R v Shaw
[2009] NZCA 232
•5 June 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA626/2008
[2009] NZCA 232THE QUEEN
v
FRANCIS MANEWHA SHAW
Hearing:21 April 2009
Court:Ellen France, Heath and Fogarty JJ
Counsel:G J King for Appellant
A Markham for Crown
Judgment:5 June 2009 at 11.30 am
JUDGMENT OF THE COURT
AThe appeal against conviction is allowed. The conviction and the sentence of four years imprisonment are quashed.
BA retrial is ordered but may only proceed on the basis of secondary liability, arising out of the words spoken in the Linton prison yard.
REASONS
Ellen France J (dissenting) [1]
Heath J [55]
Fogarty J [104]ELLEN FRANCE J
Introduction
[1] The appellant was convicted following a retrial on one charge of arson of the Rangiatea Church in Otaki. He was sentenced by Judge Garland, the trial Judge, to four years imprisonment. The retrial followed a successful appeal against conviction to this Court: CA159/05 22 November 2005.
[2] The appellant appeals against his conviction on the basis there has been a miscarriage of justice: s 385(1)(c) of the Crimes Act 1961. Three grounds are relied on. The first ground is that he was retried and convicted on a charge on which, in effect, he had been acquitted. The second ground is that the Crown should not have been permitted to include alternative allegations in a single charge in the indictment. The final ground is that the jury should have been directed on the need for unanimity as to the form of participation, that is, the need to be unanimous as to whether the appellant committed the offence as a principal or as a secondary party.
Factual background
[3] The Rangiatea Maori Anglican Church, an historic building, was destroyed by fire in the early hours of Saturday 7 October 1995. Investigations showed that the fire had been deliberately lit but no arrests were made at the time.
[4] The appellant was not arrested and charged until 2006. The Crown case at trial rested primarily on evidence of three admissions that he had made at different times over the period from 1995 to 2006. In separate conversations with, in turn, a Department of Justice official and two police constables, the appellant said he had burnt down the Church and had done so because of a feud between his tribe and the Church over historical land issues. On another occasion he was also overheard telling his sister that he had already burnt one church down and asking her whether she wanted him to do it again.
[5] The appellant lived in Otaki at the relevant time and was seen in the township several hours after the fire.
[6] There was no real dispute at trial that a person or persons deliberately set fire to the Church and that whoever did so had no lawful justification or excuse.
[7] The appellant represented himself at trial. He was assisted by counsel acting as amicus curiae. He gave evidence in the course of which he acknowledged a sense of grievance in relation to the Anglican church. However, his evidence was that the arson was not committed by him but by three other men, whom he named and all of whom are now dead. He said he had met the three men in Linton Prison some time before the arson and they had discussed possible arson targets. Mr Shaw told them that he did not agree with their proposed targets and he suggested the Rangiatea Church as a more “strategic” option. He said that he thought the other men were just “talking shit” and were not serious.
[8] Mr Shaw’s evidence was that on the night of the fire, the three men arrived at his house in Otaki at about two in the morning. They wanted directions to a nearby gang house. That house was in the same street as the Church. The three men told the appellant that they were off to “torch” the Church but he said that he treated this as a joke. The appellant said he got into their car and went with them in order to “show them the way”. When they got to the address, the other men began siphoning petrol into a container. The appellant said that at this point he told them that he did not want to be involved and asked to be dropped home. He said the men then took him to his home.
[9] In terms of the admissions, Mr Shaw denied the conversation with his sister and he called evidence from her to confirm this. He accepted that he did make the statements to the other witnesses but said they were untrue and were made in order to “tease” and “torment” the witnesses.
[10] The appellant also called evidence from a Mrs Lemaire who was staying next door to the gang house on the night of the fire. Mrs Lemaire had been a Crown witness at the first trial when she was declared a hostile witness. Her evidence on the retrial was that some time after 2 am she saw a car arrive at her neighbour’s address and the male driver get out. She said that three Maori men came from the house and had a brief discussion with the driver. The driver then siphoned some petrol into a container before driving off alone in the direction of the Church with the container in the car. He returned a short time later before leaving again. Shortly after this, Mrs Lemaire realised the Church was on fire.
[11] Mrs Lemaire had never previously met the appellant although she had seen him around the township. She said she did not recognise him as being one of the four men involved although the Crown suggested that in light of her description of the driver, the man could have been the appellant.
[12] Against this background, I turn to the three grounds of appeal. I deal first with the question of unanimity because I see that as largely determinative of the appeal.
Unanimity
[13] In summing up, Judge Garland gave the jury the orthodox direction that the jury must be unanimous as to its verdict. The Judge went on to tell the jury that there was no requirement to be unanimous as to the basis of liability. The approach taken in the summing up appears from the following passage:
[32] Members of the jury that brings me to the fourth part of my summing up. The broad issue in this trial is whether the Crown has proved beyond reasonable doubt that the accused was actively involved in the arson of the Rangiatea Church, either as a principal party or a secondary party. It is entirely a matter for you, but it seems to me that in this case there is no dispute that, some person or persons deliberately set fire to the church; and whoever did that, did not have any lawful justification or excuse, or colour of right. If that view coincides with your own view, then your enquiry seems to me to focus on two sub-issues, namely: 1. Did the accused set fire to the church himself (ie principal offender); or 2. Did the accused intend to, and in actual fact, assist, encourage, incite, counsel or procure another person or persons to set fire to the church. In other words, was he a secondary party. Remember, the burden of proof rests on the Crown and the Crown must prove these matters beyond reasonable doubt before you can find the accused guilty.
[33] If you are left in the position where you are not able to say if the accused was a principal party or a secondary party, but you are satisfied beyond reasonable doubt that he was one or the other, then you should find the accused guilty. You do not need to be unanimous as to the basis on which you find the accused guilty. For example, some members of the jury could find the accused guilty as a principal party, while others may be satisfied that he was a secondary party. You must, however, be unanimous in finding that the accused was either a principal party or a secondary party before you could return a verdict of guilty.
[14] The argument for the appellant is that the Judge should have told the jury that it had to be unanimously agreed as to the basis of liability, ie, as to whether or not Mr Shaw was a principal or a party.
[15] I disagree. This is a classic parties case in which there was more than one possible way in which the appellant was involved in the arson. The appellant’s admissions were ambiguous in the sense he was never asked about his precise role in the arson and nor about whether others were involved. As Ms Markham submits, on the evidence it is possible that Mr Shaw both suggested the target and actually committed the offence together with co-offenders whom he also assisted and encouraged. What is clear is that there was ample evidence to justify the jury in finding that, whether as a principal or as a secondary party, the appellant had the requisite criminal involvement. That evidence included the appellant’s admissions as well as his presence in the immediate area at the time of the fire.
[16] The prosecution was not bound to choose a particular mode of participation, it was sufficient in this case to point to the possibilities. Nor was the jury required to agree on the precise method of participation so long as it was satisfied beyond reasonable doubt that the appellant was involved in a way which met the requirements either of a principal or of a secondary party.
[17] An analogy can be drawn with those murder cases in which it has been held that there is no “general principle” that a jury must elect between theories of the method of killing albeit in some cases that may be necessary: R v Ryder [1995] 2 NZLR 271 at 273 (CA), applying the decision of the Supreme Court of Canada in R v Thatcher [1987] 1 SCR 652. A similar approach has been taken in the United Kingdom: see, for example, R v Giannetto [1997] 1 Cr App R 1 at 9 (CA). Kennedy LJ in Giannetto makes the point that although unanimity is not required on the means where the legal definition of the crime does not require that, the jury must all be agreed that the accused was involved on one basis or the other: at 5 and 8. The position in the United Kingdom is slightly more complicated because of the decision in R v Brown(Kevin) (1983) 79 Cr App R 115 (CA). The Court held that in that case, on a charge of inducement by making a misleading statement, that the particular statement which made up the inducement had to be proved to the satisfaction of the whole jury. This Court declined to follow Brown in relation to charges of wilful ill-treatment of a child in R v Mead [2002] 1 NZLR 594. For a recent application of Giannetto see R v Donnan [2009] NZCA 171.
[18] The example given in Ryder at 273 of a case in which there was a need for an election between theories is R v Chignell [1991] 2 NZLR 257 (CA). The alternative scenarios in Chignell suggested the murder took place either in Auckland or in Taupo and involved different acts and different intents. That is not this case.
[19] Chignell is a different case because the alternative methods by which the victim may have died involved different analyses before a murder verdict could follow. If the murder occurred in Auckland, that involved the victim being beaten to death in the context of a bondage session and the dead body then being taken to Taupo to dispose of it. That scenario would require the jury to consider the mechanics of death as well as the defendants’ states of mind. In particular, the jury would have had to consider whether Ms Chignell killed the victim and, if she did, whether she intended to or was reckless as to whether death occurred through knowing that the injury she inflicted was likely to cause death: at 266. Further, as the Court in Chignell observed at 266, on that scenario, the case against the other accused “may be even more difficult”.
[20] On the Taupo scenario, the jury had to decide whether the victim was alive at the time he was bound and thrown into the river. As the Court noted, the jury may have had “little difficulty” in this scenario in concluding that if he was still alive, the act of throwing him, bound, into the river must have been accompanied by the requisite intent to kill: at 265.
[21] The facts in Chignell may be contrasted with those in Thatcher where the key issue was whether the appellant personally pointed the gun and shot the victim or whether he asked someone else to do that.
[22] Similarly, in Ryder, the primary issue was whether the appellant caused the victim’s death with the requisite intent. The argument which was rejected in that case was that the Judge should have told the jury that it had to be unanimously agreed as to both the precise cause of death and that the appellant had the necessary intent for murder. In Ryder, the 10-year old victim had been continually beaten over a two-day period. The actual cause of death was a brain injury at the back of the head. The brain injury was most likely caused by a blow to the head but there were other possibilities such as a blow causing the victim to fall backwards. The Court said the prosecution did not have to prove the exact “kick or blow” that caused death, “it was enough to point to a range of possibilities”: at 273.
[23] In my view, there is no conflict between Chignell which reflects its own, unique, set of facts and Thatcher. Thatcher illustrates the line of cases, of which Ryder is an exemplar, which deal with what has to be proved when different forms of participation or roles are possible in the same killing. Another way of explaining the two approaches is that taken by this Court in R v Peters [2007] NZCA 180. In that case, when dealing with an appeal relating to a murder, the Court at [38] noted that where there are alternative bases cases can fall into two categories. The first category is where the alternatives “relate to which act, out of a series of acts” caused the death. The second category is where the act causing death is not in dispute but the “alternatives relate to the surrounding circumstances”. The Court in Peters saw Chignell as an example of the first category.
[24] Mr King seeks to distinguish this case from other cases involving parties on the basis that what occurred at Linton Prison was so remote in time, place and circumstance from the fire. Hence he says the Crown was relying on acts different in nature and separated by at least a month before the fire. There is nothing in the authorities relied on by the appellant that supports the distinction the appellant seeks to draw between the usual, run of the mill, parties case and this one.
[25] The cases relied on by the appellant, R v Qiu [2008] 1 NZLR 1 (SC) and R v Saggers [2008] NZCA 364 are readily distinguishable. The single count of blackmail in Qiu alleged a number of different threats on different occasions, some made by the appellant in person, and others by persons acting at her behest. The alternatives related to the substantive offence, not just to the surrounding circumstances. In any event, as Ms Markham submits, the result in Qiu did not turn on unanimity issues but on other difficulties in the summing up: at [11] – [22].
[26] The manufacturing count in Saggers alleged two separate methamphetamine “bakes” on different dates, one committed by the appellant as a secondary party, the other as a principal. The problem there was that the count alleged two separate offences. By contrast, in this case, there is only one offence, namely, arson. It is also relevant that, here, the two scenarios are not mutually inconsistent.
[27] Mr King suggests that the effect of the Judge’s direction in the present case was that the appellant could have been found guilty because some members of the jury accepted that Mr Shaw suggested the Church be burnt down in his conversation at Linton Prison some time before the fire. Technically, what was said at the prison may have amounted to incitement and on my approach that does not alter matters. But, in any event, it appears that this was not the basis on which the Crown put its case. In this respect, I take a different view from that of Heath and Fogarty JJ (at [95] and [137] respectively) as to the basis on which the Crown case was put. In my view, the record shows that the Crown case was that the jury could be satisfied of the appellant’s involvement in part because he had suggested the Church be a target in the first place. The other matters relied on, as I have said, included his admissions and, importantly, his presence near the Church on the night of the fire.
[28] In closing, the Crown prosecutor summarised the Crown case as follows:
[3] Now the Crown doesn’t need to prove the accused’s exact role. However, here the Crown says that at a minimum, the accused must have been a secondary party who helped, encouraged, incited or counselled this arson and that he suggested the target, this particular church, being his idea, he got in the car, knowing that the burning down of the church had already been mentioned when he got in the car and his willingness to accompany others on that very night the church was burnt down, when he was the person who had suggested that church in the first place. At a minimum could be seen as encouragement through his presence getting in that car, psychological support. But you may think that given the accused’s repeated confessions, that his involvement goes even further than that.
[29] Similarly, in putting the Crown case in summing up, Judge Garland described what happened at Linton Prison as one of the four reasons advanced by the Crown as providing a basis on which the jury could be satisfied that the appellant was actively involved in burning the Church.
[30] For these reasons, I consider there was no need for the Judge to direct the jury on unanimity in the way contended for by the appellant.
“Alternative charges”
[31] The appellant’s submission on this point is that the alternative modes of participation under s 66(1) ought to be charged separately.
[32] It follows from my approach to unanimity that I do not consider there was a need to split the indictment. In any event, the approach taken by the Crown here is contemplated by ss 66 and 343.
[33] Section 66(1) provides that everyone is a party to and guilty of an offence who:
(a) Actually commits the offence; or
(b)Does or omits an act for the purpose of aiding any person to commit the offence; or
(c) Abets any person in the commission of the offence; or
(d) Incites, counsels, or procures any person to commit the offence.
[34] As Ms Markham submits, the history of s 66 goes back to the draft Criminal Code prepared after the Report of the Royal Commission on the Law Relating to Indictable Offences in 1879. Its purpose was to confirm the removal of the distinctions between principals and accessories. It is plain that s 66(1) does not create separate offences or charges.
[35] The point is further emphasised when s 66 is read together with s 343. Section 343 states:
Indictment of parties
Every one who is a party to any crime may be convicted either upon a count charging him with having committed that crime, where the nature of the crime charged will admit of such course, or upon a count alleging how he became a party to it.
[36] Section 343 also has its origins in the 1879 Draft Code. The Royal Commission’s proposals in terms of indictments were intended to simplify and relax some of the more technical rules. The equivalent provision in the Commission’s code was in all essential respects identical to s 343 except that the words “where the nature of the crime charged will admit of such a course” were omitted. It appears that phrase was added to deal with cases where, for example, a corporate entity was involved but the crime was one which only a natural person could commit: Adams on Criminal Law (looseleaf ed) at CA66.05 and CA66.10. The intention of the draft Code proposal was that anyone who is a party may be convicted on a count that charges him or her with committing the offence or on one charging him or her as a party. That appears to be the intention of s 343.
[37] The effect of ss 66 and 343 is that principals and parties are treated alike for the purpose of drafting indictments. As Ms Markham accepts, it is desirable, as a matter of good practice, for the prosecution wherever possible to specify the form of participation in the indictment: DPP for Northern Irelandv Maxwell [1978] 3 All ER 1140 (HL); R v Gaughan [1991] 155 JP 235 (CA); and s 329(4) of the Crimes Act. The point Ms Markham makes is that a failure by the Crown Solicitor to include a reference to the specific subsection of s 66 relied upon does not of itself vitiate the count. It may, however, give rise to a miscarriage of justice if it can be shown that the accused was taken by surprise and materially prejudiced as a result of the failure.
[38] The latter concern was the basis on which this Court allowed Mr Shaw’s earlier appeal. The background to that was that the Crown in opening in the first trial put its case on the basis Mr Shaw was the principal. Mr Shaw, who represented himself, gave evidence in the course of which he raised the discussion at Linton Prison. The Crown in closing put its case on the basis he was either a principal or a secondary party.
[39] This Court was concerned the unrepresented appellant had not had fair notice of the allegations and this affected, for example, his ability to call other evidence.
[40] There is a passage in the judgment (at [35]) where the Court observes that what occurred was “effectively, very similar to an amendment of the indictment by the addition of an alternative change”. However, that was expressing an analogy rather than requiring an alternative charge. It does not appear that the Court’s attention was drawn to s 343.
[41] Accordingly, I do not consider there was any requirement to split the indictment as suggested by the appellant.
Autrefois acquit?
[42] This issue arises because of the course followed at the end of the first trial. The trial judge, Judge Connell, directed the jury that the jury had to be unanimous as to the basis of liability. The Judge told the jury he would ask them about this when he took the verdict. Accordingly, after taking the verdict at the first trial, the trial Judge asked the jury foreperson, “Can you tell me please on what basis did you find him guilty, guilty as a principal or guilty as a party?” The foreperson replied, “Guilty as a party”. The Judge then sought confirmation the jury members were all agreed. It appears the jury indicated they were.
[43] This, rather unusual, course gives rise to an issue as to whether what occurred limited the ability of the Crown in charging the appellant at the second trial.
[44] It is clear that what occurred does not give rise to a successful plea of previous acquittal because it does not come within the words of ss 357 and 358 of the Crimes Act. There was just one charge and there was no acquittal on that: DPP v Nasralla [1967] 2 All ER 161 at 165 (PC). It is, however, still necessary to consider whether what has occurred amounts to an abuse of process.
[45] Although dealing with a stay prior to trial, the principles set out in Fox v Attorney-General [2002] 3 NZLR 62 (CA) are helpful:
[37] These principles set a threshold test in relation to the nature of a prosecutor’s conduct which warrants a decision to end a prosecution, prior to trial, as an abuse of process. Conduct amounting to abuse of process is not confined to that which will preclude a fair trial. Outside of that category it will, however, be of a kind that is so inconsistent with the purposes of criminal justice that for a Court to proceed with the prosecution on its merits would tarnish the Court’s own integrity or offend the Court’s sense of justice and propriety. The power of stay is not available for disciplinary purposes nor to reflect a Court’s view that a prosecution should not have been brought. The hallmarks of official conduct that warrant a stay will often be bad faith or some improper motive for initiating or continuing to bring a prosecution but may also be simply a change of course by the prosecution having a prejudicial impact on an accused. Finally, to stay a prosecution, and thereby preclude the determination of the charge on its merits, is an extreme step which is to be taken only in the clearest of cases.
[46] There is no question here of bad faith or improper motive. The prejudice relied on by Mr King is the exposure to risk of conviction especially where that offends against the principles of double jeopardy. That must be the only possible prejudice given what occurred had no impact on the sentence imposed on the appellant. After both trials, the appellant was sentenced as a secondary party and the same, four year, term of imprisonment was imposed.
[47] There is nothing in this Court’s earlier decision which suggests the second trial should have been brought on any different basis. The Court’s discussion on the directions that may be necessary to deal with similar fact evidence suggests it was envisaged the case may be put on both principal and secondary bases: at [62].
[48] Nor is there any question of the appellant being caught by surprise at what occurred. The issue was the subject of a pretrial ruling by Judge Garland so the appellant had ample notice.
[49] Mr King argues that what occurred nonetheless amounts to an abuse of process. He emphasises that the first jury asked for a definition as to what it meant to be a party. The Judge repeated his earlier direction on parties. Mr King says therefore that the Court can properly infer the jury considered the appellant was not guilty as a principal. Or, Mr King submits, if there is uncertainty on this point the matter should be concluded in the appellant’s favour.
[50] However, the Judge in the first trial had not directed the jury to consider the appellant’s liability as a principal first. Nor was the jury told that if their verdict was not guilty on the basis of liability as a principal, only then were they to consider the alternative. Accordingly, as Judge Garland said at [47] in the pretrial ruling, while it would have been “logical” for the jury to consider liability as a principal first, it is not “inevitable” that they did so. Another possibility is that the jury may have been unable to reach agreement on liability as a principal.
[51] Nor do I accept Mr King’s submission that in these circumstances the appellant should have the benefit of the doubt. That approach would in effect require speculation as to the jury’s decision making.
[52] On balance, I do not consider what occurred meets the threshold for an abuse of process. What occurred was unfortunate but ultimately has not led to unfairness.
[53] For these reasons, I do not consider the ground based on the principles of autrefois acquit or abuse of process is made out.
Result
[54] I would dismiss the appeal. However, in accordance with the view of the majority, the appeal is allowed. The conviction and sentence are quashed. A retrial is ordered but may only proceed on the basis of secondary liability (see Fogarty J at [143]). Any questions of bail shall be dealt with in the District Court.
HEATH J
Introduction
[55] Mr Shaw appeals against conviction on one count of arson, at a second trial.
[56] There are three substantive issues. The first is whether Mr Shaw ought to have been tried only on the basis that he was alleged to be a principal offender. The second is whether the trial Judge correctly directed the jury that they did not need to be unanimous about whether Mr Shaw was a principal or a secondary party, so long as all 12 jurors agreed that he was guilty on one basis or the other. The third is whether the count in the indictment ought to have been divided into two; one alleging liability as a principal and the other as a party.
[57] The background facts are set out fully in Ellen France J’s judgment, which I gratefully adopt.
Background
The first trial
[58] At the first trial, Mr Shaw (who was self-represented) was charged as a principal offender, who had actual involvement in setting light to the Rangiatea Church at Otaki. Mr Shaw elected to give evidence. While denying that he was present when the Church was torched, he acknowledged that he had spoken to three men at Linton Prison some months before the fire and they had discussed possible arson targets, including the Church. That testimony provided an evidential foundation for the proposition that he was liable as a secondary party, based on alleged incitement of a criminal act.
[59] The Crown closed to the jury on the basis that Mr Shaw could be found guilty on the single charge of arson if he were present at the scene when the Church was set alight (s 66(1)(a) or (b) of the Crimes Act) or if he incited others to commit the act of arson (s 66(1)(d)).
[60] The jury convicted Mr Shaw. Unusually, the trial Judge, Judge Connell, inquired of the jury whether their verdict was based on principal or secondary liability. The foreperson answered that it was secondary liability. The jury was not asked whether a unanimous view had been reached on the allegation of involvement as a principal.
Appeal from conviction at first trial
[61] Mr Shaw appealed against his conviction. The appeal was allowed, the conviction was set aside and a new trial was ordered: R v Shaw CA159/05 22 November 2005.
[62] The basis for allowing the appeal was that Mr Shaw had not been given adequate notice of the Crown’s intention to rely on evidence to establish secondary liability. This Court held that the Crown, in relying on the events that occurred in the prison yard at Linton “were relying on acts of an entirely different nature some months before”. That was not the charge that Mr Shaw had gone to Court to meet.
[63] In obiter remarks, this Court considered procedural issues relating to the charge. The members of the Court drew an analogy with the need to apply to amend an indictment, to ensure the charge conformed to proof. Doogue J, delivering the judgment of the Court, put that issue as follows:
[32] Section 329(4) Crimes Act 1961 requires an indictment to:
“Contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to; but the absence or insufficiency of such details shall not vitiate the count.”
[33] Here the count in the indictment charged that the appellant did wilfully set fire to the church on or about the 7th day of October 1995. There was nothing within the indictment relying upon any other particulars and certainly not upon the appellant being a secondary party in respect of a conversation that he had had months earlier.
[34] Crown counsel, in his closing address, purported to provide alternative particulars of support for the indictment by having the jury write in a reference to s 66(1) Crimes Act 1961. If the Crown had sought to amend the indictment, where there appeared to be a variance between the proof and the charge, it would have been necessary for it to obtain the leave of the Court under s 335(1) Crimes Act 1961.
[35] What the Crown did was, effectively, very similar to an amendment of the indictment by the addition of an alternative charge. However, because of the course adopted by the Crown, there was no opportunity whatever for the appellant to be heard as to whether he opposed the position of the Crown. The Judge did not intervene. The appellant was not heard as to whether he claimed any prejudice or to be misled by the course adopted.
The second trial
[64] At the retrial, the Crown Solicitor elected to try Mr Shaw on a single count of arson, relying on both principal and secondary culpability. By this time, Mr Shaw had more than sufficient notice that the Crown intended to proceed in this way. Therefore, the problems identified in the first appeal were spent.
[65] Before the second trial, Mr Shaw applied for an order that he be tried only on the basis of alleged secondary liability. The application was based on notions of previous acquittal and double jeopardy. The application was refused by Judge Garland.
[66] At the trial, Judge Garland summed up to the jury on the basis that they could convict if some jurors were satisfied beyond reasonable doubt that Mr Shaw had incited the crimes and the remainder were satisfied, to the same standard, that he was a principal. In other words, provided all members of the jury agreed that the Crown had proved that Mr Shaw was guilty of the crime of arson, they could convict, even though they were not unanimous about the basis for his criminal liability.
[67] The jury found Mr Shaw guilty. The trial Judge made no inquiry about the basis on which the jury had reached its verdicts.
The double jeopardy issue
[68] Mr King, for Mr Shaw, submits that we should infer that the first jury found Mr Shaw not guilty on the Crown allegation that he was present at the scene when the Church was set alight. Accordingly, while no verdict of acquittal was entered, he submits that we ought to treat what occurred as analogous to the special plea of previous acquittal and set aside the conviction, on the grounds that Mr Shaw faced double jeopardy on the allegation of principal involvement.
[69] I agree with Fogarty J (at [114] of his judgment) that jurisdiction exists to set aside a conviction if that were necessary to prevent an abuse of the Court’s process. In that case, an abuse would arise if it were clear that the jury, at the first trial, had reached the conclusion that Mr Shaw was not guilty as a principal, irrespective of whether a formal verdict was returned.
[70] However, in company with Ellen France J, I do not consider that the principle of double jeopardy is engaged. It would be wrong to infer either that the jury was unanimous in its rejection of principal liability or that it deliberated initially on the allegation of principal liability.
[71] With respect, I do not agree with Fogarty J’s analysis of the “double jeopardy” point. At the first trial, there was a single charge and the jury was directed that it had to be unanimous whether the charge was proved on principal or secondary liability: see [107] of Fogarty J’s judgment, in which the relevant extract from Judge Connell’s summing up is set out. In the absence of a firm foundation for the proposition that the first jury was unanimous in rejecting principal liability, I cannot see any rational basis to conclude that an abuse of process resulted from what occurred. The problem at the first trial arose out of lack of notice or surprise. That was the basis on which this Court acted to set aside the guilty verdict. Any surprise had been cured by the time the trial was returned to the District Court.
[72] I agree with Ellen France J’s reasons for rejecting the appeal on grounds of double jeopardy: see [42] – [53] of her judgment.
The unanimity/alternative counts issues
[73] I have found the unanimity issue more troubling. The point is not easy. It is one on which reasonable minds may genuinely differ.
[74] I agree with Fogarty J that the starting point for analysis is the principle that it “is for the jury to decide whether or not the Crown has proved the facts which amount to the commission of an offence”: at [129] of his judgment. However, that statement begs the question: what does the jury have to decide unanimously?
[75] Judge Garland’s directions on the unanimity issue, at the second trial, are set out at [13] of Ellen France J’s judgment and need not be repeated.
[76] I do not accept that the authorities establish a principled bright line between cases in which a jury is required to elect between alternative Crown theories of the case and those in which a jury is entitled to conclude that an accused is guilty because all 12 agree (albeit, on different bases) that the essential elements of the charge have been proved beyond reasonable doubt.
[77] While two decisions of this Court illustrate the two sides of the line, the precise location of the boundary is unclear.
[78] In R v Chignell [1991] 2 NZLR 257 (CA), the issue was whether the trial Judge had been correct to direct the jury that they could return a verdict of guilty on a single charge of murder, even though not unanimous on whether death occurred due to acts committed in Auckland or in Taupo. The Court (Eichelbaum CJ, Richardson, Somers, Bisson and Hardie Boys JJ) held, at 265, that the direction was inadequate because it was essential for the jury to determine the place at which the murderous acts were committed. In contrast, in R v Ryder [1995] 2 NZLR 271 at 273 (CA), the Court (Cooke P, Richardson, Casey, Hardie Boys and McKay JJ) held that a jury was not required to agree unanimously as to the precise mode of death, provided it was satisfied the accused must have caused it with one of the two murderous intents. Chignell was a considered decision of the Court while, from the report, it appears that the judgment in Ryder was given orally.
[79] In R v Thatcher [1987] 1 SCR 652, the Supreme Court of Canada held that a direction that the jury need not be unanimous on whether the accused pulled the trigger or ordered a murder, was adequate. Thatcher was applied in Ryder, but was not discussed in Chignell. Delivering the judgment of the Court in Ryder, Cooke P said, at 273:
The decision of the Supreme Court of Canada in R v Thatcher … illustrates that there is no general principle that the jury must elect between theories of the method of killing put forward by the Crown. In some circumstances that may be necessary, as was held to be the case in R v Chignell, but the present case is not in that category, for the reasons we have given.
Earlier, the President had said, at 273, that Chignell was “so different on the facts as to be of no assistance in this case”. However, His Honour did not expand on that general proposition.
[80] Thatcher is the leading Commonwealth decision on point. The Supreme Court held unanimously that the trial Judge was right to direct the jury that a verdict of guilty could be returned if some jurors were satisfied beyond reasonable doubt that Mr Thatcher shot his wife and others were satisfied beyond reasonable doubt that he had procured the services of someone else to kill her. The case was unusual in that, to accept that Mr Thatcher ordered the killing, it was necessary for the jury to conclude that he was some 400 miles away from where the crime was actually committed.
[81] The principal judgment was delivered by Dickson CJ, with whom Beetz, Estey, Wilson and Le Dain JJ concurred. In considering the issue the Chief Justice began his analysis by reference to s 21(1) of the (Canadian) Criminal Code which, for present purposes, is analogous to s 66 of the Crimes Act.
[82] After referring to and analysing the authorities, Dickson CJ affirmed the proposition that the requirement for each ingredient of an offence to be proved beyond reasonable doubt did not oblige a jury to accept or reject individual pieces of evidence. In doing so, the Chief Justice considered that the proposition that jurors must be “in substantial agreement as to just what an accused has done” overlooked the whole point of s 21 (s 66 in New Zealand) “which makes the distinction between principals and aiders and abettors legally irrelevant”: at [78].
[83] Before Thatcher was heard in the Supreme Court, three academic articles had considered the impact of the unanimous (on this point) judgments of the Court of Appeal of Saskatchewan that the Supreme Court upheld. Gelowitz “The Thatcher Appeal: A Question of Unanimity” (1986) 49 CR (3d) 129 and Stuart “Annotation to Thatcher v R” (1984) 42 CR (3d) 259 disagreed with the view that a verdict of guilty could be returned, even though a jury was not satisfied unanimously beyond reasonable doubt of the basis of an accused’s guilt. The contrary position was taken in MacKinnon “Jury Unanimity: A Reply to Gelowitz and Stuart” (1986) 51 CR (3d) 134. Dickson CJ adopted Professor MacKinnon’s view at [82]:
… As Professor Peter MacKinnon points put in, “Jury Unanimity: A Reply to Gelowitz and Stuart” (1986), 51 C.R .(3d) 134, at p. 135, if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, “it is difficult to imagine a situation more likely to bring the administration of justice into disrepute -–and deservedly so.”
(Emphasis in original)
Lamer and La Forest JJ delivered concurring judgments. Each qualified the plurality judgment on bases that are not relevant for the purposes of this appeal.
[84] In Chignell the Crown put its case in closing on the basis that the accused killed Mr Plumley-Walker, either during the course of a bondage session in Auckland or by throwing him, while still alive, over the Huka Falls, near Taupo. The trial Judge told the jury that it could convict if all were satisfied beyond reasonable doubt that the accused had murdered Mr Plumley-Walker, even though they did not agree whether the murder took place at Auckland or Taupo. This Court concluded at 266 that the Judge erred:
The introduction of an alternative to the charge of murder at Taupo complicated the task of the jury. Against the background of the complex factual alternatives arising, it was essential that the jury's mind be directed to the issues of the act or acts causative of death, and of the person or persons responsible for them. They had to be clearly told that they must be unanimous before they could convict on either alternative. Directions were also necessary as to the way in which they should approach their task, and as to the different considerations of fact and law that applied to each of the alternative charges. The directions that were given were not adequate in these respects and we cannot therefore be sure that the verdicts were soundly based in law. It may be that the verdicts did meet the proper legal tests. But as the way in which verdicts are reached cannot be a matter of inquiry it is a fundamental requirement that a jury be correctly and fully directed as to the law upon which it must act. Only then can the result be accepted with confidence.
[85] Ellen France and Fogarty JJ each refer to the subsequent decision of this Court in R v Peters [2007] NZCA 180. Alternative theories were advanced by the Crown at trial. They were explained by Robertson J, delivering the judgment of the Court:
[9] The first prong of the Crown case was the [sic] Mr Peters and Ms Southon had decided together to kill Mr Burnard. It was contended that on the night of 26/27 April 2005, Ms Southon lured Mr Burnard out of his house where Mr Peters was waiting in a car with a gun. Ms Southon got into Mr Peter’s car and Mr Burnard followed in his vehicle. The cars collided on several occasions before stopping. Mr Burnard got out of his car, went to the other car and put his hands through the window. The Crown allege Ms Southon held Mr Burnard while Mr Peters continued driving. Mr Peters then shot Mr Burnard at least twice – once in the shoulder and then fatally in the chest. Subsequently the car was turned around and another shot was fired while Mr Burnard was lurching towards a driveway where he collapsed and died.
[10] As an alternative, the Crown submitted that Ms Southon was a secondary party as she had held Mr Burnard while Mr Peters fired the gun. There was no clear delineation between these two theories in the presentation of the case. This became an issue in the appeal.
[86] When discussing the unanimity point, Robertson J continued:
[36] It is accepted that Ms Southon could be guilty of culpable homicide on either basis, but did the jury have to be directed that they must be unanimous as to which of the two alternatives applied?
[37] We have concluded that such a direction was not necessary. In each alternative there was no difference as to place, time or nature of the killing but only a variation about the type of involvement under s 66 of the Crimes Act 1961.
[38] Where there are alternative bases, cases can fall into two categories:
(a)where the alternatives relate to which act, out of a series of acts, actually caused the death of the victim; and
(b)where the act causing death is not in dispute, but where the alternatives relate to the surrounding circumstances.
We are satisfied that Ms Southon falls into the second category.
(Emphasis added)
[87] I make two points arising out of the dual categorisation at [38] of Peters. The first is that the Court (at least) left open the possibility of treating differently cases in which the alternative theories were based on acts done and intentions formed at a different time, place or circumstance: Peters at [37]. Second, the categorisation seems to be focused on whether causative acts in dispute do or do not relate to the “surrounding” circumstances. The expression “surrounding circumstances” also suggests a contemporanity of time, place and circumstance.
[88] My approach (consistent with my reading of Peters) is based on the need to analyse the criminal acts and intents that the Crown must prove to obtain a conviction, in the context of the time, place and circumstances in which those acts and intents were either performed or formed.
[89] In Ryder and Peters, the acts and intentions were co-existent and involved the accused participating in a continuous sequence of events that led to the death of the victim. On the other hand, Chignell is an example of a case in which the Crown put forward theories based on two distinctly different causative acts of death, in respect of a single killing.
[90] Chignell may have fallen into the same category as Ryder and Peters if the Crown had put its case on the basis that the accused formed an actual intent to kill the deceased in Auckland and committed a continuous sequence of acts designed to achieve that end, from the conclusion of the bondage session in Auckland to the time the deceased was thrown over the Huka Falls at Taupo. But, the case was not put to the jury in that way.
[91] The facts in Thatcher are closer to Chignell than Ryder. In Thatcher, the basis of party liability was a telephone call to procure the services of another to shoot Mrs Thatcher, with an actual intent to have his wife killed. Mr Thatcher’s criminal culpability was complete once the telephone call ended. The alternative theory was that Mr Thatcher was present when his wife was killed and that he pulled the trigger to cause her death. On that theory, the intention to kill remained, but the culpable act was the shooting. In other words, the culpable acts and intentions were formed at different times and in different places.
[92] In the present case, Mr Shaw faced a single charge of arson. On an application of Thatcher, whether he was guilty as a principal or a party was irrelevant. The question was whether he was guilty of that crime. In Chignell, a similar issue arose; the only difference being that involvement as a principal was involved, on either theory.
[93] In R v Tamatea (2003) 20 CRNZ 363 at [26] (HC), the Court applied Young v Cassells (1914) 33 NZLR 852 at 855 (SC) in holding that the word “incites” means “to rouse, to stimulate, to urge or spur on, to stir up”. On the charge of inciting arson, Mr Shaw’s criminal culpability was complete once he had uttered seriously words of incitement to others, with the requisite intent that the Church be set alight. Mr Shaw’s acts and intentions as an inciter were formed at a different time, at a different place and in different circumstances from any involvement as a principal (or helper) in setting fire to the Church. While all acts and intentions relevant to incitement were completed by the time the conversations in the Linton prison yard ended, Mr Shaw could not be prosecuted unless someone subsequently set fire to the Church: see R v Paterson [1976] 2 NZLR 394 at 395 (CA), applying R v Harrison [1941] NZLR 354 (CA).
[94] In my view, Chignell requires the Crown to elect which theory to pursue by alternative counts in the same indictment or, at least, by filing a single indictment containing particulars of the alternative ways in which the single killing occurred. Chignell operates, in my view, when the essential facts in issue are separated by time, place and circumstance. If contemporaneous acts and intentions exist there is no need for a jury to reach unanimous views on independent bases for criminal culpability.
[95] Therefore, the Judge should have directed the jury as follows, on the way in which the Crown case was presented:
(a)If some of the jury were satisfied beyond reasonable doubt that Mr Shaw lit the fire and the remainder were satisfied that he helped or encouraged someone to do so at the scene, they could convict;
(b)If the jury were not unanimous on the basis set out in (a), in order to convict they had to be unanimous that Mr Shaw incited the arson through the words he spoke at the Linton prison yard.
[96] That approach is supported by the language employed in s 329 of the Crimes Act, a provision dealing with the content of counts in an indictment. In particular, I refer to s 329(4) and (6) which provides:
329 Contents of counts
…
(4)Every count shall contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to; but the absence or insufficiency of such details shall not vitiate the count.
…
(6) Every count shall in general apply only to a single transaction.
Both sub-sections emphasise the desirability of dividing counts so that each “transaction” is considered separately.
[97] I take three propositions from s 329(4) and (6):
(a)First, there is a need for the Crown to allege discretely crimes that arise out of different “transactions”. The term “transaction”, in this context, connotes an event (or a series of events) separated in time, place and circumstance from another from which the same offence might be proved – eg Chignell. Support for that view can be found in R v Qiu [2008] 1 NZLR 1 at [7], [8] and [18] (SC). While the Supreme Court referred to s 329(b), it is clear that was intended to be a reference to s 329(6), as there is no s 329(b) in the Act. See also the judgment of this Court on Mr Shaw’s first appeal at [32], set out at [63] above.
(b)Second, if separate counts were not laid, that does not affect the validity of the count alleging the offence: s 329(4). Rather, it puts a greater onus on a trial Judge to ensure the jury is clear about the facts on which they must be unanimous to find the charge proved.
(c)Third, the focus on a “transaction” means that the principal/party dichotomy does not determine the circumstances in which alternative counts should be laid. For example, in the present case, Mr Shaw might be liable as a principal (s 66(a)) or helper (s 66(b)) arising out of his presence at the scene, but only as an inciter through what occurred at Linton.
[98] For the purpose of responsibility as a principal or a helper, the “transaction” involved Mr Shaw being present when the fire was lit, either actively involved in the torching of the building or, by encouraging or assisting. But, on the incitement allegation, the “transaction” involved what actually took place in the prison yard at Linton. If the jury were satisfied that amounted to an incitement, the basis of criminal liability depended on an entirely different “transaction”.
[99] The only ground on which I can distinguish Ryder from Chignell is that the same “transaction” was involved in Ryder while two different “transactions” were engaged in Chignell. Although the Court in Ryder followed Thatcher, it did not suggest that Chignell was wrongly decided.
[100] Until permanent members of this Court (or the Supreme Court) determine whether both Chignell and Ryder were correctly decided (in light of Thatcher), I prefer to apply the two “transaction” approach articulated in Chignell. That is, in my view, the only way in which Ryder and Chignell can be reconciled.
Conclusion
[101] For those reasons, I consider that the appeal should be allowed, the conviction quashed and a new trial ordered.
[102] I would have preferred to direct a retrial on the basis that the Crown could put its case on both principal and secondary liability, with appropriate directions. It is understandable that Fogarty J proposes a trial only on secondary culpability, arising out of the alleged incitement at Linton, because his judgment is grounded also on notions of double jeopardy.
[103] To achieve a majority on the nature of any retrial, I am prepared to join Fogarty J’s view that any retrial should be limited to secondary liability arising out of the alleged words of incitement spoken in the Linton yard: see Fogarty J’s judgment at [143].
FOGARTY J
Introduction
[104] I have had the advantage of reading Ellen France J’s factual background. I agree with the narrative.
[105] Of the three grounds of appeal I do not think that the second procedural ground is of itself sufficient to be an independent ground of appeal. In the following analysis I do deal with it as part of consideration of the double jeopardy point.
Issue 1: Did the second trial breach the principle against double jeopardy?
[106] The jury in the first trial were instructed by Judge Connell that there were two ways of coming to a guilty verdict of arson. They could find the appellant guilty as a principal offender, being the person who wilfully and deliberately caused the fire, or (at [28]):
… as an alternative you could come to a conclusion of guilt really on the basis of what it was, as you heard it in evidence, Mr Shaw said to those people at Linton Prison in the yard. You will remember the wording. You can check that. What the Crown argue here is that that is inciting or counselling or procuring other people to commit the crime.
[107] Judge Connell ended his summing up with this instruction:
[69] If you come to the point, members of the Jury, where you consider that he is guilty in this case and it’s somewhat unusual, but I am going to ask if you consider him guilty as a principal or guilty as a party. The way I have seen it and the way the case has been conducted it would seem to me that you would have to be unanimous in either one of those views. I am talking now about the position that would follow if you determined he was guilty. You announce that verdict in Court. I would then be asking are you saying that he is guilty as a principal or guilty as a party.
(Emphasis added)
[108] When the jury came back with the verdict of guilty the Judge asked the jury to state whether they found the appellant guilty as a principal or as a (secondary) party through inciting, counselling or procuring the fire. The jury made plain that they convicted the appellant as a party and not as a principal.
[109] We can be sure that the conviction in the first trial was based on the defendant’s own admission in his evidence at the trial of a conversation at Linton Prison summed up by his recollection: “why don’t you hit Rangiatea Church if you wanna make a stir”. We cannot be sure whether the failure of the jury to convict him as a principal, used in the context of the first trial, that is as someone actively involved in burning the Church, was because the jury were unable to agree that had been proved or because they were unanimous that it had not been proved. But we do know that it would be one of those two options.
[110] It follows that it is a real possibility that the jury did not convict Mr Shaw as a principal because it was unanimous in the view that the Crown case had not proved that Mr Shaw was involved on the night setting the Church on fire. Mr Shaw had given evidence that he was with the persons who went on to commit the arson but decided he did not want to be involved and was dropped home.
[111] The Court of Appeal set aside the verdict and ordered a retrial. They considered the accused had not had an opportunity to take issue with the proposition that the Linton Prison conduct amounted to inciting, counselling or procuring. See R v Shaw CA159/05 22 November 2005 at [37] – [39].
[112] At the second trial the same two issues were put to the jury, against one count of arson. It follows that there was a real risk that he was being tried on a charge for which the jury would have announced an acquittal had the indictment at that first trial been split into two parts, or would have advised the Judge that they were unanimous that the Crown had not proved he was a principal party, had the Judge gone on to ask further questions of them.
[113] There is no doubt that the appellant was not formally acquitted at the first trial of being a principal party, therefore ss 357, 358 and 359 of the Crimes Act do not apply. It does not follow, however, that the principles of justice underpinning the law of double jeopardy did not apply in respect of the second trial, and do not apply now.
[114] Sections 358 and 359 present as a codification of the circumstances in which the pleas of previous acquittal and conviction might succeed. However they are not to be understood as exhausting the ability of the Court to respond to an abuse (objectively considered) of the power of the Crown to re-litigate issues which are substantially the same as those that have been litigated in previous proceedings. See Connelly v DPP [1964] AC 1254 (HL) referred to in R v Taylor [2009] NZLR 654 at [50] (Chambers J) and [134] (my judgment) (CA). In Connelly both Lords Hodson and Pearce expressly recognised that estoppel lies behind autrefois acquit, see 1334 and 1365 respectively. Although Lord Hodson’s comments refer to issue estoppel I am not invoking issue estoppel. Rather, I follow particularly the dictum of Lord Pearce at 1365, where he says:
The court has, I think, a power to apply, in the exercise of its judicial discretion, the broader principles to cases that do not fit the actual pleas and a duty to stop a prosecution which on the facts offends against those principles and creates abuse and injustice.
[115] Professor Friedland is of the view that the reasonableness of the past conduct of the prosecutor plays an important role in the determination of double jeopardy problems. See Friedland Double Jeopardy (1969) at 95.
[116] In both trials the single indictment read:
1. THE CROWN SOLICITOR at Palmerston North charges that FRANCIS MANEWHA SHAW on or about the 7th day of October 1995 at Otaki, did wilfully set fire to a building, namely the Rangiatea Church in Te Rauparaha Street, Otaki.
Counsel before us were agreed that there was nothing to have stopped the Crown from laying two separate counts, one pleading the conduct of the appellant in the prison yard, the other alleging participation in the burning of the Church on the day. In my view ss 329 and 343 of the Crimes Act encourage this course.
[117] The Crown’s failure to split the counts is marked given the content of s 329(4) of the Crimes Act which provides:
Every count shall contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to; but the absence or insufficiency of such details shall not vitiate the count.
[118] It seems to me that had the Crown attempted to include what had occurred at the Linton Prison in the detail of the count the difficulty of the task would have prompted the Crown Prosecutor to split the counts. This is because what occurred at Linton Prison was removed in time, place, and nature of conduct, from the alleged conduct on the night of the fire.
[119] In my view it is no answer to the failure to comply with s 329(4) for the Crown to argue that s 66 makes the distinction between a primary and secondary party irrelevant and therefore the lack of particularity in the charge is irrelevant to the justice of the trial. The last clause of subs (4) is designed to protect verdicts, but does not remove the obligation to provide particulars. Where details are not provided injustice may occur.
[120] When the first conviction was set aside by the Court of Appeal in 2005 the Court had occasion to refer to s 329(4). Having set out the section the Court went on at [33]:
Here the count in the indictment charged that the appellant did wilfully set fire to the church on or about the 7th day of October 1995. There was nothing within the indictment relying upon any other particulars and certainly not upon the appellant being a secondary party in respect of a conversation that he had had months earlier.
[121] I do not read paragraph [33] as a compliment to the Crown. To be sure, the immediate context was lack of fair notice to the accused person. That led to the conclusion:
[43] It is of the essence that an accused person shall have fair notice of the allegations against him. That simply never occurred in this case. The alternatives being put to the jury were separated by place and time and involved wholly different acts on the part of the appellant. The basis upon which the jury found the appellant guilty was simply not part of the case the appellant had to meet in the trial. The defect in what occurred is so fundamental that it cannot be corrected other than by quashing the conviction and sentence and ordering a new trial.
(Emphasis added)
[122] In this proceeding the Crown submitted that in the second trial the appellant knew that the case would include allegations against him in respect of his conduct in the prison yard, even if the particulars were not in the count. As a matter of fact that is true. But had the requirements of s 329(4) been followed in my view there would have been two counts.
[123] Section 343 provides:
Indictment of parties
Every one who is a party to any crime may be convicted either upon a count charging him with having committed that crime, where the nature of the crime charged will admit of such course, or upon a count alleging how he became a party to it.
On these facts the qualification of the first clause, coupled with s 329(4), points to two counts, as best practice.
[124] The Crown cannot be criticised as severely in respect of the first trial because the Crown did not have evidence at the time it laid the indictment of what happened at Linton Prison. That came about when the accused gave evidence in the first trial. But the criticism can be directly applied to the Crown in respect of the second trial.
[125] For the reasons collected in [112], I conclude that there was a real risk of double jeopardy at the second trial, facilitated by the failure to comply with s 329(4). The next question is to decide whether this risk amounts to a miscarriage of justice for the purposes of s 385 of the Crimes Act. But before doing so it is material to examine the next ground of appeal: doubt as to unanimity in the second trial.
Issue 2: Doubt as to unanimity
[126] At the second trial Judge Garland directed the jury in a variety of ways by written memoranda and in his summing up. As is plain from the quoted portions of his summing up in the judgment of Ellen France J the Judge directed them to consider whether he was involved either as a principal party or a secondary party. This being, of course, the traditional language still used, to separate s 66(1)(a) from s 66(1)(b) – (d).
[127] In doing that Judge Garland did not separate out the earlier conversation in the Linton yard from evidence that he did assist and encourage other persons on the night of the fire as summarised in Ellen France J’s judgment. For example, he said he got into their car on the night and went with them in order to “show them the way”. Then Judge Garland told the jury at [33]:
If you are left in the position where you are not able to say if the accused was a principal party or a secondary party, but you are satisfied beyond reasonable doubt that he was one or the other, then you should find the accused guilty. You do not need to be unanimous as to the basis on which you find the accused guilty. For example, some members of the jury could find the accused guilty as a principal party, while others may be satisfied that he was a secondary party. You must, however, be unanimous in finding the accused was either a principal party or a secondary party before you could return a verdict of guilty.
[128] It follows that the jury might not be unanimous that the Crown had proved Mr Shaw’s talk in the prison yard justified a verdict of guilty as a (secondary) party under s 66 of the Act and also not be unanimous that the Crown had proved that the accused was a principal party in setting fire to the Church, or a secondary party on that night. Yet on Judge Garland’s direction they could still find him guilty.
[129] The basic principle of a jury trial is for the jury to decide whether or not the Crown has proved the facts which amount to the commission of an offence. The task of the trial Judge is to direct the jury as to the essential factual elements that have to be proved by the Crown before the conduct constitutes the offence charged in the count. Before they can deliver a verdict of guilty, the jury must be unanimous that the Crown has proved the essential facts.
[130] There is no doubt that in many instances it is not necessary for the Crown to prove exactly how the accused participated causatively in the offence. The paradigm example is set out by the Supreme Court of Canada in the case of R v Thatcher [1987] 1 SCR 652 at [82]:
Suppose the evidence in a case is absolutely crystal clear that when X and Y entered Z’s house, Z was alive, and when X and Y left, Z was dead. Suppose that in their evidence each of X and Y says that the other of them murdered Z but each admits to having aided and abetted. Are X and Y each to be acquitted if some of the jurors differ as to which of X and Y actually committed the offence? I can see absolutely no reason in policy or law to uphold such an egregious conclusion. The appellant’s submission ignores the very reason why Parliament abolished the old common law distinctions: namely, they permitted guilty persons to go free. As Professor Peter MacKinnon points out in, “Jury Unanimity: A Reply to Gelowitz and Stuart” (1986), 51 C.R. (3d) 134, at p. 135, if an accused is to be acquitted in situations when every juror is convinced that the accused committed a murder in one of two ways, merely because the jury cannot agree on which of the two ways, “it is difficult to imagine a situation more likely to bring the administration of justice into disrepute – and deservedly so.”
(Emphasis in original)
[131] In the United Kingdom case of R v Giannetto [1997] 1 Cr App R 1 (CA), Giannetto was charged with the murder of his wife. The Crown case was that he had either murdered her himself or had got someone else to do so. The evidence was that he had met a man named Welch and spoke to him of killing his wife. His wife was later found murdered in her flat. Reading the judgment of the whole Court Kennedy LJ said at 8:
Having considered the authorities with some care we are satisfied that in the circumstances of this case the trial judge was right not to direct the jury that before they could convict they must all be satisfied either that the appellant killed his wife or that he got someone else to do so. They were entitled to convict if they were all satisfied that if he was not the killer he at least encouraged the killing, and accordingly this ground of appeal fails.
(Emphasis added)
[132] It was essential to the reasoning in that case that the jury would be unanimous that the husband at least encouraged the killing. Any doubt about the importance of this qualification is laid to rest by the earlier passage at 5 of the judgment where Kennedy LJ said:
If the jury does convict it may do so with some jurors satisfied that the defendant was actually the killer, but all will be satisfied that if not himself the killer at least he encouraged … .
(Emphasis added)
[133] The reasoning of the Court in Giannetto maintains the principle of the unanimous decision of the jury as to proof of the causative facts upon which a verdict can be based. Turning to the paradigm example in [82] of Thatcher set out above, it is premised on the jury being able to decide unanimously that X and Y were aiding and abetting each other, in Z’s house, killing Z.
[134] In the case of R v Peters [2007] NZCA 180 Mr Peters and Ms Southon were jointly charged with the murder of Mr Burnard. The Crown case against Ms Southon was presented on the alternative bases that she was either a principal or a secondary party.
[135] One of the issues in the Court of Appeal was whether there had been a sufficient direction to the jury as to the need for them to be unanimous about the basis on which Ms Southon was implicated. This Court reasoned:
[35] At trial, the Crown advanced two possible scenarios. Principally that she was part of a pre-planned arrangement to kill Mr Burnard, or alternatively that she was an active and knowing party to the death in that she held Mr Burnard while Mr Peters fired the gun. The Judge did not direct on separate consequences for each of the alternatives.
[36] It is accepted that Ms Southon could be guilty of culpable homicide on either basis, but did the jury have to be directed that they must be unanimous as to which of the two alternatives applied?
[37] We have concluded that such a direction was not necessary. In each alternative there was no difference as to place, time or nature of the killing but only a variation about the type of involvement under s 66 of the Crimes Act 1961.
[38] Where there are alternative bases, cases can fall into two categories:
(a) where the alternatives relate to which act, out of a series of acts, actually caused the death of the victim; and
(b) where the act causing death is not in dispute, but where the alternatives relate to the surrounding circumstances.
We are satisfied that Ms Southon falls into the second category.
[39] R v Chignell & Walker [1991] 2 NZLR 257 is an example of the first. This Court, following a first trial, allowed appeals against convictions for murder as it was possible that the jury had not been unanimous on when, during the alleged chain of events, the victim died. The Crown argued that the victim may have died at Auckland, either as a result of an act of Ms Chignell or a blow by Mr Walker, or he may have died at Taupo when he was thrown, still alive, over the Huka Falls. The Court noted at 265-266:
The alternatives [put by the Crown] were separated by place and in time, and involved wholly different acts and, it seems likely different intents on the part of each accused. The two cases put by the Crown, murder at Auckland or murder at Taupo, are essentially different yet it is possible that there was no unanimity on either … Against the background of the complex factual alternatives arising, it was essential that the jury’s mind be directed to the issues of the act or acts causative of death, and of the person or persons responsible for them. They had to be clearly told that they must be unanimous before they could convict on either alternative. Directions were also necessary as to the way in which they should approach their task, and as to the different considerations of the fact and law that applied to each of the alternative charges.
(Emphasis in original)
[136] It is always difficult to apply directly the reasoning of one case to another, given that each has slightly different sets of facts. But essentially the point to be noted is that s 66 of the Crimes Act has never been interpreted as allowing the jury to be anything less than unanimous on the causative facts before they can convict. Ms Southon was at the scene when Mr Burnard died. The jury could be sure that she was aiding and abetting. They could be unanimous on this point without having to decide exactly what she did. The problem in Chignell is, as the Court noted, that there were two cases put by the Crown and it was possible that there was no unanimity on either.
[137] That is the case here. The Crown is saying Mr Shaw can be found guilty for inciting the arson in a conversation in the prison yard, or he can be found guilty as being one of a group of persons who set fire to the Church. Yet it is possible that there was no unanimity on either of these two scenarios.
[138] The Court of Appeal in Peters, after discussing Giannetto said at [44]:
Where there is more than one possibility for the act causing death, a jury needs to be directed that they must be unanimous as to the causative act, before going on to determine the mens rea in relation to that act (Chignell, Ramsay). This is not necessary where the acts can be seen as part of one course of action (such as the “attack” in McKeown) or as part of a unified plan (Thabo Meli). In those situations, the mens rea is likely to be the same for any of the acts that may have caused death.
(Emphasis added)
[139] With reference to this case there are three possible sets of actions by which Mr Shaw could be found guilty of arson. The first is the conversation in the Linton yard whereby he incited, counselled or procured arson. The second is his assistance in showing the other alleged offenders where the Church was. The third is that he actually started the fire by himself or in conjunction with other persons. This case does not have to decide whether or not the second and third sets of conduct needed to be kept separate. Such an issue would raise the potential application of the paradigm example set out in Thatcher. But what this case does have to decide is whether or not the conversation in the Linton Prison was sufficiently separate by time, place and character of conduct as to be a distinctive causative act from the actions on the night of the fire. I am of the view that the Linton prison conversation is clearly a distinctive causative act which if to be relied upon to justify a finding of guilty had to be proved to a jury beyond a reasonable doubt and the jury had to be unanimous as to the proof.
[140] Section 66 was never intended by Parliament to remove the imperative that a jury needs to be unanimous on any set of facts, proof of which is required to justify conviction. In the paradigm example the unanimity is that X and Y combined to kill Z. The fact that there may be doubt or disunity on what their respective roles were in the house is an unimportant detail. But where the conduct is separated by time and place one is looking at two different sets of conduct.
[141] I conclude that in the present case the direction of Judge Garland to the jury that they did not need to be unanimous that the accused was inciting or abetting in the prison yard or unanimous that he was involved in setting the fire, was wrong. It breached the unanimity principle and so was in error of law.
Issue 3: Determination of the appeal
[142] This error of law in Judge Garland’s direction means there is no alternative but to set this conviction aside (s 385(1)(b)). There is no possibility of applying the proviso to s 385(1).
[143] The real question is whether or not this Court should direct a new trial or make such other order as justice requires. In my view the appropriate order is that there be a retrial, but limited to the offence of being party to arson by reason of the appellant’s conduct in the Linton prison yard.
[144] I recognise that there is an unresolved doubt as to whether or not the jury in the first trial could not agree on proof beyond reasonable doubt that the appellant’s participation on the night of the fire established his guilt, or the jury agreed that it had not been proved. It does not follow that the Crown should receive the benefit of this doubt. This is so in the light of its opportunity in the first trial to separate out the indictment into two counts, even less so should it be given the benefit of the doubt after the second trial. Rather, in my view the importance of the principle against double jeopardy should be that the benefit of the uncertainty falls in favour of the appellant. Were he to be tried again on a count of being involved on the night of the fire there is a very real possibility that he would be subject to double jeopardy in a substantial sense.
Solicitors:
Crown Law Office, Wellington
39