The Queen v Ith

[2006] NZCA 274

IN THE COURT OF APPEAL OF NEW ZEALAND

CA91/06

THE QUEEN

v

SAMBATH ROMEO ITH

Hearing:20 July 2006

Court:William Young  P, Williams and Venning JJ

Counsel:M Lowe for Appellant

M D Downs for Crown

Judgment:27 September 2006 at 11 am

JUDGMENT OF THE COURT

The appeal against conviction is dismissed

REASONS OF THE COURT

(Given by Williams J)

INTRODUCTION

[1]       On 2 December 2005 Mr Ith, the appellant, was convicted following a District Court trial on a count of robbing, with a Mr Meleisea, a Mr Harper of cash and a bottle of “Jim Beam” bourbon.

[2]       He appeals his conviction on the ground that the Judge’s summing-up was unfairly prejudicial in its summary of the defence case and incorrect in its treatment of Mr Ith’s identification defence.

Facts

[3]       The Crown case was that at about 8:00pm on 18 May 2004 Messrs Ith and Meleisea went to rob a wine shop called Henty’s Wines in Eden Terrace, Auckland.  They had a balaclava and a knife.  Their original plan was that Mr Ith should rob the wine shop while Mr Meleisea remained as lookout.  But Mr Ith thought he might be recognised by the shop assistant, Mr Harper, and as a result the two swapped roles.  Mr Meleisea went into the wine shop disguised with the balaclava and brandishing the knife.  He was given the till contents of between $300‑$400 and a bottle of “Jim Beam” bourbon.  The two then ran away to a nearby boarding house, the Edinburgh Castle, where they were apprehended by Police shortly afterwards.

[4]       The Crown case was materially assisted by two factors. First, a Mr Lines, who lived and worked in the neighbourhood, was on his way to Henty’s wine shop when two men ran past.  He picked up the beanie one dropped as they did so, ran after them and returned it. They were then hammering at the door of the Edinburgh Castle for entry. He recognised one as a man he had seen in the neighbourhood and around the Edinburgh Castle several times weekly over a period of about a month. In Court, he told the jury of that recognition and identified that person as Mr Ith. After returning the beanie Mr Lines went back to Henty’s wine shop to be told by the assistant it was closed because it had just been robbed.

[5]       He maintained that evidence in cross-examination though acknowledging he had been drinking before this to the point where he thought he needed to persuade someone to drive him to a neighbouring liquor store on discovering Henty’s was closed.

[6]       The second significant matter strengthening the Crown case was that after a period denying his involvement – including challenging in Court the admissibility of his statement to the Police – Mr Meleisea pleaded guilty to aggravated robbery of the wine bar and gave evidence for the Crown.

[7]       He said he first met Mr Ith about lunch time on the day of the robbery at his work-place. Mr Ith proposed they commit the robbery together. He was to be lookout whilst Mr Ith did the robbery.

[8]       They went to the Edinburgh Castle and obtained the knife but then reversed roles because of Mr Ith’s concern about recognition.  After obtaining the cash and the liquor they ran away with Mr Meleisea dropping the beanie as they did so.  Mr Lines returned it to him.  They then hammered at the door of the Edinburgh Castle for other tenants to admit them.  Mr Meleisea changed his clothes and then began drinking with Mr Ith, his girlfriend, his girlfriend’s mother and another.

[9]       He said he agreed to participate because he had just been kicked out of home and had no money.

[10]     He was vigorously cross-examined by Ms Lowe for Mr Ith.  It was repeatedly put to him that he committed the robbery alone and later tried to implicate Mr Ith.  Despite the spirited cross-examination, Mr Meleisea adhered to his version of events and, indeed, elaborated on his original evidence in some respects.  For instance, when it was suggested Mr Ith was not in the vicinity at the time of the robbery, Mr Meleisea insisted Mr Ith was outside as a lookout and that “if someone comes, he just whistle”.

[11]     Mr Harper telephoned Police just after 8:00pm. Detective Gillespie with others arrived at 8:13pm.  He spoke to Messrs Lines and Harper and as a result of what they were told Police went to the Edinburgh Castle and located Messrs Ith, Meleisea and the others in room 10.  Because a knife had been used in the robbery, officers were armed and a Police dog accompanied them.  The Detective acknowledged tension in the atmosphere when the Police entered but claimed it relaxed once officers assured themselves the occupants had no weapons.

[12]     Mr Ith’s principal defence was alibi. He said he was not working that day. He said he sold a television and DVD player to another Edinburgh Castle occupant for $200 which, after food purchases and the like, explained what he said was about $140 found on him on the Police search. He said he and, later, others were drinking in his room. He was very drunk. He never left. He certainly did not participate in the robbery. He said Mr Meleisea arrived later that evening. He may have left but returned with a bottle of Jim Beam shortly before the Police arrived. Naturally enough, he disputed Mr Lines’ identification of him. Much of the Police evidence was, he said, lies.

[13]     A young woman, a Ms Johnson, gave evidence largely confirmatory of Mr Ith’s alibi.  In particular, she said Mr Meleisea left the room where they were all drinking and returned a few minutes later with a bottle of Jim Beam.

[14]     Detective Gillespie was recalled to explain why he had felt it necessary to warn Ms Johnson, then 15 or perhaps even 14 years of age, about the possibility of her perjuring herself if she gave evidence confirming Mr Ith’s alibi.

[15]     In rebuttal evidence, Detective Gillespie had to acknowledge that while he earlier said he spoke with Ms Johnson’s mother before speaking with her, the timing of his notebook entries confirmed he was in error and the order of the conversations was reversed.

[16]     In addition, he was cross-examined as to the possibility of his closing his mind early in the case to the notion Mr Ith was not involved as the Police were told by two bystanders, a Mr Rigden and a Ms Dee, that at about 8 pm on the evening of the robbery, when they were moving into premises across the road from Henty’s liquor store, they saw two persons standing outside Henty’s.  One walked away, the other walked inside and locked the door and later ran from the store in a direction away from the Edinburgh Castle.

[17]     Mr Rigden gave that evidence for the defence.  Ms Dee was not called.  It was put to him in cross-examination that the man they saw speaking to the shop keeper and then walking away might have been Mr Lines.  He did not accept that possibility.

[18]     Detective Gillespie said Police eliminated Mr Rigden and Ms Dee from their inquiry because it was clear to him that, as they had seen only one person leaving Henty’s wine shop and that person had neither a balaclava nor a knife, Mr Rigden and Ms Dee saw Mr Lines, not Mr Meleisea or Mr Ith.

Summing-Up

[19]     At the outset of his summing up the Judge gave the jury the standard direction as to their being the sole judges of fact and reminded them of the obligation to judge the case on the evidence actually called and not speculate as to why other witnesses may not have given evidence. He summarised the case by saying:

If you believe Mr Meleisea then Mr Ith’s position is difficult ... If you believe Mr Ith then his position is not difficult at all.

[20]     Then he immediately reminded them of the onus of proof.  There followed conventional directions, on usual topics with an illustration of inferences as to what logical deductions might be made from Mr Lines’ evidence about two men running up the road. That was followed by a conventional direction on circumstantial evidence with reference to two of the witnesses, a warning as to the approach to Mr Meleisea’s evidence as a co-accused and a conventional direction on Mr Ith giving and calling evidence. He next turned to the alibi, again reminding the jury of the onus of proof. That was followed by a standard direction on parties demonstrated by references to the case. An identification direction followed, itself followed by reference to the elements of the offence.

[21]     The Judge then embarked on a summary of the cases including a summary of the defence evidence.  He particularly contrasted the versions of the two main witnesses on a number of issues, including how well they knew each other and the discrepancy between the amount found in Mr Ith’s wallet by contrast with the amount said by Mr Harper to have been taken in the robbery.

[22]     The Judge read passages from the evidence of Messrs Harper and Lines as to the contrasting views of Messrs Lines and Rigden concerning the number of men seen in the road and their movements in different directions, and followed that with mention of the defence approach to the topic. That summary was concluded with a brief view on the Crown’s differing theories of the case, namely that a conviction was open irrespective of whether the jury accepted Mr Meleisea’s evidence.

[23]     The Judge then turned to the defence case, summarising that over some 14 paragraphs. The summary began with Ms Lowe’s criticism of the Police case, claimed late disclosure of the addresses of Mr Rigden and Ms Dee and a detailed summary of Mr Rigden’s evidence.

[24]     The Judge then turned, no doubt because Ms Lowe had stressed the issue in her addresses, to the way in which the existence of the two witnesses had come to the defence notice.  He said that although the witnesses’ details should have been disclosed earlier, seen as a matter of overall fairness there had been no miscarriage of justice.

[25]     No doubt, too, because Ms Lowe had stressed the matter in her addresses, the Judge then dealt with evidence that Mr Ith exercised his right not to participate in an identification parade, evidence which, Ms Lowe, had argued, breached the Crimes Act 1961, s 344B.  He also summarised Ms Lowe’s submissions that Mr Meleisea had received favourable treatment encouraging him to lie and implicate the appellant.

[26]     The Judge then returned to Ms Lowe’s summary of Mr Rigden’s evidence and the way in which it contrasted with Mr Lines’ views.

[27]     Then, no doubt again because Ms Lowe had stressed the issue, the Judge dealt with Mr Meleisea’s evidence.  Part of Mr Meleisea’s challenge to the admissibility of his statement had been that he had not been cautioned or advised of his rights before he made a statement.  The Judge summarised the law on that topic and the result of Mr Meleisea’s pre-trial application before concluding with a review of Ms Lowe’s renewed criticism of Mr Meleisea, a summary of her main points including the differing amounts of money, the fact that the balaclava and knife were not found, there was no change of clothes, the pair did not have to bang on the Edinburgh Castle door and Mr Ith’s evidence of his not being involved and the support he received in that regard from Ms Johnson.

[28]     Immediately after the jury retired, Ms Lowe rose to express her “extreme unhappiness” at what she said was imbalance in the summing up.  Her criticism related particularly to the way the Judge dealt with the respective versions of Messrs Lines and Rigden.  She was especially critical of the passages the Judge had chosen to read to the jury and his omission to read other passages which she said were more favourable to her client.  Those particularly related to whether Mr Lines had been admitted to the wine shop as compared with what Mr Rigden had seen, a point which bore particular relevance on which of them may have seen the robber or robbers and the direction in which the person or persons left the scene.

[29]     The Judge accepted that, in the interests of balance, it may be preferable for him to remind the jury of the evidential passages on which Ms Lowe relied.  He therefore asked the jury to return to the courtroom where he read the half-dozen passages to which Ms Lowe had particularly drawn his attention.  He then gave them the whole of the notes of evidence to assist them in their deliberations.

Arguments on Appeal

[30]     Ms Lowe advanced the appeal on two principal bases; the suggested imbalance in the summing-up adverse to Mr Ith and the way in which the Judge dealt with evidence being given concerning his failure to participate in an identification parade. 

[31]     After taking us carefully through the factual evidence, Ms Lowe drew particular attention to no fewer than 23 passages from the summing-up which she submitted underscored the Crown case to the detriment of that advanced by the defence.  Those passages included the Judge’s comments on the jury’s possible approach to gauging credibility, what she said were factual errors by the Judge as to the amount of money stolen and the lack of more than passing reference to the Police failure to find the knife or the balaclava.  She also criticised the Judge’s description of the room in the Edinburgh Castle where the drinking party was found as a “safe haven” and the Judge’s comments about the defence failure to call more than one alibi witness.  She suggested there was an over-emphasis in the summary of the Crown case by contrast with the lesser coverage accorded the defence arguments.

[32]     Before us, as before the Judge after the jury’s initial retirement, she stressed the factual differences between the evidence of Messrs Rigden and Lines and what she submitted were the Judge’s errors in his summary of that topic.  She also relied on what was plainly the Judge’s error in commenting that the “defence say it could not have been Mr Meleisea that ... Mr Rigden saw” and the following observation that “although he was a Maori so is Mr Lines”.  She noted the Judge’s comment about Mr Rigden’s evidence that he saw neither a balaclava nor a knife and the Judge’s conclusion that “the prosecution say it is not the robber that Mr Rigden saw”.

[33]     She was again critical of the tardiness in the prosecution providing the defence with the addresses of Mr Rigden and Ms Dee, of Detective Gillespie’s comments to Ms Johnson about perjury and what she said was a lie on the officer’s part as to the order in which he interviewed Ms Johnson, another witness and her mother. The officer’s evidence in that respect she submitted “completely cast doubt” on his entire evidence on what she submitted was a “very grave issue”.

[34]     As to a Judge’s obligations in summing-up, Mr Downs for the Crown drew attention to a number of decisions of this Court outlining that obligation. In R v Keremete CA247/03 23 October 2003 at [18] this Court said that:

A Judge’s summing up must identify the fundamental facts at issue, the balance and its treatment of opposing contentions in respect to those facts, and leave the jury in no doubt that the facts are for them and not for the Judge.

though the Court went on to say that there is a:

wide discretion as to the level of detail to which the Judge descends in carrying out that task

[35]     Mr Downs also relied on this Court’s decision in R v McRoberts CA86/99 15 June 1999 at [11] where the following appears:

... It has been repeatedly held that provided the jury is clearly directed that they are the judges of fact and are free to disregard his or her views on the facts, and the comment is overall fairly presented, the trial judge is fully entitled to give his or her opinion on a question of fact to the jury. Moreover, the judge may express his or her opinion strongly. It is accepted that where the evidence clearly favours the prosecution the Judge does not have to strive for an artificial balance between the prosecution and the defence. See R v Daly (1989) 4 CRNZ 628, per Somers J at 629-30,  Broadhurst v R [1964] AC 441; Chandler v DPP [1964] AC 763, 804; R v Honey [1973] 1 NZLR 725, per Turner P at 726-727 and 729; R v Ryan [1973] 2 NZLR 611; R v Blackley (1963) Crim LR 443; R v Fotu [1995] 3 NZLR 129, per Cooke P at 138; and R v Hall [1987] 1 NZLR, 616, per Bisson J at 622 and 625-626.

[36]     Mr Downs then drew our attention to the initial direction that the jury was the sole judge of fact, repeated references to the onus and standard of proof and the Judge frequently contrasting the various factual versions on critical issues. He pointed to the length of the Judge’s summary of the defence case and his acceding to Ms Lowe’s submissions following the jury’s initial retirement and giving the jury the whole of the notes of evidence at that point. Any comment the Judge made on the evidence was, Mr Downs submitted, well within the parameters outlined in the cases cited.

[37]     As far as the appellant’s refusal to participate in an identification parade was concerned, Ms Lowe noted that in his evidence in chief, Detective Ambler, when asked if he had a further discussion with Mr Ith in a room at the Edinburgh Castle after cautioning him and advising him of his rights, said:

I asked him if he would be willing to undergo any sort of a line-up parade and he declined that offer in relation to identification.

He then responded to Crown counsel’s invitation by describing what occurs at such a parade.

[38]     Ms Lowe submitted that evidence was of no probative value, largely because Mr Harper told the jury the robber wore a balaclava, and although he knew Mr Ith as a customer, he was unable to identify him as having been at the wine shop that evening. She therefore submitted that no eye witness would have been able to identify the accused from a line-up – which appears to overlook Mr Lines’ identification.  She was critical of the Judge not telling the jury to disregard that evidence.

[39]     The way in which this issue was handled transgressed, she submitted, the decision of this Court in R v Kiro CA38/99 31 May 1999.  In that case the grounds of an unsuccessful appeal against a ruling that identification evidence was admissible included the Judge permitting the Crown to lead evidence that the appellant declined to participate in a proposed identification parade.  The Judge told the jury that no adverse inferences were to be drawn from the accused’s reluctance.  This Court commented that evidence as to a refusal to participate is of no probative value and should not have been allowed to be led: at [37].  But that case was very different from the present and we see nothing in Kiro of assistance to us in this case.

[40]     On this topic, Mr Downs drew our attention to the summary of the position concerning admissibility of an accused’s refusal to participate in an identification parade from Adams on Criminal Law (Looseleaf ed) at Ch 2.7.07(5) where the following appears:

(5)Admissibility of accused’s refusal

In R v Kiro 31/5/99, CA38/99, the trial Judge had permitted the prosecution  to lead evidence of the accused’s refusal to participate in a proposed identification parade.  Although the Judge had directed the jury that no adverse inference should be taken from this refusal, the Court of Appeal stated:

“the evidence as to the accused’s refusal to participate in an identification parade was of no probative value and should not have been allowed to be led by the Crown.”

Similarly, in R v Simeon 25/2/04, Laurenson J, HC Auckland CRI 004-38945-03, the accused’s written statement to the police included his refusal to go in an identification parade.  Laurenson J excluded this portion of the accused’s statement.   His Honour … said, at para 18:

“The admission of the disputed evidence by itself, and even without any specific comment, can have no other purpose but to leave the jury with an inference adverse to the accused.  To do so, in my view, would be quite contrary to the intent expressed by s 344B.  I accordingly find this evidence is not to be admitted.”

However, there will be occasions when evidence of the accused’s refusal to participate in an identification parade will be admissible.  Section 344B(3), which prevents adverse comment on such a refusal, assumes that such evidence will sometimes be before the jury.  For example, the accused may criticise the police for failing to conduct an identification parade.  This would open the door to rebuttal evidence by the prosecution to show that no parade was held because of the accused’s refusal.

[41]     Based on that passage, Mr Downs submitted that there were occasions when evidence of an accused refusing to participate in an identification parade is admissible, despite s 344B(3) preventing adverse comment on such a refusal.

Discussion

Summing-Up

[42]     We have carefully considered all Ms Lowe’s criticisms of the summing-up but find nothing either in the passages to which she specifically drew attention or in the summing up as a whole to justify a conclusion that the summing-up was unbalanced in a way which may have led to the jury not properly evaluating the defence case.

[43]     While the evidence of the timing of the various actions as given by the witnesses, particularly Mr Harper, and the evidence of the actions of the man or men outside the liquor store described by Messrs Lines and Rigden were of significance to the jury’s determination, there was no logical requirement for the jury to adopt the view of the facts for which Ms Lowe contended, or, to put it more precisely, to conclude there was reasonable doubt that only one man was involved in the robbery.  For the jury to take that view would have required them to disregard all the other evidence, particularly the evidence of Mr Meleisea, which, whilst that of a co-accused and, on his own account, the robber, was still open to be accepted by the jury depending on the view they took of him.

[44]     Even if, as seems to have been the case, the Judge accepted Ms Lowe’s initial submissions immediately after the jury retired that the summing-up had been unbalanced, in our view that aspect of the matter was entirely corrected by the Judge reading the jury the specific passages of evidence which Ms Lowe claimed he had unfairly omitted and then giving them the notes of evidence.  This was, after all, only a three day trial and the jury could be expected to have remembered most of the detail, assisted by counsels’ addresses and the Judge’s summary.

[45]     For completeness, we should add that we do not necessarily share the Judge’s views as to the correct time for disclosure of the addresses of Mr Rigden and Ms Dee, nor do we necessarily take the view the Judge’s remarks about the pre-trial history of the case were helpful to the jury.  But those are secondary matters where the Judge plainly felt his observations may be helpful to the jury because of the way in which those topics had been developed in evidence and by counsel.

[46]     In the end, on this aspect of the appeal, we take the view that there was nothing in the summing-up, as augmented by the remarks after the initial retirement, which could justify a conclusion that the summing-up was unfair to the defence.

[47]      We accordingly decline to accept Ms Lowe’s submissions on that point.

Identification Parade

[48]     Ms Lowe accepted that, on its own, this aspect of the evidence could not possibly give rise to a miscarriage of justice.  That was a sensible concession on her part.

[49]     Seen in the overall context of the case, we have little difficulty in concluding that the evidence as to Mr Ith exercising his right not to participate in an identification parade would, perhaps, have been better not given.  Judged on the face of the notes of evidence, it added little to the prosecution case and risked criticism such as that now made, namely that it was in breach of s 344B.

[50]     However, as the cases cited show, there are occasions when matters of that sort are given in evidence before a jury.  In those cases it is desirable for a Judge (as he did here) to direct the jury to take no adverse inference from the fact that a suspect exercises his or her statutory rights in that regard.

[51]     There is something in the analogy suggested by Mr Downs of a suspect or an accused exercising their right not to make a statement to the Police.  Such matters are commonly given in evidence and are commonly followed by judicial direction to juries to take nothing adverse from an accused’s exercise of a statutory right.

[52]     In the circumstances and having regard to the way in which it was handled, the leading of the evidence about the accused’s refusal to attend an identification parade occasioned, as Ms Lowe conceded, no risk of miscarriage of justice.

Conclusion

[53]     Neither ground on which the appeal was brought has been made out.  The appeal against conviction is dismissed accordingly.

Solicitors:
Crown Law Office, Wellington