R v Guild CA219/04
[2004] NZCA 343
•11 October 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA219/04
THE QUEEN
v
JESSE MICHAEL GUILD
Hearing: 27 September 2004 Coram: Hammond J
Wild J France J
Appearances: G J King for Appellant
B J Horsley for Crown Judgment: 11 October 2004
JUDGMENT OF THE COURT DELIVERED BY HAMMOND J
Introduction
[1] On 28 March 2003 there was yet another appalling road accident in which young persons were killed.
[2] It came about this way. Mr Guild and three of his friends decided to travel from Lower Hutt to Belmont. In the interests of the privacy of the families of those three friends, we will designate them V1, V2 and V3. V1 gave Mr Guild permission to drive her Mazda Familia motor vehicle. When Mr Guild reached the intersection of State Highway 2 and Grounsell Crescent, to reach his destination he was required
R V GUILD CA CA219/04 [11 October 2004]
to make a right turn at a set of traffic lights on this busy State Highway, and to cross the northbound lanes to reach Grounsell Crescent.
[3] The Crown case was that Mr Guild quite deliberately commenced that turn against a red light. A northwards heading car being driven by a Mr Sika struck the Mazda car in the passenger side.
[4] This was a very high impact collision. V1 and V2, who were sitting on the passenger side in that car, were killed. V3, who was sitting in the rear driver’s side, was injured in the crash.
[5] In the result, Mr Guild was charged with two counts of manslaughter, arising out of the deaths of V1 and V2; and recklessly operating a motor vehicle and thereby causing injury to V3 (s 36(1)(a) Land Transport Act 1998).
[6] Mr Guild stood his trial on 19-23 April 2004. He was convicted on all three counts by a jury in the trial presided over by MacKenzie J.
[7] On 14 May 2004 Mr Guild was sentenced to three and a half years imprisonment, and disqualified from driving for five years, on each of the manslaughter counts. He was sentenced to imprisonment for one year and disqualified from driving for one year on the reckless driving causing injury count. All sentences were imposed concurrently.
[8] The police had formed the view that Mr Sika had also run his red light, and had thereby contributed to this accident. He was charged with two counts of careless driving causing death, and two counts of careless driving causing injury (to Mr Guild and V3).
[9] Mr Sika defended those charges. Following a defended hearing in the summary jurisdiction, before Judge Henwood, convictions were entered. That Judge took the view that, from the time he saw the light controlling his movements turn from green to amber, Mr Sika had five seconds to slow down and stop for the
intersection. But rather than stop at that time, he chose to speed up. When he entered the intersection, the light was already red.
[10] Mr Sika was subsequently sentenced to 200 hours community work, and disqualified from driving for 12 months.
[11] Mr Sika did not appeal against his conviction. He did appeal against his sentence. That appeal has yet to be determined by the High Court.
[12] Mr Guild had appealed against his conviction in the High Court, on the day of his sentence. When he subsequently learned of the sentence actually imposed on Mr Sika, he applied for leave to appeal out of time against his sentence, on the grounds of “disparity”. The Crown did not oppose leave being granted for the appeal out of time, and that leave was granted by this Court at the hearing before us.
A broad overview of the police case
[13]The police enquiries into this accident suggested this picture.
[14] On this occasion, Mr Guild elected to make a right-hand turn at these traffic lights, thereby cutting diametrically across the flow of any on-coming traffic to what was effectively the T-junction formed with Grounsell Crescent. Further, police enquiries suggested that this turning against the light was something that Mr Guild had done on other occasions, not long before the fatal accident.
[15] The police evidence further suggested that Mr Sika had contributed to what occurred by accelerating his car into the intersection as his light changed from amber to red, instead of stopping.
[16] The police prosecutions thus proceeded on the footing that the major degree of culpability for this accident lay with Mr Guild in failing to observe a red light against him; and in turning, in defiance of that red light, across the path of on- coming vehicles, including Mr Sika’s. Mr Sika was also at fault (although to a lesser
extent) in that he sped up to cross the intersection and collided with the side of the improperly turning car being driven by Mr Guild.
The general course of evidence
[17] The Crown called numerous witnesses, including a number of eye witnesses to the accident; fire officers and ambulance workers who attended at the site; and medical personnel.
[18] The Crown also called evidence from a Dr Poulsen as to tests she conducted on Mr Guild’s blood sample, which indicated that he may have smoked a cannabis cigarette some time between one and 15 hours prior to the blood sample being taken.
[19] A systems engineer gave evidence of the traffic light phasing at the particular intersection. His evidence was confirmed by other witnesses familiar with the intersection, and was to the effect that the traffic lights at this intersection worked in three distinct phases.
[20] The default phase (phase B) consisted of a green arrow for southbound traffic, a green arrow for northbound traffic, and a green arrow for northbound traffic turning left into Grounsell Crescent. Cars exiting Grounsell Crescent onto State Highway 2 would have a red light, and the right-hand turning lane from southbound traffic leading into Grounsell Crescent would also have a red light.
[21] The next phase was phase C. If a car was at the bottom of Grounsell Crescent it would trigger phase C, which was a red light and red turning arrow for southbound traffic, a red light for northbound traffic, a green left turning arrow for northbound traffic, and a green light for traffic exiting Grounsell Crescent.
[22] The next phase in the series was phase A. This would be triggered by a car being in the right-hand turning lane of the southbound traffic. This phase would only be triggered if a car had been waiting for up to two seconds. When phase A was triggered, cars turning out of Grounsell Crescent had a red light, cars heading north bound had a red light, and a red left-hand turning arrow. The southbound
traffic would have a green light and there was a green light for the right-hand turn into Grounsell Crescent.
[23] This phasing was important. It was very important in relation to the evidence of a Mr Lewis. He had made a left-hand turn into Grounsell Crescent, heading north, and then immediately thereafter completed a U turn, and come to a halt, because he wanted to go back to Wellington. At the time of the accident, Mr Lewis said he was waiting at the bottom of Grounsell Crescent.
[24] In short, at the time of the accident, on his evidence, Mr Lewis was waiting to cross the intersection of State Highway 2 so that he could travel south again to Wellington. If his evidence was correct, then his vehicle would have triggered phase C. The next light after the red light on the northbound traffic would have been a green light for him to exit Grounsell Crescent.
[25] There was also evidence came from a Constable Drumm, who conducted the scene investigation. He was attached to the Serious Crime Investigation Unit based in Porirua. Apart from the usual scale plans, exhibits and the like, Constable Drumm was able to give evidence that, when he inspected the Mazda car which had been driven by Mr Guild, the car was still in fourth gear. This suggested that Mr Guild’s vehicle had not stopped at the lights prior to proceeding through the intersection.
[26] Constable Drumm also gave some estimates of the speed at which the two vehicles were being driven. Mr Sika’s Mitsubishi Diamante was said to have been travelling somewhere between 67 and 84 kilometres per hour when Mr Sika commenced braking. The constable’s estimate was that it was travelling at between 47 and 59 kilometres per hour at the time of impact, and that the Mazda Familia was travelling between 28 and 35 kilometres per hour.
[27] No evidence was called for the defence. An out-of-court statement made by Mr Guild was produced, in the usual way. The Crown witnesses were carefully and extensively cross-examined by Mr King, who was also counsel in this Court.
[28] Mr Guild’s statement acknowledged that he was the driver of the Mazda on this occasion; that he and his friends were going to Belmont to “pick up a CD from a mate”; he said that he started slowing down and stopped at the red light; he saw no cars travelling north towards him; that his light turned green and he commenced his turn; and he was then hit (amidships, as it were) in the middle of his turn. He said he was in first gear, and “maybe had just changed into second gear”. Mr Guild claimed he had been “stopped” for a few seconds before Mr Lewis’ four-wheel drive came to a halt at the foot of Grounsell Crescent. It was squarely put to Mr Guild by the interviewing officer that he had “purposely breached the red right turn arrow”. Mr Guild said: “No I didn’t. You’re wrong.”
[29]The interviewing officer also put these matters to Mr Guild:
Q. Have you previously breached the red light or red turn arrow at the intersection of State Highway 2 and Grounsell Crescent before?
A.I don’t know, I don’t think so. I don’t normally run red lights, I’m not like that.
Q.I put it to you that only a week earlier on the 19th of March 2003, you were witnessed by an off duty Police Officer to breach the red right turn arrow from State Highway 2 into Grounsell Crescent and drive in a manner that was dangerous. What is your reply to that?
A. No, I didn’t.
The similar fact evidence
[30] It is convenient to deal here more fully with this police concern that Mr Guild was a “serial runner” at this red light.
[31] The Crown sought to call evidence from two witnesses that, on prior occasions, and certainly a few days previously, Mr Guild had deliberately turned right across State Highway 2, at this very same intersection, when the right turning arrow was red.
[32] This prospective evidence was the subject of a pre-trial ruling by MacKenzie J (who excluded it) and a subsequent appeal to this Court (which reversed that ruling, and admitted the evidence).
[33] This Court held (CA84/04, 7 April 2004; Hammond, William Young and Chambers JJ) that:
The disputed evidence, if accepted, makes [the] proposition [that Mr Guild had turned right against a red arrow at this intersection] more likely, as it demonstrates that Mr Guild is a person who regularly uses this intersection, knows the phasing of its traffic lights, and had previously been prepared to run the risk of turning into Grounsell Crescent on a red arrow. This is not a case where the discrete evidence is general evidence of bad driving, or even running red lights at other intersections. It relates to this very intersection. The discrete conduct evidence relates to exactly the same chain of events as allegedly occurred in this case, albeit on the other occasions without any unfortunate consequences (per Chambers J at [16]).
[34] One of the two witnesses who gave the disputed similar fact evidence was Marianne Stacey, who had been a passenger in Mr Guild’s car. She was asked at trial:
Q.Would Jesse always wait until that arrow was green before making the turn [at this intersection]?
A. Not always.
Q.On how many occasions would you have been in the car with Jesse where he had gone through the intersection when the arrow was red?
A. I can’t really say. It wasn’t that often. I can recall once.
Q. You can recall once?
A. Yeah.
[35] Ms Stacey continued her evidence to the effect that, on that one occasion, Mr Guild had stopped and looked before proceeding through the red light. On that occasion there was nothing coming the other way.
[36] There then appears a passage in her evidence to which we will have occasion to return later in this judgment. Ms Stacey was asked:
Q.So, can you recall that one occasion in the van, specifically were there any other occasions that you can recall when something similar happened?
A. Um, not at those lights. (Emphasis added.)
[37] The second similar fact witness was a detective then attached to the CIB in Lower Hutt, Detective Hayden. As it so happened, he was off duty on 19 March 2003, a few days before the accident we are concerned with. He observed a brown vehicle moving into the right-hand turning lane to make a right-hand turn into Grounsell Crescent, at Belmont. The detective was himself proceeding to his home in Belmont. He was thus very familiar with this intersection.
[38] The detective claimed to have got a good look at the driver of this brown vehicle, whom he subsequently identified as Mr Guild. He said that Mr Guild was turning his head to his right out of his driver window to spit on to the road. He was 18 or 19 years old with a distinctive spiky hairdo.
[39] The detective said that although Mr Guild’s vehicle had halted at the red light, Mr Guild then made a right turn, accelerating sharply, sliding sideways with spinning wheels. In effect, Mr Guild had gone through what appears to have been a distinct gap in the northbound traffic, against a red light.
[40] The detective was sufficiently concerned by this that he intended to follow Mr Guild’s vehicle, call up the police on his cell phone and have the driver spoken to and dealt with. The detective waited until the light turned green in his favour and by the time he was able to get (lawfully) through the light he could not find the vehicle. He therefore rang the Lower Hutt Police Station to ask for a vehicle registration check to be done for him. He was subsequently advised that this vehicle was in fact registered in Mr Guild’s name.
[41] By one of life’s coincidences, on 29 March 2003, Detective Hayden was driving out of Grounsell Crescent to Belmont when he saw the crash scene. He subsequently spoke with the OIC of the case, and reported what he had seen a few days earlier.
[42] Because of its relevance to a matter we will come to later in this judgment, we note at this point that Detective Hayden was closely questioned as to whether he could have been mistaken as to his identification that Mr Guild was the driver of the brown vehicle on 19 August. He was not shaken in his assertion that Mr Guild was
the person he had seen on that day driving the vehicle through a red light at the intersection at Belmont.
The issues at trial
[43] Against this background, and on the indictment presented at trial, the central issues before the jury were:
(a)was the arrow controlling Mr Guild’s right-hand turn into Grounsell Crescent red or green at the time he made his turn; and
(b)if the jury found that he had deliberately gone through a red arrow, were his actions in making such a manoeuvre a major departure from the standard of care to be expected of a reasonable person?
[44] The defence was a straightforward one: that the relevant light was green at the time of Mr Guild’s turn; alternatively, that the evidence was such that the jury could not be sure, to the criminal standard, that the arrow was red.
[45] Plainly, the jury accepted the prosecution case that this was an unlawful turn against a red light, and it made the qualitative evaluation against Mr Guild that, in the particular circumstances, this was a major departure from the appropriate standard of care.
The grounds raised on appeal
[46] A number of grounds were raised on appeal. We think it does no injustice to the case for the appellant if we realign those grounds of appeal under three heads.
[47] First, there are certain complaints relating to the admission of the similar fact evidence, and alleged inadequate directions as to the use of that evidence.
[48] Secondly, it is said that the Judge should have declared a mistrial after a Crown witness, under cross-examination, claimed that Mr Guild was involved in the selling of cannabis as this was highly prejudicial.
[49] The third head of appeal relates to several alleged deficiencies in the summing up to the jury: that there was no direction in respect of expert opinion evidence; that the summing up was unduly biased towards the Crown case; that the defence was “inadequately put to the jury and was undermined”; and that the summing up failed to traverse “the evidence at trial”.
The issues relating to the similar fact evidence
[50] At the outset of the appeal, Mr King endeavoured to have this Court revisit the prior ruling of the permanent Court of this Court, to which we have already referred. This was inappropriate. A ruling had been given by this Court and acted upon by the trial Judge. We indicated to Mr King that that ruling (as such) would not be revisited before us.
[51] However we acknowledged that the fact that the prior ruling had been given would not preclude the issue of similar fact evidence being revisited, in certain circumstances: if the evidence as it actually came out at trial had taken a different turn from the basis on which this Court gave its ruling; or, if the ruling as given was not correctly applied by the trial Judge.
[52]Mr King endeavoured to advance his client’s cause under both those heads.
[53] As to the evidence, in relation to Ms Stacey, Mr King suggested that her evidence had (at trial) become more “vague and non-specific and dubious”. Therefore, because it was less specific than what had been before this Court on the earlier occasion, it should (now) be accorded less weight and the Judge should have directed the jury accordingly. The argument was that its probative value was therefore less, but its prejudicial effect still distinctly remained.
[54] In our view there is nothing in this point. The essence of Ms Stacey’s evidence remained as before, for the purposes for which it was sought to be advanced.
[55] Mr King’s second point was that the Judge did not adequately ensure (and this shades into a summing up point) that the jury were told that it should not apply the similar fact evidence to the second (and very significant) issue in this case of whether Mr Guild’s conduct amounted to a major departure from the reasonable standard of care. To put this another way, there was a danger that the jury might mix up the purpose for which it could have regard to the similar fact evidence, and that this was not clarified for the jury.
[56] This point too, in our view, is quite without foundation. The Judge very carefully said at paragraph 41 of his summing up:
When you are considering whether his [Mr Guild’s] actions amounted to a major departure, you must consider only his actions on the day of the accident, the 28th of March 2003. It is only those actions which can be relevant in determining whether he committed a major departure from the reasonable standard of care required. (Emphasis added.)
[57] With all due respect to Mr King, it is quite impossible to see how that could be any clearer. The Judge had himself made the very distinction urged upon us by Mr King: the similar fact evidence could go only to the likelihood of Mr Guild driving through a red arrow on 28 March. The question whether his driving through a red light, if he had in fact done so, amounted to a major departure on that particular day was to be separately considered.
[58] There was a third point in relation to the similar fact evidence. It will be recalled that Detective Hayden claimed that he had seen Mr Guild driving a brown vehicle on the prior occasion. In directing the jury on the similar fact evidence the Judge said:
You must first consider the evidence of Ms Stacey and of Mr Hayden, and decide whether you accept their evidence. In the case of Mr Hayden’s evidence, in particular, you will have to decide whether you accept his evidence that it was Mr Guild who was driving the car which he saw go through the red arrow. If you accept their evidence, or the evidence of one or other of them, then you will have to go on and consider whether that
evidence makes it more likely that Mr Guild drove through a red arrow on this occasion. You will need to consider whether the circumstances of each of those earlier occasions were sufficiently similar to those of the accident to enable you to draw that conclusion. (Emphasis added.)
[59] Mr King had no criticism of that direction as far as it went. However he submitted that, in terms of s 344D of the Crimes Act 1961, what is commonly referred to as a Turnbull ([1977] QB 224) direction should have been given. Section 344D provides that where in any proceedings before a jury “the case against the accused depends wholly or substantially on the correctness of one or more visual identifications of him” the Judge is to warn the jury of “the special need for caution before finding the accused guilty in reliance on the correctness of any such identification”. The Judge is to include the reason for the warning, to alert the jury to the possibility that a mistaken witness could be convincing, and that where there is more than one identification witness the Judge must advert to the possibility that all of them may be mistaken.
[60] The existence of this provision in our criminal code comes about because of the well-known phenomenon - long a source of concern in the law of criminal evidence - that unsafe convictions have resulted from wrong identifications.
[61] We agree with Mr Horsley that, in terms, s 344D did not apply to this instance. The case against the accused did not depend wholly or substantially on the correctness of the identification of the appellant as driver of the car on 28 March 2003. That is, the section only applies where the issue is one of the identity of the accused on the occasion charged.
[62] That is not to say that it may not be appropriate to give the substance of Turnbull type warnings even in a case where it is the circumstantial evidence or the similar fact evidence which is in question. That will necessarily depend on the facts of the particular case.
[63] That said, we are quite satisfied that there was no miscarriage of justice in the circumstances of this particular case. The incident the detective witnessed occurred only nine days before this accident. The circumstances were such that a highly experienced detective had a clear and unobstructed view of Mr Guild. The detective
was able to describe Mr Guild in detail. He subsequently picked out Mr Guild from a photo montage and there was a dock identification (although that could have been of little value in this case). The driver in question was driving Mr Guild’s car. The short point is that there is no evidential foundation of any kind before us to suggest that the detective was mistaken in this identification.
[64] We think there is also force in Mr Horsley’s submission that this point was not raised with the Judge at the conclusion of his summing up by counsel of Mr King’s experience. The point does rather have the appearance of a post-trial, make-weight appeal point.
[65] The various grounds relating to the admissibility of the similar fact evidence and the handling of it by the Court all therefore fail.
Should a mistrial have been declared?
[66] This head of appeal arises out of these circumstances. A Mr Bond was a Crown witness. He claimed to have seen Mr Guild smoking a cannabis cigarette within about an hour before the accident. Mr Guild had denied this.
[67] During Mr Bond’s cross-examination he said (in the context of a discussion about Mr Guild’s use of cannabis), “That is a lie, he might have given up smoking it but he hadn’t given up selling it” (emphasis added).
[68] Mr King is correct that the answer was not in response to a question about selling cannabis. There was then a short exchange with counsel, which ended with Mr King telling the witness to “shut up” (he says, in a vain attempt to make the witness “be quiet to prevent any further damage”).
[69] Mr King took the view that Mr Bond had “intentionally sabotaged the trial”. He made an application for a mistrial, on the footing that there was gross prejudice, that it was irreparable at that point, and that a mistrial should be granted.
[70] MacKenzie J declined to adopt that course. He gave a written ruling. The Judge took the view that the response had been given in the course of “a vigorous cross-examination and in the circumstances I do not consider it appropriate to take the extreme step of declaring a mistrial”. He said that he would give a “strong warning” in summing up.
[71] What the Judge said in his summing up, appears at paragraph 13, in these terms:
There is one further aspect of the evidence relating to cannabis upon which I must direct you. In the course of his evidence, the witness Mr Bond, in answer to questions in cross-examination, made allegations that Mr Guild had been selling cannabis. I direct you that you must completely disregard what he said about that. There is no evidence whatsoever that Mr Guild had been involved in selling cannabis. That allegation should never have been made, and there is absolutely no foundation in the evidence for it. Any such allegation is completely irrelevant to this case. You must put that completely out of your mind. You must not allow it to influence your decision in any way. You must not allow it to prejudice you against Mr Guild.
[72] Mr King is correct that Mr Bond should not have said what he did. The Crown did not lead the evidence. It was just one of those things which came out at trial.
[73] That said, the character of what was said was not as bad as sometimes emerges (for instance, that the accused has been “in prison”); and it was quite unconnected with the events which were actually before the Court for consideration. The circumstances of the utterance were not therefore as serious as arises in some cases; they were sensibly treated by the Judge (who, probably wisely, said nothing to the jury about the matter at the immediate time); and the Judge gave a very strong and specific warning in summing up which in our view appropriately dealt with the matter.
[74] As Mr Horsley, in our view correctly, remarked, to reach the view that the jury took that single observation by Mr Bond into account we would have to assume that the Judge’s specific direction was not properly observed by the jury. This Court has many times said that specific directions of that kind to a jury are to be taken as having been observed in good faith.
[75]This appeal point is also dismissed.
The complaints relating to the summing up
Direction on expert opinion evidence
[76] It was accepted that the usual, straightforward direction as to the use of expert evidence was not given in this trial. This would have advised the jury that the fact that expert evidence of a particular character had been called did not turn the trial into one of trial by experts. The jury is usually told it must still scrutinise the evidence of an expert critically, and that the expert evidence passes, along with all the other evidence, into the general pool of evidence from which it is to make its findings of fact.
[77] That said, the failure to instruct a jury as to the effect of experts giving evidence does not automatically lead to a miscarriage of justice. There is no absolute requirement to direct on the effect of expert evidence in every case (R v Flaws (1998) 16 CRNZ 216 at 219).
[78] In the time-honoured phrase, what direction is required depends on the circumstances of the particular case. If there are matters which are clearly in dispute on which an expert is giving evidence then it will be most unusual for directions as to the use of that expert evidence not to be required, and given.
[79] In this instance, what might properly be classed as expert evidence was of a very limited character. This was Dr Poulsen’s evidence of the presence of THC in the appellant’s bloodstream (indicating that he may have recently consumed cannabis). Most of Constable Drumm’s evidence was “formal” evidence (photographs, exhibits, and finding the vehicle still in fourth gear). It is correct that Constable Drumm made an assessment of the relevant speeds of the vehicles, but it was not disputed that Mr Sika had in fact sped up to endeavour to cross the intersection when he saw that the light against him was turning to red.
[80] It is also significant in this instance that, at the conclusion of the summing up, Crown counsel raised with the Judge - without at all pressing it - that perhaps something should have been added about expert evidence. The Judge is recorded as responding “I hadn’t taken the evidence as being intended as expert evidence as opposed to evidence of fact by a person who had expertise. I did not propose or consider it necessary, therefore, to give that standard direction”. Significantly, defence counsel did not at that time intervene and suggest to the Judge that a standard direction was important, or indeed that the evidence was not of the character which the Judge had ascribed to it.
[81] In our view, in the circumstances of this particular matter, a specific direction was not required. And even if we were wrong on that point, in our view no miscarriage of justice has arisen on this point in this particular instance.
Biased summing up
[82] We have to say that this was a distinctly surprising submission, given the material relied upon to support it. Mr King did not press the point in oral argument, but neither did he withdraw it. We have therefore to deal with it.
[83] The particular complaint relates to paragraph 35 of the summing up, which reads:
And the third point which I suggest might help you to decide which phase had been triggered is: what was the timing of Sergeant Lenihan’s passing the lights on his way southbound? Mr King put it to you strongly that his timing was such that, if it was phase C that was triggered, he would have been stopped by the southbound lights changing. You may think it relevant to consider whether the time he was at the intersection can be determined precisely enough to enable you to draw that conclusion. That is a matter that you will have to assess on the basis of the evidence. (Emphasis added.)
[84] It is elementary that a Judge is entitled to express a view on the facts and even express it in strong terms, provided it is made clear to the jury that it is to decide the issues of fact. What is said must be advice, and not a direction. And, a comment must be kept within proper bounds so that a Judge should not (for instance) make sarcastic or extravagant comments on the evidence. Further, a Judge is not
entitled to comment in such a way as to make the summing up as a whole unbalanced.
[85] There is absolutely nothing in this head of appeal. In the first place the observation was one the Judge was entitled to make. Common sense suggests that a precise determination of the events being described was indeed a difficult matter, and, if anything, that observation may have assisted the accused more than the prosecution. But in any event, it was a distinctly mild observation and well within the bound of factual comments that a Judge is entitled to make. It is unfortunate that the point was even taken. It had no prospect whatsoever of success. This head of appeal is dismissed.
Traversing the defence and the evidence relevant thereto
[86] We have treated these two points together because there are distinct overlaps between them.
[87] The essence of Mr King’s complaint is that the “defence” was not squarely put, and that the defence case was not adequately traversed.
[88] Mr King accepted that the Judge had “traversed, and properly identified the issues that the jury needed to consider”. However he went on to argue that the Judge “did not … traverse any of the evidence in relation to those issues” and instead decided that “counsel having reviewed the evidence at some length he did not consider it necessary for him to do likewise”.
[89] What the Judge did say in relation to the critical issue of the red light included the following:
[32] Now the evidence as to the red light. It is not in dispute that at the time of the accident the lights in the northbound lanes on State Highway 2 turned to orange and red. The Crown contends that they changed because phase C, permitting vehicles to exit from Grounsell Crescent, had been triggered by Mr Lewis’s vehicle. It is not in dispute that if phase A had been triggered Mr Guild would have had a green arrow, the southbound lanes on State Highway 2 would have remained green, and the left turn arrow from State Highway 2 into Grounsell Crescent would have been red. That’s if
phase A had been triggered. It is also not in dispute that if phase C had been triggered, that is, the phase permitting an exit from Grounsell Crescent, Mr Guild would have had a red arrow, the southbound lanes on State Highway 2 would have been red, and the left turn arrow into Grounsell Crescent would have remained green. Now both counsel have dealt with this at some length, as you would expect, so I will not review the evidence in detail, but I will make some comments. I suggest that there are a number of critical points which you may think will help you to decide which phase had been triggered. You will need to consider the evidence about them. (Emphasis added.)
[33] The first point is: was the left turn arrow into Grounsell Crescent green throughout, as the Crown contends on the basis of the evidence that Ms Feltham referred you to, or did it change to red at some stage in the short period of time with which we are concerned, as the defence contends for the reasons that, and on the basis of the evidence, that Mr King put to you?
[34] The second point which you might think may help you to decide which phase had been triggered is: which vehicle arrived first to trigger the phase? Was it, as the Crown alleges, Mr Lewis’s vehicle, or was it, as the defence alleges, Mr Guild’s vehicle? You will need to consider the evidence about that.
[35] And the third point which I suggest might help you to decide which phase had been triggered is: what was the timing of Sergeant Lenihan’s passing the lights on his way southbound? Mr King put it to you strongly that his timing was such that, if it was phase C that was triggered, he would have been stopped by the southbound lights changing. You may think it relevant to consider whether the time he was at the intersection can be determined precisely enough to enable you to draw that conclusion. That is a matter that you will have to assess on the basis of the evidence.
[36] There is considerable evidence on these and other relevant points which may enable you to reach a conclusion about which phase had been triggered. You must decide, based on that evidence, whether you are able to reach a conclusion. If you are sure that phase A had been triggered, that is the phase permitting a right turn from State Highway 2, you must find Mr Guild not guilty. If you are sure that phase C had been triggered, that is the phase permitting the exit from Grounsell Crescent, then you might conclude that Mr Guild must have passed through a red arrow, and you would then need to move on to the other issues. If you are left unsure which phase had been triggered, you must find Mr Guild not guilty, as the Crown will not have satisfied you beyond reasonable doubt.
[37] Among the items of evidence on which the Crown relies in support of its claim that Mr Guild went through a red arrow is the evidence of Ms Stacey and of ex-Constable Hayden that he had gone through a red arrow at that intersection on two previous occasions. Now I have already given you a direction as to the way in which that evidence should be dealt with by you. Your task in assessing that evidence really falls into two parts. You must first consider the evidence of Ms Stacey and of Mr Hayden, and decide whether you accept their evidence. In the case of Mr Hayden’s evidence, in particular, you will have to decide whether you accept his evidence that it was Mr Guild who was driving the car which he saw go through the red arrow. If you accept their evidence, or the evidence of one or other of them,
then you will have to go on and consider whether that evidence makes it more likely that Mr Guild drove through a red arrow on this occasion. You will need to consider whether the circumstances of each of those earlier occasions were sufficiently similar to those of the accident to enable you to draw that conclusion. If that evidence does satisfy you that it makes it more likely that Mr Guild drove through a red arrow on this occasion on 28th March, then that is something which you can place in the balance, along with all the other evidence which is relevant to whether the light was red or green. You must then decide, having regard to all of that evidence, whether you are satisfied beyond reasonable doubt that Mr Guild drove through a red arrow.
[90] Following that portion of his summing up, the Judge went on to direct the jury on the “major departure” issue, about which no complaint is made.
[91] Mr King also complained that “His Honour did not summarise the closing addresses of the defence or the Crown. Both counsel largely focussed on the evidence as it related to their respective cases. His Honour did not cover these evidential matters”.
[92] It is convenient here to deal shortly with the well-established principles relating duties of a trial Judge in summing up.
[93] First, as to the general duties of a trial Judge, these were concisely stated by Lord Goddard CJ in R v Clayton Wright (1948) 33 Cr App R 22. This passage has frequently been cited with approval by this Court.
I have often wondered whether any criminal case lasting over two or three hours has ever yet been tried by a Judge, even a Judge most experienced in criminal matters, in which it is not possible to come before this Court and raise some question of misdirection. Misdirection is said to exist not only in an active misstatement of evidence or of law but in failure to direct a jury on a point on which they ought to receive direction. But that does not mean that a Judge at the end of a long criminal trial is to go meticulously through the evidence and refer to every point which has been made in the case or recapitulate the arguments of counsel for the prosecution or for the defence and point out in respect of each argument which is used what the evidence is for or against it. The duty of the Judge in any criminal trial, or, for the matter of that, in any civil trial, is adequately and properly performed if he gives the jury an adequate direction on the law, an adequate direction upon the regard they are to have to particular evidence on such matters as accomplices or matters which require by law or practice corroboration, and if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based. He must give to the jury a fair picture of the defence, but that does not mean to say that he is to paint in the
details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else (at 28-29).
[94]In R v Fotu [1995] 3 NZLR 129 this Court said:
For many years it has been common in New Zealand for Judges summing up to juries to begin with a warning that they must decide solely on the evidence, putting out of their minds anything that they might have heard about the case outside the Court; to explain the onus of proof and the respective functions of Judge and jury; to explain the necessary legal ingredients of the offence or offences charged and to give any other necessary directions on the law; and in reviewing the evidence to summarise the contentions on each side. The order is not mandatory, but it is convenient and none of those steps can safely be omitted. None were omitted here, but they were surrounded and dominated by other matter.
New Zealand practice has generally accorded with and we cannot do better than adopt the following passage in the speech of Lord Hailsham of St Marylebone LC in R v Lawrence [1982] AC 510, 519:
It has been said before, but obviously requires to be said again. The purpose of a direction to a jury is not best achieved by a disquisition on jurisprudence or philosophy or a universally applicable circular tour round the area of law affected by the case. The search for universally applicable definitions is often productive of more obscurity than light. A direction is seldom improved and may be considerably damaged by copious recitations from the total content of a judge’s note book. A direction to a jury should be custom built to make the jury understand their task in relation to a particular case. Of course it must include references to the burden of proof and the respective roles of jury and judge. But it should also include a succinct but accurate summary of the issues of fact as to which a decision is required, a correct but concise summary of the evidence and arguments on both sides, and a correct statement of the inferences which the jury are entitled to draw from their particular conclusions about the primary facts (at 138 per Cooke P). (Emphasis added.)
[95] As to the duties of the Judge to put “the evidence” relating to the defence case before the jury, Taylor Appeals (2000) at 8-055 puts matters thus:
[The Judge’s duty] is restricted to summarising the evidence forming the basis of the defence case as opposed to repeating defence counsel’s arguments. The Judge is not required to recount the whole of the accused’s evidence, nor to top up a deficient defence case by avoiding setting out inconsistencies. The failure to refer to the defence evidence may not be fatal in a short case in which the issue of guilt or innocence can be simply and clearly stated … (at 361).
[96] Turning to this case, Mr King accepted that “the issues” for the jury to determine were concisely and accurately set out by the trial Judge. Although the Judge did not, in terms, say that the defence case was that Mr Guild did not turn against the red light, or that at least it could not be established to the criminal standard that he had done so, the whole structure of the summing up and the way in which the Judge addressed the issues made it abundantly plain that that was what that jury was confronted with. That, for instance, was the whole point of the extracts from the summing up which we have already cited at para [86] of this judgment.
[97] At the end of the day, what the complaint really came down to - it being quite apparent throughout the trial that Mr Guild’s position was that he had not turned against a red light - was a suggestion (although Mr King did not directly put it this way) that the Judge did not explain to the jury why it was that Mr Guild maintained his position.
[98] The first point to be made about that is that this was not a case in which there was any defence evidence. There was the out-of-court statement from Mr Guild that was taken in as an exhibit in the usual way and was therefore freely available to the jury. Indeed, Mr Guild had the advantage that his statement was before the jury in the jury room.
[99] The second point is that there was no dispute as to the phasing of these particular lights. The argument was simply as to which phase they were in at the relevant time. The Judge reminded the jury of Mr King’s arguments about this, although he did not recite them.
[100] The third point is that the Judge then thought it more advisable to try to assist the jury by making some comments to help it to decide “which phase had been triggered”. For instance, it was suggested that the jury pay attention to which vehicle arrived first. That was a patently helpful and common-sense suggestion. The Judge also suggested that the timing of the passage of Sergeant Lenihan on his way south- bound might be of some assistance. On that point, the Judge did comment on the submissions which had been made by Mr King, suggesting that the phasing was other than as contended for by the Crown. It was in that context that the Judge made
the observation to which we have already referred, that the precise point of timing of Sergeant Lenihan’s passage could well have been problematic.
[101] All of this was relatively straightforward and intended to assist the jury in an assessment of the evidence it had heard, against the issues which the Judge had correctly identified as for it to determine.
[102] At the end of the day, the issue in this case comes down to whether there was something in what counsel for the appellant had said which was of such distinct importance to the defence that it ought to have been specifically raised with the jury or enlarged upon by the Judge.
[103] Before us, Mr King raised two matters. The first went to the south-bound passage of Sergeant Lenihan. In our view there cannot be any complaint under this head. The proper issue was identified for the jury and Mr King’s proposition was not only directly put to the jury (in para [35] of the summing up) but the Judge indicated that it had been “strongly” put to the jury. The jury were therefore well aware of the emphasis which the defence placed on that aspect of the case.
[104] The second aspect referred to by Mr King before us related to the evidence of Jacklyn Behl. This woman was in a car following Mr Sika. She witnessed the accident, albeit at a distance. She described the light phasing as best she was able to recall it. A review of her evidence reveals that it was somewhat equivocal. Mr King used the term that she “prevaricated”. The point which Mr King had sought to develop was that if Ms Behl had seen the left turn arrow for her car change from red to green after the accident, then it was suggested that Mr Guild must have had a green right turn arrow at the time of the accident. This point was plainly made by Mr King to the jury, but it was not specifically referred to by the Judge in his summing up. However, the Judge made it plain enough that they were to have regard to all of the evidence that they had heard. It could equally be said that there was prosecution evidence which was not referred to by the Judge. Ms Behl’s evidence was problematic and may well have been put to one side by the jury, on that account.
[105] All of this said, we are in any event quite satisfied that there was no miscarriage of justice in this particular instance. The jury had all the relevant and appropriate matters squarely before them. As it transpired, this was not a particularly complicated case. The central issue here was simply whether Mr Guild had turned against a red light and the jury was aware of that issue from start to finish. The evidence going to that issue was all laid before them, and thoroughly cross- examined on. The nature of the defence case was at all times squarely before them. Mr King urged on the jury those matters that in his view could appropriately be urged. In his summing up, the Judge adopted an “issues based” approach. The summing up was structured in such a way that it set out the issues which the jury had to decide, on the basis of the evidence which it had heard. With all due respect, bearing in mind the admonition that the Judge is there to assist the jury, this was much more helpful than a colourless reading of the evidence in a relatively unstructured way.
[106] In our view, this jury knew what it had to decide, and it had squarely before it the evidence which it had to consider. In the circumstances of this particular case it was not necessary for the Judge to have gone any further than he did.
[107]This head of appeal is accordingly dismissed.
The sentence appeal
[108] The appeal against sentence is put solely on the ground that there is a disparity with the sentence imposed on Mr Sika.
[109] As to Mr Sika’s case, the maximum penalty on the charges faced by him was three years imprisonment. Both the learned District Court Judge and the High Court Judge arrived at the view that Mr Sika had played much the lesser role in the causation of this particular accident. Those two judicial officers, having heard the evidence, were essentially of the view that Mr Sika’s driving was careless; whereas Mr Guild’s was of a much higher order. MacKenzie J appropriately put it as high as that Mr Guild was “dicing with death” in his actions.
[110] Mr Sika had an unblemished criminal and traffic record. By contrast, Mr Guild had a lengthy list of traffic infringement notices, including one for exceeding 50 kilometres per hour (committed earlier on the very same day as the accident). Mr Guild’s licence - for the short time he had held it - had already been suspended on two occasions. And at the time of this accident, Mr Guild had an active charge of dangerous driving outstanding, to which he subsequently pleaded guilty. The Judge was also entitled to have regard to the fact that, on the basis of the evidence at trial, Mr Guild had driven through red lights on previous occasions.
[111] The Judge was concerned that Mr Guild did not appear to have expressed any remorse. Notwithstanding that, the High Court Judge finally decided, as he was entitled to, that he was prepared to extend a degree of mercy in consideration of Mr Guild’s age. Largely on that account, he reduced his starting point of four and a half years, to a final term of imprisonment of three and a half years. We feel obliged to comment that Mr Guild could consider himself fortunate, in the particular circumstances, to have received only the sentence which he in fact received.
[112] The principles relating to disparity are well established (see for instance R v Lawson [1982] 2 NZLR 219) and need not be further rehearsed here. The mere fact that one of two co-offenders has received a short sentence is not necessarily a ground for interference.
[113] Mr Guild and Mr Sika were not co-offenders in the normal sense of that term, and Mr Sika faced lesser charges. Given the personal circumstances of Mr Guild, his previous convictions, and the degree of his culpability, we are quite unable to see that the administration of justice would be brought into dispute or that an independent observer would consider something had gone wrong in the circumstances of this case by the disparity between these sentences.
[114] Accordingly, although leave is given to appeal against the sentence; the appeal against sentence is also dismissed.
Solicitors:
Crown Law Office, Wellington
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