The Queen v Boote

[2007] NZCA 137

IN THE COURT OF APPEAL OF NEW ZEALAND

CA347/06
[2007] NZCA 137

THE QUEEN

v

CRAIG ROBERT BOOTE

Hearing:6 March 2007

Court:Ellen France, John Hansen and Williams JJ

Counsel:J H M Eaton for Appellant

D La Hood for Crown

Judgment:19 April 2007 at 11 am

JUDGMENT OF THE COURT

THE APPEAL IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT
(Given by John Hansen J)

Introduction

[1]        Following a trial before Judge Doherty and a jury in the Christchurch District Court, the appellant was convicted on 17 August 2006 on two counts of assault with intent to injure.  He was fined $2,000 for each offence and was ordered to make total reparation of $6,075.10.

[2]        The written notice of appeal lists three grounds:

(a)The failure of the learned trial Judge to adequately and fairly put the defence case;

(b)Material misdirection in answering the jury’s questions during jury deliberations;

(c)Material misdirection in failing to adequately and fairly warn the jury as to the risks associated with reliance on the security surveillance video.

[3]        In submissions, the appellant relied on the following further alleged material misdirections by the trial judge:

(a)Standard of proof.

(b)Comment pursuant to s 366(1) Crimes Act 1961.

Background

[4]        At around 1 am on Friday 17 December 2004 the appellant, his brother Donald Boote, and their partners were concluding a meal at the Ashburton Hotel Sports Bar.  One of the complainants, Phillip Tapara, was a contractor employed by a roading company and was staying at the hotel with fellow employees.

[5]        Mr Tapara was refused service at the bar because of his intoxication.  Following this there was an exchange of words between Mr Tapara and the appellant which, the Crown alleges, included the appellant directing racial abuse at Mr Tapara.  The Crown case was that the appellant instigated the verbal sparring and was trying to start a fight by baiting Mr Tapara.  He was overheard saying words to the effect “I have been waiting for this.”

[6]        The exchange of words escalated to a physical confrontation.  The appellant got the better of Mr Tapara, and the Crown allege that whilst he was on the ground the appellant continued to punch him.  At this point Mr Tapara’s associates, Samuel Henry (who had not been drinking) and Graham Cameron, became involved in an attempt to break up the fight.  They had managed to separate the appellant and Mr Tapara when Donald Boote became involved and knocked Mr Cameron to the ground.  Mr Henry, who was holding the appellant, let him go to assist Mr Cameron.  The Crown alleges the appellant then went back to Mr Tapara and punched and kicked him while he was on the ground.  The appellant next went over to Mr Cameron, pushed past his own partner, and punched and kicked Mr Cameron.  He then returned to punching Mr Tapara before finally returning to Mr Cameron and punching him while he was on the ground.

[7]        As a consequence, the appellant was charged with assault with intent to injure both Mr Tapara and Mr Cameron.  His brother Donald was charged with assaulting Mr Cameron.  The appellant was convicted on both charges.  His brother was found not guilty. 

Submissions

Trial Judge’s summing up

[8]        In reliance on well settled authority, Mr Eaton submitted that there is an obligation on a trial Judge to fairly sum up the case, and to put the contentions of either side to the jury.  It is the Judge’s obligation to see that the nature of the defence is squarely before the jury.  He submitted that the technique used by the Judge in summing up failed to fairly put the defence case.  In particular he said the Judge was wrong not to summarise the respective cases of the defence and prosecution, by reference to the closing addresses.  He also submitted that the summing up failed to give the jury specific guidance regarding the evidence relevant to each of the important factual matters in dispute.

[9]        For the Crown, Mr La Hood submitted that this was a short and straightforward trial.  He submitted the trial Judge did all that was required of him in terms of the authorities.  He said the Judge in his summing up identified the fundamental facts in issue, and was balanced in his treatment of the opposing contentions with respect to the facts.  Further, the jury were left in no doubt that the facts were for them and not the Judge. 

[10]     Mr La Hood submitted that the authorities do not suggest a Judge is obliged in all cases to set aside a particular section of a summing up to summarise the addresses of counsel, provided the Judge puts the issues and contentions of the parties fairly to the jury.  He said in line with authority of this Court, the Judge had tailored his summing up to the circumstances of this case, and after referring to the legal requirements had summarised the factual disputes and the contentions of each side.  He said it was also clear on a reading of the summing up that at each stage of this process the Judge clearly delineated between what was being said on behalf of the appellant from what was contended on behalf of his brother. 

[11]     Next, Mr Eaton made specific complaints in relation to the summing up.  At [11] the Judge had given a direction that a consensual fight did not amount to an assault.  But Mr Eaton complained that at [22] of the summing up the Judge said “Craig Boote says the first blows were consensual” but failed to state that this position was accepted by the Crown.

[12]     He submitted that at [17] of the summing up the Judge failed to accurately and fairly put the defence on behalf of the appellant.  In directing as to inferences, the Judge summarised the Crown case by stating the common sense inference that could be drawn from the number of blows struck by Craig Boote (either by punching or, particularly by kicking) was that when he administered those blows he must have intended to cause bodily harm.  He then summarised the defence case by saying that the inference to be drawn from those actions that he took was that there was reasonable force administered in self-defence.  Mr Eaton submitted that this overlooked the defence position that the appellant had not kicked the complainant Mr Tapara.  He complained that at [21] of the summing up the Judge said he did not think the jury:

[W]ill have much difficulty in finding there was an intentional application of force by Craig Boote to the bodies of both Tapara and Cameron.  He admits, through counsel, to some punches and a kick to Cameron’s bum, as counsel put it.  I will come back to that in a moment.

Mr Eaton’s complaint is that the Judge failed to come back to that matter.

[13]     As noted at [11] the defence position was that this was a consensual fight.  Mr Eaton then complained that at [22] of the summing up the Judge said:

The defence that has been put to you is what we call self-defence.  If you do find that the accused in each case had assaulted the particular alleged victims and with the intent that is alleged in counts 1 and 3 the accused say that they were each acting in self-defence. 

Mr Eaton submitted that the direction appears to recognise that first and foremost the defence case is the appellant had not assaulted the complainants, as alleged, and whatever assault was admitted was not accompanied by the necessary intent.  He complained the Judge then proceeded to direct on self-defence, having not set out the defence case in relation to those critical issues.

[14]     At [26], [28], [29], [34] and [35] of the summing up the Judge summarised the issues relevant to the defence of self-defence.  Mr Eaton complained that in directing on those issues and summarising the Crown and defence cases, the Judge failed to refer to the evidence and did not refer to any particular factual matters relied on by the defence in order to support the defence of self-defence.  He gave as the best example of this, the failure, when referring to the evidence of Mr Henry just after he saw what he believed was the appellant kicking Mr Cameron, to say he heard him repeatedly yelling the words to the effect “Stay down or I’ll kill you.”  He also failed to refer to similar evidence from Mr Dellow, a roading contractor who had been drinking with the complainants and Mr Henry.

[15]     Next, Mr Eaton turned to the paragraphs following on from where the trial Judge had directed the jury regarding their assessment of witnesses.  At [44] and [45] of the summing up he went on to specifically deal with the issues of alcohol and Mrs Johnston, the bar manager’s, inconsistent statements.  Mr Eaton submitted that both directions were unfair to the appellant.  At [44] of the summing up the Judge encouraged the jury to place more weight on sober rather than intoxicated witnesses, and referred to specific witnesses by name.  Mr Eaton’s complaint is that he omitted to refer to the defence witness Ms McConaghty, Mr Donald Boote’s de facto partner, who was not intoxicated.

[16]     He also complained that at [45] and [46] of the summing up the Judge referred to Mrs Johnston’s prior inconsistent statement that was put to her during the course of the cross-examination, but failed to refer to the Crown concession that she was not, in fact, prepared to attribute kicking to any particular individual.  He submitted that in light of that concession, the Judge was required to give the jury a firm and specific warning in relation to this evidence.

[17]     Next, he referred to the fact that the Judge at [50] and [51] of the summing up referred to the evidence called on behalf of Mr Donald Boote.  The trial Judge, predictably, went on to deal with the consequences of rejecting the defence evidence and stated “You should not automatically conclude that Donald Boote is guilty of any charge.”  He complains that no reference was made to the appellant in this direction.  He submitted the Judge wrongly failed to direct that the defence evidence was relevant and admissible in relation to both accused, and the not guilty verdict on count two was certainly consistent with the jury accepting the McConaghty evidence in relation to Donald Boote.

[18]     There is a further complaint that the Judge’s summing up had the effect of diluting the weight the jury might otherwise have placed on counsel’s address.  At [38] the Judge said:

…[T]he view that they have about witnesses and evidence does not matter and of course what they said about the evidence is not evidence by itself.

[19]     In relation to this latter point, Mr La Hood set out the paragraph in full.  He said it was no more than the standard direction to a jury to pay careful attention to what counsel say in a summing up, but that counsels’ view of the evidence was no different from the Judge’s.  It was not a plea for the jury to ignore counsels’ addresses, rather it was an emphasis that facts were a matter for the jury. 

[20]     He rejected that Crown counsel had conceded in his closing that the fight was consensual between Mr Tapara and the appellant at the beginning, and they need not consider it.  He said no such concession was made, as is apparent from a reference to the transcript of the closing address.  Mr La Hood submitted that counsel for the appellant was confusing the concession made after the jury retired, rather than what was specifically stated in the address.  He submitted the Crown case was that there was racial abuse by the appellant that led to the confrontation, and that the Crown prosecutor closed in the following terms - “The weight of the evidence shows it was Craig Boote who threw the first punch, he was the aggressor.”  In any event, Mr La Hood submitted that the Judge appears to have misrepresented this Court’s decision in R v Lee [2006] 3 NZLR 42 (CA) where at [296] this Court made it clear that whilst consent may be a defence to certain forms of physical contact, it cannot be a defence to fighting in a public place. He submitted that the issue of consent was irrelevant, and Mr Boote and Mr Tapara were both guilty of assaulting one another and fighting in a public place during the initial fight, irrespective of what happened next.

[21]     In relation to Mr Eaton’s criticism of [17] to [22] of the summing up Mr La Hood submitted that passage of the summing up was designed to explain that whatever force was used the defence contended that it was reasonable in the circumstances.  He submitted the Judge made it clear that the extent of the assault was at issue at [21] of the summing up where the Judge set out the defence contention that it was punches and one kick only to the bottom.  He said it should also be noted that in his opening Mr Eaton did not discount the possibility that there was kicking by the appellant. 

[22]     He rejected the submission that the Judge failed to point out that Mr Tapara continued to act aggressively after the initial exchange of blows.  He said as the appellant accepts in his submission at [66], during the summing up the Judge summarised the issues relevant to all parties’ cases in the same way.  He accepted the Judge did not go into the factual intricacies of the evidence with respect to each allegation and counter allegation, but applied that equally to Crown and defence.  He submitted it was not a case where the Court was required to “paint in the details … or to remind [the jury] of the whole of the evidence which has been given”: R v Ryan [1973] 2 NZLR 611 at 614 (CA) citing Lord Goddard CJ in R v Clayton- Wright (1948) 33 Cr App R 22 at 29 (CA).

[23]     Next, Mr La Hood submitted that specific reference to the evidence of Mr Henry and Mr Dellow about the appellant shouting loudly “Stay down or I’ll kill you.” or “Stay down or I’ll f…ing kill you.” would not have been helpful to the defence.  He said it illustrated that this was a person out of control who was no longer acting in self-defence, and was disproportionately responding to any perceived threat from both complainants.  He submitted there was no error by the Judge in failing to refer to this.

[24]     Mr La Hood submitted that the Judge’s direction relating to the female bar employees and Mr Henry, who had not been drinking, as “perhaps the most reliable witnesses of all that you have heard from” was logically correct and well within the Judge’s discretion.  He submitted there was no obligation to remind the jury that the Crown had accepted Mrs Johnston’s concession and pointed out they were specifically warned in relation to Mrs Johnston’s inconsistent statement.  He submitted there was no need to add in the witness called by Donald Boote, Ms McConaghty, to this direction, even though she was not intoxicated because she was clearly a far more interested party in the proceedings than either of the other three sober witnesses.  The submission criticising the Judge for failing to give a detailed direction in relation to Ms McConaghty’s evidence is rejected on the basis that the Judge took the same approach to both Crown and defence witnesses by not giving detailed directions of what was said.  Mr La Hood submitted it would have been unbalanced to do so.

[25]     Mr La Hood then dealt with the final criticism as to the way the Judge dealt with the evidence called on behalf of Donald Boote, and his failure to direct the jury not to automatically conclude Craig Boote was guilty was wrong.  Mr La Hood submitted this was the standard direction given to dispel any possible prejudice against an accused for calling a witness whose evidence is rejected by a jury.  That danger was present with respect to Donald Boote calling his de facto partner, and any inference that could be drawn from a suggestion she was lying on his behalf.  Such prejudice did not apply to the appellant, and no such direction was required.  He submitted the jury could have been left in no doubt that the evidence of Ms McConaghty, as with all other eye witness evidence in the case, was evidence that could be used for and against both accused. 

The standard of proof

[26]     Next, Mr Eaton submitted the Judge failed to properly address the jury on the standard of proof.  He submitted the direction was brief when contrasted with the model set out in R v Wanhalla CA321/05 CA324/05 24 August 2006.  Further, he said even if the direction was adequate, it was then undermined by the Judge inviting the jury at [42] to ask themselves “Can I rely upon what the Crown witnesses have said as the basis for making a very important decision?”  He said that was not the essential question for the jury, and it does not reflect the requisite standard of proof. 

[27]     Mr La Hood pointed out the summing up was given before Wanhalla.  He submitted that Mr Eaton’s criticism seemed to be directed at [42] of the summing up rather than the standard pre‑Wanhalla direction.  Mr La Hood submitted, however, that [42] of the summing up was not intended to be a direction on standard of proof, but rather a summary of the approach to be taken to the standard directions that had just been given on the assessment of a witness’s credibility.  It does not bring into play the “important decision in the context of their own personal lives” analogy discussed in Wanhalla.

Directions as to video surveillance

[28]     Mr Eaton submitted that the Judge had failed to give adequate directions to ensure the jury fairly and properly dealt with the video surveillance tape that recorded the scene.  The Judge had directed the jury that the surveillance video would be helpful, but suggested that in the use of it they should note it was incomplete, in the sense that the camera did not appear to have been operating well and some footage was missing.  He suggested the jury could use it to assist in their assessment of the evidence of the witnesses that they had heard in Court.  In closing, counsel for the appellant had stressed the video had limitations and that it could be slowed down, cross referenced to still photographs and replayed over and over again, allowing for calm and clinical assessment, which was not an option for the participants on the night.  Mr Eaton also submitted it was misleading due to the fact that there was no sound recorded.  He said this was particularly relevant having regard to the uncontested evidence that throughout the incident the appellant had been shouting at Mr Tapara and Mr Cameron to stay down.  He said that this required a specific reference by the trial Judge.  He said this was requested of the trial Judge at the conclusion of the summing up, but declined.

[29]     Following a question from the jury, the surveillance video was replayed in Court.  It was replayed three to four times back to back.  After the replay the Judge suggested to the jury the video was best used for assessment of the evidence of the eyewitnesses, rather than complete reliance, because it did have limitations.  Mr Eaton criticised this.  He compared the surveillance video to an evidential video of a young complainant in a sexual case, and submitted it was incumbent upon the Judge to specifically refer to the passages of the evidence and cross-examination relevant to the matters in the video, in particular the comments of the appellant as detailed by Messrs Henry and Dellow.

[30]     Mr La Hood submitted the Judge set out careful directions as to the use of the video, and also cautioned about the use of still photographs taken from it.  He said the Judge correctly identified the video could be helpful, but despite that was cautious enough to say that it would be “best to use it to assist your assessment of the witnesses you have heard in Court”.  He said this was reiterated after the video was replayed in response to the jury’s questions.  He said it was not incumbent on the Judge to remind the jury of the evidence of what was said by the appellant, but he submitted, when looked at in context, it would have been less than helpful for the appellant.

Comments in terms of s 366(1) of the Crimes Act 1961

[31]     Mr Eaton further criticised the Judge for making a comment, pursuant to s 336(1) of the Crimes Act 1961, on the failure of the appellant to give evidence.  He accepted the comment was similar to that given in R v Andrews [1992] 3 NZLR 62 (CA), but lacking reference to onus of proof. He submitted in this case a comment was not fairly warranted. In reliance on R v McRae  (1993) 10 CRNZ 61 (CA), he said a comment should only come where:

(i)an accused has been given leave to cross examine a complainant as to credit; or

(ii)an accused relies on an exculpatory statement, but gives no evidence to back up the statement; or

(iii)an accused, through counsel, made a suggestion that someone else is responsible for the crime; or

(iv)an accused attempts to get his version of events before the jury by putting factual allegations to prosecution witnesses where these allegations are not accepted. 

He said the present case did not fall within those recognised exceptions, and the comment was unfair to the accused. 

[32]     Mr La Hood submitted that the very first sentence of the direction “they are entitled to sit back and see if the prosecution has proved its case” reminded the jury clearly of the burden of proof, and there were a number of other reminders throughout the summing up.  He said the comment in this case was in any event relatively mild, and was in the context of the Judge addressing the jury in relation to the way in which they could use statements.  He said much stronger comments by trial Judges had been upheld by this Court:  R v Accused (CA 78/88) [1988] 2 NZLR 385, R v McRae, and R v Taylor CA58/03 11 August 2003.

Answer to jury’s question

[33]     Finally, Mr Eaton submitted that the Judge’s answer to jury question three was inadequate.  That question was:

Counts 1 and 3 state “namely by punching and kicking” do the counts need to include both behaviours, that is for example if we find Craig Boote guilty of punching, but not guilty of kicking is he then guilty of count 1 or 3? 

[34]     The Judge’s response was:

Well the answer to that is this.  You do not have to find both behaviours proved before you can decide whether or not there has been an assault.  Remember on counts 1 and 2 it is alleged not just there was an assault but at the time of it there was an intent to injure the victim.  So to find Craig Boote guilty of either counts 1 or 3 you would need to be satisfied beyond a reasonable doubt that there was an assault, an intentional application of force, of either kicking or punching or both and that secondly that at that time of that assault if you find there was one, there was an intention to cause injury.

You might find that on that second element the intent to injure that if there was only one category of intentional application of force, that is punching or kicking, if there was only one proved, then that might not be sufficient to enable you to infer the necessary intent.  That is a matter for you.  I note that when you are looking at that those aspects that the Crown accept that the initial (sic) of Craig Boote and Tapara was a consensual fight and you should therefore concentrate on what happened once Henry and Cameron joined in the fray. 

[35]     Mr Eaton submitted that, essentially, the Judge directed the jury they did not have to find the appellant guilty of punching and kicking in order to find him guilty of counts one and three, and that a finding that he had either kicked or punched was sufficient.  He submitted on the facts of this case that direction was wrong and unfair as the Crown had in its indictment relied on kicking and punching.  This was repeated in the opening.  Mr Eaton submitted the defence case was that the Crown had clearly and deliberately framed its case, and it was artificial and wrong to allow the Crown to then shift the “goal posts” during the course of jury deliberations.

[36]     Mr La Hood accepted that the Crown did so open.  But he submitted an opening is not equivalent to a civil pleading, which binds the Crown for the remainder of the trial.  He pointed out that under s 367 of the Crimes Act 1961, the Crown has a discretion to open and cited from Adams On Criminal Law Ch5.12.03:

(1)     Opening of case by prosecution

Under s 367(1) Crimes Act 1961, the prosecution “may” open its case first, but it is an invariable practice that it will do so. The prosecution opening is essentially designed to give the jury a clear picture of the allegations made by the Crown in respect of each count in the indictment (and, if more than one defendant, against each co-accused). See also Ch5.26.04.

In R v Donaldson 8/12/04, CA80/04, the Court of Appeal approved the common practice of prosecutors in complex cases distributing documents to the jury to assist them with the nature of the Crown case. Prosecutors may also in appropriate cases use other aids to presentation such as “power point” computer displays. However the Court emphasised the need for such documents or presentations to be accurate, and to indicate where matters are or are not in contention. The prosecutor should ensure the Judge has had an opportunity to check that the proposed document or presentation is proper in form and content. The guidelines provided by the Criminal Practice Committee in 2003 for jury trials were held to be an appropriate framework within which counsel should work.

After any opening statements by the accused (see below), the prosecution will call its witnesses who will be examined and, if the defence so chooses, cross-examined (see (6) below).

[37]     Mr La Hood submitted that by the time of closing addresses it was apparent that the Crown was relying on kicking and punching as alternative particulars to the two counts.  He submitted the closing showed that at no stage did the Crown intend to bind itself to the requirement to prove kicks in order to prove the charges. Mr La Hood submitted that the appellant’s submissions make it clear the defence was aware a failure to prove both kicking and punching, combined, was not the end of the case.  He further submitted that it was clear from defence counsel’s closing address that Mr Eaton was well aware he needed to deal with the allegations of both kicking and punching.  He submitted in this case there was a requirement to prove an assault, which the Crown allege was by both kicking and punching, but at the very least by punching.  The Crown only had to prove the element of assault, not its particular form.  In any event, he submitted the assault related to one continuous sequence of events during the course of an affray and, accordingly, the Crown was not required to prove both kicking and punching in order to prove the offence: R v Mead [2002] 1 NZLR 594 (CA). He submitted it was clear from the evidence as a whole, the defence closing address, and the Judge’s summing up that the appellant was able to, and did, address, the issue of whether punches alone were sufficient to found the necessary intent. Accordingly, Mr La Hood submitted, the case is distinguishable from R v Shaw CA159/05 22 November 2005, (reissued 7 December 2006) and the Judge’s answer to the questions were both legally correct, and not unfair or prejudicial.

Discussion

Trial Judge’s summing up

[38]     Despite Mr Eaton’s submission that there were complex issues, this was a short and relatively straightforward trial.  The appellant has mounted a sustained attack against a summing up that we consider was adequate and fair.  Turning to the specific grounds.

[39]     The Judge’s obligation to fairly sum up a case is set out in R v Keremete CA247/03 23 October 2003 at [18] and [19]:

The other ground of appeal against conviction was that the Judge's summary of the defence case was inadequate and dismissive. A judge's summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge. Rival contentions with respect to the factual issues will normally be summarised (R v Miratana, 4 December 2002 CA 102/02) but there is a wide discretion as to the level of detail to which the judge descends in carrying out that task. Treatment of matters affecting the cogency of evidence is not required as a matter of law: R v Foss (1996) 14 CRNZ 1 (CA) at p 4.

The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other: R v Hall [1987] 1 NZLR 616 (CA). A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact (R v Hall, supra, at p 625). Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms: R v Daly (1989) 4 CRNZ 628 (CA). Inevitably these are ultimately matters of degree and judgment.

[40]     The relevant case law has been reviewed more recently in R v Shipton & Ors CA301/05 11 April 2006.  In that case, Hammond J, delivering the judgment of the Court, stated:

[36] In R v Ryan [1973] 2 NZLR 611 at 614 Richmond J cited with approval the remarks of Lord Goddard CJ in R v Clayton-Wright (1948) 33 Cr App R 22 at 29:

The duty of the Judge in any criminal trial, or, for the matter of that, in any civil trial, is adequately and properly performed if he gives the jury an adequate direction on the law, an adequate direction upon the regard they are to have to particular evidence on such matters as accomplices … and if he puts before the jury clearly and fairly the contentions on either side, omitting nothing from his charge, so far as the defence is concerned, of the real matters upon which the defence is based.  He must give to the jury a fair picture of the defence, but that does not mean to say that he is to paint in the details or to comment on every argument which has been used or to remind them of the whole of the evidence which has been given by experts or anyone else.  (Emphasis added.)

[37] That passage correctly comprehends that there are limits on a Judge’s duty to put the defence case before the jury.  The Judge is absolutely required to see that the nature of the defence is squarely put through his office by summarising the nature of the defence and the evidence.  The Judge is not however required to repeat defence counsel’s arguments, nor to endeavour to “top up” a weak defence case by setting out inconsistencies or matters of that kind.

[38] One sub-set of this general problem which we think bears particular emphasis is that this fundamental duty falls on the trial Judge who cannot, in general, rely on counsel’s closing speeches.  There are statements in the appellate judgments, and in the treatises (see eg, R v Hiha CA 4/04 1 June 2004; and Taylor, Appeals at [8-055] respectively), which suggest that in a short and simple trial it may not be necessary for the trial Judge to recite in detail the defence case.  However in our view, even in a straightforward criminal jury trial, the presiding Judge should distinctly hesitate before concluding that he or she can safely rely upon counsels’ closing speeches. What is said by a Judge in a criminal jury trial in summing up is said from a position of great authority, and in our experience it is viewed as such by juries. It is for this reason that balance is so important on the part of a trial Judge.  Where the heart of the defence is omitted, or some distinctive part of it, there is a very real risk that a jury will infer that the Judge is unimpressed with that defence.

[41]     In this case the Judge did not adopt what is sometimes said to be the standard approach of having a specific section of the summings up in which the contentions of both the prosecution and defence are summarised and put to the jury.  However, it is clear on the authorities there is no need for such an approach.  As this Court has repeatedly said, summings up should be tailored for individual cases:  R v Falealili [1996] 3 NZLR 664, R v Mead.  In this particular case the Judge has gone to some lengths to do that, because after dealing with the elements of the charge he presents the factual contentions of the prosecution and the defence.  He does the same in dealing with self-defence and other defence contentions.  Finally, he does that in relation to each count.  In our view, particularly after such a short trial, that was an appropriate means of dealing with these issues.

[42]     It is also apparent in this case, no doubt because of the shortness of the trial, that the Judge has addressed the evidence in a general way, rather than descending into minutiae.  We see such an approach as appropriate in the circumstances of this case, and the appellant’s criticism is unwarranted.  Such an approach was applied fairly and even-handedly to both the prosecution and defence evidence and contentions.  We are in no doubt that the jury were fairly presented with each side’s case for their consideration.

[43]     It follows that this ground fails.

[44]     The criticism that the Judge stated the views of counsel on the witnesses and evidence did not matter is ill founded.  That is apparent on a consideration of the relevant part of the paragraph of the summing up in full.  That paragraph, where relevant, reads:

You heard addresses from all the three counsel yesterday and while you will consider what they have said about the evidence and the matters they have emphasised as important from their respective points of view, just as I have said about my view of the facts, the view that they have about the witnesses and the evidence does not matter and of course what they said about the evidence is not evidence itself.  It is what you make of the witnesses and the evidence and what you make of that is entirely a matter for you.  It is for you to decide what witnesses and what evidence you regard as being credible and reliable. 

[45]     This is the standard summing up to juries in relation to counsels’ addresses and the way juries should approach it.  There may be a mild variation from the standard, but no jury would take from the paragraph above that they should disregard everything that counsel have said.

[46]     Nor is there anything in the complaint that the Judge failed to state to the jury that the Crown accepted the initial fight was consensual.  In fact the Crown closing, that Mr La Hood referred us to, makes it clear that this is not the case.  In any event, we agree with Mr La Hood that the Judge may well have misinterpreted the decision of this Court in Lee, and in that sense his summing up was overly fair to the appellant. 

[47]     Nor do we accept the criticisms of [17] to [22] of the summing up.  The Judge was there assisting the jury as to inferences that can be drawn from the evidence.  What he is making plain is that whatever the force that was used, the defence contention was that it was reasonable in the circumstances.  In any event, at [21] of the summing up he made it clear to the jury that the extent of the assault was at issue. 

[48]     Nor is there any validity in the criticism of the Judge in failing to go into detail in pointing out that Mr Tapara continued to act aggressively after the initial exchange of blows.  As we have already pointed out, the Judge had dealt with the prosecution and defence evidence in the same general way, and we do not consider the circumstances of this case required a descent into minutiae. 

[49]     We see no merit in the criticism of the Judge’s failure to specifically put the evidence of what the appellant was saying in the course of the incident.  Mr Eaton tried to characterise this evidence as supporting the defence of self-defence, in that having been successful in the initial confrontations, the appellant was telling both Mr Tapara and Mr Cameron to stay down.  At 48 line 18 of the evidence of Samuel Henry he was asked:

Q.     And what else do you remember happening after you saw Craig Boote kicking Eagle (Cameron), did you see him do anything else.

A.     Standing over him, said to him, you know he said to him you’d better stay down or I’ll f...ing kill you.

Q.     And what was Graham, what was Eagle trying to do when he said that to him.

A.He was trying to stand up he didn’t know what world he was in. I think he was just trying to get out of there.  (Our emphasis.)

[50]     Another witness was Mr Dellow, who was asked:

Q.     What do you remember seeing when you went into the bar.

A.     I remember seeing Phil, he had been in a fight and he had a lot of blood over him.

Q.     Whereabouts did he have the blood.

A.     Over his face.  And to the side of that was Eagle he was lying on the ground and there was another chap standing over him.

Q.     And what was the other chap doing.

A.     Punching him.

Q.     Did you see where he was punching him.

A.     Mmm hm.

Q.     Whereabouts.

A.     In the head.

Q.     Could you hear anything that was being said.

A.     Yes.

Q.     What was that.

A.     Stay down or I’ll f...ing kill you….

Q.     Can you remember anything else that he was saying.

A.     Um he called him a nigger.  (Our emphasis.)

[51]     We agree with Mr La Hood’s submission that any emphasis on such evidence would have been unhelpful to the appellant.  Given that it is clear such things were being said loudly, they are more the mark of a person out of control than a person acting in self-defence.

[52]     Nor do we see any validity in the criticism of the Judge for pointing out that the witnesses, namely the two female bar employees and Mr Henry, could “perhaps be the most reliable witnesses of all that you have heard from”.  That is clearly so as they were not intoxicated and had no particular interest in the proceedings.  It was logically correct and within the Judge’s discretion.  In any event, we are quite satisfied that it caused no unfairness, as the jury were left in no doubt throughout that any finding as to the facts was entirely for them.  Furthermore, the inconsistent statement of Mrs Johnston was clearly pointed out, and we have no doubt that her concession in relation to kicking that first appeared at trial would have been in the forefront of the jury’s mind. 

[53]     The Judge did not give detailed directions relating to what was said by Ms McConaghty, but this was in accord with the general tenor of his summing up, which we have already found to be appropriate in the context of this case.  We also have no doubt that the jury were well aware that the evidence of Ms McConaghty was, as with the evidence of all other eyewitnesses, evidence in the case, and that it could be used both for and against both of the accused.  Clearly, the passage criticised by Mr Eaton concerned the giving of the standard direction as to how the jury should approach matters if they rejected evidence called on behalf of the defendant Donald Boote.  The prejudice the Judge was warning against was applicable only to Donald Boote, and had no application to the appellant.

Standard of proof

[54]     The summing up occurred before the decision of this Court in Wanhalla.  It was a standard summing up on the standard of proof.  The jury could have been in no doubt that it was beyond reasonable doubt, and the onus was on the Crown throughout.  This was given to the jury at [5] of the summing up.  The sentence criticised by Mr Eaton occurred in another context, when the Judge was dealing with the standard directions given to assist juries on the assessment of witnesses’ credibility.  The sentence complained of certainly does not bring into account the “important decision in the context of their own personal lives” analogy discussed in Wanhalla and criticised there.  We have no doubt that this jury were well aware of the appropriate standard of proof and where the onus lay throughout.

Directions on the video surveillance footage

[55]     We have had the advantage of viewing the surveillance video footage.  We understand why the Judge referred to the limitations of it, which he warned the jury of.  He also warned the jury of the gap in it.  A viewing of the footage suggests it is a series of stills, as opposed to a moving picture.  But, if anything, having viewed that surveillance video, we think the Judge was overly cautious in giving any warning to the jury as to their use of it.  His suggestion was that they should use it to assist the assessment of evidence of witnesses that they heard in Court.  But our viewing of it reveals that it gives a graphic illustration of what occurred on the night in question.  Notwithstanding its limitations, there is ample evidence in that alone to convict the accused, whose actions are self-evident.  We do not think it called for any particular warning from the Judge.

[56]     The surveillance video cannot be compared to an evidential video of a complainant in a child sexual abuse case.  In such cases, the Judge refers the jury, in addition to the video, to the evidence, cross-examination and re-examination.  That is because it is the words in the video that are the evidence, not the photographic images themselves.  It may be contrasted with a case such as this where the probative effect of the video was the photographic images.

Comment in terms of s 366(1) of the Crimes Act 1961

[57]     In R v Andrews at 65 this Court said:

Section 366 of the Crimes Act 1961 permits the Judge to comment on the fact that the accused has refrained from giving evidence. As Cooke P pointed out in R v Butcher [1992] 2 NZLR 257, 268 an accused who refrains from giving evidence does so at risk of comment. The President returned to the topic of delivering the judgment of the Court in R v McCarthy [1992] 2 NZLR 550 saying that in the ordinary run of cases trial Judges were not to be discouraged from exercising their right of comment; with the proviso that the direction should be appropriately balanced. However, although it is a matter for the Judge's discretion it is clear that the discretion is not an unqualified one, and may be subject to review if exercised in inappropriate circumstances, or should the comment go too far; see eg R v Accused (CA 78/88) [1988] 2 NZLR 385, 389. In that case the accused had been convicted of sexual intercourse with a girl aged 14 being his stepdaughter who was living with him as a member of his family. At the trial counsel for the accused suggested that another person, the complainant's grandfather, who was also staying with the family at times, had been the offender. The grandfather had died before the trial. The Court crystallised the justification for a comment on the accused not giving evidence in these terms at p 391:

“…the Judge was entitled to treat the accused as one person who could reasonably be expected to have knowledge of his stepdaughter's conduct in his home, and to regard him as the source of the suggestion that counsel made that Mr S was the person who had interfered with the complainant and to ask why, if that were the case, he had not given evidence to support that suggestion."

The comment in that case, it should be said, was stronger and more extensive than in the present.

In dealing with a summing up in terms which for all practical purposes were identical with the present in R v Accused (CA 244/91) (CA 244/91, 20 December 1991) this Court regarded the comment as not going far; and we too regard it as mild. Indeed it would be difficult to think of any milder terms in which a Judge could address the issue, if it was to be addressed at all. …

[58]     In R v McRae at 64 this Court said:

If an accused person relies on an exculpatory statement and the matters referred to therein but gives no evidence to back up the statement, then a balanced comment might well be justified. Again if an accused person through counsel has made a suggestion that someone else is responsible for the crime but gives no evidence in support of that proposition a comment could reasonably be expected: see for example R v Accused(CA78/88) [1988] 2 NZLR 385; (1988) 4 CRNZ 208 (CA). In some cases an attempt is made by the accused to get his version of events before the jury by putting factual allegations to Crown witnesses. If those allegations are not accepted and the accused refrains from giving evidence then an appropriate comment might well be anticipated.

[59]     We consider, as Mr La Hood submitted, that Andrews provides the classic example of an analogous direction to the one given in this case.  In Andrews, the Judge said:

The next point is this, as I have stated there is no onus on an accused person at any stage to prove his or her innocence. More particularly an accused person is not bound to give evidence. She can sit back and see if the prosecution has proved its case. Where, as in this case, she has done so that means that you have not had the opportunity of hearing the accused's account of the events that occurred, and more particularly of hearing directly from her on oath in the witness box what, if anything, was her involvement in the event. The only account is what she said to the police officer which was quite an extensive question and answer session which lasted nearly three hours according to the times which are written on the document. You have not had the benefit of hearing her account tested in cross-examination, but I should make it perfectly plain to you that not giving evidence itself has no evidential value. It does not prove anything. One thing you must not do is assume that the accused is guilty because she has not gone into the witness box.  (At 64 of this Court’s judgment.)

[60]     In this case Judge Doherty said at [47] and [48]:

What about the accused?  They did not give evidence.  They are entitled to sit back and see if the prosecution has proved its case.  That is the way our system works and they have an absolute right to do so and where, as here, they have done so that means you have not had the opportunity of hearing first hand their account of the events that occurred and more particularly you have not heard directly from them on oath in the witness box what their involvement was.  The only account that you have had is the short statement each of them made back at the scene to Constable Hanson and which he recorded in his notebook and you have the video interview with Donald Boote.  You have not had the benefit of hearing anything they have said tested in cross-examination.  But I need to make it perfectly clear to you that not giving evidence does not itself prove anything.  It does not add to the evidence against either accused.  One thing you must not assume is that either accused is guilty because he has not gone into the witness box.  You do though have those statements, the oral statements made to the police and the video statement and whilst they are not of themselves sworn evidence, they are properly part of the material for you to consider.

What you make of the truthfulness, accuracy and weight of those statements is for you to decide and you might put into the mix the fact that none of it has been tested in cross-examination.  In the same way that you may accept parts of what a witness has said in evidence and not accept other parts, you may accept parts of what was said in a statement and reject other parts and you should assess the video statement in particular in the same way as any other evidence because you have had the ability to see the reaction of the person making the statement.

[61]     In Andrews the Court said at 65:

In dealing with a summing up in terms which for all practical purposes were identical with the present in R v Accused (CA 244/91) (CA 244/91, 20 December 1991) this Court regarded the comment as not going far; and we too regard it as mild. Indeed it would be difficult to think of any milder terms in which a Judge could address the issue, if it was to be addressed at all.

[62] We agree. The comment in this case was mild and far stronger comments have been upheld by this Court, as can be seen by the cases cited at [32].

[63]     Accordingly, we do not consider the comment unfair to the appellant, or that it led to any miscarriage.

Answer to jury’s question

[64]      We do not accept the criticism of the Judge’s answer to jury question three.  In R v Shaw the Crown opened on the basis that Mr Shaw was the principal party to the burning down of a church.  In closing, and without warning to defence counsel or the Judge, the Crown put to the jury an alternative allegation that had emerged during evidence that Mr Shaw was a secondary party by inciting others to burn down the church.  The jury’s verdict made it plain that they convicted on this alternative basis.  This Court said at [43] that ultimately the matter was to be assessed on the principle that an accused person “shall have fair notice of the allegations against him”.  In that case Mr Shaw was faced with a charge that he had not gone to Court to meet or that he had addressed in his defence. 

[65]     In R v Mead the indictment alleged a number of particulars, each said to constitute wilful ill-treatment of a child. The majority of this Court held that the elements of the offence are all that is required to be proved beyond reasonable doubt, and upheld the trial Judge’s direction that the jury need not be unanimous on which of the particulars were proven, but only that the accused had wilfully ill-treated the victim. The majority held that the particular form of ill-treatment was not an ingredient of the offence, and it would be an egregious error to elevate it into such an element. Although Elias CJ dissented, she did cite with approval at [38] the English Court of Appeal decision in R v Smith (Christopher) [1997] 1 Cr App R 14, where the English Court of Appeal commented that during an affray involving one continuing sequence it is not necessary for the Crown to identify any particular incident that constitutes the offence.

[66]     We agree with the Crown submission that it is apparent from the closing of both the Crown and the defence that the appellant was on notice that the Crown was relying on kicking and punching as alternative particulars to the two counts.  Those addresses make it clear that at no stage did the Crown bind itself to a requirement to prove kicks in order to prove the charges.  What was critical in this case was that the Crown was required to prove an assault.  The Crown allegation was that this was by both kicking and punching, but, at the very least, punching.  The Crown only had to prove the element of assault, not its particular form.  This was not a situation where the accused was not aware of the case he had to meet, or was prejudiced in some way by the prosecution suggesting an entirely different basis to that suggested in its opening address.  Nor was the appellant deprived of a reasonable opportunity to defend himself.  Both in closing, and in the Judge’s summing up, the appellant was able to, and did, address the issue of whether punches alone were sufficient to found the necessary intent. 

[67]     Having viewed the punching in the video, we can only concur.  From the very nature of the assault of victims on the ground the jury could readily infer the necessary intent from the punching alone.  In any event, there was ample material in the video from which the jury could infer that kicking of both complainants did occur.

[68]     In the context of this case, we consider the answer of the Judge was accurate and legally correct.

Conclusion

[69]     None of the grounds of appeal are made out.  The appeals against conviction on both counts are dismissed.

Solicitors:

Crown Law Office, Wellington