Singh v R
[2014] NZCA 306
•3 July 2014 at 4 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA566/2013 [2014] NZCA 306 |
| BETWEEN | RANJIT SINGH |
| AND | THE QUEEN |
| CA615/2013 | |
| AND BETWEEN | DOULTON EDWARDSON |
| AND | THE QUEEN |
| CA685/2013 | |
| AND BETWEEN | STEVE NATHAN EDWARDSON |
| AND | THE QUEEN |
| Hearing: | 21 May 2014 |
Court: | Ellen France, Harrison and French JJ |
Counsel: | E R Fairbrother QC for Appellant (CA566/2013) |
Judgment: | 3 July 2014 at 4 pm |
JUDGMENT OF THE COURT
A The appeal in CA566/2013 is dismissed.
B The appeal in CA615/2013 is dismissed.
C The appeal in CA685/2013 is dismissed.
____________________________________________________________________
REASONS
Harrison and French JJ [1]
Ellen France J (dissenting) [67]
HARRISON AND FRENCH JJ
(Given by Harrison J)
Contents
Introduction [1]
Ranjit Singh [4]
(a) Background [4]
(b) Question trail [7]
(c) Decision [11]
(d) Result [18]
Steve Edwardson [19]
(a) Background [19]
(b) Question trail [24]
(c) Decision [34]
(i)Lies direction [34]
(ii)Visual identification evidence [37]
(iii)Miscarriage [43]
(d) Result [56]
Doulton Edwardson [57]
Introduction
While they have no statutory basis, question trails or issues sheets – written directions provided by judges to assist juries in reaching a verdict – are regarded as “contemporary best practice” in criminal trials.[1] Their principal purpose is to supplement the judge’s oral summing-up by distilling in written form the issue or issues for determination in a series of logical steps which relate the essential factual allegations of a charge directly to its legal elements. The judicial expectation is that the question trail will give proper contextual guidance on the relevant legal principles and serve as a structural framework for the jury’s deliberations.
[1]R v Vaihu [2009] NZCA 111 at [28].
Adopting a best practice approach, the question trail should: (a) correctly state the substantive law;[2] (b) remind the jury that the Crown has the onus of proof and that its standard is beyond reasonable doubt;[3] (c) emphasise that a not guilty verdict must be delivered if the jury is unsure about proof of an essential element of the charge or charges; and (d) not strive for artificiality if the evidence clearly favours one side – fair presentation depends on the facts of the case.[4] Best practice also requires that the judge should consult with counsel about the contents of the document before finalising its terms.[5]
[2]Ngamu v R [2010] NZCA 256, [2010] 3 NZLR 547 at [21]–[22].
[3]R v Wanhalla [2007] 2 NZLR 573 (CA).
[4]R v Taylor (2005) 21 CRNZ 1035 (CA) at [134]–[135], Ibbetson v R [2011] NZCA 228 at [27].
[5]R v Taylor, above n 4, at [147].
Otherwise a trial judge enjoys a measure of discretion in settling the contents of a question trail or issues sheet. These three appeals against conviction following two separate trials were heard together because they raise the same primary ground: did the trial Judge err in exercising that discretion by preparing detailed question trails in relatively simple, single issue trials and, if so, did a miscarriage of justice result?
Ranjit Singh
(a) Background
Ranjit Singh was found guilty following a trial before Judge Rollo and a jury in the Tauranga District Court on five charges of dishonestly using a document with intent to defraud by knowingly issuing worthless cheques on an associate’s bank account and on one charge of receiving stolen cricket gear. Mr Singh used the cheques over a ten day period to obtain cricket gear, agricultural equipment, beds, food, alcohol and other items.
In the face of a strong Crown case, Mr Singh gave evidence at trial. His defence was that he did not know his associate’s account was out of funds when he wrote the cheques. Apart from the implausibility of this assertion, Ms Bicknell for the Crown pointed to the difficulties arising from Mr Singh’s admissions and lies to police and his conduct following advice that the cheques were dishonoured.
The trial was short – fewer than three full days. An agreed statement of facts was tendered by counsel. On the morning of the third day the Judge distributed to counsel copies of a question trail in the form that later went to the jury. Mr Fairbrother QC, who appeared for Mr Singh at trial, noted before us that the document was prepared before the evidence was concluded or counsel had given closing addresses. However, he accepted that counsel were offered an opportunity to comment, and that he objected to neither the document’s contents nor the Judge’s intention to provide it to the jury. Mr Fairbrother’s advice that he was unfamiliar with question trails of this nature is not a satisfactory explanation for his failure to raise with the Judge the arguments he advanced on appeal.
(b) Question trail
An excerpt from the question trail is appended to this judgment. In summary, the document opened with the Judge’s formulation of the primary question followed by references to Mr Singh’s admission to a police officer that he knew the cheques would not be honoured, some of the undisputed facts, a recitation of Mr Singh’s explanation in evidence, a summary of the contending cases and a notation that it was “not a full review of the relevant evidence, merely a summary of key points intended to illustrate the issues and, in short form the cases for the Crown and the defence”. This part of the document comprised 20 paragraphs. Directions on the legal elements followed.
We agree with Mr Fairbrother that the question trail was unnecessarily long and complex. The facts were not in dispute – the relevant ones were recited in the agreed statement which was with the jury. There was only one issue: had the Crown proved that Mr Singh acted dishonestly?
In reality the issue was even narrower (and narrower than the Judge’s formulation): was it reasonably possible that when writing the cheques Mr Singh was unaware there were no funds in the account? Its determination required the jury’s evaluation of the credibility of Mr Singh’s evidence against an agreed factual basis. Written summaries of evidence or contending submissions were unlikely to have helped in this exercise. Judges must be astute to the risk of overcomplicating a relatively straightforward exercise.
By contrast, the Judge’s concluding legal directions were likely to have assisted the jury: they were logical, succinct and clear expositions of the five sequential elements which the Crown had to establish on each dishonesty charge. An explanation of the concept of “claim of right” was appropriately included given Mr Singh’s reliance on it.
(c) Decision
The issue then is whether the question trail was unfair, as Mr Fairbrother argued, in that it effectively undermined Mr Singh’s defence and led to a miscarriage. Mr Fairbrother advanced three principal grounds in support. First, he submitted that the document deflected the jury away from the defence case because it omitted to recite key directions on inferences and lies.
In addressing that submission we observe that the question trail and the summing-up must be considered together. The Judge directed the jury orally on both inferences and lies. Mr Fairbrother did not suggest that the Judge’s oral directions erred nor did he explain how their omission from the question trail deflected the jury away from Mr Singh’s defence. It was quintessentially a matter for the Judge’s discretion as to whether he included any reference to either subject and we agree with Ms Bicknell that his decision to exclude them cannot be criticised.
While, as we shall discuss more fully in the Edwardson appeals, documents of this nature may run the risk of diverting a jury, that risk could not have arisen here given that the essential facts were not in dispute and intention was the only issue. The document was of neutral effect. But it does illustrate that the more expansive a question trail becomes, the greater chance of complaint about a material omission, imbalance or error.
Second, Mr Fairbrother submitted that the document failed to capture the impact of his carefully designed oral argument. He said that in closing he sought to establish a degree of empathy for Mr Singh’s position. His strategy was to portray Mr Singh as the innocent victim or dupe of his associate’s wrongdoing; and Mr Singh’s admissions made to the police as attributable to embarrassment and language misunderstandings.
Mr Fairbrother did not claim that the Judge’s outline of the defence case in summing-up was unfair or unbalanced. Nor did he direct such a criticism at the Judge’s factual summary within the question trail – if anything, the summary may have artificially elevated the strength of Mr Singh’s defence. This ground cannot be sustained.
Third, Mr Fairbrother submitted that the question trail confused proof of certain elements of the charges. He focussed on a direction to this effect: “if you are not sure of all four of these matters, find Mr Singh not guilty of count 6”. In his submission, a jury might interpret this direction as requiring uncertainty on each of the identified matters, not just one.
Mr Fairbrother’s construction of the direction is possible but remote. Even if the jury did apply it in the same way, the concluding part of the document clarified any doubt. It directed the jury to remember that “it is for the Crown to prove Mr Singh’s guilt, beyond reasonable doubt. He is not required to prove anything at all”.
(d) Result
Mr Singh’s appeal is dismissed.
Steve Edwardson
(a) Background
Steve and Doulton Edwardson were found guilty following a trial, also before Judge Rollo and a jury in the Tauranga District Court, on one charge of wounding with intent to cause grievous bodily harm – the former as the principal offender and the latter as a secondary party. Both appeal against their convictions on the ground that the contents of the question trail caused a miscarriage of justice. Additionally, Mr Chisnall for Steve Edwardson submitted that the Judge erred by failing to give a proper identification warning.
Counsel’s synopses of submissions in this Court fully traversed the facts. It is sufficient to observe only that one evening Doulton Edwardson and his younger brother Timothy participated in a fight with another group of young men. Chaz Te Rire, a member of the opposing group, punched Timothy in the face. Doulton and Timothy Edwardson advised Steve Edwardson what had happened.
Later that evening two men confronted Mr Te Rire at his house. Without warning, one stabbed Mr Te Rire in the abdomen, inflicting a life-threatening injury. It was common ground at trial that Doulton Edwardson was one of those two men. The only issue was whether Steve Edwardson was the other man – the one who stabbed Mr Te Rire.
Again, the trial was only of three days duration. Before summing up the Judge provided counsel with a draft question trail for comment. All three – both defence counsel and the prosecutor – protested at its length and particularity. The Judge then delivered a lengthy minute setting out his reasons for dismissing counsel’s objections. He made two minor factual corrections to the draft before distribution to the jury.
Mr Roose, who appeared for Doulton Edwardson at trial, requested the Judge to incorporate within the question trail all relevant general directions, to ensure that the jury did not place undue emphasis on those directions which were included, together with a written lies direction. The Judge, however was not satisfied that the absence of a lies direction would result in a failure by the jury to follow his proposed oral directions.
(b) Question trail
The question trail was considerably longer than in Singh, running to more than eight pages of close type script. The document started with a background recital of four factors, appropriately recording the nature of the charge, defining the offence of grievous bodily harm and affirming that the factual elements were undisputed: both defendants accepted that Mr Te Rire was wounded and that the act of stabbing another in the abdomen established “an intent to cause grievous bodily harm”. Thus this was another one issue trial: was Steve Edwardson the person who stabbed Mr Te Rire and, if so, was Doulton Edwardson’s participation sufficient to attract criminal liability?
The Judge described the legal principles governing party liability before reciting: the Crown’s case that Doulton Edwardson was liable as a party;[6] the Crown’s case against Steve Edwardson as the principal;[7] Steve Edwardson’s defence by way of three introductory paragraphs about trial counsel’s address, followed by a recital of relevant facts;[8] and Doulton Edwardson’s defence including a recital of facts relevant to it.[9]
[6]R v Edwardson DC Tauranga CRI-2011-087-2212, 17 July 2013 [Question Trail] at [7(a)–(p)].
[7]Question Trail at [8(a)–(k)].
[8]Question Trail at [12(a)–(j)].
[9]Question Trail at [14(a)–(q)].
Again this part concluded with a notation that the document was a review of the competing contending cases and was not intended to be an exhaustive rehearsal of all relevant facts. The Judge’s identification of the two critical issues followed: first, was the jury satisfied that Steve Edwardson was the stabber; and, second, was the jury satisfied that Doulton Edwardson aided and assisted him. We add that the Judge referred frequently to the question trail during the course of his summing-up which was, with respect, very long.
Before us, Ms Markham properly accepted that the question trail was unusually long and complex. We repeat what this Court has said often before. Juries are best served by judicial guidance on the applicable law and how to decide disputed facts of true relevance. Any factual summaries should be concise and tailored to the issue or issues arising for the jury’s determination. Extensive recitals of the closing addresses or competing cases, whether orally in summing-up or in a written question trail, do not assist a jury.
This was, we repeat, a one or possibly two issue trial. The jury had heard all the material facts, with those which counsel wished to emphasise being tested and expanded in cross-examination. Counsel’s closing addresses were fresh in the jury’s collective mind. It was only necessary for the Judge to repeat the essence of the case. Early in his summing-up the Judge had succinctly outlined the three closing addresses in three successive paragraphs. That summary would have been sufficient, with a brief expansion if the Judge had appropriately directed the jury to the evidence truly relevant to its inquiry in the manner which we shall shortly describe. It was unnecessary in either the summing-up or question trail to list, regardless of their merit or probative value, every factor nominated by each counsel (33 in total for Doulton Edwardson, 20 in total for Steve Edwardson).
We repeat also that question trails serve as an adjunct to the Judge’s oral summing-up, functioning as a guide on legal issues and as a framework, structure or agenda for the deliberative process. The jury has written transcripts of the evidence available if and where necessary to resolve factual questions.
We accept that juries are assisted by the appropriate provision of written materials. However, Judges must be astute to the danger of overloading and thus of diverting the jury from its essential role of applying its collective wisdom, knowledge and judgment to the evidence it has heard. More particularly, there is a risk that lengthy factual catalogues will distract the jury into a numerical or formulaic balancing of competing summaries.
In a single issue identification case like this, the jury would derive the most benefit from the Judge’s guidance in isolating the evidence which was truly relevant. So, for example, in summarising the Crown case the Judge could constructively have recited these six key factors upon which the Crown relied to identify Steve Edwardson:[10]
(a)Doulton Edwardson went to Mr Te Rire’s address with another man;
(b)Steve and Doulton Edwardson were seen together after Mr Te Rire had assaulted their brother and had a motive to exact retribution;
(c)Jacqueline Roberts drove Steve Edwardson partway to Mr Te Rire’s address;
(d)Sylvia Ramanui saw a man who she later identified from a photo montage as Steve Edwardson standing in the doorway of Mr Te Rire’s home;
(e)Sylvia Ramanui saw the man whom she identified carrying a knife immediately after Mr Te Rire was stabbed;
(f)Steve Edwardson confessed his participation to Ms Roberts immediately after the attack.
[10]Such an approach was endorsed by the Supreme Court in Fukofuka v R [2013] NZSC 77, [2014] 1 NZLR 1 at [34]–[38].
A similarly brief exercise could have been undertaken for Steve Edwardson’s defence. In both cases it was only necessary to list the factors, without reference to counsel’s submissions or the Judge’s commentary.
In making these observations, we acknowledge that the Judge was acting diligently and with the intention of providing the jury with as much information as possible to assist its deliberations. We are also satisfied that he was attempting to ensure that the trial was fair in every respect. Any criticism of him is for doing too much, not too little. We trust, however, that our judgment will assist him and other Judges in the efficient and effective preparation of question trails, especially in short trials.
(c) Decision
Lies direction
Mr Chisnall ultimately accepted that the excessive length and nature of the question trail did not of itself constitute a miscarriage of justice. Instead, he limited his argument to the proposition that justice miscarried because the Judge omitted to include within the document a direction on lies. The document was, he said, almost a replication of key points in the summing-up, and any omission from it would be thrown into stark relief. The significance of the lies submission arises from the Judge’s reference to “less than honest statements to police about what had happened and what they did each night”.
This submission must fail for much the same reasons as Mr Singh’s ground of appeal failed. The question trail is to be read in conjunction with the summing-up. Mr Chisnall did not challenge the accuracy or detail of the Judge’s oral lies direction. Again, this was quintessentially a matter for the Judge’s discretion. Again, however, the length of this document has only served to encourage challenges.
We add our agreement with Ms Markham that the direction was unduly favourable to both Edwardson brothers by suggesting that lies can only be used in assessing the credibility of a defendant’s statement. The law does not impose any such restriction. Juries may properly rely upon lies as circumstantial evidence of guilt.[11]
Visual identification evidence
[11]Evidence Act 2006, s 124(1)–(3).
Mr Chisnall advanced a second ground in support of Steve Edwardson’s appeal. He submitted that the prosecution case against Mr Edwardson depended “wholly or substantially on the correctness of one or more visual identifications … of him”.[12] As a result, the Judge was bound to warn the jury of the special need for caution before finding Mr Edwardson guilty in relying on the correctness of such identification.
[12]Evidence Act, s 126.
We have already referred to some of the Crown evidence on identification. Mr Chisnall more fully summarised the Crown’s case as a composite of the evidence of: (a) Silvia Ramanui, who identified Steve Edwardson from a photo montage as the man standing in the doorway of Mr Te Rire’s home and whom she saw carrying a knife after he was assaulted; (b) Jacqueline Roberts who knew Mr Edwardson, drove him partway to Mr Te Rire’s address and watched him walk towards it and to whom Mr Edwardson made an admission of stabbing someone; (c) Talitha Osooso who saw Doulton Edwardson and a man she assumed was his brother “Steve” armed with knives; and (d) the motive attributed to both brothers of seeking revenge against Mr Te Rire for the earlier assault.
In agreement with Mr Chisnall we are satisfied that, of the four factors he has identified, the first and second were in the nature of visual identification evidence, defined by s 4 of the Evidence Act 2006 in the following terms:
4 Interpretation
(1) In this Act, unless the context otherwise requires,—
…
visual identification evidence means evidence that is—
(a) an assertion by a person, based wholly or partly on what that person saw, to the effect that a defendant was present at or near a place where an act constituting direct or circumstantial evidence of the commission of an offence was done at, or about, the time the act was done; or
(b) an account (whether oral or in writing) of an assertion of the kind described in paragraph (a)
The question then is whether the Crown case against Steve Edwardson “depend[ed] wholly or substantially on the correctness of one or more visual or voice identifications” in terms of s 126(1) of the Evidence Act. If so, the Judge was obliged to “warn the jury of the special need for caution before finding [Steve] guilty in reliance on the correctness of any such identification”. The obligation to give a special warning is triggered wherever the evidence is significant or important[13] or the Crown relies on it to a large extent.[14]
[13]Blair v R [2014] NZCA 101 at [17]; R v Peato [2009] NZCA 333, [2010] 1 NZLR 788 at [31].
[14]R v Uasi [2009] NZCA 236, [2010] 1 NZLR 733 at [36].
In a sense, the Crown’s presentation of its case at trial answers this question. The prosecutor’s addresses reflect the Crown’s significant reliance upon the visual identifications by Ms Ramanui and Ms Roberts. Ms Markham properly pointed out the qualification to this assessment in that Ms Roberts knew Steve Edwardson, and that his trial counsel accepted Ms Roberts’ evidence – he conceded that both Steve and Doulton Edwardson got out of her car and walked to Mr Te Rire’s house. Trial counsel was forced to fall back on a proposition that Ms Roberts did not actually see what happened next.
Nevertheless, Ms Ramanui’s identification of Steve Edwardson at that next stage, as the man near the doorway to Mr Te Rire’s house and who she saw later carrying a knife, was of significant importance to the Crown case. A warning was mandatory despite the strength of the circumstantial evidence.[15]
Miscarriage
[15]Fukofuka v R, above n 10, at [32].
We accept that there was a miscarriage in the sense that the Judge’s omission to warn the jury was capable of or could have affected the result of the trial. That conclusion must follow in a case like this given the obligatory wording of s 126. The question then is whether we are nevertheless satisfied that no substantial miscarriage of justice has actually occurred.[16] Our answer depends upon whether, after reviewing all the evidence, we are satisfied that the Judge’s failure could not have affected the result of the trial.[17] In this respect we are conscious that the obligatory wording of s 126(1) sets a correspondingly high threshold for invoking the proviso.
[16]Crimes Act 1961, proviso to s 385(1).
[17]Fukofuka v R, above n 10, at [24].
The evidence establishing Steve Edwardson’s identity as the man who stabbed Mr Te Rire, while circumstantial, was strong if not overwhelming. He was driven with his brother to a drop off point near Mr Te Rire’s house. His brother was present when Mr Te Rire was stabbed. He was seen immediately afterwards to be holding a knife. He confessed his participation to a witness who knew his family. He had a compelling motive to exact retribution. All this was compounded by his later lies to the police. And he was not in a position to contradict any of this evidence because he elected not to give evidence in his own defence. We agree with Ms Markham that it was inherently implausible that anybody else would have stabbed Mr Te Rire.
In these circumstances we are satisfied that the guilty verdict was inevitable in the sense of being the only reasonably possible verdict available on the evidence.[18] We are sure of Steve Edwardson’s guilt and that the trial was fair. We are able to reach this conclusion despite the disadvantage of not hearing and seeing the evidence. In the absence of evidence from Steve Edwardson at trial, the facts on which we rely are largely undisputed and are sufficient to leave us in no doubt of Steve Edwardson’s guilt.
[18]R v Matanga [2009] NZSC 18, [2009] 3 NZLR 145.
Our conclusion is confirmed by another factor. When Steve Edwardson appeared for sentencing on 3 September 2013 his counsel tendered a letter written by Mr Edwardson to Judge Rollo in these words:
I Steve Edwardson accept the fact that I am guilty for the charge of wounding with the intent to cause GBH.
First i would like to sincely [sic] apologize to the victim Chaz Teriri/Curry for what i done. It was a Horrible, Evil and Ugly thing to do to some-one, or even think of doing. I don't know what came over me for me to do that, so i am deeply and honestly sorry for causing the harm, pain and scaring that I did to Chaz his family the witnesses and anyone else this effectd [sic].
... Once again I apologize sincerely from the depths of my heart for doing what i done and putting everyone through trial and waisting court time.
Judge Rollo was influenced by Mr Edwardson’s letter, observing that:[19]
You have written a letter of apology to the victim in which you acknowledge what you did, express your regret and empathise with the harm which you caused to him and his wider family. You ask for forgiveness for that. That is very much to your credit …
[19]R v Edwardson CRI-2011-087-2212, 3 September 2013, [Sentencing Notes] at [19].
The Judge took the letter into account with other factors in allowing Mr Edwardson a discount of 11 months against the starting point of nine and a half years imprisonment. He attributed three months of the discount to this factor.[20] Mr Edwardson has not appealed against his sentence.
[20]Sentencing Notes at [36].
Mr Chisnall frankly acknowledged that Mr Edwardson’s admission of guilt was unequivocal, in stark contrast to his defence at trial that he had been misidentified. He also accepted that a post-conviction confession can be taken into account when considering an appeal against conviction. Ms Markham submitted that a case by case assessment is required having regard to: (a) the grounds of appeal and circumstances; (b) the stance taken by the defendant at trial; (c) the nature of the admissions made; and (d) whether they were affirmed at sentencing.[21] Mr Chisnall added two other factors: (e) whether Mr Edwardson received clear legal advice that expressing remorse might be viewed as contradicting an appeal against conviction; and (f) whether there is a material doubt about whether the admission is unqualified.
[21]R v Vaituliao [2007] NZCA 525, M (CA428/09) v R [2010] NZCA 127, Gilfedder v R [2013] NZCA 426.
In considering whether evidence of Mr Edwardson’s admission of guilt should be taken into account we are conscious of this statement of principle:[22]
… a conviction can be unsafe for two distinct reasons that may, but do not necessarily, overlap. The first reason being that there is a doubt as to the safety of the conviction and the second being that the trial was materially flawed. The second reason can be independent of guilt because of the fundamental constitutional requirement that even a guilty defendant is entitled, before being found guilty, to have a trial which conforms with at least the minimum standards of what is regarded in this jurisdiction as being an acceptable criminal trial. These standards include those that safeguard a defendant from serious procedural, but not technical, unfairness. A technical flaw is excluded because it is wrong to elevate the procedural rules that govern a trial to a level where they become an obstacle as opposed to an aid to achieving justice.
[22]R v Hanratty [2002] EWCA Crim 1141, [2002] 3 All ER 534 at [95].
In determining the relevance of such evidence, we also note that:[23]
Fresh evidence which is of sufficient quality and is relevant to the question of guilt will usually contribute to the question of the safety of the conviction and so will be legally admissible if in its discretion the court decides to admit it. Where what is in question is not the evidence of guilt but the procedural quality of a trial, evidence relating to guilt will usually not be admissible because it will not address the defect in the trial unless it helps to place the defect in context.
[23]R v Hanratty, above n 22, at [96].
Mr Chisnall’s submission is that, just as a fair trial cannot be retrospectively tainted by subsequent conduct, an unfair trial cannot be prospectively remedied by new evidence. While accepting that the letter may be admissible at a retrial, he submitted that our focus should be on the evidence adduced when Mr Edwardson was in jeopardy of conviction. The difficulty we face is best crystallised in the Australian context as follows:[24]
This situation presents a dilemma. Should the court, in the knowledge of a confession of guilt by the appellant after trial, take the step of quashing the conviction and ordering a new trial in consequence of a defect in the first trial? On the one hand it can be said that to take that course would result in an absurd expenditure of the resources of the court system by putting up a guilty man for re-trial. On the other hand it can be said that the court should be ever vigilant to enforce the substantive and procedural principles governing the conduct of criminal trials even though this may place an accused person in a position of wholly undeserved and unmeritorious advantage. It is to meet such a dilemma that the Criminal Appeal Act 1902, s 6, contains a proviso:
“… that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred”.
[24]R v De-Cressac [1985] 1 NSWLR 381 (SC) at 390.
On the facts of this case, we agree with Ms Markham that it would be contrary to the interests of justice not to take Steve Edwardson’s admission into account when assessing whether a miscarriage has occurred and whether a retrial is necessary. Mr Edwardson’s letter is an unequivocal admission of his guilt. It is not suggested that it was written under duress, is inaccurate or is unreliable. Mr Edwardson and his trial counsel have sworn affidavits in this Court. Both acknowledge that the purpose of the letter was to illustrate remorse by an acceptance of responsibility for the offending and its consequences, and thereby gain a distinct credit against the appropriate starting point. In that respect it was successful.
Mr Edwardson acknowledges that it was his idea to write the letter of remorse, subject to his counsel’s advice as to its contents. Significantly, he does not now deny the truthfulness of his confession. While trial counsel did not give specific advice about the effect of this letter on Mr Edwardson’s rights of appeal – probably because it was written on the last day of the trial, before the jury had returned its verdict – we do not place any weight on that factor in this case.
Ultimately resolution of this issue comes down to a judgment or choice between two conflicting values. While all, whether guilty or innocent, enjoy the right to a fair trial, that right is subject to justifiable limits imposed by the wider interests of justice. In our judgment the proper and fair administration of justice would be called into disrepute if a person who, after pleading not guilty at trial, unequivocally admitted his guilt for the express purpose of securing a discounted sentence but was nevertheless able to secure a retrial because of a Judge’s failure to properly warn a jury about evidence identifying him as the offender – the very fact which he now accepts. The Court’s processes would be abused and Mr Edwardson’s cynicism would be rewarded by ordering a retrial. In making these observations, however, we acknowledge the force of Ellen France J’s contrary view.
(f) Result
Steve Edwardson’s appeal is dismissed.
Doulton Edwardson
Mr Roose for Doulton Edwardson supported Mr Chisnall’s submissions and added three further grounds of challenge.
First, on the question trail, he submitted that it was imbalanced because it devoted more of its contents to the Crown case than to the defence case. That submission can be answered shortly. A Judge is under no obligation to strike a quantitative balance. So long as the document is balanced in presenting the opposing positions, as this one was, it cannot be criticised.
Mr Roose emphasised that one reference to the Crown’s case in the question trail was not actually advanced. The Judge said that Doulton assisted his brother by standing back at the doorway.[25] Ms Markham accepted that the Crown did not expressly assert this point in closing but it was implicit in the Crown case. Once again, the very existence of this submission highlights the risks inherent in a document of this type and length, especially when it is finalised before counsel have addressed. As Ms Markham accepted, this element of detail was unnecessary in the circumstances of a simple trial. However, it is of relative insignificance and we attach no weight to it.
[25]Question Trail, above n 6, at [7(m)].
We add that our comments about the Judge’s references to Steve Edwardson in the question trail apply equally to his brother. The essential question about his secondary liability was stated with clarity. All that was necessary was to refer the jury, with equal brevity, to the factors relevant to his charge.
Second, Mr Roose challenged the Judge’s opening remarks to the jury. It was, he submitted, much more comprehensive than was necessary and amounted to a reinforcement of the Crown case. For example, he referred to the Crown’s allegation the brothers shared an intention to “go and deal to Mr Te Rire”.
Opening remarks by a judge to a jury are not required by law but again are regarded as best practice. Their purpose is to explain the procedural aspects of the trial and what is expected of the jury. It is essentially an orientation. Again its nature and extent is largely a matter of discretion for the judge.
Judges should be cautious about outlining the nature of the Crown case. It is a potentially fraught area. Research shows that the beginning of a trial is overwhelming for jurors. There are obvious limitations on their ability to assimilate a great deal of information. An explanation of the Crown case can have an overloading effect. But more importantly it can convey the impression of affirmation of that case and, in a prosecution such as this where the accused are charged as parties, there is a real possibility that the basis of the Crown case may change during the trial subject to the evidence led. Judges must be astute about creating an appearance of intruding unnecessarily into the trial process and should think carefully about whether to say anything about the substance of a case. It is often best left to the Crown to carry out that function.
Third, Mr Roose submitted that the Judge erred when answering a question from the jury relating to the guilt of a secondary party in circumstances where it was satisfied that the principal offender intended to use a knife to stab someone and the secondary participant only intended to assault the victim without using a weapon. His submission is that the Judge oversimplified the issue and overcomplicated the answer.
It is unnecessary for us to address Mr Roose’s submission in detail. Again, Ms Markham accepted that the length of the Judge’s answer was not ideal – it ran to four pages of close typed script when brevity was required. Nevertheless, we agree with her that within his answer the Judge correctly confirmed that the Crown must establish the existence of a common intent to commit the unlawful act of assaulting Mr Te Rire and that, to find Doulton Edwardson guilty, the jury had to be satisfied beyond reasonable doubt that Steve Edwardson had a knife, Doulton Edwardson knew of this fact and he also knew that stabbing was a probable consequence. In the end the unnecessary length of the answer does not obscure the essence of the Judge’s correct direction.
Doulton Edwardson’s appeal is dismissed.
ELLEN FRANCE J
I write separately because I would allow Steve Edwardson’s appeal on the basis that the failure to give an identification warning as required by s 126 of the Evidence Act has given rise to a miscarriage of justice, and this is not a case where it would be appropriate to apply the proviso.
The Crown case was a strong one for the reasons identified by the majority. The Crown could properly emphasise that Steve Edwardson had a motive, he was in the vicinity and Jacqueline Roberts’ evidence was that he admitted stabbing Chaz Te Rire. That said, for a number of reasons, I consider the failure to give an identification warning could have affected the result.
The first point I note is this is not a case where the Judge has given an incomplete warning. Rather, no warning directed to the dangers of the identification evidence has been given at all. The best that can be said is that, in the context of explaining the meaning of truthful evidence, the Judge noted the possibility of an honest witness making a mistake about identity. The Judge said this:
[25] You would probably swear on the Bible that that was your best friend across the road, you go across to talk to him or her only to get closer to them to realise it is not the person you thought it was. That would be an example of someone who is entirely honest in an observation they make from the other side of the street, but who is nevertheless mistaken.
It also must be acknowledged that in the summing-up the Judge spelt out comprehensively and carefully the defence case for Steve Edwardson. That meant that by reference to the defence closing the various problems or issues with Ms Ramanui’s evidence from the defence perspective were discussed. The problem is that there was nonetheless a “failure to inject into [the] summing up the appropriate and statutorily required level of scepticism as to identification evidence.”[26] The absence of that level of scepticism assumes some importance here where, in cross-examination, Ms Ramanui said she was “a 100% sure” that she had correctly identified Steve Edwardson. The jury should have been told about the dangers of evidence of this type even where the witness may be totally confident of the identification.
[26]Fukofuka v R, above n 10, at [38].
The position can be contrasted with cases like Peato v R and Uasi v R in which each trial Judge omitted a reference to that part of the s 126 warning relating to the risk that a mistaken identification could give rise to a serious miscarriage of justice.[27]
[27]R v Peato, above n 13, and Uasi v R, above n 14.
Secondly, if given an appropriate warning about the dangers of identification evidence, it is possible that the jury may have put Ms Ramanui’s evidence to one side. Some of the classic issues that give rise to caution about identification evidence were present. Ms Ramanui did not know Steve Edwardson. The stabbing took place in the early hours of the morning. There were differences between the witnesses about the extent to which the area outside the doorway was lit up. Ms Ramanui said that the man she identified as Steve Edwardson was standing down on the steps in front of the doorway and at least at some point Mr Te Rire’s appearance in the doorway obstructed her view of the man on the steps. The events happened quickly, for example, Ms Ramanui said that it was “just within a second” that Mr Te Rire got to the door that he then “backed up” having been “impacted”. Further, Ms Ramanui said that the man she identified as Steve Edwardson was wearing a black t-shirt whereas Jacqueline Roberts said he wore a white t‑shirt.[28] Ms Ramanui could not recall seeing any facial piercings on Steve Edwardson but Ms Roberts did notice various piercings. The evidence before the jury was that Steve Edwardson had a piercing in his left eyebrow, the right corner of his mouth, and both of his ears were pierced.
[28]Detective Andersen who interviewed Steve Edwardson in the early hours of the morning said Steve Edwardson was wearing a “blue, dark navy blue” singlet with writing on it.
Thirdly, Ms Ramanui’s evidence was important. The Crown quite properly advanced the evidence of Ms Ramanui and that of Ms Roberts as mutually supportive. Ms Ramanui’s evidence put Steve Edwardson at the door and as the person leaving with a knife moments after the stabbing.
Finally, I deal with the effect of the admission of guilt at sentence. This Court has said that in some circumstances such an admission may be relevant to the consideration of whether or not a miscarriage of justice has occurred.[29] However, in my view it would not be appropriate in this case to consider the admission. Steve Edwardson defended the charge on the basis he was not the person who stabbed Mr Te Rire and he in pursuing his appeal shows that he wishes to maintain that stance. While obviously the Court should not condone his apparent alacrity to tailor his position to the circumstances, the course of justice is better met by ordering a retrial in which this post-trial evidence is likely to be admissible.
[29]Vaituliao v R, above n 21, at [26], M (CA428/09) v R, above n 21, at [51], and Gilfedder v R, above n 21 (see also Gilfedder v R [2013] NZSC 145).
For these reasons, I would allow Steve Edwardson’s appeal and order a retrial.
I agree with the majority on the other matters raised on these appeals and, in particular, with the observations made about the use of the question trails in these appeals.
Solicitors:
Public Defence Service, Wellington, for Appellant (CA685/2013)
Crown Law Office, Wellington for Respondent
APPENDIX
Excerpt from Question Trail in CA566/2013
Question Trail – R v Ranjit Singh
Background
This trial essentially distils down to one primary question which you must be satisfied of beyond reasonable doubt (ie, you must be 'sure') before you could find Ranjit Singh guilty of any of the counts in the indictment.
That question is whether you are 'sure' that Ranjit Singh agreed with Sandeep Chopra that prior to Chopra's returning to India, Chopra would present a number of cheques, drawn on his NZ Vege Growers Ltd bank account, to obtain various items of property, knowing there were insufficient funds in that bank account to cover the price of the items purportedly purchased, and that they (Chopra and the defendant) would then sell or dispose of the property obtained and share the proceeds between them, this being a way for Chopra to get some money (before he returned to India), and Mr Singh too?
Mr Singh acknowledged in his first DVD interview with Constable Johnson, more than once, that this is what Chopra and he had agreed, that he knew the cheques would 'bounce,' that 'it was all dodgy,' and that he had made the biggest mistake by agreeing to be part of this.
Chopra did present the relevant cheques and obtain the various items of property referred to in counts 1 to 5, using this dishonest process. Mr Singh was present (sometimes at an earlier stage) and helped and supported Chopra by either introducing him to the vendor or helping Chopra choose property items in the store, or helping him take them away or by storing them afterwards and by selling them in some cases.
Many of those items were subsequently located in Mr Singh's home or orchard container.
As to count 6, after Chopra had left NZ, on 2 November 2012, Mr Singh returned to Gilmours and obtained further food, tobacco and alcohol items himself, using an apparently pre-signed cheque drawn on NZ Vege Growers Ltd's bank account.
When he received subsequent phone calls and text messages from anxious vendors concerning the bounced cheques they had received, Mr Singh told them untruths about where Chopra was, when he would be returning to Tauranga (from Gisborne, allegedly), saying that he had spoken to him, and that he did not know where the various property items were (although many were in his house or container at that time).
In his evidence in his own defence, Mr Singh explained to you why he had made his acknowledgements of wrongdoing to Constable Johnson in his first DVD interview, and why the words he had used were 'more than he intended to say' or were 'not what he intended to say.'
In essence he said he trusted Chopra's integrity, Chopra had always seemed prosperous and acted accordingly in the past. He said he took him at face value.
He said he did not know at the time that there were insufficient funds in the NZ Vege Growers Ltd bank account on which the cheques were being drawn. He said he definitely knew at the time of the first interview with Constable Johnson (on 6 November 2012) and that is why he mistakenly said he knew, meaning then, on the date of the interview, not at the time the cheques were presented.
He said he acted in good faith in introducing Chopra to Mr Young, from Wrights Sports, and to the new owner of Bethlehem Motors, and in helping Chopra choose his purchases, to take them away and to store some of them.
He said he only learnt, on 1 November 2012, that Chopra had to go back urgently to India (supposedly to sort out a family problem there) but he had thought then that Chopra was going to return to Tauranga.
When Chopra said he had no (personal, as opposed to company) money for an air ticket, Mr Singh told us that he bought Chopra $1600 return tickets, through his (Mr Singh's) usual travel agent in Tauranga.
He also withdrew $5,000 from his personal ANZ Greerton account, and gave it to Chopra in exchange, he said, for the property items Chopra had bought and had left at his container. This was on the basis, Mr Singh said, that he could sell those items he did not need and if any did not sell, then Chopra said, when he returned from India, he would buy back any unsold items from Mr Singh.
Mr Singh acknowledged that he presented the pre-signed cheque at Gilmours (count 6) after Chopra had left NZ because, he said, Chopra had asked him to get certain further things for his 'associates' (who were present at Gilmours that day with Mr Singh).
Mr Singh said that Chopra had bought the beds and other items (including food and alcohol) because he (Chopra) was buying a rental property and a shop in Tauranga, and he needed those items for that purpose.
Mr Singh said the alcohol and grocery items located by Police at his home were purchased either by him or his family, and were not from Gilmours (other than the four knives, which he said were a gift from Chopra to him).
When the vendors rang him, after the various cheques bounced, he said he did not tell them the truth about Chopra's actual whereabouts or the location of their items of property that Chopra had obtained from them 'because he wanted to make his own enquiries.'
In summary, therefore, the Crown says that you should accept Mr Singh's initial acknowledgements to Constable Johnson of his involvement in this criminal offending as true and reject his self-serving subsequent explanations. His then dishonesty is supported by his subsequent dishonesty (being his repeated untruthful responses to the unpaid vendors).
In summary, therefore, Mr Singh says he was acting honestly throughout, that he trusted Chopra, he did not suspect him of wrongdoing, that he was misunderstood, because English is not his first language, when initially interviewed by Constable Johnson, as he meant his explanations to be about what he then knew (on the date of the interview), and not about what he knew at the time the cheques were presented to the vendors. He maintained he did not then know the cheques were dodgy.
Note- this is not a full review of the relevant evidence, merely a summary of key points intended to illustrate the issues and, in short form, the cases for the Crown and the defence.
You must rely on your own, careful and full examination of the relevant evidence in reaching your decisions as a jury.
Questions
Count 1 – receiving cricket gear – Rebel Sports
1.1 Before you could find Mr Singh guilty of count 1, you would need to be ‘sure’ of all of the following matters –
(a) that all of the cricket gear had been obtained from Rebel Sports by a crime carried out by Sandeep Chopra (being the crime of dishonestly and without claim of right using a document to obtain a pecuniary advantage - being the same crime alleged in counts 2 to 6);
(b) that Mr Singh subsequently received the cricket gear ( particularised in count 1 and, from the invoices, valued at some $1619.96) when it came into his possession;
(c) that Mr Singh subsequently received the cricket gear (particularised in count 1 and, from the invoices, valued at some $1619.96) when it came into his possession;
(c) that at that time he received it, Mr Singh knew that the cricket gear had been obtained by a crime (ie, by Chopra deliberately and dishonestly presenting a cheque that would bounce to Rebel Sports to obtain the cricket gear without paying for it);
1.2 If you are sure of all three of these matters, find Mr Singh guilty of count 1.
1.3 If you are not sure of all three of these matters, find Mr Singh not guilty of count 1.
Count 2 - dishonestly using a document, as a secondary party - Beds R Us
2.1 Before you could find Mr Singh guilty of count 2, you would need to be sure of all of the following matters –
(a) that on 25 October 2012, a cheque (ie, being a document) was presented to Beds R Us, for $2,987.00, for the purported purchase of various beds (this is admitted in the s 9 admissions, p 4);
(b) that the person presenting that cheque was Sandeep Chopra (there is no evidence challenging his identification as the cheque presenter);
(c) that when he presented the cheque he was acting dishonestly (ie, he knew there were insufficient funds in the cheque account to cover payment for the items);
(d) that when he presented the cheque he had no 'claim of right' to the beds he was purportedly purchasing;
Comment – a 'claim of right' is a defence to the taking or obtaining of goods or property if the person has an honest belief that he is legally entitled to take the goods, even if his belief is based on ignorance or on a mistake of fact or of law.
(e) that Mr Singh intentionally helped and supported Mr Chopra in his dishonest actions, knowing in essence what Mr Chopra was going to do.
2.2 If you are sure of all five of these matters, find Mr Singh guilty of count 2.
2.3 If you are not sure of all five of these matters, find Mr Singh not guilty of count 2.
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