior counsel consequent upon a discussion with the officer in charge of the case that cell phone triangulation put the appellant in the area of his property at the relevant time.

[13]     The appellant at all times denied any involvement in the attempted arson.  He called  a  body  of  evidence,  including  the  private  investigator,  to  endeavour  to establish that it was unlikely or impossible that he could have been the person who had lit the fire.   He had the evidence of the young woman  accompanying him

supportive of his evidence as to what had passed in the telephone conversations between him and his female neighbour.  He had an apparent lack of any motive for attempting to set fire to his property.

[14]     The issue of motive loomed large at the trial and there was evidence for the appellant which suggested that a prior tenant of the property with whom he was having a dispute over a bond might have had a motive for lighting the fire and the opportunity to light it.  As he had arranged to re-lease the premises from a very early date after the lighting of the fire the appellant claimed it was contrary to his interests to have lit the fire in any event.  The appellant himself made good the damage in the first  instance  and  so  far  as  the  direct  costs  were  concerned  at  that  time  only something like $700 was involved.

[15]     On 15 October 2001 junior  counsel for the appellant,  who  was  also  the solicitor for the appellant, gave an alibi notice on behalf of the appellant, which reflected the content of the appellant’s statement to the police on 19 March 2001.  It did not refer to the appellant going to an address in Deloraine Street at about the time of the fire.   Although the appellant had offered this explanation to the private investigator and his solicitor in April 2001 the police were at no time informed of it prior to trial.  It is the evidence of the appellant’s solicitor, however, that he did not consult the appellant in respect of this alibi notice and that his client was unaware of it until the trial.

The trial

[16]     At the trial the cases for the Crown and the appellant were put before the jury in much the way already outlined.  The appellant gave evidence.  During the course of his evidence he referred to his alleged visit to the Deloraine Street address.  He gave an explanation for not speaking of it previously as it involved a call to a hairdresser for tapes for a hair piece which he said caused him embarrassment to talk about.    He  was  understandably cross-examined  on  the  alibi  notice.    His  senior counsel, extremely experienced and skilled in criminal trials, immediately objected to such cross-examination but upon discussion in the absence of the jury appreciated that the law permitted such cross-examination and it continued.

[17]     The appellant in answer to the questions relating to the alibi notice said that it was a “legal letter” and acknowledged that it had no reference to his visiting Deloraine Street.  He also acknowledged that his statement to the officer in charge had been that before he picked up his female companion he was at his Shirley office on the other side of town.   He accepted that the Deloraine Street address and his Somerfield Street house were relatively close together.   He denied that his female neighbour had ever mentioned smoke to him.

[18]     The private investigator gave evidence of the routes that he took with the appellant including that which was taken on 18 April 2001 involving Deloraine Street.

[19]     The summing-up followed an orthodox format and except to the extent which is relevant to the appellant’s submissions it is unnecessary to refer to it in any detail. It followed a full and lengthy address from the experienced senior counsel for the appellant which we were told took approximately ninety minutes.  The summing-up emphasised in particular the need for the jury to take care when the Crown case relied  substantially  on  identification  evidence,  here  relating  to  the  appellant’s vehicle.  It gave directions on all other matters clearly in issue and gave fairly equal representation to the  cases  for  the  Crown  and  the  accused.    At  the  end  of  the summing-up counsel were given the opportunity to raise with the trial Judge any matter not covered in the summing-up and no request was made of him following such invitation.

First point of appeal – the alibi notice

[20]     It was common ground that under s367A Crimes Act 1961 an alibi notice is deemed to be given with the authority of the accused unless the contrary is proved. The alibi notice is binding on the appellant if it is made by his authorised legal representative:  R v Harris [1998] 1 NZLR 405 and s367(5).

[21]   For the appellant it is submitted that, without any allegation of any incompetence on the part of trial counsel, the appellant’s solicitor and junior trial counsel erred in:

(a)     Giving a notice of alibi without discussing it with the appellant.

(b)   Giving an incomplete notice of alibi that failed to record the instructions by the appellant to his counsel as to his movements at the relevant time if they were required under the provisions of s367A(1).

(c)    Failing to advise the appellant as to the existence of the notice of alibi  and  its  contents  prior  to  calling  the  appellant  to  give evidence.

(d)    Failing to  adduce  evidence  to  rebut  the  deeming  provision  of s367A(5) referred to above.

[22]     The submissions are made against the background that the appellant was unaware of the existence of the notice until he was cross-examined upon it.  As it was contrary to his explanation of travelling via Deloraine Street it is also submitted, questionably, that the explanation of travelling via Deloraine Street was prior to the appellant having knowledge of the cell phone transmitter sites.

[23]     It is submitted that regardless of how the alibi notice came about it was in the circumstances unfair to the appellant in the context of the trial because:

1.   It  enabled  the  Crown  to  cross-examine  the  appellant  upon  it without him being aware of it.   We see little in this point as he explained it as a “legal letter” and he was not subjected to any in- depth cross-examination upon the notice.

2.   It is said the Crown placed some reliance upon the alibi notice in counsel’s closing address.  The Judge in his summing-up recorded that the Crown submitted that the accused’s explanation in his evidence about the Deloraine Street detour did not accord with what he said in his statement to the officer in charge on 19 March

2001 when he was asked to recall his movements during the half hour prior to the call from his female neighbour and “further that it

does not accord with what his solicitor set out in the alibi notice which was sent to the Crown solicitor.”

3.   It is said that despite the Judge referring to that part of the Crown case in  his  summing-up there is  no  reference  whatever  in  the summing-up to the evidence of the private investigator as to the route retraced on 18 April 2001 which included the Deloraine Street detour.

4.   It  is  submitted  that  the  use  of  the  notice  of  alibi  created illegitimate   prejudice   outweighing   the   probative   effect   of admitting it.

[24]     In summary it was submitted for the appellant that there was a real risk that the jury took the view that in the absence of any satisfactory explanation for having made a cell phone call from the vicinity of Somerfield Street at or about the time of the fire, the appellant lacked credibility and that his neighbours could not reasonably have been mistaken.  Further it is submitted that the fact that the notice of alibi was inaccurate reflected adversely on the appellant's  credibility and  was  accordingly consistent with his guilt.  It is submitted that such a conclusion was a consequence of matters beyond the appellant’s control and indeed primarily the making of his legal advisors.

[25]     There is no question that it was open to the Crown to cross-examine the accused on the details of his alibi notice.  That was entirely understandable in the present case when the true alibi did not present itself until trial.  Until trial the Crown had no notice that the appellant’s case was that at the time the fire was lit he was visiting Deloraine Street in the vicinity of his property and not in Shirley as he had told the officer in charge.

[26]     As we read the summing-up in context it is clear that the emphasis for the Crown was not on the notice of alibi but on the statement that the appellant made to the officer in charge on 19 March 2001 when he said he was in Shirley.  When the Judge directed the jury about lies that was the statement to which he referred.

Although a separate criticism is made of the failure of the Judge to direct in respect of a false alibi notice it is noteworthy that the Judge at no time emphasises the alibi notice or any falsity in respect of it.   He touched upon it to the limited extent mentioned in respect of the Crown case but that was all.  When he was directing the jury as to the alibi advanced by the appellant that when the fire was set he was in Deloraine Street or going to or from there he accurately directed the jury as to the consequences if they rejected the appellant’s evidence in support of that alibi.  He made it clear that that of itself did not mean that the jury should find the appellant guilty.

[27]     In other words the summing-up ignored the technicalities of a false alibi notice and concentrated upon the substance of the appellant’s case and in that respect put it very fairly.   It is true that the Judge did not balance the Crown’s limited reliance upon the alibi notice by directing the jury in respect of the evidence of the private investigator.  We do not know, however, precisely how either counsel, and in particular counsel for the appellant at trial, addressed this issue.  We are not prepared to infer that the experienced senior counsel for the appellant failed to use the private investigator’s evidence in the manner best designed to benefit the appellant’s case. The Judge’s summing-up was necessarily a truncated version of the submissions for the Crown and the appellant.  As already mentioned it placed the emphasis on the statement made by the appellant to the officer in charge in March 2001 with very little emphasis on the alibi notice.

[28]     In any event we are not persuaded that the appellant has been disadvantaged by the steps taken by junior counsel.  The appellant was permitted to give evidence as to his being in Deloraine Street, or going to or from it, without there being any amended notice of alibi or prior advice to the police that that was his explanation. No issue seems to have been taken about that.  Thus he had the advantage at trial of being  able to  advance the  alibi  which  lay at  the  heart  of  his  case  of  being  in Deloraine Street or going to or from it without the police having prior notice of that. The evidence of the private investigator gave some credibility to that explanation even although the appellant’s knowledge of the cell phone tower sites at the time that he first advanced the explanation is unknown.  If the police had prior notice of the alibi they may have been able to establish the appellant did have notice of the cell

phone sites when he first referred to Deloraine Street.  The cross-examination of the appellant  on  the  alibi  evidence  was  brief  and  was  deflected  by  the  appellant’s answers.  The appellant’s very ignorance of the alibi notice had to have assisted him in that respect.  His true alibi was emphasised to the jury and properly dealt with by the trial Judge.

[29]     We are therefore not persuaded by the appellant in respect of the first point of appeal.

Second ground of appeal – alleged misdirections by the Judge on lies and the false alibi notice

[30]     The appellant has two complaints under this head.  First it is submitted that having identified the lie of the appellant upon which the Crown relied and given the standard direction as to lies the Judge in his summing-up had failed to direct the jury as to the appellant’s explanation to the suggestion he had lied.   It is said that this error is compounded in that when referring to a matter in respect of which the appellant said a Crown witness had lied, the Judge had read to the jury an extract of the evidence relied upon by the Crown.   He had then invited the jury to consider whether the appellant was correct to describe the particular witness as lying to the officer in charge.

[31]     We see nothing in this point whatever.  The Crown case did rely in part upon the appellant’s admitted omission in his statement to the officer in charge on 19

March 2001 as to where he had been in the half hour prior to his conversations with his female neighbour.  It was thus understandable that the Judge had identified what the Crown said was a lie before giving the standard direction as to lies.  It is neither usual nor necessary for the Judge to go on to give the competing cases in respect of any lie relied upon by the Crown at that time.   In this case as in most others the competing cases in respect of this and other factual issues between the parties were dealt with in the summaries of the cases for the Crown and the appellant.

[32]     It is true that the trial Judge went on to deal specifically but shortly with a lie alleged by the appellant and dealt then and there with a short extract of the evidence

relevant to it.   That was understandable as it is reasonably evident the point must have arisen out of counsel for the appellant’s final address.  It was not a point central to the Crown case and in the context of the trial as a whole it was far simpler for it to be dealt with in the manner in which the Judge did deal with it.

[33]     On neither of these issues is it suggested that the Judge was inaccurate in what he said to the jury.   On both of the issues it is clear in the context of the summing-up as a whole that the appellant’s case was fairly put.

[34]     The second complaint of the appellant under this head is that the Judge in his summing-up left the jury with no guidance at all as to how they might properly treat the allegation that the notice of alibi was false by omission.  It is submitted that the jury were left to draw their own conclusions as to what consequence this might have in terms of the issues in dispute in the trial.  It is further submitted that the jury may well have resolved that the provision of an incomplete alibi notice went further than reflecting adversely on the appellant’s evidence and in fact provided strong support for the Crown case that the appellant was guilty.  It was accordingly submitted that the Judge should have given a specific direction as to the use that the jury could make of the omission in the alibi notice in the same way as he had given a direction as to lies.

[35]     We do  not  doubt  for  one  moment  that  in  some  cases  where  the  Crown specifically relies upon a false alibi notice an appropriate direction similar to that in relation to lies is required.  That is a necessary corollary of the Crown’s ability to use the false alibi notice as part of its case:  see R v Hines (No. 2) [1998] 3 NZLR 261.

[36]     However, in this case the omission upon which the Crown relied in the false alibi notice was exactly the same point as the lie upon which the Crown relied in respect of the appellant’s statement to the officer in charge.   The jury could have been left in no doubt that that lie could not of itself lead to a determination of guilt but went solely to credibility.  With the benefit of hindsight it can be said that the Judge may well have been able in the context of his direction on lies to have referred also to the false alibi notice.  However that would hardly have assisted the appellant and it would merely have emphasised in that part of the Judge’s direction when he

was dealing with legal matters that not only had the appellant lied in his statement to the officer in charge but that lie had been repeated in his alibi notice.  In the manner in which the issue was  dealt  with  at  trial  the false  alibi  notice was  effectively subsumed into the lie by the appellant in his statement to the officer in charge.  No separate issue was involved which required a separate direction by the trial Judge.  In any event when the jury had had a clear standard direction as to lies that obviously included any lie by the appellant and would have extended to the false alibi notice. As already noted the Judge gave a clear direction in appropriate form as to the consequence if the jury rejected the defence evidence supporting his true alibi.

[37]     We therefore reject both of the complaints made by the appellant under this head.

Third point of appeal – alleged misdirection on motive and circumstantial evidence

[38]     The   Judge   in   his   summing-up   gave   a   standard   direction   regarding circumstantial evidence and no complaint is made about that as such.  However the Crown submits that the Judge’s direction on motive was inadequate in the context of the case.

[39]     The direction on motive was as follows:

That leads me to say something about the question of motive.   You have heard form counsel for the accused that no reason for him to have set the fires has been demonstrated and that there has been no evidence of any sort of motive which he may have had for acting in the manner alleged.   The Crown is not obliged to prove a motive or even to point to a possible reason why the accused may have acted in the way that is alleged by the Crown.

[40]     The submission for the appellant is while there is no error in what the Judge said that it was inadequate as the issue of motive was the critical issue relied upon by the defence but that the direction appeared to be dismissive as to the importance of motive.  It is said that it could have left the jury with the understanding that motive was irrelevant.  It is submitted that the Judge was obliged to direct the jury as to the importance of motive particularly to the case of the appellant and that this was a

matter that the jury might properly have regard to in considering the various circumstantial issues that arose at trial.

[41]     The alleged lack of motive was a key part of the appellant’s case.  However in the context of the summing-up as a whole the jury could not possibly have understood from the extract from the summing-up set out above that motive was anything other than relevant.   All the Judge was doing was ensuring that the jury knew that the Crown did not have to establish a motive.  When summarising the case for  the  appellant  the  Judge  emphasised  the  appellant  counsel’s  submissions  in respect of the absence of motive.  The jury would have been left in no doubt that they were entitled to take that into account.  They had been given standard directions in respect of inferences and the application of their commonsense.  Nowhere did the Judge indicate to them that they were not entitled to take into account the alleged absence of motive.

[42]     We see nothing in the point now taken on behalf of the appellant.

General

[43]     We have thus far looked at the submissions for the appellant severally.  We would make it clear that we have also considered them collectively.  Although it was not put to us quite in this way it is clear that the appellant’s underlying complaint about the summing-up is that it lacked balance in the various ways alleged and that collectively this was unfair to the appellant and resulted in a miscarriage of justice.

[44]     We accordingly read the summing-up as a whole in the light of the various complaints for the appellant.  Read as a whole it is a balanced summing-up.  It may not have given an emphasis as favourable to the appellant’s case as the appellant may have wished but in other respects no doubt the same could be said for the Crown.   It is in the context of a trial where the appellant was represented by able senior counsel who addressed the jury at length on behalf of the appellant.  He saw no reason to ask the trial Judge to reconsider any aspect of the summing-up after it had been given.  It was inevitable that the trial Judge would not refer to every factual matter addressed by counsel.   As already noted if the trial Judge had directed in

accordance with some of the points now urged upon us it might have been more to the disadvantage of the appellant than his advantage.   It could have emphasised matters critical of him.

[45]     Essentially the trial was one of credibility in respect of the witnesses and in particular the appellant and his neighbours.   The jury were entitled to believe the appellant’s neighbours as there was substantial evidence supportive of what they said.  Equally the jury were entitled to reject the evidence of the appellant.  No error of law has been shown in respect of the summing-up.  No miscarriage of justice has been shown.

[46]     We note that neither Mr Eaton nor Ms Guy were counsel at the trial.

Result

[47]     For the reasons already given the appeal is dismissed.

Solicitors:

Crown Law Office, Wellington