The Queen v Mathew Charles Florance

IN THE COURT OF APPEAL OF NEW ZEALAND

CA405/00

THE QUEEN

MATHEW CHARLES FLORANCE

Hearing:	27 March 2001
Coram:	McGrath J Ellis J McGechan J
Appearances:	R.M. Lithgow for Appellant R.B. Squire QC for Respondent
Judgment:	11 April 2001

JUDGMENT OF THE COURT DELIVERED BY ELLIS J.

The appellant was found guilty by a jury in the District Court on charges of unlawfully entering a building and attempted arson. He appeals against his conviction.
The prosecution case was that the appellant was seen by a taxi driver Mr West at about 5am on 12 June 1999 in the open doorway of Clyde Quay School in Elizabeth Street, and saw flames inside the building. Mr West then made a u-turn during which he momentarily lost sight of the appellant for a couple of seconds. When Mr West next saw the appellant he was walking out of the school entrance way into Elizabeth Street. He called the fire service, keeping the appellant in sight all the time as he walked up Elizabeth Street. Mr West followed in his taxi thence up Brougham Street into Pirie Street to the bus tunnel which leads through to Waitoa Road. The appellant walked through the tunnel and Mr West stopped, but kept his lights on so he could see the appellant walking through the tunnel. Mr West saw no-one else about throughout these events. By then the Police were on the scene and a tracker dog picked up the appellant’s scent which led from the tunnel into Waitoa Road thence into Hinau Street where it lead into some bushes where the appellant had hidden. It then crossed Hinau Street and back to Waitoa Road to No. 59. The track indicated the appellant hid there too and the doghandler found the appellant’s wallet which contained documents which gave the Police his address. Detective Hercock thereupon went to that address and spoke to the appellant, who confirmed he had just walked the route described, hidden twice, and lost his wallet. He denied being in Clyde Quay School and denied lighting the fire in it. His clothing was seized and he was interviewed by Detective Hercock and repeated his denials.
The appellant repeats his denials in this Court and challenges the verdict on the grounds that there has been a miscarriage of justice in the following respects:
“1.The trial Judge ruled out evidence by way of photographs taken at night in circumstances broadly similar to the night in question (on Crown challenge intra trial). The trial Judge nevertheless permitted daylight photos of the same scene for the Police.
2.   The trial Judge upheld a Crown challenge to the proposed evidence of an experienced film maker explaining the problems of night and night/light perceptions on the grounds that such evidence required a medical eye specialist. The jury was therefore deprived of further evidence critical to the issue of night-time identification.
3.   Certain standardised directions contained in the Judge’s summing up were not related to the facts of the case and did not assist the jury to process the evidence according to our law:
(i)That circumstantial evidence can be like a jigsaw ‘even before you have got the whole picture…you can tell what the picture is going to be.’
(ii)That where evidence of a witness is not believed, you can ‘forget about it…(and) decide the case solely on pieces of evidence you do accept.’
4.   The OC case interviewed the accused. He provided an interview where his, i.e. the interviewing officer’s, opinions, conclusions, views and misrepresentations dominated the process. The jury was inadequately directed in respect of this interview, particularly in the circumstance that the jury sought a critical part of the interview be replayed.”
As to the first challenge, the evidence of Mr West was that at 5am on 12 June the weather was “a cool crisp morning” and that he had his headlights on and when he first saw the appellant his lights were shining directly on him. Mr West described what the appellant was wearing as “a white or creamy coloured sweatshirt/jersey type thing, I think it was long sleeved, darkish pants – they weren’t black, and darkish shoes…”. The Crown Prosecutor there interrupted his description. He then was shown the appellant’s sweatshirt and said the colour was similar but he did not recognise the band on it. Defence counsel cross-examined Mr West about the visibility and his ability to obtain a good sighting of the person on the landing at the door in the school building. She suggested to him that it was “pitch black” at the time. He replied it was starting to get lighter and he had the street lights and his headlights to improve visibility. She then sought to show Mr West a series of photos of the area taken between 9.40 and 10.00pm on 22 June 1999. These photos were to be supported by the evidence of the expert photographer who took them and he was to explain the lighting and visibility represented by the photos.
These photos and evidence had already been used in the earlier trial of the appellant (when the Jury disagreed). Then Mr West admitted the views were similar to those he had on 12 June at 5am. What the photos do not show is visibility enhanced by the taxi’s headlights. Further, they appear to show light reflected from plates on the top of the pedestrian crossing marker poles which it seems from the Police photos were not there on 12 June. The Police photos were put in evidence to show relative positions and distances, while the defence photos were produced to indicate poor visibility and the possibility that other persons may have been present but not seen by Mr West, and lay the basis for a submission that Mr West was mistaken when he thought the person he saw on the landing was the same person he followed.
The Prosecutor objected to their production, claiming they were prejudicial, that is their production would raise too many issues which could not be satisfactorily answered by cross-examination. The Judge agreed and refused to allow defence counsel to use them. We have seen the photographs and in our view, we agree that they do not show the scene as Mr West would have seen it under headlights , but we think they did have some probative value and their deficiencies from the prosecution point of view could have been adequately covered by cross-examination and submission coupled with an appropriate direction from the Judge. We think their evidential value had already been admitted by Mr West and that this supports our own conclusion. We bear in mind too that the prosecution by late objection effectively deprived the defence of obtaining better photographs of evidence of visibility and this was unfair to the defence. While the rejection of evidence in these circumstances is a discretionary matter, we think the defence should have been allowed to produce the photographs.
As to the second point, we are also of the opinion that the evidence of the expert photographer should have been permitted. It is unnecessary to traverse in detail his expertise or his opinions. We have read the evidence he gave at the first trial and that too could have been dealt with in the same way as his photographs.
The first part of the third criticism is that likening circumstantial evidence to a jigsaw is not appropriate to the facts of the case. The passage from the summing-up reads:
“The Crown relies on what we call ‘circumstantial’ evidence. There is nothing inherently dubious or second-rate about that type of evidence. It simply involves the process that I have just referred to, of drawing references or conclusions from evidence which you regard as reliable. So, when a series of reliably established facts connect with each other in such a way that convinces you, that would result in proof beyond reasonable doubt.
Now, taken individually, each of these facts that you find proved may not prove much at all. But if, when you put them all together, there is a series of inexplicable coincidences so that, as a matter of commonsense and logic, the only conclusion you can come to is that the accused is guilty, then that would be sufficient. But if the cumulative effect of the individual facts does not reach that standard and still leaves gaps, then the evidence does not amount to proof beyond reasonable doubt.
In considering the evidence, in this case it is the cumulative effect that is important. And there are a couple of examples that are often used by Judges to show that: One is the analogy of a rope. A rope is made up of many strands of fibre, separately the strands do not support much weight at all, but if there are sufficient of them woven together they will do so. It is for you to say whether you are satisfied in the circumstances of this case that there is such a combination of the facts that you are satisfied beyond reasonable doubt of guilt.
I will just throw it in to help you. The same sort of thing. Another example is that of a jigsaw. You have all the different pieces in a jigsaw, by themselves they do not prove anything. You put them together. Even before you have got the whole picture, but before tou get to that whole picture, you can tell what that picture is going to be. And so it is with circumstantial evidence. It is a matter for you in this case whether you are satisfied that the proven facts do lead to the irresistible inference of guilt.”
Taken as a whole, we consider the direction to be adequate and in no way misleading. References to strands of a rope or links in a chain are used by some judges and we have not come across the use of a jigsaw analogy. We think there is much force in the analysis of directions on circumstantial evidence by this Court in Puttick (1985) 1CRNZ 644 where Thorp J said at page 647:
“The extent of directions on inferences, as on any topic, will vary according to the significance of that topic in the particular case. In the present case the only significant inference the jurors were called upon to consider was as to the accused’s state of mind and knowledge that the goods were stolen when he received them. This being an essential element of the offence, they were correctly directed they must be able to infer that fact beyond reasonable doubt.
In these circumstances any general direction as to the use of inference in this case, as in most cases, did not require special elaboration, and could have been in the simplest terms. It would have sufficed had the jurors been advised that in assessing the meaning of the evidence they were entitled to draw inferences, but that such inferences should be logical inferences from proven facts, not mere speculation or guesswork.”
While we may be disposed to agree with Mr Lithgow that reference to a jigsaw by way of illustration was of no real help to the jury, we cannot agree that it amounted to a misdirection. After all, the crucial issue for the jury was the quality of Mr West’ identification of the appellant as being the man he saw in the school doorway. This is related to his seeing no-one else about and the lighting conditions, and what inferences the jury could draw from the fact that the appellant hid twice on the other side of the tunnel.
The second passage challenged by Mr Lithgow is in the following part of the summing-up:
“To decide what happened you have to assess the witnesses and this is a case where credibility of witnesses is very important. The view that you form of the witnesses. You have to decide whom you believe and whom you do not, having regard to the impression that the witnesses made on you. In forming those impressions, you should reflect not only on what the witnesses said but how they said it. Have regard to their body language and to their demeanour.
You do not have to accept everything that a witness said. You may think that part of what they said was accurate and credible but have doubts about other parts. In that case, simply put aside that evidence that you do not believe and forget about it. Decide the case solely on the pieces of evidence which you accept. Where there are conflicts of evidence between witnesses, and there were some in this case, you may find it helpful to look for independent evidence which supports or contradicts one or other version of events.”
Mr Lithgow submitted that if the jury disbelieved part of a witness’ evidence, it may be that that tainted the rest of his evidence, and so it was wrong to direct the jury to disregard it. We do not read the direction as saying that, rather it is part of a general direction as to how to marshall the evidence after having decided on questions of credibility. Here there were mistakes made by Mr West. In particular, his evidence as to the appellant’s height, build and hair colour. He also agreed that his description of the man he saw on the landing could not include a full length view, as the boundary wall of the school obscured the lower half of the person’s body. All this was before the jury and the Judge referred to the need to analyse Mr West’s evidence carefully. Here, too, we reject the submission that the jury was misdirected.
The fourth aspect of the case that the appellant criticises is the conduct of the video interview of the appellant by Detective Hercock. We have seen the video ourselves and agree that the Detective did state his own views, conclusions and opinions in a forceful way. As the interview did no more than extract from the appellant repeated denials that he entered the school or set fire to it, we consider there were good grounds for seeking to have it excluded from the prosecution evidence. However, the defence positively decided to have it admitted to reinforce the appellant’s denials without having to call him as a witness at trial. This is a perfectly understandable tactical decision, but he cannot now claim that it was wrongly admitted. The Judge referred to the interview in her summing-up in this way:
“What you do have is the video interview between Mr Florance and Detective Constable Hercock, and while that is not of itself sworn testimony, it is part of the material which you have to consider. What you make of the truthfulness and the accuracy and the weight of what Mr Florance said to Detective Constable Hercock during that interview is a matter for you to decide.
In the same way as I have already told you that you can accept parts of the evidence of the witnesses who gave evidence in court – accept some of what they said, reject other parts – so you can with what Mr Florance said in the interview with the policeman. But, in relation to that, I will just again caution you, ask you to remember that the evidence that you are concerned about is the answers that Mr Florance gave, not the questions that the policeman, Detective Constable Hercock, asked of Mr Florance. Your concern is to consider Mr Florance’s evidence.”
This direction was to emphasise the importance of the appellant’s answers and downplay the objectionable questions. There is no more the Judge could do under the circumstances, which were of the appellant’s own making. We therefore reject this criticism as well.

The decision

We have considered the photographs and the photographer’s evidence that was excluded. The most significant aspects of Mr West’s identification evidence are that his headlights were directly on the person in the doorway, and he made his u-turn over the pedestrian crossing immediately outside the entrance to the school grounds from which the male he saw emerged. The entrance itself was very close to the landing outside the door. There was no dispute that the person Mr West followed was the appellant. In our view, while there was evidence which supported the Crown case on identification, we cannot be satisfied that the erroneous exclusion of the night-time photographs and photographer’s admissible evidence would have made no real difference to the jury’s conclusions on identification. While the situation nears the line, it is not a case for application of the proviso.
The appeal against conviction is allowed and a new trial ordered.

Solicitors:
Sladden Cochrane, Wellington for Appellant
Crown Law Office, Wellington for Respondent

[2001] NZCA 55

11 April 2001