Hearing:	21 May 2014
Court:	Ellen France, Harrison and French JJ
Counsel:	E R Fairbrother QC for Appellant (CA566/2013) H Roose for Appellant (CA615/2013) N P Chisnall for Appellant (CA685/2013) K Bicknell for Respondent (CA566/2013) A Markham for Respondent (CA615/2013 and CA685/2013)
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Singh v R

Details

AGLC: Singh v R [2014] NZCA 306
Case: [2014] NZCA 306
Decision Date: 3 July 2014 at 4 pm

CaseChat Overview and Summary

This case involved three appeals against convictions in the Tauranga District Court. The appeals were heard together by the Court of Appeal of New Zealand because they raised the same primary ground of appeal: whether the trial Judge erred in exercising his discretion by preparing detailed question trails in relatively simple, single issue trials, and if so, whether a miscarriage of justice resulted. Ranjit Singh appealed against his conviction for dishonestly using a document with intent to defraud and receiving stolen property. Steve and Doulton Edwardson appealed against their conviction for wounding with intent to cause grievous bodily harm. The Court found that the question trails were overly complex and detailed for the relatively straightforward nature of the trials, but they did not result in a miscarriage of justice. The Court also found that the trial Judge failed to give a proper identification warning in the case of Steve Edwardson, which could have affected the result of the trial. However, the Court concluded that no substantial miscarriage of justice had actually occurred, as the evidence against Steve Edwardson was strong and circumstantial, and his post-conviction admission of guilt further confirmed his culpability. The appeals were ultimately dismissed.

Orders