R v Sheward Ca369/00

IN THE COURT OF APPEAL OF NEW ZEALAND

CA 369/00

THE QUEEN

JOHN DAVID SHEWARD

Hearing:	29 November 2000
Coram:	Thomas J Heron J Anderson J
Appearances:	J C Pike & R J Collins for Crown E R Fairbrother for Appellant
Judgment:	15 February 2001

JUDGMENT OF THE COURT DELIVERED BY HERON J

This is an appeal against conviction and sentence on one count of attempted murder and one count of wilfully setting fire to a dwelling house, knowing that danger to life was likely to ensue, following guilty verdicts in a trial by jury in the Napier High Court in September 2000. On the attempted murder the sentence imposed was ten years imprisonment and on the arson four years imprisonment, the sentences to be served concurrently.
On 3 November 1999, 1013 Caroline Road, Hastings, was the home of John Sheward, his wife Sally [ ] and their four sons, [ R ] 13, [ O ] 9, [ H ] 8 and [T ] 3. Late that evening someone, with the use of accelerants started a fire in one or more parts of the house, causing the occupants to escape for their lives. Apart from some smoke inhalation suffered by two of the boys, no one was injured.
The family had occupied the single story house for approximately 10 weeks. That day the family routine involved Sally [ ] taking [ R ] to music practice after school. After a hairdresser’s appointment she returned to the house at about 7 pm. Her husband, the appellant, had prepared the evening meal, and after that progressively the children and their mother went to bed.
Sally [ ] was woken not long after she had been asleep and saw light through the curtains of doors that led to a sewing room adjacent to her and her husband’s bedroom. She noticed a fire at the doors and returned to the door into their bedroom which led into a hallway. She saw fire emerging from the area of the kitchen and bathroom to her left. She then closed [T ]’ bedroom door to her right to prevent fire going into that room.
She thought the appellant had not in fact gone to bed as his side of the bed seemed to be undisturbed and he was not in the room when she woke up. She then escaped through her bedroom window discovering that [T ] had been taken out of the house by his father. [ H ] and [ O ] were rescued by their father. Sally [ ] went to get [ R ] who slept in the bedroom furthest away from where she had left the house. She had difficulty in getting him to the window but by moving the curtain and opening the window he was also able to escape.
To the police she repeated what her husband had told her, that she had jumped out of their bedroom in front of him. In evidence at trial she resiled from that, saying that he was not in their bedroom. She maintained, that during the time that she discovered the fire, shut [T ]’ door, and escaped herself from the building, her husband was not in the bedroom and was not seen by her.
The family were assisted by neighbours, and the fire brigade came within a short time and extinguished the fire. A scene examination by a fire safety officer led him to conclude that a flammable liquid had been introduced to the rear porch; the floor of the sewing room and the dining room, into the kitchen and finally into the hall which serviced their bedroom and [T ]’ room. In particular, a heavy concentration of flammable liquid had been poured onto the double doors leading from the sewing room to the master bedroom, and the door leading from the master bedroom to the hall, the two exits from the main bedroom. Then liquid had been poured on the kitchen floor, by way of a trail from the kitchen to the door of the master bedroom, right to the door of the bedroom occupied by [T ]. The officer considered there had been three ignition points, one on the rear porch which was adjacent to the sewing room, in the sewing room itself, and one alongside [T ]’s room. Some five plastic containers, some of which had residual fuel within them, were found in the sewing room, the adjacent dining room and in the hallway adjacent to the main bedroom and [T ]’ bedroom. Sally [ ] discovered later that [T ]’ bedroom window was unlatched and wide open.
It was as plain as it possibly could be on the evidence, that this fire was deliberately lit with sources of fuel placed by the arsonist at or near exit points from the main bedroom.
Sally [ ] noticed that her husband did not have the same clothes on as those he was wearing when she left him to go to bed. After the fire, witnesses described the appellant as smelling of diesel fuel.
According to Sally [ ], the family’s finances were not good. The house at 1013 Caroline Road, Hastings, was in the name of a family trust in her favour but with substantial borrowings. There was an outstanding demand from the bank for $84,000 in respect of that mortgage. A large amount of money was also owed on the orchard investment which they jointly owned.
Sally [ ] also spoke of a smoke alarm which she thought she heard working sometime after she had escaped from the house. The last time she had seen such an alarm, it was on the piano in the living room. The accused had said he had seen the smoke alarm in [ H ] and [ O ]’s room when he had put some laundry there. If so, it had been moved away from a position where it would have activated at an early stage in the fire’s progress. Some days after the fire, when she was in the main bedroom, Sally [ ] discovered in the corner of the window, glue shown to have been recently placed there. She observed it made everything else true if it meant he had attempted to kill her by burning.
Advanced at the trial was the possibility that [ R ] had caused the fire. There was some suggestion of difficulties in the relationship between him and his mother but little that would have suggested a reaction such as setting fire to the house. At the hospital where [ R ] and [ O ] were treated for smoke inhalation, the level of carboxy-haemoglobin in [ O ] was 3% and [ R ] 9.1%. Carbon monoxide generated by fire is attracted to the haemoglobin in the blood to the exclusion or partial exclusion of oxygen. Dr Temple, director of the National Poison Centre at Otago University, said that difference between the two boys was significant. He estimated the length of time that someone with 9.1% carboxy-haemoglobin would have been exposed to a fire situation. Making certain assumptions as to the normal level of the concentration of carbon monoxide in the air, he thought that level indicated an exposure time of 18-20 minutes.
The Crown evidence was that the amount of smoke sucked into [ R ]’s room in the course of the fire, was five times greater than the amount sucked into [ O ]’s room, and that that greater concentration would explain the difference in the level of carboxy-haemoglobin in the two boys. Dr Temple agreed that the density of smoke would have a corresponding impact on the haemoglobin levels and there was evidence for the jury if it accepted it, that the smoke levels were considerably greater in [ R ]’s room.
A number of points are advanced on appeal. The Crown called evidence that between May 1989 and August 1990 a number of insurance claims for losses had been made with the Royal and Sun Alliance Insurance Company, including a fire claim made in the name of the appellant’s wife where a sum of $64,000 was claimed. Further and more relevant, in July 1999, the appellant and his wife had completed life insurance proposals to the value of $500,000 respectively, with Farmers Mutual. That insurer had issued insurance to the appellant and his wife between December 1990 and July 1999 and 15 claims had been made, two of which were declined. A total in excess of $121,000 was paid out including a claim for a fire in a packing shed. Gendall J in a pre-trial ruling on 15 August held that this evidence was admissible and there was no appeal against that ruling. The matter was raised again before the trial Judge, who considered the evidence was directly relevant to the motive alleged by the Crown, that is that the accused motive and intention in setting fire to the house was to kill his wife so he could make a claim under the policy insuring her life. He considered that the probative value well exceeded the prejudicial impact of their evidence.
On appeal, Mr Fairbrother argued that evidence should not have been admitted. Mr Fairbrother says that a general claims history could not be relevant to the alleged motive of a planned claim on the life insurance policy of the appellant’s wife, and that the circumstances of those claims were different from the situation of a life insurance claim. Mr Fairbrother says that this was not evidence of part of a continual background of history relevant to the offence, and that the fire and general insurance history had no relationship to the offence charged against the appellant. He says that the availability of life insurance proceeds following a death requires no background evidence of knowledge of insurance practice in the past. Mr Fairbrother suggests that the evidence was important evidence in the trial. There were three witnesses called and some four pages of transcript relating to it. The Judge made no reference to it in his summing up and Mr Fairbrother complains that its relevance was never explained to the jury. Generally, he said, the evidence was piecemeal and given by witnesses who were relying on only computer records.
We think that this evidence of prior claims experiences played but a small part in this trial. The Crown says that the appellant’s insurance history was accompanied by his evident dishonesty in obtaining the life cover by not disclosing the two claims which were declined. That no doubt was the purpose of the evidence, but in the event Mr Walker gave no such evidence before the jury. The Crown maintain that notwithstanding the dishonesty which was alleged to have been contained in the answers to the proposals was not before the jury, the claims history remained relevant to the overall background in that it showed a knowledge of or familiarity with the ability to have recourse to insurance claims.
The real purpose and impact of the evidence however was substantially weakened by the concession the Crown Prosecutor made not to call the relevant evidence from Mr Walker. The jury were therefore left with the evidence that there had been two prior fire claims including one made by the wife in respect of her policy. The Judge gave no direction in respect of this evidence. We are not satisfied that that necessarily would have led the jury to draw any conclusions other than familiarity with the insurance process. Mr Fairbrother says that such familiarity went without saying having regard to the maturity and general life experience of the appellant. At the end of the day we are not prepared to say that this evidence, left somewhat incomplete, was likely to cause a miscarriage of justice or for the jury to undertake any inappropriate reasoning in respect of it. We think it was truly background material and relevant to the assertion that the motive for the attempt to kill was the desire to claim under an insurance policy. Other insurance had been arranged shortly before the fire of the kind that had been the subject of earlier claims. We think it has minor relevance and probative value and any prejudice that may have ensued from it, would not have caused a miscarriage of justice. The critical evidence was the arranging of the life insurance for his wife and himself shortly before the fire. The other insurance arrangements of necessity thereafter assumed little importance.
We accept the Crown’s submission that in the event the insurance history evidence, which was not mentioned by the Crown in closing became a minor side issue. That is particularly so in light of the decision of the Crown Prosecutor not to call that part of the evidence which went to the mis-statements that the appellant had made on the life insurance proposal. Whilst in one sense that left the evidence somewhat isolated and unexplained we think the jury would have focused on the critical questions as to who caused the fire and the motives of that person.
The next ground of appeal relates to the lies direction given by the Judge as follows:
[40]     The Crown says that the accused lied in his account to the Police in his videotaped interview of what occurred around the time of the fire.
[41]     You must of course be satisfied that the accused did deliberately lie. If you are satisfied that he did, be careful what weight you place on that.
[42]     The mere fact that an accused person has lied is not of itself evidence of guilt. You must ask yourselves why he is lying.
[43]     If you are satisfied that he is deliberately lying you can of course regard that as a relevant factor in assessing whether you believe his account of what happened on the night of the fire. This is a matter for you to assess.
[44]     The point I stress to you is that you should guard against any tendency to think that because the accused has deliberately lied he must be guilty for that reason alone. In deciding whether he is guilty you can take into account the fact that he has lied, but you must also take into account all the other evidence in the case and reach your verdicts on the whole of that evidence.
Mr Fairbrother’s complaint is that no lies direction should have been given. We do not accept that is so. As the Judge noted, there were statements made at the time by the accused on his interview and in particular in suggesting to his wife that she should remember how in escaping from the blaze he had almost landed on top of her. Other evidence suggested that he was some distance away from where the wife exited the house.
Mr Fairbrother relied on dicta in R v Oakes [1995] 2 NZLR 673. There this Court said:
Where the issue for a jury is simply the credibility of the evidence given by the accused, no direction as to lies is normally required. But where the accused has, or is alleged to have, told lies out of Court and that fact is said to be relevant to credibility, no more than a simple direction is usually needed to explain the possible reasons for lying and that lying is not to be regarded as evidence of guilt. What is said must be adapted to the particular case. Only in the rare instance, where it is alleged that lies point to guilt, is anything more elaborate needed: R v Toia [1982] 1 NZLR 555 at p 559. We do not agree that this case came within the last-mentioned category. The Judge certainly did not see it in that way.
Again in this case lies could not be said to be of the kind that required a direction of the kind referred to in R v Toia. Mr Fairbrother complained that if a lies direction was appropriate it should have contained a direction that proof beyond reasonable doubt that the statement was in fact a lie was required and that the jury guard against the natural tendency to conclude that the lie was synonymous with guilt, and that only if the appellant could not give an innocent explanation would it add anything to the case against him. Whilst the direction given here was not elaborated on, and could have contained some examples as to why people lie, at the end of the day the Judge plainly said the mere fact that an accused has lied is not in itself evidence of guilt, and he repeated that caution in his final paragraph on that topic.
Mr Fairbrother said that the final paragraph deflected the jury from the real issues namely the consideration of the Crown case, and the defence answer to it. He also suggested that the direction suggested that the appellant’s statement if a lie, added to the chain of proof.
In R v Andrews (1990) 6 CRNZ 680, this court considered a direction by a trial Judge inviting a jury to go on to consider why a person should tell lies, having found that they had, was inappropriate, and that in doing so it brought the lie into the second category of Toia requiring a more elaborate direction.
In that case the trial Judge was referring to a particular piece of evidence, namely the giving of an innocent explanation as to the reason for her having possession of the property in a case of burglary where the taking of possession and the holding of the goods was explained away on the basis of her role as a real estate agent when goods were said to have been taken from the property. Here there was no reference to a particular item of evidence such as in Andrews the Judge simply referring to the appellant’s account to the police contained in the video taped interview. That was also accompanied by a warning to be careful what weight was placed on that.
We do not think that this elevated in any way, any lies that might be found in the statement, to a level where it was said they added to the Crown case requiring a more detailed direction. The Judge’s repeated warning to guard against any tendency to think that because the accused had deliberately lied he must be guilty for that reason, is in all the circumstances of this case, a sufficient direction.
It can be helpful in cases of this kind to give the jury some reasons why people may lie when making an explanation out of court concerning their involvement in a crime and thereby give some practical application to the general direction. For example, it can be said that people may lie to avoid implicating others, or for some reason where their behaviour might be otherwise criticised giving a practical illustration where appropriate. This tends to put flesh on the bones of the general lies direction. In this case we are satisfied that there was a requirement in the circumstances to give a short lies direction to that effect. However we do not think that this direction was suggesting that any lie told in the course of the appellant’s video tape interview or elsewhere added to the case against him. We reject this ground of appeal.
The next ground of appeal concerns the Judge’s decision to call [ R   ] Sheward to give evidence. In his brief opening statement following the Crown opening, Mr Fairbrother told the jury that by the time they had heard all the evidence in the trial they would see that the suspicion lay elsewhere. Following concern expressed at the defence difficulty in having [ R   ] interviewed, the Judge in a ruling dated 4 September 2000, introduced the topic by saying as follows:
[5]       In her evidence Ms [    ] described in detail rescuing [ R   ] out his bedroom window during the fire. She described screaming at [ R   ] through his open bedroom window to get out, and hearing [ R   ] croaking and saying that it was very hot and smoky and he could not find the window. She described moving the curtains aside and [ R   ] coming out over the windowsill into her arms, accompanied by a considerable amount of heat and smoke. She deposed that [ R   ] was being completely smoke blackened, including in his nostrils and ears, and required a very great deal of cleaning-up. She also said that his T shirt had little burny spots on it in the back/shoulders area and that his hands were also fire affected.
[6]       Mr McNamara has just completed his evidence for the Crown in the trial. He is a fire safety expert. The nub of his evidence in chief was that he believed the door to [ R   ]’s bedroom was shut during the fire and that the bedroom would have been unaffected by the fire until the fire brigade arrived and began putting it out. I read to him Ms [    ]’s evidence outlined in the previous paragraph and asked if he could assist the jury in the light of it. In response he said that he was not aware of that evidence and that the door of [ R   ]’s bedroom could have been open during the early stages of the fire and then have been closed, or vice versa.
After hearing Crown and defence submissions which were in favour of [ R ] being called, the Judge said the issue was whether the Court should call [ R ] or, pursuant to S.368(2) Crimes Act 1961, the Judge should require the prosecution to call him.

The Judge exercising the broad discretion that he has as set out in R v Bishop [1996] 3 NZLR 399 at 401, directed that [ R ] give sworn evidence from the witness box but screened from the accused, and he would call him. We do not think that the Judge’s decision not to direct the Crown to call the witness was wrong. The principles to be applied are those which recognise the role of the Crown Prosecutor and his or her functions and those of the Court. See R v Wilson [1997] 2 NZLR 500 per Eichelbaum CJ.
Here the suggestion of [ R ]’s involvement in the crime was made by way of a letter from the defence to the Crown only a few days before trial with requests for the police to interview him independently of the prosecution. The difficulties which ensued are mentioned by the Judge as recorded above. The Crown Prosecutor never intended to call [ R ] and he did not provide any statement at depositions.
Mr Fairbrother’s concern is that the Crown were not directed to call the witness, and by the Judge examining the witness in chief, the Crown gained an advantage by being able to cross examine. It is said that the Judge led a substantial body of evidence from the witness which was of value only to the prosecution including a firm denial of involvement. We do not accept this complaint. The Judge was required to have the witness give the background information and we are not persuaded that any tangible or discernible advantage was gained by the Crown in cross-examining him. The cross-examination is recorded in twelve lines of transcript contrasted with the 13 pages of detailed cross-examination by the defence.
The defence case suggested that the police had been too hasty in reaching a conclusion as to the involvement of the accused. The possibility of someone else being involved, which could only really be [ R ] in the circumstances, was obviously advanced at the trial and formed the basis of the defence. We are satisfied also that the calling of [ R ] by the Judge irrespective of any cross-examination by the Crown, gave added emphasis to the defence case which was that [ R ]’s carboxy-haemoglobin levels could have been explained by involvement in the fire lighting itself. On the one hand it could as the Crown urged, mean no more than [ R ] went to sleep with his door open and after being smoke affected, closed it. It could have meant also that he was more involved than he was prepared to say. [ R ]’s inability to recollect any of the detail was a matter before the jury which may have proved helpful to the defence. In summary, we think that the defence raised was in no way hampered by the Judge’s decision to call [ R ] as a witness, and to lead him in his evidence giving the Crown and the appellant the right of cross-examination. It was to an extent an opportunity for the defence to inculpate [ R ] as best it could or raise some doubt in that respect. We note, in passing, that the Judge did not comment on the appellant’s failure to give evidence, as he could well have done, particularly when a significant attack was made by the defence on his son.
Rory Shanahan, a forensic scientist with considerable experience, gave evidence of his reconstruction as to the starting point of the fire which he said was in the dining room. There was no fire started on the rear porch. The damage there was caused when the fire escaped from the dining room window. The difference between the two opinions was the assumptions to be drawn from damage caused by low burning in the porch, said by the Crown’s witness to suggest an ignition point there outside on the porch, independently of the fire in the dining room. Mr Shanahan explained the damage by the fire breaking through the porch windows and radiant heat causing that damage. The jury would have seen the conflict and the evidence which went to support both theories. Mr Shanahan acknowledged that he had the Crown’s principal witnesses report for some time, and that his theory as to the starting point of the fire had not been put to Mr McNamara, when he was cross-examined. This was explained because Mr Shanahan indicated that his conclusions were evolving and that he could not recall when he had advised that he disagreed with the Crown theory. He was challenged on his conclusions, but of overriding importance his alternative theory was not put to the relevant Crown witness. The Judge was undoubtedly concerned that such matters had not been put to the Crown expert and expressed himself firmly in that regard.
Earlier a Crown expert witness opined that no person could have survived travel down the burning hall, so a seat of fire at some other place, namely the dining room was necessary to support the defence theory. The dining room proposition not having been put to the Crown, who argued there were three starting points for the fire, questions arose as to when Mr Shanahan had reached his view that the sole seat of the fire was in the dining room.
We agree with Mr Pike when he says that a possible refashioning of the witnesses views to meet the exigencies of the evidence would go to the weight and worth of the expert’s evidence. Earlier draft reports or notes could be critical to the integrity of his now held opinion. The Judge’s concern about the veracity and integrity of the evidence was explored in questions he put to the witness but we feel without rancour or overt disapproval. In our view they were appropriately asked including questions of why the expert’s views were not exchanged or put to the Crown witness. Expert witnesses on either side should give to the court their unbiased opinion and have their reasoning processes questioned where necessary.
None of that ultimately detracted from putting the defence proposition of one starting point for the fire. The Judge in summing up put the defence this way:
[79] The defence case, based on the views of Mr Shanahan and Dr Fleischman, is that the fire was started in only one place, and that was the dining room. It spread from there to other parts of the house. First, and probably most rapidly, it spread out into the back porch fuelled by a generous air supply and possibly by accelerants poured in the back porch, and it spread through into the living room which also had pinex linings. Secondly, it spread through the closed door into the sewing room, where petrol and diesel had also been poured. Thirdly, it spread into the kitchen and from there into the hall. Accelerants had been poured in both those areas.
[80] You will recall Mr Fairbrother saying that there was an “overwhelming possibility” that the diesel and petrol was poured in the hallway and the containers left there before the accused went out into the hallway on either occasion to check on the noises he said he heard, and the defence says that he could have negotiated his way in the hallway without colliding with those containers. Mr Fairbrother referred you to exhibit 7. The defence case is that the fire in the hallway occurred after both the accused and his wife Sally [ ] were out of the house.
These various matters and the role the Judge played in them, are part of the appellant’s complaint that the Judge’s incursions into the trial were in some way unfair. Complaint is made that the contrast in manner in dealing with the Crown and the defence witnesses must have been obvious to the jury and favoured the Crown case. We do not accept that these matters could have had any impact on the jury’s thinking in the matter. Plainly the contesting versions of what might have occurred in this profoundly circumstantial case, were before the jury in every respect and their right and duty to select the expert evidence they preferred was made abundantly clear.
The next ground for appeal is an error of law said to be made in the direction given as to the definition of attempted murder and arson. The Judge directed that the accused must have an intention to kill his wife. He said this:
Attempted murder
[11]     The Crown must prove two things:
[a]First, that the accused intended to kill his wife Sally [    ].
[b]Second, the carrying out by the accused of an act for the purpose of achieving that intention or object.
[12]     Although it may be obvious, I direct you that setting fire to a house in which people are sleeping is an unlawful act.
[13]     So if the Crown leaves you sure that the accused, with the intent and for the purpose of killing his wife, set fire to the house, then you must find him guilty of attempting to murder Sally [    ].
We see no difficulty in this direction, Mr Fairbrother suggesting that there was an absence of a temporal connection between the forming of the intention and the act done by way of attempt. Whilst the reference to an unlawful act is superfluous the direction makes it clear that the intention and the acts to effect it, are contemporaneous.
There was no need, we find, to give the jury a definition of reckless in respect of the second count of endangering. In some circumstances reckless may require some elaboration, but the lighting of any fire at night, in a house where children are sleeping, is so obviously reckless, that shades of meaning which may in some cases require elaboration are not required in this sort of case.
Mr Fairbrother under the general heading of miscarriage of justice argues a number of points which he says makes the jury verdict unsafe. Complaint is made that the Judge did not adequately put the defence case. We do not agree. The possibility of a third party being involved, must have itself been a difficult proposition for the defence, particularly when the arson involved the encircling of the bedroom occupied by the appellant and his wife, and the conveying of fuel containers to various points within the house, prior to the fire being ignited. Nonetheless the Judge briefly referred to the possibility of a third party.
We think the trial Judge put the defence case appropriately. In directing the jury to have regard to the extent to which experts were questioned is nothing other than the conventional approach to the assessment of evidence overall.
The Judge in addressing inferences and circumstantial evidence referred to some inferences the Crown invited and Mr Fairbrother complains that the jury were not directed to draw inferences from matters the defence raised. Having read various points in the notice of appeal where it is said the Judge could have directed the jury’s attention to the inferences the defence drew, we think that in the overall description of the Crown case, these matters are adequately raised, and it was open for the jury to consider the weight and worth given to them. We see no inherent unfairness in the way in which the inference question was settled by the Judge. Nor do we think the screening of [ R ] was other than within the Judge’s overall discretion. It was accompanied by a direction to the jury that the procedure should create no adverse reflection on the accused and it was made plain that a screen was there only to assist the boy.
Other criticisms of the summing up relating to comments as to Mrs [ ]’s evidence, were in our view ones the Judge was entitled to make.
Prior to sentencing, the Crown solicitor advised the defence that one of the jurors was the mother of a Hastings police officer. The defence had been critical of the police approach out of Hastings suggesting that it had been too rushed and that only one suspect had ever been considered. The narrative is contained in a ruling of the trial Judge given on 5 October 2000 which includes the following:
[4] As indicated by a police job sheet handed to me by counsel, this is:
[a]One of the jurors is the mother of a community constable stationed at Hastings.
[b]That constable was not involved in the investigation of the charges against Mr Sheward, or in his trial, in any way whatsoever.
[c]The police officer was unaware that his mother was serving on the jury. He became aware of this only on 8 September, after he has not heard from her for some days, became anxious about her whereabouts, and attempted to contact her.
[d]In response to his inquiries, the police officer’s mother rang her son to assure him that she was fine, and had not been in touch because she was serving on a jury in a trial in the High Court. She told her son that the judge has said that she was not to discuss the trial with anyone other than fellow jurors, and she did not discuss it with her son. She told her son either then or later that she had not told anyone other than the foreman of the jury that her son was a police officer.
[e]The next time the juror and her son spoke was after the trial had finished, and the jury had given its verdicts.
[f]Only recently did the police officer mention, in the course of a casual discussion at the Hastings Police Station with one of the detectives involved in the trial, that he had become aware during the trial that his mother was serving on the jury.
[g]Quite properly, the detective reported that to the Crown Solicitor who informed defence counsel about it.
The Judge considered that he had power to deal with the matter before sentence. Mr Fairbrother suggests that should be added to the other complaints about the way in which the trial was conducted. As the Judge said, plainly the juror acted with great circumspection in the circumstances and we see no reason for interfering on that ground, with the jury’s verdict.
A number of criticisms have been made of the trial Judge in this case, but we find that his summing up was more than adequate in the circumstances. There is a tendency we think, for counsel to take exception to a detailed analysis of any case when that analysis is unhelpful to the defence. That does not mean to say that the Judge here refrained from completing such an analysis or pointing out the strengths and of course weaknesses, in the case. Judges can give juries considerable assistance in that respect, subject of course to the overriding right of the jury, which was made clear here, to make their own decision irrespective of any views that the Judge may be perceived to have.

Sentence

Mr Fairbrother could not argue the sentence of ten years was excessive in all the circumstances, or out of keeping with current levels of sentences for attempted murder. See R v Lykles,7 March 1989, CA 3/88, R v Te Hei, 23 April 1998, CA 411/97. This was a dastardly crime directed to the appellant’s wife of many years, without it would seem the slightest degree of overt animosity or extenuating circumstances. At the same time as receiving the sentence for attempted murder, the 10 years imposed had to reflect the risk he undoubtedly placed his sons under in the circumstances, reflected in the second count.
The appeal against both conviction and sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Crown

E R Fairbrother, Napier for Appellant

[2001] NZCA 415

15 February 2001