The Queen v Arjun Singh

ORDER SUPPRESSING REASONS FOR JUDGMENT UNTIL AFTER FINAL DISPOSAL OF TRIAL OF APPELLANT
IN THE COURT OF APPEAL OF NEW ZEALAND	CA470/99

THE QUEEN

ARJUN SINGH

Hearing:	29 March 2000
Coram:	Tipping J Doogue J Cartwright J
Appearances:	J L Cagney for Appellant KBF Hastie for Crown
Judgment:	4 April 2000

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Mr Singh appeals against his convictions for arson and making a fraudulent claim on his insurance company. He was found guilty by a jury in the District Court at Auckland. Business premises operated by Mr Singh and his wife on Waiheke Island were destroyed by fire. The Crown contended Mr Singh had deliberately set fire to them because of financial difficulties and had fraudulently claimed insurance.
Mr Singh's case on appeal, as succinctly presented by Mr Cagney, is that there has been a miscarriage of justice on account of a breach of s366(2) of the Crimes Act 1961. It seems that all concerned, counsel for the Crown, counsel for the defence (not Mr Cagney) and the Judge had, during the trial, overlooked this statutory provision which so far as spouses are concerned (ss2) is probably not as well known as it is in relation to the person accused (ss1). Section 366 reads:

366. COMMENT ON FAILURE TO GIVE EVIDENCE--
(1) Where a person charged with an offence refrains from giving evidence as a witness, no person other than the person charged or his counsel or the Judge shall comment on that fact.
(2) Where a person charged with an offence refrains from calling his wife or her husband, as the case may be, as a witness, no comment adverse to the person charged shall be made thereon.

Mr Singh gave evidence. His wife did not. He was cross-examined by counsel for the Crown about the timing of certain relevant events. The material part of the cross-examination was as follows:
Q.       You are sure about lots of other things, what's the problem with this?
A.       I don't wear a watch to start off with. It was in the morning we were up there, could be up to midday, I don't know.
Q.       Your wife would know, though, wouldn't she?
A.       I don't know.
Q.       Is she coming to give evidence for you?
A.       I don't know yet.
Q.       Have you asked her? Don't look at Mr Harder or Miss Coxon. They can't help you. Have you asked your wife to come and give evidence to help you?
A.       I said - I have requested her, come to the Court and tell the truth.
Q.       Because she was the last one to see you in the shop, wasn't she?
A.       She was with me right through, even when we left the shop she was right with me.
Q.       She could tell us which clothes you were wearing, couldn't she?
A.       Yes.
Q.       She could tell us about times and places, couldn't she?
A.       She should.
Q.       Mr Harder didn't make any mention of her when he told the jury which witnesses were coming along, did he?
A.       At one stage Mr Harder said you will be the witness only as far as I know.
A little later the following cross-examination took place:
Q.       Your wife gave a statement to the police in the morning, after the fire?
A.       Yeah, that would be right.
Q.       Think very carefully about this next question. Did you talk to your wife about what she told the police, yes or no?
A.       No.
Q.       Sure about that?
A.       Definitely. We didn't talk, but again after the fire, right through, we were together.
Q.       But after your wife gave her statement to the police, you didn't talk to her about what she told the police, did you? Is that what you are saying?
A.       After I gave the evidence.
Q.       No pause. After your wife spoke to the policeman, you didn't talk to her about what she had said, did you?
A.       No.
Q.       Why then did you tell Sergeant Moroney that what she said was invalid, why Mr Singh?
A.       Well, as I said before, after the fire nobody went to bed or slept. She was crying all night, upset, me too, and during the time when she was giving statement she was crying right through. She had high blood pressure, so I thought anybody crying upset like that, the words coming out of her mouth could be anything. In other words, I thought that was not fair, that is exactly I meant.
Q.       You didn't know what your wife had said to the police, and you were scared that she had told them about the petrol, weren't you?
A.       Rubbish.
Q.       That's why you told Sergeant Moroney not to take any heed of what your wife had said, right?
A.       That is absolutely wrong.
Q.       You thought she had told the truth, didn't you?
A.       That is not the case.
In his closing address to the jury, counsel for the Crown said:
Now Mr Singh was the last person inside the shop that night. Mrs Singh it seems was asked to go outside and wait, and she certainly went outside to wait - she was the last person to see Mr Singh inside the shop and curiously has not come along to tell us what happened. Interestingly enough, she was interviewed by the police officer the next morning. Mr Singh was very careful to assure us, wasn't he, that he didn't speak to Mrs Singh about what she had said but we have this curious remark to Sgt Moroney that evening "what my wife said is invalid because she's got high blood pressure". Mr Singh was scared that Mrs Singh had told the police officer exactly what her husband had done. He didn't know what she's said. He wanted to make sure the police wouldn't place any weight on that at all. Very curious. Even Sgt Moroney said that he made particular note of it because it was so unusual.
The only passage in the Judge's summing up which was said to have addressed the difficulties clearly apparent from the conduct of the case by the Crown prosecutor as outlined above, was this:
As to the clothes, no petrol was found on clothing and Mr Shanahan referred to petrol from a can, perhaps splashing but there is no real evidence about how the petrol was applied, whether it was from a can or some other receptacle and Mr Singh himself appears to have some background by working in a chemical factory and is used to handling chemicals. Mr Singh was the last person in the shop submits the Crown, Mrs Singh must have seen him leaving the shop, she has not come along to give evidence in the trial. Perhaps there are two aspects to that, firstly it is a matter of law, the spouse of an accused person is not compelled to give evidence anyway as far as the Crown is concerned, so the Crown would have been faced with that problem if they had tried to call her as the spouse of the accused person and secondly, whilst it is true that Mrs Singh has not given evidence concerning these matters, again I simply remind you of the burden of proof on the Crown and there is no obligation or burden on the accused to call any particular evidence or to establish his innocence. Your attention was drawn to the comment made by Mr Singh apparently to the police where he said that what Mrs Singh told the police was invalid and that is a curious and the Crown says, a rather suspicious comment by Mr Singh.
Ms Hastie for the Crown candidly accepted there had been a breach of s366(2). She sought to uphold the conviction on two bases; first, that the Judge had cured the problem in the direction noted above; and second, that it was in any event an appropriate case in which to invoke the proviso to s385(1) of the Crimes Act 1961. There can be no doubt the Crown's cross-examination and closing address implicitly invited the jury to take an adverse inference against the accused, because he had not called his wife. The implication was that he could not do so because her evidence would be adverse to his interests. This clearly amounted to a comment adverse to the accused in relation to his refraining from calling his wife. Ms Hastie was quite right to acknowledge that to be so.
Reference need only be made to the decision of this Court in R v Sheehan [1944] NZLR 874. Of particular relevance to the present case is the following passage from the judgment of the five Judge Court delivered by Sir Michael Myers CJ. At 880 he said:
There can be no doubt that the question asked by prosecuting counsel "Are you calling your wife as a witness?" was not a proper question, and, in our opinion, probably if taken alone, but certainly when taken in conjunction with questions put by prosecuting counsel involved in the other transgression to which we later refer, it constituted an infringement of s. 423. Quite apart from any question of infringement of s. 423 the question was unfair and should not have been asked, if for no other reason than that the prisoner was represented by counsel and the question as to whether or not the wife or any other witness was to be called was a matter, not for the prisoner, but for the counsel who had undertaken the responsibility of defending him.
In the present case Crown counsel exacerbated the point by remonstrating with Mr Singh who quite naturally turned to his counsel for assistance or guidance on a question which should never have been put to him. The impermissible cross-examination was far from a passing reference to the subject.
Towards the end of the second passage of cross-examination noted above, Crown counsel put a question to Mr Singh which, strictly analysed, appears to have been directed to his mental state, namely a fear that his wife may have mentioned the subject of petrol in her statement to the police. But the form of the question left it open to the jury to infer that Mrs Singh had in fact mentioned petrol in her statement, which she had not. That connotation, even if not intended, does not help when the Crown was making such a point of the absence of Mrs Singh from the witness box.
We turn to consider whether the Judge's direction was sufficient to remove the prejudicial effect of the problems identified above. We do not consider it was. The introductory passage, referring as it did to petrol, was unfortunate in the context. The Judge then repeated the impermissible Crown submission without clearly indicating its inappropriate nature.
The first of the two aspects mentioned by the Judge was concerned with the Crown calling Mrs Singh, which was not the point. The point was her not being called for the defence. The second aspect was no more than the conventional direction on onus. The final comment did not draw the essential distinction between Mr Singh's state of mind and what Mrs Singh might have said to the police. At the very least what was needed was a clear and firm direction from the Judge that the Crown's adverse comment on Mr Singh not calling his wife was impermissible and the jury should put it completely aside and not draw any adverse inference against Mr Singh from his refraining from calling his wife. Whether such a direction would have been enough to overcome the cumulative force of the Crown's transgressions is a very moot point. It need not be taken further.
We conclude this topic by noting that the Judge's direction was similar to a direction which this Court in R v Ngatai (1998) 16 CRNZ 100 held to be inadequate to cure an analogous problem relating to comments on the accused himself not giving evidence. It remains only to say that in our view this is clearly not a case for the proviso. The risk of impermissible reasoning is too great for that, in spite of the apparent strength of the Crown case. We cannot be sure that had there been no breach of s366(2) the jury would inevitably have convicted. For these reasons the appeal is allowed, the convictions are quashed, and we direct a new trial.

Solicitors
Crown Law Office, Wellington

[2000] NZCA 260

4 April 2000