The Queen v Daniel Charles Priday

IN THE COURT OF APPEAL OF NEW ZEALAND

CA156/02

THE QUEEN

DANIEL CHARLES PRIDAY

Hearing:	19 September 2002
Coram:	Glazebrook J Chisholm J Chambers J
Appearances:	O S Winter for the Appellant S P France for the Crown
Judgment:	25 September 2002

JUDGMENT OF THE COURT DELIVERED BY CHAMBERS J

Who wielded the steel bar?

In May last year, Shaun McGhie was set upon at his place of work. He said in evidence that two men had come into his workshop, one Tahi Sweet, the other Daniel Priday, the present appellant. There was an argument. According to Mr McGhie, Mr Sweet punched him in the head. Mr McGhie staggered back. He then recalled Mr Sweet grabbing him in a bear hug and then head-butting him with his forehead. Mr McGhie was pushed onto a work bench. He grabbed a steel bar on the work bench and tried to defend himself. He was then thrown to the floor and dropped the bar. While he was on the floor, Mr Sweet punched him again. Next he knew, Mr Priday was coming at him with the steel bar. Mr McGhie put up his arm to defend himself. According to Mr McGhie, Mr Priday swung the bar and hit his forearm, shattering it. Mr McGhie rolled onto his side. He saw Mr Priday coming at him again. The next he knew, he was hit on the back of his head. At that point, he lost consciousness.
Following this incident, Mr Priday was charged. He was committed for trial. Sometime after that, Mr Sweet was apprehended and charged. He was not committed for trial, however, because at his deposition hearing Mr McGhie said, on oath, that he could not remember details of the incident. When Mr Priday came up for trial, however, Mr McGhie’s memory had returned. A jury found Mr Priday guilty of an offence under s 189(1) of the Crimes Act 1961, namely that he, with intent to cause grievous bodily harm to Mr McGhie, injured him. Following the jury’s verdict, the trial judge convicted Mr Priday and later sentenced him to 4 years’ imprisonment.
The essential question at trial was: who wielded the steel bar? Mr Priday’s defence was that the Crown had not proved beyond reasonable doubt that it was he who had wielded the bar. The defence case essentially relied on discrediting Mr McGhie as a witness. Mr Winter, the defence counsel, mounted an all-out attack on Mr McGhie’s credibility, with special reference to his alleged lack of memory of events at Mr Sweet’s deposition hearing.
Mr Priday now appeals to this court against his conviction.

Issues

There were two issues on the appeal. The first was whether the trial judge’s directions concerning inferences were unfair to the defence. Mr Winter, who appeared for Mr Priday on the appeal, submitted that the answer the judge gave to a jury question was unfair in the circumstances.
The second issue relates to the circumstances of the playing back of some evidence. The jury asked to have read back the cross-examination of Mr McGhie. After discussion with counsel, the judge determined that, in order to provide balance, both the examination-in-chief and the cross-examination should be replayed to the jury. The evidence had been recorded on the new FTR (For the Record) system. This meant that it was possible to replay the evidence as it had been given. The judge, with the consent of counsel, decided that the evidence should be replayed in Court in his absence and in the absence of counsel and the accused. Only the court registrar remained in court with the jury. It would seem that the jury decided part-way through the replaying of Mr McGhie’s examination-in-chief that they did not need to hear any more. The registrar at that point stopped the play back and the jury returned to the jury room. Mr Winter submitted that the procedure adopted led to a miscarriage of justice.
We deal with the issues in turn.

Inferences

It is standard practice for trial judges to give directions on inferences. Such a direction was important in this case as there were two important matters in respect of which there was no direct evidence.
The first was the specific intent the Crown had to prove – an intent to cause grievous bodily harm. Obviously such intent could be proved only by inference. It is clear from the summing up, and Mr Winter confirmed, that, while that intent remained an issue at the trial, it was effectively an issue in name only. It was effectively conceded by the defence that, if the jury accepted Mr McGhie’s version of events, such intent could, in the circumstances, be inferred.
The second area in which inference played a part was with respect to the blow on the head immediately before Mr McGhie lost consciousness. Mr McGhie admitted that he did not actually see Mr Priday hit him on the head with the bar. He was attacked from behind. What he saw, he said, was Mr Priday with the bar in his hand very shortly before he was hit on the head. The Crown asked the jury to infer from that fact that the overwhelming likelihood was that the blow to the head came from the bar and that the bar was at that time being swung by Mr Priday.
Any trial judge knows that directions on inference are always difficult. It is not easy to explain the concept simply and shortly to a jury. The judge in this case gave a reasonably comprehensive explanation of the concept. He began with an example which many judges use. That is, the example of a man coming into the courtroom wearing a coat which is dripping wet. In his hand he carries an umbrella. From that you could draw an inference that the man had just come into the building and that it is raining or has just been raining outside.
From that commonplace example, the judge then turned to consider an area of the case where proof was entirely dependent upon inference. That was the blow to the head immediately before Mr McGhie said he lost consciousness. Having explained that Mr McGhie had said that he did not actually see the bar hit his head, the judge continued:
What he said he saw was the accused with the bar in his hand coming towards him. Now that’s not direct evidence [that the bar hit his head] because Mr McGhie could not say, ‘Well, I saw the bar hit my head.’ Because at that stage of course he had rolled over to protect his arm. Now you, as a jury, are able to draw an inference. If you accepted Mr McGhie’s evidence, and again I stress this is just an example of what an inference is as it applies to this case, you may be able to say well he saw the bar coming, he had been hit by it previously; he had seen, he said, the accused, Mr Priday, with the bar in his hand hitting him and he put his arm up to protect that from his face and got his arm smashed. Then the next thing he sees is the accused coming at him with the bar again, he rolls over and feels a blow to his head. Now, is that a rational conclusion you could draw, that it was a bar that hit him on the head, given those circumstances? It is a matter for you, very much for you, but that is the type of process that you can use in coming to conclusions about the evidence in this case.
Immediately after that explanation, which the judge stressed was merely an example, the judge then reminded the jury that the defence case was that Mr Priday did not wield the bar and that the defence was that Mr McGhie was unreliable as a witness. The judge then continued with the standard direction stressing that the drawing of inferences is a ‘process of reason and logic’ and that the jury must not ‘speculate or guess’. He added:
If you draw conclusions, make sure they are drawn on proven facts before you. You are basing your conclusions on evidence that you have heard and you accept.
Later in the summing up, when considering the specific intent that the Crown had to establish, the judge referred once again to the matter of inference. Obviously the reference on that occasion was understandably brief. The judge had, after all, explained the concept at some length earlier in the summing up. As well, as we have indicated, the issue of specific intent was effectively conceded. The thrust of the defence was the identity of the bar wielder and the reliability of Mr McGhie.
Mr Winter accepted that what the judge said in this summing up was not objectionable. We agree. We consider that the judge’s explanation of the concept was adequate. We also consider that, in the circumstances, it was quite useful to give the jury a concrete example of how inference could work. The judge balanced the example by stressing in the course of his explanation that the defence did not accept the alleged facts from which the inference was to be drawn.
Mr Winter’s complaint stems from an answer given by the judge to a jury question. The jury sent in a message which read:
Clarify reasonable doubt as opposed to making an inference.
The judge discussed this with counsel and then addressed the jury. He explained that they were really two different concepts and that they should not be looking at it in terms of one or the other. The judge began with an explanation of inferences. The judge adopted a similar technique to that which he had used in his summing up. (We note at this stage that counsel, at the conclusion of the summing up, had not objected to any part of it and had not asked the judge to redirect on any point.) The judge, in answering the question, first used a general example. He did not repeat the umbrella example. He used another commonplace one only loosely related to the particular case. While Mr Winter had some concern about that example, because of the loose relation it bore to the facts of the present case, his real concern was with the second example the judge used.
The second example effectively repeated the second example given in the summing up referred to in para 12 above. He referred as an example to the blow to the head and referred to the fact that Mr McGhie had not seen that blow. The judge’s explanation of inference was given in somewhat similar terms to the explanation given in the course of summing up. The judge then added:
Just to be balanced about it, of course you will understand that what Mr Winter is saying on behalf of the defence is that, how can you be sure it was Priday who had the bar in the first place? But if you came to the conclusion it was Priday who hit Mr McGhie and you accept that, then you would look at that next step in terms of what happened immediately afterwards. It’s Mr Priday with the bar coming towards him or coming at him, he turned away to fend off the blow, he felt the bang and it’s just a matter of commonsense, as I say the Crown would put it to you in that way, that that bang to the back of the head at that time was Mr Priday hitting him with the bar. That’s the process of drawing inferences.
Mr Winter’s complaint was that the overall tone of the answer gave ‘a very clear indication of [the judge’s] views’. He complained that no reference was made to the defence proposition that Mr McGhie’s head injuries were inconsistent with a blow from a bar or to the proposition that Mr McGhie’s evidence as a whole should be regarded as unreliable. No reference was made to the defence submission regarding Mr McGhie’s ‘previous memory problems’. (Mr Winter had submitted to the jury, based on his prior inconsistent statements, that he had a ‘selective memory’.)
We do not agree that the explanation was unfair. The judge gave an example from the case itself of a situation where the Crown relied on inference to establish a fact. Having set out the Crown case, the judge then balanced the example by stressing that the defence disputed the alleged fact which had to be proved before the inference could be drawn. The judge made it clear that the inference was available only if the jury concluded that it was Mr Priday who had hit Mr McGhie’s arm with the bar. That was a perfectly fair way of putting the matter. If the jury were satisfied that it was Mr Priday who wielded the bar and struck Mr McGhie’s arm with it, then it was certainly open to inference that the blow on the back of the head seconds later was also the act of Mr Priday.
The crucial question in the case was whether it was Mr Priday who had the bar. The judge reinforced that as the crucial issue when he gave the example. There was no need for him to reinforce the defence proposition that Mr McGhie’s evidence as a whole should be regarded as unreliable. That was not an essential part of the question. In any event, the defence case on that had been adequately stated in the summing up.
Further, the judge, in the course of his summing up, had given the standard direction about all questions of fact and guilt being matters exclusively for the jury. He had specifically told the jury that if he said anything about the facts and they interpreted that as ‘[him] having some view of the facts’, they could reject that and set it aside because they were the deciders of fact.
We do not consider the answer to be unfair. The judge dealt with the jury’s question appropriately. He added balance by reminding the jury that the defence did not accept the fact from which the Crown sought to have the inference drawn.
We would also add that a conviction did not depend on the inference being drawn in any event. If the jury accepted Mr McGhie as a witness of truth, as clearly they did, then there was direct evidence from Mr McGhie as to Mr Priday striking his arm with the bar, causing the bones to shatter. That blow alone would have constituted the element of ‘injury’. The circumstances of that blow alone would have justified the jury in drawing an inference as to the offender’s intent to cause grievous bodily harm. Mr McGhie’s evidence was that he was holding his arm up to protect his face when his arm was struck by the bar. His evidence in that regard was supported by unchallenged evidence from a doctor specialising in orthopaedics. He gave evidence as to the injuries to Mr McGhie’s arm. He said they were consistent with ‘a direct blow to the outer aspect of the forearm usually from a heavy solid rod-like object such as a crowbar’. He had added that people normally get injuries of this sort ‘by protecting the head area by raising their forearms up during an assault’.

Playing back the evidence

We have set out above the way in which the evidence was played back. Mr France, for the Crown, responsibly acknowledged that the course adopted was not appropriate. Whenever evidence is read or played back in court, the judge, counsel, and the accused, should be present. It is part of the trial process. We appreciate that the course adopted in the present course was one with which counsel agreed. It is a classic example, however, of shortcuts leading to problems.
We are satisfied, however, that, in this particular case, no miscarriage of justice occurred. We do not know what it was that the jury wanted to rehear. Whatever it was, they decided that they did not need to hear the rest of Mr McGhie’s evidence. Whatever was troubling them had been answered. Had the judge been present when the indication was given that they had heard what they wanted to hear, we have little doubt that, given the nature of the request, the judge, on being satisfied that no member of the jury wanted to hear more, would have stopped the reading back or the playing back and allowed the jury to return to the jury room.
This is not a case where the jury had asked to hear evidence on a particular topic. In those circumstances, judges are always alive to the need for balance and the need to provide all evidence relevant to the topic in question. Here, no topic was mentioned. A sensible inference that can be drawn is that the jury heard whatever it was they wanted to hear. They chose not to hear any more. As Mr France put it, a question or request is not irrevocable.
We also note that Mr Winter learned from the registrar that the jury had indicated a wish not to continue listening. He made no application to the judge concerning their decision.
While we reiterate that the procedure adopted was not correct, we do not consider the error renders the verdict unsafe. We would observe in passing that the Crown case appears to have been a very strong one provided the jury accepted Mr McGhie’s evidence, which they obviously did, despite the challenges to his credibility. We also note that Mr Priday did not give evidence. Nor had he provided a statement to the Police, and so accordingly the jury had no alternative version of events to Mr McGhie’s.

Result

We dismiss the appeal.

Solicitors:
Barltrop Graham, Feilding, for Appellant

Crown Law Office, Wellington

[2002] NZCA 227

25 September 2002