R v Kevin Lional Harmer
[2003] NZCA 126
•26 June 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA324/02
CA352/02THE QUEEN
v
KEVIN LIONAL HARMER
Hearing:20 and 21 May 2003
Coram:Blanchard J
Anderson J
Glazebrook JAppearances: K N Hampton QC and G A Hair for Appellant
C A McVeigh QC and P J Shamy for Crown
Judgment:26 June 2003
JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J
Introduction
[1] In the early evening of 4 October 1999 there was an intense fire in a 1974 single cab, flat deck Landrover on a farm near Dunsandel, about 30km south of Christchurch. After the fire the extensively burnt body of Jill Thomas was found in the driver’s seat of the vehicle slumped over towards the passenger’s seat. For some time the police considered that Ms Thomas’s death was probably the result of an accident caused by ignition of fumes after petrol had leaked from a container which had been standing in the well of the passenger’s seat.
[2] Over a year later, on 13 December 2000, after obtaining the opinion of an internationally respected expert in the investigation of fires, Dr John De Haan, the police charged Ms Thomas’s husband, the appellant Mr Kevin Harmer, with her murder.
[3] The original trial date set for 20 August 2001 had to be postponed in order to give the defence time to consider discovery made by the police of new material. A trial began before John Hansen J and a jury on 18 February 2002 but after about three weeks it was abandoned when Dr De Haan, who had previously been working from photographs of certain exhibits, arrived in New Zealand, inspected the exhibits themselves and then changed his opinion markedly about certain matters.
[4] An application by the defence for a stay or discharge of the proceeding under s347 of the Crimes Act 1961 was dismissed by Robertson J on 17 May 2002. A second trial began before Chisholm J and a jury on 9 July 2002. After a two day retirement, the jury returned a guilty verdict on 30 August 2002. Mr Harmer was sentenced to life imprisonment with a 14 year minimum non-parole period fixed on the application of the Crown under s103 of the Sentencing Act 2002. He has appealed against his conviction and the sentence imposing the non-parole period, but the sentence appeal has in the event been pursued only in relation to an alleged breach of his right under s25(b) of the New Zealand Bill of Rights Act 1990 to be tried without undue delay.
Background
[5] On the evening of the fire Mr Harmer and Ms Thomas, his second wife to whom he had been married for about three years after previously being in a relationship with her since 1989, were alone together on their farming property at Selwyn Lake Road just south of the Selwyn River.
[6] Mr Harmer, aged 45, was well known and respected in the locality. He worked fulltime for the Selwyn District Council in Leeston holding the position of its regulatory manager. Ms Thomas had been diagnosed as being in the early stages of multiple sclerosis (MS), although she was still able to look after the farm while Mr Harmer was undertaking his duties with the Council. Both were knowledgeable about Perendale sheep and were in the final stages of authoring a book on the subject. They were considered to be devoted to each other and to their farm.
[7] On the night of the fire, Mr Harmer made a statement to the police which was recorded in writing and signed by him. Immediately before his arrest he was interviewed on video but gave little further information of present significance. He did not give evidence at trial.
The fire
[8] The first part of the account which now follows comes mostly from Mr Harmer’s statement, with our interpolations in parentheses. According to Mr Harmer, he had left work early in the afternoon and had called at the local service centre. He was driving his Toyota Hilux Utility. He filled the Hilux with diesel and also filled up a 20 litre container of diesel, a 20 litre container of petrol and a 10 litre container of petrol. (All three containers, it later emerged, were made of high density polyethylene (HDPE) but they have been conveniently referred to as plastic containers. The 20 litre containers were black. The 10 litre container was red. It was a very common type marketed by a Canadian company under the SCEPTER brand.)
[9] Mr Harmer said that the diesel was intended for the farm tractor. The larger container of petrol was for the Landrover. He said the screw top lid on it was a bit loose and that it used to smell “in the back” when it was full of petrol. The petrol in the 10 litre container was intended for the lawnmower. (There were also other machines on the farm with petrol engines.)
[10] Mr Harmer then visited his publishers in Christchurch to deliver the proofs of the book. After some other business, including a visit to a stock and station agent to pick up some bags of mash and other farm supplies, he drove to the farm arriving at about 5pm. The Landrover was parked in a lane beside the farmhouse. He parked the Hilux nearby. (To get to that point he must have driven past an implement shed some 120 metres from the house, which was the intended destination for the fuel containers.) He transferred the bags of mash to the back deck of the Landrover. Then, he said, because there was already a “lot of stuff”, including some salt blocks and old netting, on the deck, he put the 20 litre diesel container on the passenger’s seat of the Landrover and the 20 litre petrol container in the well of that seat, both standing up. (Also present in the well was an old jersey which was sometimes used to wrap up newborn lambs.) Mr Harmer said that he put the red petrol container on the ground and that Ms Thomas then picked it up and put it on the deck. (Despite her MS she evidently had enough strength to lift this container from the ground to the deck.)
[11] Mr Harmer then drove the Landrover to the implement shed. He unloaded the mash and took it to the fowl house. But he did not unload the fuel containers.
[12] It was the lambing season. Ms Thomas had not had time during the day to attend to ewes and lambs out on the farm. So after dinner at about 6.50pm they set about that task together. They both walked to the implement shed. While Ms Thomas backed the Landrover out of the shed, Mr Harmer jumped over a fence and began walking through the paddocks to meet up with her on a farm road. In his statement he said that he “never even thought about the fuel in the cab”. Ms Thomas drove the Landrover out to Selwyn Lake Road, along that road and back onto the farm through a gate.
[13] Having met up again with Mr Harmer, who got onto the deck of the Landrover, she drove it slowly around various paddocks, stopping from time to time so that Mr Harmer could get off for the purpose of checking and repairing electric fences and picking up a few dead lambs which were put on the deck. (Dead lambs were seen on the deck by fire officers.) Throughout this time Ms Thomas mostly remained in the cab of the Landrover although she did get out on one occasion; the Landrover at that point being some distance away from Mr Harmer. He said he did not know if the engine was switched off and then switched on again.
[14] After about 40 minutes travelling slowly over ground that was at times uneven, although basically flat, they arrived at the so-called lambing motels – structures used to shelter ewes and their newborn lambs. They stopped there to pick up a length of alcothene pipe. According to Mr Harmer, Ms Thomas turned off the engine and got out of the vehicle for about two or three minutes. Mr Harmer said he then walked away from the Landrover towards the next gate. He heard the door of the Landrover close as Ms Thomas got back into it. He had walked about 15 metres when he heard a noise like a muffled “boom” which he described as similar to when you light a gas barbecue. He turned towards the Landrover and saw the cab full of flames. He ran back to it and opened the driver’s door. When he did so, he said, diesel ran out and dripped onto his trousers. There was “quite a flow of diesel” as if the diesel container had tipped over. He could see his wife in the driver’s seat but lying towards the passenger’s seat. He could not get to her because flames were coming out the door towards him. He described the heat as intense, with a lot of black smoke. The cab was full of flames. Leaving the driver’s door open, he thought, he then ran around the front of the vehicle to the passenger’s door and opened it but, as soon as he did so, flames came out at him. Facing towards the rear of the vehicle, he put his left hand inside the cab to try to get Ms Thomas out but flames caught his sleeve and his hand got burnt.
[15] Mr Harmer said he knew he could not put the fire out. He ran back to the farmhouse – about 500 metres - where he telephoned the 111 emergency number and was put through to the Dunsandel Fire Brigade. Grabbing a fire extinguisher from the garage wall, he got into the Hilux and drove back to the Landrover.
[16] By the time he arrived back at the fire, Alistair Harvey was already on the scene. Mr Harvey was a local livestock drafter who had seen the burning vehicle as he drove along Selwyn Lake Road past the Harmer farm. In his evidence Mr Harvey said that from previous visits to the property he had known how to drive his car to where the Landrover was burning.
[17] Mr Harmer exhausted the contents of the fire extinguisher but it made no impression on the fire which remained intense with lots of black smoke.
[18] Mr Harvey said that when he was walking towards the Landrover on arrival at the scene there was “a large bang and the flames accelerated”. He said the flames had previously been confined to the cab but then spread to the deck of the vehicle and the surrounding grass. He said that both doors of the vehicle were shut. This was confirmed by fire officers, although there was some uncertainty about whether they were fully closed or on the first latch. Mr Harvey said the windows were still in place when he arrived. (It is common ground that only the driver’s window was open.)
[19] A few minutes later the fire engine arrived. (One of the fire officers said this was about 20 minutes after Mr Harmer’s telephone call.) An ambulance also came and later Mr Harmer was taken in it to a hospital in Christchurch.
[20] It took the fire officers some minutes to bring the blaze under control. It was burning intensely in the passenger’s well. The hose had to be played down into that area off and on for about four minutes. Some of those who were at the scene or later inspected the vehicle considered that the fire was more intense in the left-hand side of the cab.
[21] In the course of the spraying of water onto the vehicle none of the fire officers noticed any objects being dislodged from the tray nor did they notice objects on the ground. The chassis of the Landrover collapsed at the point where the deck met the cab.
[22] One of the firemen found a yellow and black plastic cap bearing the SCEPTER brand on the ground quite close to the Landrover. It was undamaged. The exact position of this cap, which would have fitted the 10 litre red plastic petrol container, was a matter in issue at trial, but it seems to us that it was the finding of such an undamaged object within about three metres of the vehicle out in the middle of a farm which was of significance, not its exact location. (At trial the defence said it might have belonged to people who had been doing work on the farm a few days earlier – though not, it seems, at the lambing motels. In his video interview, however, Mr Harmer claimed to have lost such a cap himself.)
[23] A tent was erected over the vehicle that evening to secure it from expected bad weather. The following day the body of Ms Thomas was removed and forensic experts carried out an extensive inspection of the vehicle, particularly of the badly burnt out cab. Some items of significance were found. A large number of detailed photographs were taken of the exterior and interior of the vehicle both before and after the removal of the body. A video was made of that removal process.
[24] On the floor of the passenger’s well a piece of black plastic to which there was attached some blue plastic was located. This was part of the base of the 20 litre petrol container which had melted in the fire and become attached to the remains of the blue plastic cover of a tape measure which had been lying on the floor of the passenger well. The petrol container had evidently been placed on top of the tape measure. It was suggested for the defence that this may have caused the petrol container to sit at a slight angle, increasing the possibility of spillage through an ill-fitting cap.
[25] There were thick rubber mats on the floor of each well. On the passenger’s side they extended up the bulkhead where passengers might put their feet. The mats were constructed, as photographs show, of strips of tyres with small gaps between them. These gaps were found to be largely filled with dirt and burnt material from the fire. The mats themselves were not properly tested for the presence of petrol and were left in the vehicle after it was inspected. They were not available at trial. The mats had a rubber underlay. A portion of the underlay was removed and tested. No petrol was found. Traces of diesel were, however, found in one sample of fire debris taken from near the gearbox housing.
[26] A piece of red plastic, identified from writing appearing on it as part of the side wall of the 10 litre container, was found on the ground outside the vehicle near the driver’s door. At issue during the trial was whether it (and the rest of the container) had been in that position, lying on its side, throughout the fire or whether it may have been dislodged from the deck of the vehicle by spray from the fire hose (or may have fallen when the deck partially collapsed.)
[27] Only one sample of the soil was taken from underneath the Landrover. No traces of petrol or diesel were found in it. Dr De Haan agreed under cross-examination that it would have been better practice to have taken more samples, particularly from beneath the doors of the vehicle.
[28] A neighbour asked for permission to harrow the scene of the fire so that Mr Harmer would not have to see it when he returned home from hospital. Believing, on the basis of what Mr Harmer had said in his statement, that the fire was most probably an accident, the police agreed that he could do so. Harrowing took place on 5 October. That process put an end to the possibility of finding any further evidence at the scene.
[29] Mr Harmer’s clothing was forensically examined. Diesel was found on his trousers but no petrol. His clothing suffered practically no fire damage.
Pathologist’s findings
[30] The pathologist who examined Ms Thomas’s body, Dr Sage, found no evidence of any injury other than caused by the fire but, because of the severity of the incineration of the body, he could not exclude that possibility. There was no evidence of the presence in the body of any fatal or incapacitating drug. No soot was found in Ms Thomas’s lower air passages but there was frothy fluid. Her blood was 2% saturated with carbon monoxide, but that was within the range which may be found in persons dying from natural causes. These findings indicated to Dr Sage that Ms Thomas did not inhale significant amounts of smoke and fumes in the fire. He said there were two alternative explanations. First, she might have died from sudden and severe oxygen deprivation in a very rapidly progressing conflagration. Alternatively, it was possible she was not breathing when the fire commenced, either because she was already dead or because she was profoundly unconscious. He observed the presence in her blood of small amounts of the petrol constituents, toluene and benzene, and traces of other volatile constituents appearing consistent with petrol. They could have come, in his opinion, from inhalation of petrol vapour or from absorption of petrol through the skin. The frothy fluid in the air passages could have been a direct response to inhalation of super heated air or a response to an intra cranial injury or to deprivation of the oxygen supply to the brain, including by smothering of the nose and mouth. There was no evidence of damage to neck structures indicating strangulation, although such damage does not always occur.
A motive for murder
[31] At trial the Crown adduced evidence of a relationship which developed between Mr Harmer and a woman whom he had met a few months before his wife’s death. An order prohibiting publication of her name and place of work is in force. We will refer to her as Ms C. Mr Harmer had first met her on 20 July 1999 when she was working for a Wellington escort agency and visited him in that capacity at a hotel in Wellington. There was a second such meeting on 17 August when she stayed with him overnight for about 12 hours. A third overnight visit occurred on 18 September when they went to the ballet together. After that occasion Mr Harmer sent her some flowers with a message on a card indicating affection. But, giving evidence at trial, she said that she regarded the relationship at that time purely as a professional one.
[32] The fire in which Mr Harmer’s wife died had occurred on 4 October. He rang Ms C on 7 October, appearing to her to be very distressed. She saw him again in Wellington about 10 days after the fire when she said she was more of a nurse to him than an escort. (She is a mature woman who has trained as a nurse.) There were four further bookings through the escort agency in 1999. Mr Harmer purchased some jewellery for Ms C. In January he introduced her to one of his daughters. By that time there were no further payments being made to the agency as the relationship had become, on both sides, one of friendship and affection. Further gifts and trips abroad together followed. Ms C moved to Christchurch and in April 2000 became engaged to Mr Harmer and began living with him at Selwyn Lake Road. The police came to believe that Mr Harmer had developed an infatuation with Ms C and that he had killed his wife in order to pursue that relationship without risk of losing the farm if there was a divorce.
Characteristics of petrol vapour
[33] There was uncontested evidence concerning certain well-known characteristics of petrol. (It was accepted that diesel fuel could not have been the source of the outbreak of the fire, although it could have burned and prolonged the fire.)
[34] Petrol will not burn. What burns is the vapour evaporating from it. If the vapour is ignited, it will heat the petrol itself, which will in turn increase the evaporation and thereby fuel the fire. Petrol vapour is highly inflammable within a certain concentration in air known as the flammable range. That range is between 1.4% and 7.6% petrol vapour to air, i.e. the lower flammable limit is 14,000 parts of petrol vapour to one million parts of air. Above and below that flammable range, the vapour is too diffused or too rich to burn. It will not burn, for instance, within the confines of a container partly full of petrol because the mixture of vapour and air in the upper portion of the container is too rich.
[35] There was also unchallenged evidence from an engineer specialising in risk analysis and hazardous substances, Mr Victor Lenting, that the human nose can typically detect petrol vapour at a concentration of 10 parts per million. (There was evidence from a neurologist that MS does not commonly cause a loss of the sense of smell.) Asked how strong he would expect the smell to be at the lower flammable limit of 14,000 parts per million, Mr Lenting said it would probably be overpowering.
[36] Petrol vapour is three to four times heavier than air. It will therefore tend to sink below the point of any elevated source, although that can be affected by air currents such as might be caused by a closing door.
Further examination of the Landrover
[37] The Landrover had been removed from the scene and taken to a breakdown services garage. The electrical wiring of the 25 year old vehicle was the subject of an examination on 8 October in an attempt to discover a source of accidental ignition. No such source was found but the possibility of electrical arcing could not be entirely excluded, as the Crown conceded at trial. To take the example which received most attention at trial, when the key of an ignition switch is turned electrical current will arc across the approaching contacts. (The switch had, previously to the fire, been observed to have a common fault in Landrovers of that age whereby sometimes it was necessary to turn the key more than once before the starter motor would engage the ring gear.) In this vehicle it was on the left hand side of the steering wheel but, as is normal, was situated behind a panel which acts as a fire wall and it was also within its own casing. Although it was not completely sealed off, that factor must considerably have reduced, without actually eliminating, the possibility of the presence of petrol vapours being present within the switch at a concentration above the lower flammable limit.
[38] Wiring was retained along with some other items but the vehicle was then allowed to be released to the insurance company. It was bought at auction by Truck Sales & Spares Ltd. Afterwards the police obtained some further items from the vehicle at the premises of the purchaser, but when they next made an inquiry about it in June 2000 it had already been destroyed. There were, however, many photographs, although the defence complained that a log had not been kept of exactly when they had been taken.
Court proceedings and further investigations
[39] The police continued to seek and receive reports from experts but their activity was intermittent and, it must be said, rather lacking in method, particularly in recording where items were held. Their view of what had happened did not change much, it seems, even after they became aware early in 2000 that Mr Harmer was in a relationship with Ms C. In February of that year the officer in charge of the investigation, Detective Reeves, was transferred to another inquiry. He was not replaced until April and it was not until the middle of May that Detective Legat began to review the file, following which further experts were engaged, including Dr De Haan. Once Dr De Haan’s report was received Mr Harmer was re-interviewed and then arrested on 13 December 2000.
[40] Bail was granted to Mr Harmer on 18 December. He was on bail, living at the farm, until the completion of the trial in August 2002 except for a period from 5 January to 16 January 2001 when bail was revoked for a breach and then allowed again on slightly varied conditions.
[41] The preliminary hearing took place between 21 May and 7 June 2001 when Mr Harmer was committed for trial in the High Court.
[42] An application made under s347 was heard by John Hansen J and dismissed in a reserved judgment delivered on 26 July 2001. The application complained of prejudice to the defence by destruction of the scene, the release and destruction of the Landrover and components or items within it, the consequential inability of the defence to directly test the observations of Crown witnesses, the loss of witness notes or records (in particular the 111 call recording, which was not sought by the police and was automatically destroyed after six months) and delay in the prosecution of the charge. John Hansen J was not satisfied that the cumulative prejudice which he accepted Mr Harmer’s counsel had demonstrated was such as to render a fair trial impossible or give rise to a miscarriage of justice. The Judge did, however, comment that there was fertile ground for the defence to criticise the inadequacy of the investigation and the limitations thereby inevitably imposed on the experts. No doubt, the Judge said, that was a matter which would require a strong direction at trial.
[43] Further disclosure of several witness statements was made by the police on 30 July 2000. This included a statement from a new witness, Mr Dennis Hills, a scientist specialising in polymer technology. His evidence concerned the reaction of plastic containers to heat and flames.
[44] The disclosure of the new evidence led to a successful defence application for the trial date of 20 August 2001 to be vacated.
[45] At the same time as he dismissed the s347 application, John Hansen J had given a s344A ruling admitting certain evidence of a Mr Chubb, a fire engineer. The defence applied to this Court on 1 August 2001 for leave to appeal against that ruling. The application was heard and dismissed on 1 November.
[46] The new trial date, which naturally had to take account of the anticipated length of the trial and the existence of the appeal to this Court, had been fixed for 18 February 2002, about 14 months from the laying of the charge. The police were still, however, gathering evidence and making continuing disclosures to the defence. This included a supplemental report from Dr De Haan.
[47] On 4 March 2002, during the trial, the Crown applied for and was granted permission for Dr De Haan to examine certain exhibits. On 6 March the Crown advised that as a result of that examination Dr De Haan had changed his opinion about the 20 litre petrol container in two respects. The first was that he had concluded that it was made of HDPE. A sample sent for testing confirmed that opinion. (At the second trial Mr Hills gave evidence that HDPE does not burn and is an inert substance resistant to most chemicals. When a container made from it and fitted with a cap is exposed to direct flame it softens or melts but, in his opinion, would take some tens of seconds, perhaps even minutes before rupturing.) Dr De Haan thought it would be 20 or 30 seconds before there was any hole in the base of an HDPE container which had flames burning directly on it. When rupture occurred and petrol spilled out there would be an intense fire but not an explosion.
[48] The second change was that Dr De Haan now considered the petrol containers had been empty or near empty at the time of the fire. He had reached this view on the basis of his observations during his years as a fire investigator that, when a plastic container containing a substantial quantity of petrol melts down, small amounts of petrol become trapped between the layers of melted plastic. He could see no sign of this in the black plastic and red plastic exhibits.
[49] The changes in Dr De Haan’s opinion obviously had a considerable impact upon the defence. Not only was it now faced with having to contest the view that the containers had not been full of petrol, but the defence position had to this point also been that the 20 litre container was made of old plastic and was brittle and porous. That view would no longer be tenable.
[50] The defence brought an application on 8 March 2002 for a ruling that the prosecution should be required to proceed on the basis upon which the case had been opened and on the basis of the brief then proffered by Dr De Haan (from his observations of photographs and without having inspected the exhibits). John Hansen J, obviously very concerned at the turn of events, was in his oral judgment very critical of the way in which the police investigation had been conducted, including the failure to secure the vehicle and the 111 call tape and the harrowing of the scene. He was also critical of Dr De Haan and of the failure of the police to test the plastic exhibits at an earlier time. He seemed to agree with Mr Hampton QC’s submission for Mr Harmer that the Crown was trying to bolster a case which was not going well.
[51] The Judge properly recognised, however, that in concluding whether or not a fair trial was possible, it was necessary to balance any prejudice to the accused against what he called the public right to have people accused of serious crimes tried on the basis of the evidence that was available. He had regard to the prejudice to the defence, including the fact that it had fully revealed its position and that the impact of cross-examination would now be lost. But he said that he could not see how a court could refuse to allow an expert to proffer his honest belief, albeit a changed one. He declined the defence application, correctly refusing to require the case to be put to the jury on a premise known to the Court to be false. The Judge considered that any prejudice relating to a fair trial could be addressed by discharging the jury and setting a new trial date giving sufficient time “for the defence to seek proper instructions”.
[52] The new trial date was fixed for 8 July 2002. Police investigations continued. There was further examination of exhibits by Dr De Haan and testing was undertaken involving the burning of plastic containers. There were new briefs from Dr De Haan and Mr Hills.
[53] On 16 and 17 May 2002 Robertson J heard an application for a stay or discharge under s347. The argument put to him was that there was now a real likelihood of contamination of the trial process so that Mr Harmer could not be guaranteed a fair trial. It was also submitted that the behaviour of the prosecuting authorities had been so scandalous or outrageous that as a disciplinary measure the Court should intervene and stop the process.
[54] Robertson J accepted that there had been “some extraordinary lapses”, but in his view “one has to protect against a mere knee jerk reaction and one must have regard to the proportionality of what has occurred”. With regard to the prejudice alleged because of the inadequacies in the investigation, the Judge pointed out that the onus lay on the Crown to establish essential allegations of factual matters or of facts from which inferences could be drawn. In this case it appeared that there would be “enormous scope for challenge of much of what had occurred.” But it was “pure speculation or conjecture” as to what the evidence would otherwise have been. There was disadvantage to the Crown in facing the hurdle of the onus of proof to a criminal standard. He rejected the argument that there was prejudice to the defence which could be said to interfere with the possibility of a fair trial.
[55] The second major matter raised before Robertson J was the issue of delay, but he was of the view that the period which had elapsed was “not within that category where it is to be said that the system can no longer properly provide an environment in which the necessary integrity of process is guaranteed”.
[56] A third issue related to the evidence of Dr De Haan. Robertson J considered that an additional dimension was being introduced but that the theory of the Crown case had not altered. There had been no allegation of bad faith or “conspiracy to interfere” and the circumstances were not of such an order as to justify the Court saying that the normal processes of adjudication in respect of a criminal count should not be proceeded with. The underlying integrity of the system had not been interfered with. There had not been an effect on the administration of justice preventing a fair trial still being held. What had occurred was not so outrageous or scandalous as to call for “the ultimate disciplinary sanctions” to be applied. The application was accordingly declined. The Judge made an order that final forms of briefs of evidence, where it was anticipated that there would be material change from the evidence as it was to be presented at the first trial, were to be delivered to the defence within seven days. Further disclosure was made within that time.
[57] The trial commenced on 8 July, approximately 33 months after the death of Ms Thomas, 19 months after the arrest of Mr Harmer and 13 months after the depositions hearing.
The Crown case
[58] In summary, the Crown case was that Mr Harmer’s explanation of an “accident” could not be true; that there were several implausible aspects of it and the fire could not have occurred in the way he described; and that, motivated by his infatuation for Ms C and the consequences of a divorce, he had rendered his wife unconscious (or possibly already killed her) before throwing petrol over her and throughout the Landrover and setting it alight. The Crown said that it was unlikely that Ms Thomas would have been prepared to drive the Landrover for 40 minutes with a petrol container in the cab and even more improbable that she would have done so if the container was leaking petrol vapour to such an extent as to approach the lower point in the flammable range. She would never have got back into the vehicle and tried to start the engine when the air in the cab was in that condition, with an intolerable smell of petrol. It was also very unlikely that petrol vapour in sufficient concentration to be flammable would have encountered an electrical arc, the only realistic source of which was an ignition switch behind a barrier and within its own casing preventing or minimising the penetration of vapour.
[59] The Crown pointed to important inconsistencies in Mr Harmer’s statement: the discovery of the undamaged petrol cap at the scene; his relatively minor burns to one hand, in comparison to his account of opening the doors successively and being met by flames pouring out; and the doors having been found closed when rescuers arrived.
[60] The Crown relied also on evidence given by Mr Hills, to which reference has been made, and particularly on evidence from Dr De Haan. He said, as already mentioned, that the petrol containers had been empty or near empty when the fire began. He said also that petrol spilling from a loose container cap would produce a concentration of vapour only in the immediate vicinity. If the leakage had been large enough so that vapours could migrate and be ignited by a remote source of ignition, that would have required a pool of liquid petrol in the passenger’s footwell. It would have been readily detectable after the fire in the rubber floor mat or associated debris. No petrol residues had been detected from the items in the well.
[61] In Dr De Haan’s view, if a pool of petrol was evaporating and the vapour ignited, there would be a flash fire of insufficient duration to ignite any solid material. It would be too brief to burn the exposed skin of someone in the driver’s seat. The effects on that person would be superficial, such as burnt hair. The fire would have flashed towards the open window and would then have flashed back to the source of the vapours and burnt above the pool. While such a fire would be a life threat if anyone was exposed to it for long, it would be an escapable fire if the person was conscious. It would take from two to five minutes for the fire to engulf the cab. Even in a worst case scenario, involving petrol leaking from a container and being absorbed into a garment like a jersey on the floor of the footwell, the capacity of the well, with the container taking up some of the space, would not be sufficient to produce a large enough fire to trap a conscious individual in the vehicle.
[62] On the other hand, Dr De Haan said, a fire involving petrol splashed around the interior of the vehicle would produce a fireball of flames low in soot and capable of depleting the oxygen in the vehicle even with the windows open. An inhalation of hot gas, along with oxygen depletion, could have produced the effects on the body of the victim noted by the pathologist.
[63] Dr De Haan expressed the view that the melted petrol container outside the driver’s door had not been full of petrol. It had been lying on its side in that location prior to the fire. One of the policemen had peeled it off the ground. There was unburnt grass on the underside i.e. grass which had been protected from the fire. Dr De Haan saw this, together with the finding of the undamaged cap, as a strong indication that petrol from this container was a source of the accelerant he believed had been used within the vehicle. It was important to him also that significant residues of unconsumed diesel fuel had not been found, nor had residues of the diesel container.
[64] The clothing worn by Mr Harmer had not, in Dr De Haan’s opinion, been exposed to high temperatures sufficient to induce scorching, melting or charring of susceptible fibres or fabrics.
[65] Dr De Haan’s explanation for the explosion heard by Mr Harvey when he was approaching the Landrover was that it would most likely have been caused by the failure, in the fire, of the fuel filler connecting pipe, i.e. the pipe through which fuel is put into the petrol tank, with resultant release of heated petrol from the tank under pressure.
[66] He was of the opinion also that the fire was unlikely to have been caused by ignition as a consequence of faulty wiring. He said that the firewall between the cab and the engine compartment in this vehicle was almost entirely free of “penetrations”.
The defence case
[67] In summary, the case for the defence was that Mr Harmer had told the truth when he gave his statement. A fire could have occurred consistently with the description given by him. The defence relied in this respect upon the evidence of Dr Charles Fleischmann, a specialist in fire reconstruction, investigation and engineering. He is an American with practical experience of fires in that country and is now a Senior Lecturer in Fire Engineering at the University of Canterbury. Based upon a computer model, he was of the opinion that the cause of the fire was consistent with the accidental ignition of petrol vapours collecting in the cab from leakage from the petrol container in the passenger’s footwell. His computer model assumed a pool of petrol 10mm deep (the quantity being about two cups full) but did not assume any effect from absorption of the petrol into the jersey which had been lying in the well. Dr Fleischmann considered there may have been a low pressure explosion followed by a fire developing so rapidly it was inescapable. He would have expected the 20 litre diesel container to be destroyed and did not consider anything could be inferred from the absence of residues from it, saying that not enough samples had been gathered and that the investigation had not been thorough enough.
[68] Dr Fleischmann said there would have been considerable sloshing of the petrol and diesel in their containers during the 40 minutes before the vehicle arrived at the lambing motels. Leaking fuel would flow down the sides of the petrol container and collect in the material under and around it. While the vehicle was running there would be some circulation of the air through the open driver’s door window, helping to reduce the concentration of vapour in the cab. Because it is heavier than air, the vapour would have collected in the lower portions of the vehicle. Conditions would have changed when the Landrover was stopped, the engine turned off and Ms Thomas got out. For the two or three minutes she was out of it there would not have been any circulation of air and the concentration of vapour would have risen. The surface area of evaporating fuel would be the approximate area of the fuel soaked materials at the base of the container and the wetted surfaces of the container. The jersey would act as a wick further increasing the surface area.
[69] Referring to Mr Lenting’s evidence for the Crown, Dr Fleischmann said it would take only two minutes for the concentration of vapour to reach the lower flammable limit in the cab within the space below the window opening. Upon entering the vehicle and closing the door, Dr Fleischmann opined, Ms Thomas would have stirred up the mixture of heavy petrol vapours and helped to distribute them. The key had been found in the ignition switch. If she had turned it, there was potential for ignition of the vapours from the arcing of the switch.
[70] The low pressure explosion would have travelled through the flammable mixture and exited at the open driver’s window. That event might have lasted one or two seconds. Hot gases and flames would be thrust in that direction exposing the victim to temperatures greater than 600ºC which could have immediately incapacitated her, particularly if she had inhaled the hot gases. Dr Fleischmann’s computer modelling suggested that flames would reach the driver’s door in less than four seconds from ignition.
[71] Even if Ms Thomas survived the explosion she would be exposed to flame in excess of 600ºC causing immediate burns to exposed skin and eyes. There could have been intense pain and shock. Ability to escape such a fire, Dr Fleischmann thought, was very low. (On the medical evidence a possible effect of her MS was that in very hot conditions her mobility might be affected.)
[72] The explosion of gases out the window would be followed by an inrush of air. Fire would quickly develop around the fuel containers. The seats of the vehicle would ignite.
[73] When the driver’s door and then the passenger’s door were opened by Mr Harmer – in the model this was assumed to occur 20 seconds and 40 seconds after the explosion – a new source of oxygen became available to the fire and the energy release rate would jump up and the temperature increase to over 1000ºC. Rescue would not be possible.
[74] It was Dr Fleischmann’s view that an HDPE container would start to melt nine seconds after the fire began. The container on the floor would have failed sooner than the one on the seat.
[75] Dr Fleischmann was not aware of any literature to support Dr De Haan’s view that pockets of fuel could be expected in residues from a container which burnt while it had petrol in it. He would not have expected to find such pockets.
[76] He said that if the red plastic container had been outside the vehicle throughout the fire he would have expected to see in the photographs a clear and significant imprint of protected ground where it had been positioned. The photographs did not so indicate to him, contrary to the observation of those photographs by Dr De Haan.
[77] Dr Fleischmann suggested that, although Ms Thomas would have smelled petrol in the cab, she would have been aware of the containers sitting in the vehicle and thought that explained the smell, although she would not have thought it was normal. Driving around in it could also have had a desensitising effect. Her head would have been above the height of the concentration of vapour in the flammable range.
[78] Dr Fleischmann did not accept that there had been a uniform distribution of petrol within the vehicle, as Dr De Haan contended. His view on this question was shared by other fire experts at the scene who had given evidence for the Crown. Neither Mr Harvey nor any of the fire officers had seen a petrol container on the ground on fire.
[79] The defence said that the alleged motive for murder had not existed. The relationship with Ms C had not developed on more than a professional basis until a couple of months after Ms Thomas’s death.
Grounds of appeal
[80] The grounds of appeal can be summarised as follows:
(a)Miscarriage of justice because of one or more of:
(i) Inadequate investigation causing contamination of the scene, loss of evidence and delay in bringing the charge. This ground relied in part upon an alleged breach of the right to adequate time and facilities to prepare a defence as guaranteed by s24(d) of the New Zealand Bill of Rights Act;
(ii) Dr De Haan’s opinion evidence being given without a proper evidential base;
(iii) Exclusion of evidence in the form of a video presentation by Dr Fleischmann utilising his computer model;
(iv) Inadequacies in the Judge’s directions to the jury;
(v) Provision by the Judge to the jury of a booklet setting out the respective cases in an allegedly unbalanced way; and
(vi) Inappropriate directions to the jury when they indicated an inability to reach agreement.
(b) Breach of the appellant’s right under s25(b) of the New Zealand Bill of Rights Act to be tried without undue delay.
[81] A ground of appeal alleging that the verdict of the jury was unreasonable and unsupported having regard to the evidence was subsumed in points (a), (i) and (ii) and not pursued separately. We deal with it in connection with Dr De Haan’s evidence.
Deficiencies in police investigations
[82] It was the submission for the appellant that his defence was materially prejudiced because the manner of the investigation resulted in contamination of the scene, destruction of evidence potentially helpful to him and confusion in relation to exhibits; and that, as a result, he could not receive a fair trial. His right under s24(d) of the Bill of Rights to adequate time and facilities to prepare a defence was also said to be infringed because, when eventually charged, he was effectively denied the opportunity of examining the vehicle and the area in which it had been situated. It was submitted that such an examination (for example, further soil testing and sampling of fire debris) might have produced results contradicting Dr De Haan’s views about the cause and nature of the fire and supporting the account given in the appellant’s statement and the opinion of Dr Fleischmann.
[83] The following criticisms were made of the scene examination. There was disturbance of the scene by firemen and by those who undertook the task of removing Ms Thomas’s body (involving taking out the driver’s door and seat and a portion of the roof) before exhibits were located and uplifted. Items which, it was submitted, may have been disturbed included the piece of red plastic and the SCEPTER cap. No record was made of exhibits in situ before this activity occurred. No proper record was made of the location of items which were retrieved, an important example being the piece of rubber underlay. There was extensive photography but not of certain exhibits in situ and no proper record was made of when each photograph was taken. There was also said to have been a failure by experts to make proper observation and consideration of items in situ and to record their observations. Some items of potential evidential value were not properly examined or examined at all and were ultimately lost. The further examination of the Landrover on 8 October 1999 was said to have been “casual” in that significant elements of the electrical system were not inspected or removed for close analysis and were later lost upon destruction of the vehicle.
[84] In relation to the s24(d) argument, it was pointed out by Mr Hampton that as from the end of the scene examination on the day following the fire the police had possession and control of all physical evidence taken from the scene. He submitted that the fundamental evidential base for the Crown’s case at trial remained the same throughout. The police also had available to them the pathological and toxicological samples and a full statement from Mr Harmer. Added to this was the disjointed way in which the Crown disclosure had been made from time to time with Crown experts changing their position on vital questions, for example, concerning the type of plastic of which the containers were made. The late changes of opinion presented the defence with real difficulty in having to face a rather different case. Even before this occurred, the Crown had already been warned by John Hansen J about the possibility of prejudice or unfairness.
[85] Undoubtedly there were deficiencies in the way in which the police investigation proceeded. There were two main reasons for this. The police were for some months inclined to accept Mr Harmer’s statement and to believe that the death of Ms Thomas was nothing more than a tragic accident. That is why they allowed the scene to be harrowed by the neighbour – as his act of compassion for a bereaved husband – and why they allowed the Landrover to be sold. They can be criticised for not being rigorous enough in their approach, particularly in failing to secure the vehicle and prevent the buyer from destroying it when it had become clear that the investigation was turning into a murder inquiry, but their attitude in the days immediately following the fire was perhaps understandable.
[86] The second reason was that establishing that the fire was not accidental would have been a very difficult exercise, even if the police had been suspicious of Mr Harmer’s story from the outset, because so much had been destroyed or altered by the intensity of the fire itself. Some contamination of the scene was inevitable when the firemen were engaged in extinguishing the fire. They could not be expected to pause and examine items on the ground while fighting it, nor could the police be expected to intervene. Because of the wet weather the tasks of removing the body and inspecting the vehicle at the scene had to be carried out within the close confines of the tent.
[87] It is not of course the position that a criminal trial cannot proceed or must be regarded as unfair to the defence or in breach of the right guaranteed under s24(d) merely because certain material or testimony which might possibly have contradicted the Crown case is unobtainable or is no longer available or has been contaminated. But what if the reason for the absence or contamination of evidence is the failure by the police to carry out an adequate investigation or a failure to preserve items which have come into their possession or which they could have secured? Some guidance is to be found in the jurisprudence of the North American jurisdictions although the constitutional guarantees, while largely concerned with the same values, are not identical to the guarantees found in our Bill of Rights.
[88] In the United States in the two leading cases, California v Trombetta 467 US 479 (1984) and Arizona v Youngblood 488 US 51 (1988), the Supreme Court has erected a major obstacle for defendants. The failure to preserve evidence of “apparently exculpatory value” will not result in a violation of the right to due process unless (a) the exculpatory value of the evidence was apparent before it was destroyed; (b) there are no reasonable alternative means of obtaining evidence of comparable value to that lost; and (c) the accused demonstrates actual bad faith on the part of the police. That approach seems overly restrictive and we do not propose to follow it.
[89] In Canada the majority view of the Supreme Court in R v La (1997) 116 CCC (3d) 97, was that there is a breach of the right to make full answer and defence under s7 of the Charter whenever the police have destroyed or failed to secure evidence with the deliberate intention of making it unavailable to the defence or as a result of “unacceptable negligence”. In the principal judgment of Sopinka J, it was said that in order to determine whether the explanation of the Crown was satisfactory, the court should analyse the circumstances surrounding the loss of the evidence:
The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police. (para [21])
Thus the Supreme Court regarded the failure to preserve evidence as a breach of an obligation to make full disclosure which was seen as an important means of ensuring that an accused was afforded the right to make full answer and defence. In addition, there was said to be an abuse of process if evidence had been deliberately destroyed for the purpose of defeating the Crown’s obligation of disclosure.
[90] We find particularly helpful the concurring judgment of L’Heureux-Dubé J, in which La Forest, Gonthier and McLachlin JJ joined. She agreed with Sopinka J that where relevant material once in the possession of the Crown or the police has become unavailable, the Crown must explain the circumstances which led to its absence. The focus must be on the reason why the material did not make it into the hands of the defence. But, she said, where no abuse of process is demonstrated, that concludes the inquiry into the lack of disclosure. However, the accused can still attempt to demonstrate that there is a real likelihood of prejudice to the trial as a result of the loss. Earlier in her judgment L’Heureux-Dubé J quoted from her own opinion in R v O’Connor (1995) 130 DLR (4th) 235 at para [74], in which she approved the statement of the British Columbia Court of Appeal in the same case ((1994) 89 CCC (3d) 109 at 148-9) that there will be no violation of the accused’s right unless the accused establishes that the non-disclosure has probably prejudiced, or had an adverse effect on, his or her ability to make full answer and defence. L’Heureux-Dubé J said in O’Connor, and affirmed in La, that:
Where the accused seeks to establish that the non-disclosure by the Crown violates s.7 of the Charter, he or she must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence. It goes without saying that such a determination requires reasonable inquiry into the materiality of the non-disclosed information. Where the information is found to be immaterial to the accused’s ability to make full answer and defence, there cannot possibly be a violation of the Charter in this respect. I would note, moreover, that inferences or conclusions about the propriety of the Crown’s conduct or intention are not necessarily relevant to whether or not the accused’s right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the accused’s trial. (para [41]) [Emphasis in original]
[91] In our view, there are two relevant considerations, namely whether the evidence has been lost because of acts or omissions by the police involving bad faith, and whether it is probable that the lost evidence would have been of real assistance to the defence in the circumstances of the particular case. The emphasis, we consider, should be upon the need for a showing by the accused or convicted person that it is more probable than not that the lost evidence would have been of real benefit to the defence because it would have created or contributed to creating a reasonable doubt. That is after all the fundamental question. The characterisation of the conduct of the police in this regard will not be determinative save that, if it appears that they were motivated by a desire to avoid having the evidence before the court or otherwise acted in bad faith, it may readily be inferred that the evidence would have been helpful to the defence. But, in the absence of such deliberate conduct or other bad faith by the police – which is the position in this case - the concern should be with the effect on the defence of the absence of the evidentiary material rather than with whether the police have been negligent. The particular significance of the missing evidence to the defence will necessarily have to be considered in light of all the available evidence. When, as here, the issue arises on an appeal from a conviction, the ultimate question will be whether the unavailability of the evidence to the defence appears to have given rise to a miscarriage of justice.
[92] The matters to which Mr Hampton directed attention in connection with his argument that the loss of evidence was prejudicial to the defence were:
(a)The failure to take more soil samples,
(b)The failure to examine the sideboard from the deck of the Landrover and the remains of the deck itself to see if they showed residues of fuel,
(c)The failure to commission an engineer’s assessment of the steel structure of the deck at the point where it collapsed,
(d)The failure to retain some red plastic material found on the deck,
(e)The failure to remove fire debris from the ground in the vicinity of the place where the red plastic was found so as to compare it with the ground under the red plastic,
(f)The failure to photograph or examine the ground under the red plastic and to examine the plastic for signs of pockets of fuel (at a time earlier than Dr De Haan examined it),
(g)The failure to examine the engine compartment and in particular the right-hand guard (Dr De Haan having suggested from examination of photographs that petrol had been spread there),
(h)The failure to retain and test for fuel residues the rubber mats from both footwells and the woollen material (from the jersey), traces of which were seen in the passenger’s foot well,
(i)The failure to retain and test some black material shown in a photograph and said by the defence to be possibly the remains of the diesel container,
(j)The failure to carry out proper testing of electrical wiring and to retain certain portions of it,
(k)The failure to retain the tape of the 111 emergency call, and
(l)The failure to protect and test the SCEPTER petrol cap.
[93] Although this might appear to be a substantial list of deficiencies, in all instances it is entirely a matter of speculation whether the defence might actually have gained assistance if the item in question had been examined or retained or if things had otherwise been done differently. It is just as likely, indeed on the balance of the evidence as a whole, to which we will refer later, it would seem more likely that availability of the items or additional testing would actually have assisted the Crown or would not have advantaged the defence. And, as Mr McVeigh QC pointed out, the Crown certainly suffered a disadvantage because it had to discharge the onus of negativing any reasonable doubt, and the defence was able to point to the possibility of contamination, the loss of items and the inadequacies of the investigation as matters which might give rise to such a doubt in the minds of jurors. The defence could suggest that something had gone undiscovered. The soil sampling is a prime example. A sample taken from below the driver’s door may have revealed diesel fuel. But, as will appear from what we say later, it is even more likely not to have shown it. The defence has had the advantage of being able to make some play before the jury of the possibility of discovering it.
[94] In some instances the criticisms made on behalf of the appellant did not relate to an issue which was crucial to the Crown’s case (for example, whether the accused had spread petrol on the deck of the vehicle and in the engine compartment as well as throughout the cab) or in some instances they related to matters which were conceded by the Crown (the possibility of an electrical arc from the ignition switch or from faulty wiring or the possibility of an appearance of distress in Mr Harmer’s voice in the 111 call). In some instances the photographs provided an excellent record (for example, of the burning in the engine compartment).
[95] The red plastic on the deck had not been retained but the witness who found it was able to recall that it appeared to be part of some electric fencing material which had been lying on the deck.
[96] So far as the rubber mats and woollen material are concerned, it seems to us that finding residues of petrol or diesel in them would have been a relatively neutral factor because the Crown case was that petrol, and possibly diesel, had been poured throughout the vehicle, particularly in the cab. Testing would not have revealed how much fuel had been in the floorwells. The presence of some fuel would have been consistent with both Dr De Haan’s and Dr Fleischmann’s theories. (We return later to the use Dr De Haan made of the rubber underlay in which no residues were found.) Similarly, if, contrary to Dr De Haan’s view, the black material seen in one of the photographs was indeed part of the 20 litre diesel container, that would again not be inconsistent with the essence of the Crown case, that the twenty litre petrol container was in the cab but empty or near empty. The diesel container, full, partly full or empty could also have been present.
[115] The Judge was also said to have erred in providing for the use of the jury during its retirement a booklet in which he had noted the main points of counsel’s very lengthy addresses. It was submitted that because the booklet contained details of Dr De Haan’s opinion it might have prejudicially reinforced that opinion in the minds of jurors. The Judge had given little or no guidance to the jury, it was said, about how to deal with the major clash between Dr De Haan and Dr Fleischmann. The jury may have been confused over the application of the burden of proof as between those experts. The Judge was also said to have incorrectly directed the jury on the standard of proof by twice telling them that they needed to “feel sure” of the accused’s guilt before he could be found guilty of murder and to have inappropriately directed the jury when they indicated an inability to reach a unanimous verdict.
[116] We move to the first of those matters. The Judge took the view, which was well open to him, that a jury which had listened to lengthy closing addresses from two very competent trial counsel would be well versed concerning the defence criticisms of the police investigation, its alleged consequences for Mr Harmer’s defence and the alleged frailties in the factual foundation upon which Dr De Haan based aspects of his opinion. To do more than summarise the defence criticisms of the investigation and of Dr De Haan’s views might have risked suggesting that the Judge was indicating his own opinion. As well as including it in a summary of the defence case, some Judges might have made their own reference to the alleged uncertainties about, for instance, the pedigree of the strip of rubber underlay, while carefully telling the jury that what it was and where it came from was a factual matter for them. But it would have been obvious to the jury that these were facts very much in contest and, as factual issues, were for them to resolve. Otherwise there would have been no point in counsel’s debate in their closing addresses about these disputed matters underlying Dr De Haan’s opinion. We have not overlooked the fact that when John Hansen J considered this question on the first s347 application he thought a strong direction would be required about inadequacies in the investigation. But he perhaps did not foresee the degree to which the defence criticisms would be bought out at trial, particularly in counsel’s closing address.
[117] Chisholm J gave the jury a careful direction on the way in which the expert evidence should be approached, telling them that it was for them to resolve conflicts in the opinions of the experts if that were necessary in reaching their verdict. They were told they did not have to accept the whole or any part of the evidence of any expert. Importantly, they were also told that, if they reached the conclusion that any part of the evidence of an expert really amounted to guessing or speculation, they should not hesitate to reject it and would then have to seriously consider the weight that could be put on the remainder of that expert’s evidence. The jury was also told that by calling expert evidence the defence had not taken on the responsibility of proving Mr Harmer’s innocence and that the burden of proof rested on the Crown throughout. There is no substance, therefore, in the suggestion of the appellant’s counsel that the Judge may have confused the jury about the way in which the burden of proof applied to expert evidence. They were not left simply to make a choice between the opinions of Dr De Haan and Dr Fleischmann. The instruction about the onus of proof was directly related by the Judge to the conflict between the evidence of the experts.
[118] In summarising the defence case, both orally and in the booklet given to the jury, the Judge referred to the criticisms of the investigation, including contamination. He reminded the jury that defence counsel had put forward 14 specific criticisms which were said to leave Dr De Haan’s theories “floating on air”. That was an expression which Mr Hampton had used in his closing. It could hardly have been plainer that the jury were being directed on the need to consider whether, because of the unavailability of certain material and Dr De Haan’s need to work from photographs, they would have to give consideration to whether he was guessing or speculating. They were specifically reminded about the criticism that his theory about the containers not being full was not supported by literature. In fact, when the Judge had discussed his summing up with counsel after the jury retired and he had brought them back to make a few corrections at the request of counsel, this last point was referred to again and the jury was reminded that Dr De Haan’s theory also relied on the container burning from the top.
[119] Notably, in view of what is now being said, defence counsel did not ask the Judge to give further directions concerning the basis for Dr De Haan’s opinion or concerning the way in which the Judge had approached the question of the burden of proof.
[120] The criticisms of the booklet prepared by Chisholm J did not take the appellant any further, for the point being made was the same. Far from merely reinforcing Dr De Haan’s opinion in the jurors’ minds, it is plain from a perusal of the booklet that in fact it went into detail concerning the defence criticisms of that opinion, leaving the jury to make its own factual assessment.
[121] In his oral submissions Mr Hampton said that in the circumstances the Judge ought to have pointed out to the jury that deficiencies in the investigation were not the fault of the accused. But the contrary had never been suggested by Crown counsel. It might have been counter-productive if Judge had done so, because he would have needed to add, for balance, that the police had in the early stages of the investigation acted as they did because they had largely accepted the detailed statement made on the night of the fire by Mr Harmer.
[122] A criticism in the written submissions of the direction on the standard of proof was not pursued orally. It was that the Judge should not have told the jury that they needed to “feel sure” of guilt before finding the accused guilty. There was good reason why that submission was not pursued, for in a decision of the Privy Council cited by Mr McVeigh, Walters v The Queen [1969] 2 AC 26 at 30, there was approval of a passage in the judgment of Lord Goddard CJ in R v Kritz [1950] 1 KB 82 at 89 as follows:
It is not the particular formula that matters: it is the effect of the summing-up. If the jury are made to understand that they have to be satisfied and must not return a verdict against a defendant unless they feel sure, and that the onus is all the time on the prosecution and not on the defence, then whether the Judge uses one form of language or another is neither here nor there.
[123] In the present case Chisholm J used, without comment from counsel at the time, the same expression as we have italicised. That was not a misdirection.
[124] Lastly, on the topic of the Judge’s directions, it was said that on the morning of 30 August (the jury having retired two full days earlier) he should not have given a modified Papadopolous direction (closely following the specimen direction of this Court in R v Accused (CA87/88) [1988] 2 NZLR 46).
[125] It was within the Judge’s discretion to choose to give that direction. The submission for the appellant was that such a direction was inappropriate where the jury had been in retirement for two full days and had given an indication of lack of unanimity. We can accept that if, in an uncomplicated case, there had been a retirement of that length, there might be some substance in such a point, but in this case a two day retirement after a most complex trial was not unexpected and it was open to the Judge to give the direction he did when the jury indicated it was having difficulty. He was careful to ensure that the jury did not think that it was under any pressure to deliver an immediate verdict, actually suggesting that they might take a (supervised) walk, then have lunch and discuss the matter further after lunch. In the event, the jury did not return with a guilty verdict for some hours.
Conclusion
[126] We have not been persuaded that, taken together or cumulatively, the matters which have been traversed demonstrate that the jury’s verdict was unreasonable and not supported by the evidence or that in any other respect there has been an error leading to a miscarriage of justice.
Delay
[127] That leaves one further matter: whether the delay between the charging of Mr Harmer and his trial, a period of 19 months with 13 of those months elapsing after the preliminary hearing, was undue and accordingly in breach of s25(b) of the Bill of Rights. Because of the conclusion we have reached that the delay between charging and trial did not give rise to prejudice to the appellant, this question is solely one of a possible breach arising from delay per se.
[128] The submissions for the appellant on this part of the case were presented by Mr Hair who drew the Court’s attention to the fact that the period of post-charge delay was similar to that in the leading case of Martin v District Court at Tauranga [1995] 2 NZLR 419 in which a permanent stay was ordered precluding trial of a charge of sexual violation. In this case, counsel said, there had also been a considerable lapse of time before Mr Harmer was charged. It was submitted that, although the Bill of Rights guarantee is directed only at post-charge delay, that delay should be considered against what occurred pre-charge: Rust v R (1995) 13 CRNZ 621.
[129] It was submitted that the undue delay was a combination of two matters. First, the original trial date of 20 August 2001 had to be adjourned when the police continued to brief further witnesses, including experts, and to develop their case. Secondly, the first trial had to be aborted part way through because of further examination of exhibits, and a resulting change in the proposed expert evidence. That occurred, it was submitted, after a significant absence of activity by the police from mid September 2001 until the commencement of that trial; and it occurred when there had previously been unreasonable conduct by the police prior to the laying of the charge and when the appellant had been subject to bail conditions from December 2000.
[130] The Bill of Rights guarantee of a trial without undue delay often overlaps with and supports the guarantee of a fair trial (s25(a)) but it is a distinct right whose purpose is also to minimise pre-trial restraints (imprisonment or restrictive bail conditions) and to minimise other personal disadvantage as well as anxiety for someone who is entitled to be presumed innocent until guilt is established by verdict at a trial. Consequently, delay which has no appearance of prejudicing the fairness of a trial can become undue because of the elapsing of too long a period of time after the laying of a charge. The courts in this country have proceeded with some caution in this area. This Court has declined to prescribe standard time limits which, when exceeded, will trigger an inquiry or give rise to a presumption of prejudice or unusual hardship to the accused: see R v B; R v Parkes (1995) 13 CRNZ 377, 380. Any such prescription has been thought to be a matter best left to Parliament.
[131] Whether delay can said to be undue despite not affecting the fairness of a trial therefore falls to be determined on a case by case assessment of particular circumstances. The length and causes of delay must be considered: see Martin at p424.
[132] In this case the period of time elapsed after charging is similar to Martin but the comparison made by Mr Hair is not apt. Martin was a straightforward prosecution for the sexual violation of a single victim. There had been an immediate complaint, shortly followed by arrest and charge. No extensive inquiries were necessary. There were not to be many witnesses. There was no complex technical evidence. Mr Martin did nothing to contribute to the delay. This Court made it clear the breach of Mr Martin’s rights occurred not because of the delay per se but because of the misconduct by the Crown, which had taken over the scheduling of trials in Rotorua and had vacated a fixture to suit the personal convenience of a police officer. The next available trial date would be 17 months after the laying of the charge, a period of delay which Cooke P described as “generally speaking an unacceptable period for a quite simple, though serious case”.
[133] The present case, in contrast, was far from simple. It took eight weeks to try. The Crown presented evidence from about 90 witnesses. The transcript of evidence ran to almost 1000 pages. Much of the evidence was very technical. It was understandable, in view of the nature of the incident – a destructive fire in unusual circumstances, with the deceased’s body very badly incinerated – that there would be difficulty in determining exactly what had occurred and some uncertainty about how to proceed. The Crown eventually found it necessary to obtain expert testimony from overseas. The investigation and analysis was hindered by a statement from Mr Harmer which gave a false picture of death by accident and almost convinced the police that it was true. That was a major contributor to the lapse of time before arrest and charge and continued to have some impact on post-charge delay. As we have earlier pointed out, the delay was also contributed to when the defence elected to appeal a pre-trial ruling, unsuccessfully, to this Court.
[134] Some of the delay was avoidable. If matters had been handled more efficiently the trial would have been held at an earlier time. But, having taken that into account, we do not regard the delay as so excessive that it constituted a breach of s25(b) in the circumstances of this complex case.
[135] We add that, if we had come to the contrary conclusion, it does not follow that the remedy would have been the setting aside of the conviction. The freeing of a man found guilty of a most serious offence would have been an entirely disproportionate response to delay which was not causative of prejudice. In the line of decisions culminating in Mills v HM Advocate [2002] 3 WLR 1597 the Privy Council has found troublesome the question of remedy for delay experienced by a guilty person. In Mills the remedy granted was a small reduction in sentence. We must leave for another day whether that would be an appropriate remedy in a case of this kind if undue delay were shown to have occurred. Since in the present case it was not, the only ground on which the sentence appeal was advanced before us has not been established.
Result
[136] The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Solicitors Office, Christchurch
0