The Queen v Taylor
[2005] NZCA 93
•4 May 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA130/02
THE QUEEN
v
TIMOTHY DAVID TAYLOR
Hearing:23 and 24 February 2005
Court:Glazebrook, Hammond and Chambers JJ
Counsel:P H B Hall, A N D Garrett, D I Brown and K H Cook for Appellant
B M Stanaway for Crown
Judgment:4 May 2005
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
REASONS
(Given by Glazebrook J)
Table of Contents
Para No
Introduction [1]
Background facts [5]
Content of issues document [15]
Judge’s directions on the use of the issues document [21]
Other documents before the jury [26]
Issues on appeal [31]
Funeral director’s evidence [32]
Mr Taylor’s submissions [34]
Crown submissions [35]
Judge’s summing up [36]
Discussion [37]
Issues document: specific issues [38]
Accused’s statements [39]
Mr Taylor’s submissions [39]
Crown submissions [40]
Judge’s summing up [41]
Discussion [43]
Allegation of reversal of onus of proof [46]
Mr Taylor’s submissions [46]
Crown submissions [48]
Judge’s summing up [50]
Discussion [51]
Beckford/Chambers and Kaos evidence [53]
Mr Taylor’s submissions [53]
Crown submissions [59]
Judge’s summing up [63]
Discussion [66]
Unnecessary inclusions [70]
Mr Taylor’s submissions [70]
Crown submissions [73]
Judge’s summing up [75]
Discussion [78]
Unfairness in framing of questions [81]
Mr Taylor’s submissions [81]
Crown submissions [84]
Judge’s summing up [86]
Discussion [88]
Salad roll wrapper [89]
Mr Taylor’s submissions [89]
Crown submissions [91]
Judge’s summing up [93]
Discussion [96]
Alibi request [97]
Mr Taylor’s submissions [97]
Crown submissions [99]
Judge’s summing up [100]
Discussion [101]
Evidence relating to Ms Blakie’s body in river [105]
Mr Taylor’s submissions [105]
Crown submissions [109]
Judge’s summing up [110]
Discussion [111]
General points on issues document [113]
Mr Taylor’s submissions [114]
Crown submissions [119]
Judge’s summing up [124]
Discussion [128]
Conclusion [148]Introduction
[1] Mr Taylor was convicted of the murder of Ms Lisa Blakie, following his trial in the Christchurch High Court before William Young J which took place from 15 February 2002 to 20 April 2002.
[2] He appeals against that conviction. The grounds, as advised during the hearing of the appeal, are:
(a)That the trial Judge’s provision to the jury of an issues document, without prior discussion with counsel, led to a miscarriage of justice. The miscarriage of justice is said to have arisen from the contents and structure of the issues document, which was said to be incomplete, misleading, unfair, unbalanced, overly complex, too lengthy and amounting to a pathway to conviction.
(b)That the trial Judge erred in permitting the Crown to call funeral director, Mr Ireton, to give expert evidence.
[3] In his notice of appeal, Mr Taylor also set out as a ground of appeal that the verdict of the jury was unreasonable and not able to be supported on the evidence. Mr Taylor now accepts that there was evidence which, if accepted, was sufficient to sustain a conviction.
[4] The notice of appeal also raised as grounds of appeal various issues relating to disclosure, including the late disclosure of the brief of evidence of a Crown pathology witness, Professor Ferris, and of a suicide note from Mr Rankin confessing to the murder of Ms Blakie. The disclosure issues are no longer pursued. It is accepted that the defence had sufficient time to deal with those matters during the trial and that nothing new has arisen since the trial, in particular on the Rankin matter. For completeness, we note that questions relating to disclosure were the subject of an earlier decision of this Court – R v Taylor CA130/02 17 December 2003.
Background facts
[5] In the late morning of 2 February 2000, Ms Blakie commenced a hitch-hiking trip from Christchurch to the West Coast. She had a suitcase, an army kit bag and her dog Kaos with her. On the same day Mr Taylor was driving his girlfriend’s car from Darfield to Christchurch. Mr Taylor, in a series of police interviews, initially denied knowing Ms Blakie but eventually admitted that he had picked Ms Blakie up at the Shell Service station at Yaldhurst and agreed to drive her to the West Coast. He said that, before seeing Ms Blakie, he had turned to go back to Darfield to pick up his wallet. The route he took to the West Coast with Ms Blakie did not, however, pass through Darfield.
[6] Ms Blakie had arrived at the Yaldhurst service station at about 11.50 am. At 11.55 am she had purchased a drink, cellphone card and a salad roll. The roll that she bought, according to the Crown, contained ingredients (including chicken) similar to those contained in her stomach contents at the time of autopsy, 6 February 2000. The defence challenged that contention on the basis that it was unclear whether the roll she purchased contained ham or chicken. The defence also pointed out that the stomach contents did not include bread and some of the other ingredients that were listed on the wrapper.
[7] After Ms Blakie was picked up by Mr Taylor, they stopped at the Springfield Caltex Service Station (some 50 kms from Yaldhurst going west) where Ms Blakie made further purchases of a Press newspaper, a BIC lighter and $20 of petrol. There was no evidence that she was in a distressed state at that time. Mr Taylor told the police there was a further stop at the Kowai 2 layby (which is about 10 kms on from Springfield going west). He then drove Ms Blakie over Porters Pass to the Porter River layby (some 30 kms from Springfield going west). Mr Taylor said that he had, at her request, dropped Ms Blakie and Kaos off alive and well at the layby.
[8] The Crown said that he had strangled her there. The Crown alleged motives of robbery and sexual assault. Mr Taylor had a slot machine gambling addiction at the time and was short of cash. He was a regular user of prostitutes and the Crown said that he had learned that Ms Blakie was working in the sex industry. The Crown case was that Mr Taylor had placed Ms Blakie’s body in a braid of the Porter River just below the layby, pinned to the bed of the river by a heavy (104 kg) rock, which was placed on her back, shoulder and neck area. The Crown case was that her body remained in the river undiscovered, despite the presence of campers, tourists, hunters and fishermen in the general area, until approximately 10 am on Sunday 6 February 2000.
[9] There was pathology evidence on the time of death. Dr Sage, who was called by the Crown, was of the opinion that death had occurred approximately 18 to 24 hours prior to autopsy, which was on the evening of 6 February 2000, but he could not rule out the possibility that death had occurred on 2 February. The two defence pathologists, Dr Dempster and Professor Ellis, were, by and large, in agreement with Dr Sage. Professor Ferris, on the other hand, also a Crown witness, was firmer in his opinion that death could have occurred on 2 February 2000. There was also evidence from the funeral directors, who had been responsible for Ms Blakie’s body, as to their view on the time of death.
[10] It was common ground that, after Mr Taylor had left Ms Blakie (in whatever state) at the Porter River layby, he had turned back to return to Darfield. The cellphone card, purchased earlier that day by Ms Blakie, had been loaded into Mr Taylor’s cellphone at 1.58 pm on 2 February 2000. The evidence was that it was unlikely that the card had been loaded before he had reached the Kowai 2 layby. Mr Taylor arrived back in Darfield shortly after 2.10 pm. It was common ground, therefore, that Mr Taylor could not have killed Ms Blakie after approximately 1.50 pm on 2 February 2000.
[11] Ms Blakie’s dog, Kaos, to which she was very attached, was seen distressed and wandering and separated from its owner probably near the Kowai 2 layby at a time which the Crown said could not be reconciled with Mr Taylor’s claim to have dropped Ms Blakie and her dog off alive and well at the Porter River layby. It appears clear that Kaos was picked up by two men, Mr Mitchell and Mr Wilson, and taken to the West Coast sometime on 2 February 2000. The Crown placed the time Kaos was picked up at around 2.15 pm, but maintained that he had been picked up only after he had been roaming for some time.
[12] The Crown also called a number of witnesses who claimed to have seen Ms Blakie alive after 2 pm on 2 February 2000. The alleged sighting of Ms Blakie of particular importance to the defence case was that of Mrs Beckford and Mrs Chambers. They claimed (Mrs Beckford being more sure than Mrs Chambers) to have seen Ms Blakie, Kaos and her luggage at the Kowai 2 layby at about 2.15 pm on 2 February 2000. If that sighting and timing were correct, then it was common ground that Mr Taylor could not have murdered Ms Blakie.
[13] Ms Blakie’s belongings, including her cellphone, handbag and luggage, were disposed of in three places, along the route from where her body was found to Mr Taylor’s home in Darfield. The police found items belonging to Lisa Blakie in a rubbish bin, located in the vicinity of the Kowai 2 layby. The Crown case was that a salad roll wrapper, with a best by date of either 3 February or 5 February (but more probably the latter), was found in that bin in a cloth bag containing some of Ms Blakie’s belongings. The Crown said that this was the wrapper from the salad roll purchased by Ms Blakie at Yaldhurst. Ms Blakie’s cellphone, minus its Sim card, was found in long grass in the vicinity of the Kowai No 1 bridge which is just west of Springfield. Many months later, in October 2000, Ms Blakie’s suitcase was found in a water race adjacent to the Old West Coast Road in the vicinity of the intersection with Redmonds Road (which is some 18 kms east of Springfield).
[14] Finally, we note that there was evidence that Mr Taylor had asked his then girlfriend, Ms Ruth Lewis, to provide him with an alibi, indicating that it was because he “had been up to no good”. He later utilised the alibi during a police interview in relation to the day he had uplifted Ms Blakie. Mr Taylor also sold his girlfriend’s car to an acquaintance when the police published a description of it in connection with Ms Blakie’s death. He told the purchaser of that car that the car “had a history and would make a good (demolition) derby car”. Mr Taylor subsequently lied about knowing the last name or address of the purchaser of the car.
Content of issues document
[15] The first ground of appeal relates to the issues document, which was given to the jury during William Young J’s summing up. It was headed “Evidential References and Issues and Topic Headings” and was referred to by the Judge extensively during his summing up. Detailed directions were given on its use – see at [21] - [25] below.
[16] The document began with the heading “Statements made by the Accused to the Police”. References were given to Mr Taylor’s statements to the police of 21 March, 22 March and 20 April 2000 but no elaboration was given as to the content of those statements. Further detail, as well as references, was given relating to the 29 March and 11 April 2000 statements as follows:
On 29 March 2000 to Detective Murton and Detective Senior Sergeant Clement. The written statement is exhibit 94 (Book of Exhibits, page 216). Before this written statement was made there was some oral interaction between Detective Murton and the accused, see transcript pages 2178/10 and following; 2190/8 and following) during which the accused initially denied picking up Ms Blakie and then eventually did admit picking her up and gave an account of events which matched generally the written statement which he made later that day. His contention was that he had dropped Ms Blakie off at the Kowai No 2 layby. During the interview, the accused drew or contributed to a number of diagrams, exhibits 61, 62 and 63. After the statement was taken the accused was asked questions by Detective Senior Sergeant Clement relating to the cell-phone card and it was in this discussion that he eventually accepted that he had used the cellphone card which Ms Blakie had acquired (transcript pages 2196/5-2201/46).
On 11 April 2000 to Detective Murton and Detective Senior Sergeant Clement (transcript pages 2208-2215/41). This statement was made orally. In the course of this statement the accused admitted taking Ms Blakie as far as Porters River layby. He referred to seeing Linc Johnson going down Porters Pass as he went up. In this interview he claimed to have dropped Ms Blakie off at Lake Lyndon and then either changed or clarified that to say that he dropped her off at the Porter River layby.
[17] The document then had a heading “Issues and Topic Headings – Part A”. Under that heading there were a series of questions with evidential references set out under each question. Most of these are mere references to the evidence of the relevant witness, giving page and line numbers, but there are some places where a brief description is given of the evidence. For example, under the question relating to the salad roll wrapper, it is said:
The finding of the wrapper by Senior Sergeant Jury on 7 February 2000 in a black plastic bag which included items obviously associated with Ms Blakie, see transcript page 1294 and following.
[18] The questions set out in Part A were the following:
(a)When Ms Blakie left Christchurch on 2 February 2000, was she wearing the purple dress and black shoes in which she was found?
(b)Was she wearing the black jersey?
(c)Was the chicken roll wrapper found with Ms Blakie’s belongings at Kowai No 2 layby acquired by her at the Shell Service Station at Yaldhurst?
(d)Date when black plastic bag placed in the rubbish bin.
(e)Why did the accused pick up Ms Blakie and take her so far West given that he had no personal reason to go further West than Darfield?
(f)Was it possible for the accused to have had cell-phone coverage at the top of Porters Pass?
(g)Was it Kaos who was picked by Carl Mitchell and Craig Wilson on 2 February 2000?
(h)If so, where and at what time did Mitchell and Wilson pick up Kaos?
(i)The discussions between the accused, Linc Johnson and Oscar Heselwood on the afternoon of 2 February.
(j)The luggage left in the watercourse by the Old West Coast Road.
(k)The appearance of the accused on or after 2 February?
(l)Knives.
(m)Condition of the Cortina after 2 February.
(n)The conversation allegedly overheard by Robbie Gordon.
(o)SCV17 [a male transitional hair of unknown origin].
(p)VO2 [hairs found in Ms Blakie’s hand]
(q)The McDonald’s bag and hash brown packet finger prints.
(r)The alleged request for a false alibi and the “up to no good” remark.
(s)Absence of sightings of Ms Blakie at Porter River layby.
(t)If Ms Blakie’s body was in the river from the early afternoon of 2 February 2000 would it have been seen?
(u)If Ms Blakie’s body was not in the river on 2 February; when could it have been placed there?
(v)The pathologists’ evidence.
(w)The funeral director’s evidence.
(x)Motive.
[19] There was then a section headed “Issues and Topic Headings – Part B”. This had the following headings and, as with Part A, evidential references were given under each heading:
(a)Other sightings: General.
(b)Other sightings: Mrs Barbara Beckford and Mrs Helen Chambers.
(c)Other sightings: Michelle Colombus.
(d)Other sightings: Darfield.
(e)Other sightings: Lake Pearson.
(f)Other sightings: Graham Detlaff.
(g)Other sightings: John Gibson.
[20] Under Part C there were the following questions and topics, together with the related evidential references:
(a)Did something untoward happen to Ms Blakie in the early afternoon of 2 February 2000?
(b)Place of death.
(c)Date of death
(d)One or two murderers?
(e)Other suspects: general.
(f)Other suspects: Timaru/Queenstown.
(g)Other suspects: Darfield.
(h)Other suspects: Barry Drummond.
(i)Other suspects: Rankin.
(j)Timings
Judge’s directions on the use of the issues document
[21] As indicated above, extensive directions were given on the issues document. Before referring to the document, the Judge made the role of the jury as judges of fact clear. He gave the standard direction that all questions of fact were for them alone and that they should disregard any views the Judge may have or appear to have of the evidence that did not accord with their own.
[22] In his oral instructions on the use to which they should put the issues document, the Judge made it clear that it was up to the jury whether they followed the methodology suggested by him in that document. He also reminded them of his earlier direction that they were the judges of fact and said that it was open to them to adopt the approaches urged on them by the Crown or the defence or to adopt a completely different approach from that suggested in the issues document.
[23] The Judge explained why he had considered it may be helpful to provide the issues document. He said that one of the difficulties with the case was that it was circumstantial and that there were “heaps of circumstances”. He said that he had tried to provide the jury with a list of issues that they could work through. He had focused on the issues addressed on by counsel. He reminded the jury that many of the issues were inter-related. He specifically mentioned at this point the interlinking of the Beckford/Chambers evidence with that relating to Kaos and he stressed this again when he was discussing Part B of the document.
[24] He said that it appeared to him that some of the issues (those set out in Part A) could be discussed on a stand alone basis but that any provisional or preliminary conclusions would certainly on occasion need to be revisited after consideration of all the issues. The jury should thus see any conclusions as provisional until all the issues had been considered. He said that the issues set out in the first part were mostly in his view “logically upstream” of the issues set out in the later parts of the document but that the jury may choose to move to some of the downstream issues as they went through the Part A questions. He explained that he had set out the issues in a manner that he thought limited backtracking and side‑tracking.
[25] It is worth setting out in full what the Judge said:
Experience and indeed research has shown that it is often helpful for trial judges to provide for juries some sort of framework for their deliberations. The framework I am going to give you is simply a suggested procedure for addressing the case. I am not directing you that you must approach the case in terms of that framework. I repeat to you what I said earlier, namely that all decisions on questions of fact are for you and not for me. As part of that reality, how you go about deciding issues of fact is for you and not for me and the methodology you employ is for you and not for me, although it is open to me to make some suggestions which you can either act on or not as you choose.
As well, I remind that you if you think I have an opinion about the case or some aspect of it, this is of no moment if you take a different view. In such a case your view must prevail.
In this part of my summing up I am going to discuss fairly briefly a number of other topics which I think are of general application or at least apply to more than one of the issues which I am going to address.
I deal first with the possible framework for discussing issues raised by the case. The Crown case is circumstantial and there are let's face it members of the jury, heaps of circumstances. It is a bit of a maze and somehow or other you're going to have to find a point at which to start and a route that you're going to follow. Now I am not promising that I can provide you with a golden thread but what I am going to do is provide you with a list of issues and an order which if you follow it should not involve too much side-tracking or backtracking.
One of the problems with the case is that as soon as you discuss one issue you immediately find you're locked into another issue. So, if you start with say Mrs Beckford's identification, you very quickly find that you are talking about Kaos identification witnesses. That is true of a number of the other issues in the case.
It seems to me that some of the issues in the case can be considered at least in a preliminary or provisional way on a stand-alone basis. You can just look at that issue and not be too troubled by the other evidence in the case. And for that reason it did seem to me to be sensible to start with the stand-alone or discrete issues first and then move on as you go to more complex and multi-factor issues.
In this next part of my summing up I will as far as possible deal with the stand-alone issues first and then move on to the more complex issues. On the whole the stand-alone issues are logically upstream of the more complex issues, although sometimes it may be necessary to consider some downstream factors as you go through the list, if this is what you choose to do.
The order of issues I have settled on represents my attempt to limit the necessity for side-tracking or backtracking. However I must stress that some backtracking and some side-tracking is going to be inevitable. If you choose to go through the issues which I have identified in the order in which I have identified them, and I emphasise that this is a matter for you, will almost certainly on occasion have to go back and revisit some preliminary or provisional conclusions as you reflect on evidence associated with other issues. So any conclusion on any of the issues should be seen as provisional until you've considered all the issues.
Now the issues and the order in which I propose to address them is in the material which I have given to you. It may seem at first a little arbitrary and odd, although I hope you will be polite enough not to think that. It has been prepared by me as I have said simply for the reason that I have indicated. That is to avoid too much backtracking, too much sidetracking.
Counsel for the Crown and counsel for the defence have approached the case on very different bases and it is of course open to you to adopt one or other of those approaches or both. You may prefer to adopt a completely different approach.
I have tended to focus on the issues which have been addressed on by counsel. ...
You will see that I have divided the next part of my summing up into 3. Part A deals with the stand-alone topics or issues. Part B relates to what I have described as other sightings. The other sightings issues require an evaluation of the evidence of the key witnesses in the context of the case as a whole but particularly in regard to the Kaos evidence. The part C issues are the other evaluative issues in respect of which your conclusions will be affected by what you make of other issues in the case.
I have done the very best I can to help you on this members of the jury but I freely acknowledge that there is still an element of the arbitrary in terms of where some of the issues fit in this framework. I trust it will be of assistance to you.
Other documents before the jury
[26] The jury had been provided, as the trial progressed, with one copy of the evidential transcript. They had been told, however, to pay close attention to the evidence as given and that it was the evidence as given and not the evidence as recorded that mattered. The jury also had individual computer screens where the exhibits were displayed as they were referred to by the witnesses and they were given hard copies of the documentary evidence. The other trial exhibits were also available to them in the jury room in the usual way during their deliberations.
[27] The jury had also been provided, during their respective closings, with documents by the Crown and the defence. As indicated above, these documents were referred to by the Judge in his summing up and the jury told that they could follow the Crown or defence approach rather than that set out in the issues document.
[28] Relevantly for present purposes, the Crown provided a document headed “Timeline” where all evidence that referred to dates and times was placed in chronological order. There were 28 pages and 502 entries, presented in table form, with a brief description of the evidence, the name of the witness, the date referred to by the witness and the transcript reference. Even given the extensive nature of this document, Mr Hall has submitted that this too was incomplete in a number of respects, including leaving out references to a significant witness. Nothing can turn on this, however. There is nothing to suggest any omissions were deliberate or that the omissions could in any way have led to a miscarriage of justice.
[29] The document presented to the jury by the defence in closing was of a more limited character, concentrating on the Beckford/Chambers sighting of Ms Blakie and the evidence relating to Kaos. Witness names, the times and places of the sightings were given, as well as transcript references.
[30] The Judge, in his summing up, gave directions on the use of the evidential transcript and on the transcript references in the issues document provided by him. Reference was also made in this regard to the documents provided by the Crown and the defence. The Judge said:
When you are checking the transcript on any topic, please remember something which I imagine is now painfully obvious to you. The same topic is often discussed by more than one witness. The same witness will often discuss the same topic more than once in his or her evidence. Please remember that when you're checking the transcript. If you look at evidence-in-chief it is usually sensible to look too at cross-examination and re- examination. If the point is of significance it will almost certainly have been dealt with in both evidence-in-chief and cross-examination. But please on any point of significance check right through the witness’s evidence.
Later in this summing up I am going to provide to you a document which lists a number of issues or topic headings to which you may care to have regard when you are deliberating. There are a number of transcript references which are provided. Sometimes the reference is simply to the first page of the evidence of the relevant witness. Sometimes I give specific page and line numbers. There is no significance in the difference. Sometimes it is easier just to give the first page because there is only one topic the witness addresses. Sometimes it may simply relate to the fact that I may have become tired and didn't have the time to check for a page and line reference. There is no significance in any differences in reference formatting.
In various ways counsel on both sides have done something similar for you. The Crown has given you a time line which has a number of transcript references. Mr Hall gave you an analysis with references to the transcript in respect of the Kaos evidence.
Issues on appeal
[31] As indicated above, there are two questions for this appeal – the issues document and the admissibility of the funeral director’s evidence. We deal with the latter first. We then move on to a consideration of the issues document, beginning with the specific aspects challenged by Mr Hall and then moving to some general points on that document made by him.
Funeral director’s evidence
[32] The police initially thought that Ms Blakie had died on 5 February. That did not accord with the view of the funeral directors, Mr Ireton and Mr McKinnon, who were responsible for Ms Blakie’s body from 8 February. Mr Ireton’s evidence was that he had formed the view that Ms Blakie had died earlier than 5 February and that he had contacted the police to say so. We note that Mr Ireton’s view had an influence on the opinion of one of the Crown pathologists, Professor Ferris, as to the time of death.
[33] Defence objection was taken to Mr Ireton’s evidence part way through that evidence and before he had explained his views on the time of death. There is no ruling from the Judge but, after the objection, the Crown led the following evidence from Mr Ireton as to his particular experience with bodies that had been in the water some days:
Just one other matter that I wanted to get from you, what work does your company do with regard to people who have expired in the outdoors?
Our company has the contract for the removal of deceased persons for the police in cases of accidental and sudden death and so it’s our responsibility to act for the police and go and remove the deceased.
From areas and places such as what?
Any areas, mountain regions, right through cities, yeah.
Have you experience of removing bodies or uplifting bodies that have been removed from streams, lakes and the like?
I’ve had a wide range of experience in that area.
Bodies that have been in water for a length of time for days or longer?
Yes.
Mr Taylor’s submissions
[34] Mr Garrett argued this part of the case for Mr Taylor. In his submission, funeral directors are qualified to give evidence as to what they observed. However, without any formal qualifications establishing expertise, they should not be allowed to formulate an opinion as to the precise time of death. In Mr Garrett’s submission, the evidence of Mr Ireton went beyond what was acceptable.
Crown submissions
[35] Mr Stanaway submitted that Mr Ireton had properly qualified himself and that it was up to the jury to assess his evidence.
Judge’s summing up
[36] The Judge gave extensive directions relating to the funeral directors’ evidence as follows:
I am going to refer briefly to the funeral directors’ evidence. The evidence of Richard Ireton and Eion McKinnon
It is really Richard Ireton who probably went out on a limb on this issue. Mr McKinnon was perhaps a bit more guarded in his evidence.
They have what you might consider, and it is a matter for you, a trade expertise dealing with dead bodies as their business and they’ve seen and dealt with thousands of dead bodies. At a practical level they are familiar with the decomposition process and what normally happens. They don’t necessarily understand all the mechanics, the science of it, at anything other than a superficial level.
When Mr Ireton picked up Ms Blakie’s body on the 8th of February the then thinking on the part of the police was that she had died three days earlier on the 5th and that was the way the situation was portrayed in the news media. Mr Ireton and Mr McKinnon plainly didn’t think – and it is really Mr Ireton in particular I think – did not think that the body of Lisa Blakie was what would be expected of someone who had died only three days earlier. He would not have expected to see signs of advanced decomposition but in the period between the 7th of February when Doctor Sage examined the body for the last time and the 8th of February when Mr Ireton picked it up, advanced decomposition had set in. So Mr Ireton obviously felt pretty strongly about that and he in the end shared that view with the police later in February.
The evidence which these gentlemen gave is in part evidence of fact – what they saw and what they smelt. And in part it was in opinion nature. According to Professor Ferris their evidence is consistent with the phenomenon of artificially prolonged rigor mortis being followed by accelerated, or catch up if you like, decomposition. So, their evidence fitted in pretty well with his evidence and he placed reliance on it in the witness box. He was dismissive of defence attempts to explain it away by reference to post mortem procedures and hot lights, that is the lights under which Doctor Sage carried out the post mortem, and the rapidity of decomposition in the period after the post mortem.
It is fair to say the other pathologists, Doctor Sage, Ellis and Dempster were of the view that the funeral directors were interfering in areas which lay well outside their expertise and that they hadn’t allowed for the impact of the post mortem procedures, involving the cutting open of the body the inspection of the bowel and the opportunities for bacteria to spread in that way – hadn’t allowed as well for the hot lights and the movements of the body. So, they didn’t think this evidence took the case very much further.
Mr Stanaway in his address to you really invited you to go with Professor Ferris. Mr Hall suggested that the better view of it all was that expressed by Doctors Sage, Ellis and Dempster and that what the funeral directors had to say, particularly Mr Ireton, is irrelevant.
Discussion
[37] In our view, Mr Ireton sufficiently qualified himself in his evidence to give expert evidence on the time of Ms Blakie’s death. His experience was of a practical rather than academic or medical nature but was sufficiently specialised (given his experience with bodies that had been in the water for some time) to enable him to give opinion evidence. It was, as was quite clearly explained by the Judge, then a matter for the jury to assess his evidence against that of Drs Sage, Ellis and Dempster on the one hand and Professor Ferris on the other. We are not persuaded on this ground of appeal.
Issues document: specific issues
[38] Mr Hall made a number of specific complaints about the issues document, which we will deal with in turn. The first related to the position in that document of the reference to Mr Taylor’s statements to the police. Mr Hall next alleged that the Judge had unfairly undermined the defence case by directing the jury to consider the evidence as a whole. He then complained that the Beckford/Chambers evidence of seeing Ms Blakie and Kaos had been unfairly separated from the evidence of sightings of Kaos on his own. Mr Hall also expressed concern about the unnecessary inclusion in the document of matters that were not in issue by the end of the trial and about the unfairness in the framing of certain questions. The contents of the issue document relating to the salad roll wrapper, the alibi request and the evidence relating to Ms Blakie’s body in the river were also criticised.
Accused’s statements
Mr Taylor’s submissions
[39] The issues document commences with references to the statements made by Mr Taylor to the police. In Mr Hall’s submission, this should not have been done. To include a comprehensive review of those statements at this point, in his submission, improperly and subtly, would have persuaded the jury, from the outset of their deliberations, that the accused, who made five separate written statements and a number of oral statements, lied extensively. In Mr Hall’s submission, the jury were much more likely to use the background of the lies as indicating a guilty mind rather than as an issue affecting credibility only. In his submission, the lies were so pervasive that the Judge’s summing up direction would have been forgotten in the information overload.
Crown submissions
[40] In the Crown’s submission, there is no prescribed position in a summing up or written summary where a direction on an accused’s statements and a lies direction must be given. Mr Taylor’s statements and admitted lies were the subject of substantial comment from both the Crown and the defence in closing. The trial Judge’s directions on lies were conventional and emphatic. The jury, when considering the written summary, were thus reminded from the outset of the limited legitimate use to which they could put Mr Taylor’s lies. In Mr Stanaway’s submission, Mr Taylor’s explanations for the lies were appropriately dealt with by the trial Judge in some detail.
Judge’s summing up
[41] The issues document was distributed to the jury at the point in the summing up where the Judge was giving directions on Mr Taylor not having given evidence and on the use to which his police statements could be put. The Judge pointed out that it was common ground that much of what Mr Taylor told the police was untrue, including his initial statement that he did not pick up Ms Blakie, his denial that he had used her cellphone and one of his statements to the effect that he had dropped her off at the Kowai 2 layby. The Judge then detailed other lies alleged by the Crown and gave an extended (and altogether standard) direction on lies. He said:
I am not sure that the defence necessarily accepts that lies were told in all the respects relied on by the Crown. Obviously it is possible to say something which is incorrect without necessarily lying. Some of the alleged lies relied on by Mr Stanaway no doubt involve elements of speculation as to what actually happened. I think it is fair to say however that Mr Hall did not respond in a specific way to the detailed submissions of the Crown as to the alleged lies and I rather think that you will probably in the end conclude that there were a number of lies told in these statements.
In assessing the weight to be placed on what the accused said in his statements you're entitled to have regard to any remarks made by him which you are satisfied beyond reasonable doubt were lies, and also you're entitled to have regard to the attempt to obtain the false alibi.
It is sometimes very tempting to think along the lines that if an accused has lied or has set out to establish a false alibi it follows that he must be guilty. The difficulty with this line of reasoning is that there can be reasons other than guilt for lying or indeed for arranging a false alibi.
In this case the accused's position is that he became concerned about the possibility of being suspected of murder and therefore wished to distance himself from any involvement with Ms Blakie. According to the defence that is why he lied and that is why he sought to arrange a false alibi for the 2nd of February and perhaps the rest of the week. Mr Hall suggested that in assessing all of this you have to allow for the sort of person the accused is, the sort of life he leads and the sort of people he associates with.
As well, there may have been overlapping reasons for some of the lies. For instance if he admitted that he was in the habit of carrying knives in his car that could have resulted in him being in trouble for carrying offensive weapons.
Mr Hall was also critical of the interviewing technique saying that the police were intimidating and ought to have recorded their interaction with the accused on video. By withholding information they in a sense set the accused up for the lies which he then told. They gave him opportunities to tell lies which he seized with alacrity. He also suggested that the accused was ill-equipped intellectually and in terms of literacy skills to deal with the police.
Whatever you think of the Crown and defence arguments, and I am going to come back to some of them later, the bottom line is this: Mr Hall is right when he said that the telling of a lie or the telling of lots of lies and the arranging of a false alibi in this case are not evidence of guilt. This is for the reason I have given, namely that there can be more than one reason for telling lies or arranging a false alibi and those reasons are not confined to consciousness of guilt. So, there is a rule of law to that effect.
[42] The Judge then went on to summarise the position as it finally emerged from Mr Taylor’s statements, which was that he had left Ms Blakie alive and well at the Porter River layby on 2 February. The jury were directed that, if they took the view that Mr Taylor’s account of events as it emerged was true or that there was a reasonable possibility that it was, then they should acquit. On the other hand, if they were of the view that Mr Taylor has told so many lies of such importance that they could place no weight at all on what he said, then the jury were directed to decide the case on the basis of the evidence they did accept. The jury were directed again that the lies told by Mr Taylor did not add to the case against him.
Discussion
[43] The direction on the accused’s statements and on lies came at a conventional point in the summing up. It was therefore logical that the written document that accompanied the summing up should begin with references to Mr Taylor’s police statements. That was the order in which that issue was dealt with in the summing up. It was also logical in that an analysis of the accused’s statements showed what was not contested and so provided a platform from which the jury could begin their deliberations.
[44] It is also significant, as indicated by the Judge, that, if the jury believed Mr Taylor’s (eventual) version of events or thought, on the basis of Mr Taylor’s statements, that there was a reasonable possibility that he had dropped Ms Blakie off at the Porter River layby alive and well, the verdict had to be one of not guilty. The jury’s deliberations therefore could legitimately have ended after their consideration of the statements.
[45] As to the concern expressed by Mr Hall that the jury would have been so overwhelmed by Mr Taylor’s lies in those statements that they would have been predisposed to return a guilty verdict, we do not accept this submission. The direction given by the Judge was detailed, strong and entirely standard. Juries are conscientious and there is no reason to consider that they would have ignored the direction. In any event, the Judge’s direction on lies may well have been unduly favourable to the defence. If there ever was a case where the nature of at least some of the lies could legitimately have been seen as pointing to guilt this was it.
Allegation of reversal of onus of proof
Mr Taylor’s submissions
[46] The defence was based upon the proposition that the Crown could not prove beyond reasonable doubt that Ms Blakie died before 1.50 pm on 2 February 2000. The defence had submitted to the jury that there were subsequent reliable sightings of Ms Blakie alive after that time (and in particular the Beckford/Chambers evidence) and it also relied on the preponderance of the pathological evidence which suggested she probably died on 5 February 2000. In Mr Hall’s submission, the Judge undermined those critical issues when he invited the jury to consider each piece of evidence in light of all the evidence and when he said that the most appropriate time to make definitive decisions about the case and, in particular, a definitive decision on the right verdict was when they had reviewed all of the issues and all of the relevant evidence.
[47] In urging this review approach on the jury, the trial Judge was, in Mr Hall’s submission, essentially telling the jury that, although viewed in isolation the points made by the defence were telling, if the jury approached the case in the way that he suggested, they could properly disregard such evidence if it appeared to be in conflict with other evidence or inferences. By such a process, it was submitted that Mr Taylor was seriously disadvantaged. That was in Mr Hall’s submission, tantamount to reversing the onus of proof.
Crown submissions
[48] Mr Stanaway submitted that Mr Hall was arguing for a compartmentalised and blinkered approach to a circumstantial case. He submitted that in any case, but particularly a circumstantial case, it is appropriate to direct a jury of the need to test evidence by reference to other evidence and to test or revisit preliminary or provisional conclusions while reflecting on evidence associated with other issues.
[49] As to the pathology evidence, Mr Stanaway pointed out that the Judge’s written summary referred the jury to the relevant transcripts for each of the pathologists called. As the trial Judge noted, eventually there was little point of difference between the pathologists called for the Crown and those for the defence. Dr Dempster accepted at the end of his cross-examination that it was reasonably possible that Ms Blakie died as early as 2 February 2000 and neither defence witness was prepared to assert that the views expressed by the Crown pathologists, Dr Sage and Professor Ferris, were not reasonably open to them.
Judge’s summing up
[50] The passage complained of by Mr Hall is as follows:
Although I am going to discuss this case with you on an issue by issue basis I do not wish to imply that you are required to make a series of discrete conclusions on each of these issues on the basis of the evidence relevant only to those issues.
The fundamental issue in this case is whether the Crown has proved beyond reasonable doubt that the accused killed Lisa Blakie on the 2nd of February 2000. That is the key issue which you must resolve and you must do so on the basis of all the evidence in the case.
In a number of respects the defence has invited you to look at particularly specific issues in the case and has invited you to acquit if you find the defence arguments or evidence reasonably credible, or reasonably possible.
The two principal respects are as follows. First the defence argument that if you regard as reasonably possible the proposition that the sightings of a young woman made after 2.00 pm on the 2nd of February were indeed of Ms Blakie, then you must acquit. The second is the defence argument that if you regard it as reasonably possible from the pathologists' evidence that Ms Blakie died after 2 February 2000 then you must acquit. Now indeed this morning in his address to you Mr Hall put a series of similar propositions in relation to other aspects of the case. I can deal with the point however fairly I think with regard to the two points I have mentioned.
It is the case that if the disputed sightings were of Ms Blakie then it follows that she did not die at the time which the Crown alleges. It also follows that the accused could not have been the murderer. It would follow that the Crown had the wrong man and the proper verdict would be not guilty. Further, given the onus and standard of proof it follows that if you are left with a view that it is reasonably possible that Ms Blakie was sighted where and when the defence suggests she may have been, it follows that there is a reasonable doubt as to guilt and you must acquit.
The same sort of reasoning is applicable, at least broadly, to the evidence of the pathologists. The reality is if at the end of your deliberations you are in reasonable doubt as to whether the Crown has proved that Ms Blakie died on the 2nd of February 2000 then you must acquit.
It follows that in a literal sense the defence contentions which I have just referred to are correct. But sometimes Mr Hall put those contentions in a way which seemed to me to imply that the categories of in evidence the case, and particularly the two I have mentioned, could be fairly viewed in isolation.
The point I am making is that each piece of evidence in the case is best considered in light of all of the evidence. And that the most appropriate time to make definitive decisions about the case and in particular a definitive decision on the right verdict is when you've reviewed all the issues and all the relevant evidence.
Discussion
[51] The directions complained of are in our view entirely orthodox. Pieces of evidence cannot be looked at in isolation. Particularly in a circumstantial case, whether the Crown has proved its case must be assessed on the evidence as a whole. The Crown case was that, taken on the evidence as a whole, Ms Blakie must have died before 1.50 pm on 2 February. This meant, in its submission, that Mrs Beckford and Mrs Chambers must have been mistaken in their sighting and that the date of death must have been 2 February, which all pathologists agreed was a possible date. It was the jury’s task to consider, on the basis of all the evidence, whether that had been proved beyond reasonable doubt. That was made clear by the Judge. There was never any suggestion that the defence had to prove anything.
[52] We note in any event that the Judge specifically directed the jury on the defence case relating to the Beckford/Chambers evidence and said that, if the jury thought it reasonably possible that the Beckford/Chambers sighting was of Ms Blakie and that it took place after 2 pm, then the proper verdict was one of acquittal. While the jury would have been entitled, if they wished, to accept the defence submission that they could acquit on the basis that the Beckford/Chambers evidence, on its own, raised a reasonable doubt, the pathology evidence is in a different category. The pathology evidence gave a range of possible times of death. It would thus always have been necessary to have regard to other evidence to ascertain whether the Crown had proved that Ms Blakie died on 2 February.
Beckford/Chambers and Kaos evidence
Mr Taylor’s submissions
[53] Part A of the issues document, which the Judge said contained “stand-alone” issues, included questions related to Kaos – see at [18](g) and (h) above. Mr Hall pointed out that the Judge had purported to include the relevant evidence of all Kaos sightings on 2 February 2000 in the vicinity of the Kowai 2 layby and/or bridge. But he excluded, significantly, the evidence of Mrs Beckford and Mrs Chambers at this point, even though they said they had seen not only Ms Blakie but also her dog. The Beckford/Chambers evidence was contained in Part B of the document – see at [19](b) above. Mr Hall submitted that to arrange the jury’s consideration of this vital issue in such a way was to ignore and sideline one of the major planks of the defence and was contrary to the Judge’s direction to the jury that definitive decisions should not be made until all the relevant evidence has been reviewed.
[54] In discussing the Kaos evidence in the summing up, the Judge told the jury that this was a serious issue in the case and he suggested that the assessment of it should be only done in a provisional way because there is “other evidence downstream which will have some effect on it”. This other evidence was notably the evidence of Mrs Beckford and Mrs Chambers and, in Mr Hall’s submission, it should not have been separated in such an unfair way because their evidence was compelling as to time and circumstance. In Mr Hall’s submission, the Kaos issue was not a stand alone issue at all and the Beckford/Chambers evidence should not have been excluded from the jury’s consideration at this point.
[55] Part B is devoted to “other sightings” and it was, in Mr Hall’s submission, unfair for the jury’s consideration of these sightings to be separated from issues as to when the deceased was last seen, the date of death, the Kaos evidence, the place of death and so on. To separate “other sightings” into a discrete topic unconnected with the previous issues was, in his submissions, to invite the jury provisionally to accept the prosecution case before considering those sightings. Having already considered the issues in Part A, the jury would have been more ready to reject “the other sightings” as mistaken identification.
[56] This is particularly telling in relation to the Beckford/Chambers evidence. In Mr Hall’s submission, it was the quality of their evidence as to timing which stood out in comparison with the Kaos identification witnesses who were very vague as to timing. Timing was critical to this issue. Arranging their evidence in the “other sightings” section, carried with it the inherent danger that there would be no cross-referencing with the Kaos identification witnesses, notwithstanding the oral directions. Of all the evidence in the case, this was the most crucial to the defence and to have included it in Part B as if it were a discrete piece of evidence was to downplay its significance. Accordingly it was unfair to the defence.
[57] Further, on the Crown’s theory of the case, Kaos was picked up after Ms Blakie had been murdered and chronologically the questions posed as to whether Ms Blakie’s body would have been seen and when could it have been placed in the river and the absence of evidence of sightings of her at the Porter River lay by should have been posed before the Kaos evidence. The failure to deal with issues in chronological order could, in Mr Hall’s submission, have impacted adversely upon the defence because the jury would have more readily accepted that Ms Blakie was already dead and therefore subconsciously succumbed to that point of view.
[58] Finally, on this topic, it was submitted that the need to assess the credibility of Mrs Beckford and Mrs Chambers would have been lost in the direction given by the Judge to speculate on the reasons as to why and how Ms Blakie may have retraced her steps. The jury should not have been asked to speculate on this matter. The Judge also, in his submission, unfairly poured scorn upon one possible theory which was advanced by the defence without telling the jury that the defence is under no obligation to provide a theory and to speculate was no part of their task. The Judge was not attracted to the submission that Mr Taylor himself could have returned Ms Blakie to the Kowai 2 bridge area where she was allegedly seen by Mrs Beckford and Mrs Chambers.
Crown submissions
[59] Mrs Beckford and Mrs Chambers were called by the Crown. In Mr Stanaway’s submission, nothing can be made of this, as it was an accommodation reached by the Crown and defence prior to trial. This arrangement was reflected in the Crown’s opening where the jury were told that the Crown was calling the witnesses as part of the narrative and in the interests of fairness, but that the Crown case was that any witness who claimed to have seen Ms Blakie alive and with Kaos after 2 pm was mistaken.
[60] In Mr Stanaway’s submission the jury, following the combination of the summing up and the written summary, would readily have appreciated the significance of the conflicts between the Beckford/Chambers evidence and the evidence of other Crown witnesses who identified a distressed and wandering Kaos (including two who uplifted the dog), in a location and at a time inconsistent with the testimony of Mrs Beckford and Mrs Chambers.
[61] Mr Stanaway also pointed out that, in the summing up, William Young J spent considerable time dealing with the Beckford/Chambers issue. Far from being “sidelined” the evidence of Mrs Beckford and Mrs Chambers was, in the Crown’s submission, given prominence and dealt with fairly. When summing up on identification issues, the submission by Mr Hall that, unlike at least one other witness in the case, Mrs Beckford and Mrs Chambers were not influenced by pre-trial publicity was recorded. The Judge then recorded Mr Hall’s criticism of the Crown for challenging the evidence of Mrs Beckford and Mrs Chambers. The Judge noted that what they made of such challenges was for the jury but he, for himself, considered that the Crown was entitled to challenge that evidence as it had made it clear in its opening that it would. The trial Judge also emphasised the need to revisit any preliminary or provisional conclusions as the jury reflected on evidence associated with other issues.
[62] Mr Taylor complains of the trial Judge’s reference to his counsel “floating for the first time” a possible scenario that it was Mr Taylor himself who may have returned the deceased to Kowhai No 2 bridge area (in contradiction of his five statements and without having been suggested in cross-examination or to any Crown witness). In the Crown’s submission, William Young J’s approach was neither unreasonable nor unfair and the Judge was entitled to express a view on a proposition which was aired for the first time, and without any evidential basis, in closing.
Judge’s summing up
[63] With regard to the evidence relating to Ms Blakie’s dog Kaos and its link to the Beckford/Chambers evidence the Judge had this to say when he was discussing the questions in Part A relating to the Kaos sightings:
What I should say however to you is that the issue is quite an important one. If Kaos was running free both before and after the time at which Mrs Beckford went past the Kowai 2 bridge then that would not be very easy to reconcile with Mrs Beckford's evidence. So, that is why the Crown is stressing broad timeframe sightings before and after say 2.10 to 2.15, that is why the defence is saying no, the dog's sighted later, presumably after Ms Blakie's been abducted or has for some extraordinary reason got into a car and left the dog behind voluntarily.
The defence case I suspect on this point really comes down to the theory that Ms Blakie must have been abducted from the Kowai 2 layby area or perhaps more particularly from the point identified by Mrs Beckford at about the time we're talking about just after Mrs Beckford's identification.
[64] The Judge later went through in some detail the position as to the Beckford/Chambers sighting. When discussing Part B of the document he said:
Very much at the forefront of the defence in this case is the position as to Mrs Barbara Beckford and Mrs Helen Chambers. That is the first of the specific issues I want to deal with in this section of my summing up.
Their evidence is that they would have passed the Kowai 2 layby at approximately 2.15, or perhaps 2.10 to 2.15 pm on the 2nd of February as they travelled east. I have given you in reference to that the exhibit which is the time anchor - the purchase of petrol I think that was made on the West Coast. Mrs Beckford says that she saw Lisa Blakie just west of the Kowai 2 bridge with her dog and luggage. Mrs Chambers is less emphatic on quantity of luggage, identification and location, but it is perfectly clear that her evidence is generally supportive of that of Mrs Beckford. And ladies and gentlemen it is perfectly clear, as I have probably said earlier in my summing up, that if this was indeed Lisa Blakie then the accused is not guilty of her murder because if Lisa Blakie was there at ten minutes past 2, 15 minutes past 2, then the accused, it is clear, did not murder her.
This evidence has been discussed at great length by counsel on both sides and it has been cross-referred to other evidence in the case, particularly the Kaos identification evidence which I have discussed already. I don't wish to go through all that again, because it is in the end a question for you to decide based on evidence, the transcript of which you have.
Mr Stanaway noted that Mrs Beckford did have the Exhibit 66 flyer before she went to the police. He said she was travelling at an ordinary pace with traffic going both ways and was not able to get a backward look. He stressed differences between her evidence and that of Mrs Chambers. He primarily relied on the inconsistency of the evidence in issue particularly that of Mrs Beckford and the Kaos identification witnesses which I have referred to already.
He stressed that when Kaos was running free, he seemed to be distressed and lost and not with his owner and he stressed as well and you will recall this, the breadth of time and distance referred to by the Kaos witnesses. His position was that Mrs Beckford's evidence was not a good fit with the other evidence which we know is true, although when he said that he didn't know that it was going to be suggested that Ms Blakie was not dropped off at the Porter River layby, but I will come to that in a moment. His position was that the accused's most recent statements and the evidence of Linc Johnson mean that Ms Blakie was taken to the Porter River layby. Why on earth would she go back? Why on earth would she travel back towards the East Coast when she's trying to get to the West Coast and when with her dog and her luggage she's not perhaps a great hitch-hiking proposition.
He also said there is absolutely no evidence to suggest indeed that she did this. No evidence of her hitchhiking back, no-one came forward and said yes, I gave her a lift back to the Kowai 2 layby, no evidence of anyone else seeing her at the Kowai 2 layby despite many witnesses coming along and saying "yes we saw a dog". '
So Mr Stanaway said that you would conclude that Mrs Beckford anyway simply got it wrong and so too did Mrs Chambers or her evidence did simply not relate to that of Ms Blakie. He was really invoking I think the general submissions he made as to the difficulties and dangers of identification evidence, the way in which people can respond to psychological cues and all sorts of other things and just get it wrong.
Mr Hall spent a great deal of time on this issue yesterday as I have said. He put up two explanations as to why Ms Blakie may have been where Mrs Beckford said she was. He said, well, perhaps the accused turned around after seeing Linc Johnson and dropped he off and back at the Kowai 2 layby. He also suggested that perhaps having been dropped off at the Porter River layby she got a ride back because she realised she had lost something, perhaps a cellphone card and then having not discovered that at the Kowai 2 layby decided to go to further west again.
So, the issues that you've really got to balance here ladies and gentlemen I suppose are the quality of the evidence, the firmness as to its timing on the one hand against the questions as to why Ms Blakie would have been there, why she would have in effect been going in a circle up to Porters Pass and out to the Porter River layby back to the Kowai 2 layby then heading west again. And you've also got to assess the evidence in light of the Kaos identification evidence, and I have discussed that with you already.
Mr Hall’s suggestion is that Ms Blakie either got into a car either voluntarily, leaving Kaos behind or was abducted. It does not seem very likely that she would have left the dog behind and the defence case therefore probably – this is a matter for you – comes down to the proposition that almost immediately after being seen by Mrs Beckford Ms Blakie was abducted.
[65] As to the explanation advanced that Mr Taylor may have returned Ms Blakie to the Kowai No 2 layby, despite his statement to the police that he had dropped her at the Porter River layby, the Judge had this to say:
Mr Hall's position is that she was in fact either not dropped off by the accused at the Porter River layby but rather dropped off at the Kowai 2 layby in time to be seen by Mrs Beckford and Mrs Chambers or alternatively hitched a ride back there and was perhaps immediately abducted by someone else.
I just mention this first proposition at this point, because it was raised for the first time yesterday at least in the terms in which Mr Hall put it. The accused has never said to anyone who has given evidence that he took Ms Blakie up the Pass and then after he saw Linc Jomlson did a u-turn if you like and took Lisa Blakie back to the Kowai 2 layby. The suggestion that this may have happened was floated for the first time yesterday.
If this is correct it follows that the accused at interview told the officers that he took Ms Blakie to the place where her body was found even though he did not do so. You are entitled to ask yourselves why he would do that, why he would make a false statement that unnecessarily and untruthfully put him and Ms Blakie together at the very place at which her body was found.
You will recall I mentioned earlier the Crown contentions in relation to the pattern of what the Crown says are lies, the pattern or patterns which were described as being a rear guard action, the pattern of making admissions when only driven to do so by external circumstances, never admitting anything unless there was a requirement to do so.
You are entitled to ask yourselves whether, if you accept that that categorisation of if statements is correct, it is likely that he would have admitted going to the Porter River layby with Ms Blakie if he didn't do so. You're entitled to ask why he would have implicated himself in something that didn't happen.
I guess Mr Hall’s position on this as he recognised in his address yesterday is that the proposition was inconsistent with the statements. He asked you to accept that the accused had been intimidated by the police officers and that he had been pushed into admitting something that simply didn't happen.
Mr Hall's argument as to this is, I guess, closely centred on the evidence of Mrs Beckford and the logic I suppose proceeds on this basis. Well, if Mrs Beckford's right, Lisa Blakie had to get to the Kowai 2 area in time to be seen by Mrs Beckford. She could only have got there by reason of being taken back there by the accused or being taken back there by someone else because she couldn't have walked. And I imagine that that is why the proposition was advanced to you as being one of the theoretical ways in which she could have got back from the Porter River layby or the top of Porters Pass to the Kowai 2 bridge area.
Well ladies and gentlemen – again matters of fact which are for you to determine and assess.
Discussion
[66] In his summing up, William Young J made very clear to the jury, when discussing the Kaos evidence, the inter-relationship between that evidence and the Beckford/Chambers evidence. This link was also stressed again when discussing the Beckford/Chambers evidence. It had also clearly been stressed by defence counsel. The jury can have been under no misapprehension that this was an important issue for them to resolve. It is difficult to see what more the Judge could have done.
[67] We do not accept that the order the issues were dealt with skewed the case towards the Crown. Mr Hall complains that the Kaos issue was put before the Beckford/Chambers evidence and thus that the jury could have reached a provisional view on the Kaos evidence which they were reluctant to change, leading to them dismissing the Beckford/Chambers sightings. It seems to us he could equally have complained, if the order had been reversed, that the favourable provisional view on the Beckford/Chambers evidence could have been displaced by the later consideration of the Kaos evidence. Similar comments can be made about his complaint that the questions as to Ms Blakie’s body should have been posed before those relating to Kaos.
[68] We also note that the Beckford/Chambers sightings were not on their own, although they may have been the most vital in terms of timing. There were numerous alleged later sightings and it was logical in our view that the Beckford/Chambers sightings be dealt with in the context of all of the later sightings.
[69] As to the Judge’s comments on the suggestion that Mr Taylor returned Ms Blakie to the Kowai 2 layby, there is nothing wrong with a judge making a comment on submissions as long as this is done in a fair manner and it is made clear that any decisions on the matter are for the jury. In this case that was done and the comments were in our view measured, particularly in light of the fact that there was no evidential foundation for the suggestion.
Unnecessary inclusions
Mr Taylor’s submissions
[70] Mr Hall submitted that there were a number of unnecessary inclusions in the issues document. For example, the Judge set the jury the very onerous task of reviewing the evidence of approximately 20 witnesses as to what Ms Blakie was wearing when she left Christchurch on 2 February. This review was unnecessary, in Mr Hall’s submission, because the defence had conceded that she was wearing the same purple dress on 2 February 2000 as that in which she was found in the river on 6 February. Mr Hall concedes that there was an issue as to whether or not she was wearing black shoes. Some witnesses said she was wearing boots. Others said she was wearing the shoes. There was also an issue as to whether or not she was wearing the black jersey in which she was found.
[71] Nevertheless, he submitted that these issues did not need to be resolved. In Mr Hall’s submission, the inclusion of questions as to Ms Blakie’s clothing was more of a subtle cue to the jury to accept the Crown contention that the clothing was relevant to whether she died on 2 February as alleged. The Crown submission was that it made it more likely that Ms Blakie had died on 2 February if she was wearing the same clothes when her body was found on 6 February but, in Mr Hall’s submission, this was by no means decisive. To require the jury to trawl through all that evidence was unfairly to reinforce a Crown submission as to the date and time of death.
[72] Mr Hall also criticised the trial Judge for referring the jury to exhibits SCV17 and VO2. SCV17 was identified as a male transitional hair of unknown origin. It did not come from Mr Taylor or any of the other possible suspects. The defence had conceded that, as did the Crown. There was thus no need for the jury to be referred to the evidence on this subject. The same applied to VO2. These hairs had been clearly identified as belonging to the deceased, although belatedly. There was thus no issue about VO2 at the end of the trial and there was no need to revisit Ms Vintiner’s evidence on the subject.
Crown submissions
[73] In the Crown’s submission, the questions concerning Ms Blakie’s clothing were relevant to the date of her death. Being clad in the same clothes on the date that she was found as those worn on the morning of 2 February was consistent with her death on that day. They were thus important questions for the jury.
[74] As to SCV17, this was a foreign hair found on Ms Blakie’s abdomen beneath her top. Exhibit VO2 were hairs taken from her hand. Considerable cross-examination of Crown witnesses had occurred in relation to both exhibits and the defence had opened on the basis that “if you find the donor of SCV17 you have found Lisa Blakie’s murderer”. That stance was maintained in the defence closing and is referred to in the summing up. It was thus important that the jury were referred to the relevant evidence. The same applies to VO2. In the summing up, however, the Judge said that, while it had been of considerable moment during the course of the trial, it would now have little import as it appeared the hairs had come from Ms Blakie’s head.
Judge’s summing up
[75] As to the clothing the Judge said:
The first of the issues I have identified is in these terms. When Ms Blakie left Christchurch on 2 February was she wearing the purple dress and black shoes in which she was found?
It is a nice, simple if you like, stand-alone issue. It is one that is relevant to the date of death.
The Crown case is that Ms Blakie left Christchurch wearing at least a purple dress and shoes in which she was found on the 6th of February. If so this logically might be thought to support a date of death on the 2nd of February although obviously it is not conclusive.
In his address Mr Stanaway proceeded on the basis that it was self-evidently the case that when she left Christchurch Ms Blakie was wearing at least the dress and the shoes in which she was found. Mr Hall in his address accepted that Ms Blakie was wearing the purple dress but his concession stopped at that point. ...
The next and associated issue is: Was she wearing the black jersey?
Mr Stanaway referred to witnesses to whom I have just referred - that is in the list of witnesses relating to Yaldhurst and Springfield sightings -some of whom referred to a black item of clothing which on the Crown case could have been the black jersey. ...
As Mr Hall noted, many of the witnesses gave descriptions which refer to an upper garment in the nature of a cardigan or a jacket, or alternatively gave descriptions which did not refer to such a garment.
Well, it is a matter for you ladies and gentlemen. Given that it was a summer's day but not a great day it is possible that Ms Blakie had with her some form of upper clothing which she took off and put on depending on the temperature at the time and perhaps at times she had it sitting loosely on her shoulders. Whether that is so and if so whether it was a jersey and if so whether it is the jersey that was found on Ms Blakie's body are all matters for you to assess.
[76] On VO2, the Judge said that it now appeared to be accepted by both sides that these hairs had come from Ms Blakie’s head. As to SCV17, the Judge said:
Mr Hall’s position is that there is another unexplained part of the case, that the police took the hair pretty seriously in terms of analysis and comparison and that the possibility, I think he might have said probability, that it came from the murderer, cannot be ignored. He raised the possibility that in the years to come it might come to be associated with someone who could be shown later to have murdered Ms Blakie.
[77] The Judge mentioned SCV17 again when discussing the defence case. He said:
He argued that SCV 17, that is the hair, itself raises serious doubts about the case. He noted that the hair was the same colour as the hair described by Mr Gibson in reference to the man who came into his garage with the woman he identified as being Lisa Blakie.
Discussion
[78] There is nothing in these points. Ms Blakie’s clothing was a feature of the case, both from the Crown and the defence perspective. It was also clearly more likely (although of course not conclusive) that Ms Blakie died on 2 February if she was wearing the same clothing as when she was found on 6 February. The Crown submission therefore was a valid one and there is nothing wrong with the Judge giving the jury the evidential references to assess that submission.
[79] SCV17 appears to have remained a significant part of the defence case. As to VO2, there may not have been any current issue between the parties. That this is the case does not mean that evidential references should not be given to enable the jury to check the evidence for themselves, if they wished to do so.
[80] We remark that Mr Hall appeared at times to be suggesting that only the issues favourable to the defence should have been contained in the issues document. Such a suggestion is untenable. The requirement for balance goes both ways and the Judge must fairly put the cases for both the Crown and the defence.
Unfairness in framing of questions
Mr Taylor’s submissions
[81] Mr Hall also criticised the Judge for the framing of certain questions. For example, the question as to why Mr Taylor picked Ms Blakie up and took her so far west, given that he had no personal reason to go further west than Darfield, was speculative and proved little. This really relates to whether the accused lied in saying that he had left his wallet at Darfield and that is the reason he did a U-turn. It was hardly an issue that warranted significant attention from the jury. It was again an echo of the Crown case. Other evidence was ignored under this topic, including the evidence relating to the deceased purchasing petrol, a lighter and a newspaper at Springfield which suggested that, at this time at least, she was not under any form of threat.
[82] The same criticism applies, in Mr Hall’s submission, to the next question as to whether it was possible for Mr Taylor to have had cell phone coverage at the top of Porters Pass. The answer to that question on the evidence was probably unlikely. More likely coverage was available closer to the Kowai No 1 Bridge just west of Springfield. The problem with this issue, in Mr Hall’s submission, is that it is out of chronological order and it is posed in a quite unfair way.
[83] In Mr Hall’s submission, the question should have been posed in a more direct manner. For example, the Judge could have asked if there was evidence that Mr Taylor had used his cell phone at the top of Porters Pass. To that question a jury should have responded “no” but to the issue posed possibly “yes”. Mr Hall submitted that the question was therefore unfair and may have adversely impacted on the more important timing issues.
Crown submissions
[84] The Crown submitted that all of the issues dealt with by the Judge in the issues document were issues that had been raised during the trial. Any expressions of view or so called subtle indications by the form and contents of the questions in the issues document were, in the Crown’s submission, permissible in this case. The Judge emphatically directed the jury that issues of fact were for them.
[85] As to the u-turn issue, Mr Stanaway submitted that the summing up was actually favourable to the defence as the evidence showing Mr Taylor had a wallet was specifically mentioned by the Judge and the jury were also instructed that there was only one suggestion in the evidence that the u-turn was performed specifically to pick up Ms Blakie. The cellphone issue was also, in the Crown’s submission, adequately dealt with.
Judge’s summing up
[86] On the question of the u-turn the Judge said the following:
The next issue I have identified members of the jury is the question why did the accused pick up Ms Blakie and take her so far west given that he had no personal reason to go further west than Darfield.
There was I think only one reference in the evidence that suggested that the accused's u-turn was specifically related to seeing Lisa Blakie and that was from Nathan Keen and I have referred to that. That was not the evidence of the other witnesses.
The Crown to some extent sought to buttress up that suggestion, buttress up what is implicit in Nathan Keen's evidence, by reference to the wallet issue. You will recall Ruth Lewis' evidence that she was not aware of a wallet. It was suggested therefore that the accused's reason for saying he went back to Darfield was a false one. On the other hand there is evidence from Nicki Petrie that the accused had a wallet and I have given you the references to that. Perhaps more tellingly, or perhaps most telling, then Detective Murton, I think I refer to him throughout by his then rank, Detective Murton seized a wallet from the accused on the 29th of March. The accused also in his statement denied doing a u-turn for the purpose of picking up Ms Blakie.
Mr Stanaway in his address to you maintained that the accused would have realised that Lisa Blakie was a prostitute by reason of the way she was dressed, and that this was the reason for picking her up. Further, it was the Crown case generally that if the accused had not realised that she was a prostitute before he picked her up he very soon would have realised that as a result of the discussion he had with her.
So, the Crown case is that his actions either in the u-turn, although I have to say the evidence as to that is pretty exiguous, or at least his going so far out of his way to accommodate her trip west well past Darfield are consistent with him having a possibility of sex on his mind, very much on the outset of his interactions with Lisa Blakie.
Mr Hall made some pretty strong submissions about the wallet. He didn't I think respond directly to the argument that the accused was going out of his way in terms of taking Ms Blakie a long way west, but I think it is implicit in his address that there is nothing untoward in that.
[87] The Judge dealt in some detail in the summing up with the evidence related to the cellphone coverage and Mr Hall’s criticism of that evidence. The issue was summarised for the jury in the following manner:
The next issue members of the jury which I have identified is whether it was possible for the accused to have had cellphone coverage at the top of Porters Pass. The evidence suggests that it might have been possible for the accused to have had sufficient coverage at the top of Porters Pass to have loaded the card into his cellphone. But if so he was either lucky or knew from experience the spot at which this could have been achieved. If he could not do so then he could not have loaded the cellphone card into his cellphone until he was east of the Kowai 2 layby and the two bridges.
Discussion
[88] Why Mr Taylor agreed to take Ms Blakie to the West Coast, on a road that did not even pass through Darfield, was an issue in the case. The same applies to the cellphone coverage. Full and balanced directions were given on each of those issues and the jury were clearly made aware of both the Crown and defence contentions. There was no unfairness to Mr Taylor.
His lying has been so serious and prolific that you can place no reliance on what he says unless it has been corroborated.
The evidence as to Kaos shows that something terrible happened on the 2nd of February, some time between 1.00 and 2.00 pm, to Lisa Blakie. There is no confirmed evidence that she was ever seen alive again. None of the sightings relied on by the defence allow for the evidence as to Kaos, and Ms Blakie's inevitable reaction to being parted from her dog if she remained alive. Nor do they allow for the reality that Ms Blakie, if able to do so, would have been in touch with many people who were very worried about her in this period.
While the pathologists have differing views on the likelihood of death as at the 2nd of February, none of them excluded it. The 2 February date of death however is closely associated with the chicken roll wrapper.
His position is that there were no fatal flaws in the Crown case. He's dismissed the significance of the other sightings. He's reconciled the pathological evidence, relying primarily on the chicken roll, and the concession by all the pathologists that a date of death on the 2nd of February was reasonably possible. He says that the people who have been at the Porter River layby were not people who would necessarily have seen the body if it was there, as he says it was. He's dealt with the Rankin suicide note in the way which I have already mentioned. I have dealt with those issues already and I don't propose to repeat myself.
On that basis he said you would have no difficulty concluding that the accused was guilty.
[126] The Judge then summarised the defence case in a manner which has not been criticised by Mr Hall. He said:
First, there were four fatal problems with the Crown case: The other sightings, the pathological evidence, the people who had been at the Porter River layby and the Rankin suicide note.
I have dealt with those arguments already in some detail and as with the corresponding arguments advanced by the Crown there seems little point in me repeating them again here.
Secondly, however, he challenged the Crown case generally. His position was that leaving all that aside the Crown simply had not proved its case. It is this challenge that I wish to record here because I have not yet done so in a way which is comprehensive.
He took on the Crown over the timings issue. He maintained that the cellphone card could not have been used at the top of Porters Pass and he relied very much on Detective Sergeant Long's job sheet Exhibit D. He noted that when the blip was located up there when Detective Womer was with the Vodaphone people no attempt was made to use any cellphone, let alone the accused's, and that it would have been sensible, as indeed it would have been, to have had the accused's cellphone there.
As I mentioned a little earlier he took the Crown schedule which Mr Stanaway gave you and reworked it. He allowed for a little more time at Springfield to accommodate the sort of delays you might expect when someone drives off. He allowed a little more time at the Kowai 2 layby. He allowed less time at the Porter River layby, that is enough time for the accused to say goodbye to Ms Blakie and put her bags out, but not enough time to have killed her. He then allowed for a brief stop at the top of Porters Pass and on those figures he came to a reworked time of arrival at Springfield at 1.54 pm, the timings which he said of course did not allow sufficient time to murder Ms Blakie.
His broad submission - and it was I think not closely related to this particular schedule - was that the tight timings in the case overall are inconsistent with there being practically enough time for the accused to have enough time to stab, rape or attempt to rape, struggle with or strangle Ms Blakie - not enough time to do that and then to put the rock on her shoulder or head, and not enough time to dispose of her personal belongings with the sort of care that would be required to ensure that there were no fingerprints.
He stressed the fact that no blood traces at the Porter River layby were found. He said that the glasses may have been pinned to her jersey or dress. His argument was that once you accept that it means that the presence of the sunglasses does not require a conclusion that she died at Porter River layby during daylight hours. He did not accept the chicken roll wrapper shown in photo 13 was necessarily the one which was purchased by Ms Blakie.
He was critical of the vagueness of the evidence as to the whereabouts in the black rubbish bag the wrapper was found. He suggested that it might not even have been in the same black rubbish bag as Ms Blakie's personal effects. He also suggested that the position of the black plastic bag near the top of the bin meant it had probably been placed there later than 2 February.
He said there was no acceptable evidence of injury to the accused in the immediate aftermath of the 2nd of February. He invited you of course to conclude that Leanne Johns was wrong about the wicked scratch. He said there was no evidence of pepper spray having been used on him. There was no evidence either that he had wet clothes and shoes when he returned to Ritso Street. He said that the Crown case which involved the theory that there was a struggle in the river would necessarily involve the accused being soaking when he got back to Ritso Street. There is no evidence as to that.
He was very critical of aspects of the investigation of the prosecution, particularly the way the eye-witness evidence was handled. This criticism extended to the Ritso Street ring, the Rankin confession, the suggested scraping of the exhaust at the Porter River 1ayby, the evidence as to cel1phone coverage, failure to check the accused's clothes promptly for blood, the fact that no check for pepper spray was made, the way the issue over the accused's use of a wallet was raised, the loss of the SIM card from Gordon's room, the handling of the twigs and the delay in checking the water temperature in the river.
On the lies issue he challenged the fairness of the interviews asserting what he called incredible pressure had been brought to bear on the accused and information had been withheld. He was critical of the fact that the interviews had not been video recorded. He said that from his own perspective, bearing in mind who he is and what he is, the accused had every reason to lie. As well he is not intellectually well equipped and not very literate. He lives amongst people who have a culture of not assisting the police. The fact that he used Ms B1akie's cellphone card meant that he was really in the frame and would have been reluctant and scared to be candid with the police. He noted his behaviour in this respect was not an isolated instance in this case and he referred to the way in which Mitchell and Wilson and their friends on the Coast behaved. He accepted that the accused made a bad decision at the outset not to be candid. But once he made that decision, then the lies really followed.
As to the "up to no good" remark to Ruth Lewis he noted that the alibi requested as described by Ruth Lewis in her evidence was not confined to 2 February but was rather for the week. He suggested that the accused must have forgotten that he had a cast iron alibi for most of the Saturday and Sunday, that is the 5th and 6th of February. He invited you to treat the up to no good remark as meaning not that the accused had been up to no good in the past and in particular on the 2nd of February and thus needed an alibi, but rather that he was going to lie about something in the future. In the alternative he suggested that these remarks may have referred to some unrelated skullduggery.
He dealt with the history remark and the derby remark made to Danny Johns in the same way.
He challenged the proposition that when Ms B1akie left Christchurch, she was wearing the same clothing she was found in. He certainly did not accept she was wearing the jersey.
He also challenged the Crown theory as to the sexual attack. The knife wounds are not easily explicable in terms of a sexual assault. Blood traces were not found at the scene or in the car. There was no evidence of a sexual assault and no DNA evidence to that effect. The accused was prepared to supply blood and hair samples.
He also disputed any suggestion that robbery was a motive. The evidence as to the money Ms Blakie had was exiguous to say the least. One way or another, by fair means or foul, the accused was able to get enough money to get by on. He suggested that the murder was committed for reasons other than sex or robbery and perhaps by a murderer who had a particular motive or was a pathological killer.
The body may have been left at the Porter River layby so as to be found, and the same was true of a number of the exhibits left in other places. These included the phone given that anything other than a feeble throw would have meant it was irrecoverable.
He argued that SCV 17, that is the hair, itself raises serious doubts about the case. He noted that the hair was the same colour as the hair described by Mr Gibson in reference to the man who came into his garage with the woman he identified as being Lisa Blakie.
He said that the police focused inquiries - that is the inquiries which were focused into the abduction possibility - were too late and could not exclude the possibility that an abduction had occurred.
His argument was that from late March Operation Porta became Operation Taylor.
His contention, ladies and gentlemen, for these reasons as well as for the four factors I have mentioned earlier, was that you should reach a verdict of not guilty.
[127] The Judge then asked each counsel if there were further issues. Both confirmed that there were none.
Discussion
[128] We have termed the document the Judge gave to the jury an “issues document” but that shorthand term is something of a misnomer. What was provided to the jury was a list of evidential references grouped under a list or questions or issues. The issues in the document were those identified by counsel in their addresses and the issues document performed the function of dividing the task into manageable parts. In our view, the document would have been very helpful to the jury when they came to address the various issues the Crown and the defence saw as important. The jury were not obliged to read all of the evidential references related to each issue but the document would have saved them a great deal of time if they did wish to check their recollection of the evidence. The exercise done by the Judge also helped ensure that, if the jury did check the evidence, they were able more easily to find and check the relevant evidence on a particular topic and thus base their deliberations on all rather than part only of the evidence. Indeed, the usefulness of the document was repeatedly demonstrated during the hearing before us, as it was frequently the first port of call when either counsel or a member of the Bench was trying to find a particular piece of evidence.
[129] At times Mr Hall appeared to be suggesting that judges should not deal with the facts of a case, either in written materials or in the oral summing up. If that was his suggestion then it is clearly untenable. As long as the jury are made aware (as they were here) that it is for them to decide on the facts, directions (both written and oral) can be given on the facts. Indeed, in most cases, and in particular in a case such as this, the jury should be directed how to identify and determine the factual issues. There is no difference between giving headings orally and summing up under these headings and reducing those to writing. The appropriateness of a Judge summing up on the facts as well as the law as set out by Lord Devlin in Trial by Jury (1966) at 115, as follows:
All the material which gets into the ring that is kept by the rules of evidence is not of course of equal value, and it is the task of counsel and then of the judge to select and arrange. In discharging this task counsel can be helpful but not disinterested and the jury must look chiefly to the judge for direction on the facts as well as the law. It is his duty to remind them of the evidence, marshall the facts and provide them, so to speak with the agenda for their discussions. By this process there emerges at the end of the case one or more broad questions – jury questions – which have to be decided in the light of common sense.
[130] As to Mr Hall’s submission that it is unusual for Judges to provide written assistance on the facts, this may have been the case in the past but it has to be remembered that the provision of the evidential transcript to the jury is a relatively recent phenomenon. The new practice of providing transcripts to the jury followed the findings of the jury research project conducted by Warren Young, Neil Cameron and Yvonne Tinsley, published by the Law Commission as Preliminary Paper 37 in two volumes. In New Zealand Law Commission Juries in Criminal Trials Part Two: A discussion paper (NZLC PP37 Vol. 1 1999) at [87] and [88] the authors had this to say:
87. The jurors in the Research expressed a strong wish to receive a copy of the judge’s notes (see Findings, 3.9(1)). At present they do not receive a copy because it is believed that:
· jurors will become too absorbed in poring over the judge’s notes and be distracted from issues of credibility and demeanour; and
· jurors will get sidetracked into details and deliberations will be prolonged as a result.
88. The Research suggests that these concerns are unfounded. Many juries already spend a lot of time trying to agree on a version of the evidence from the notes they have collectively taken, and search their own notes or the notes of others when they cannot recall a section of the evidence critical to the discussions. They also frequently need to have portions of the evidence read back to them. There is little reason to believe that they would pay much more attention to the judge’s notes than they currently do to their own notes, by eliminating the current sometimes lengthy arguments about what evidence has actually been given, would not only enable discussions to become more focused, but also reduce deliberation time. It is to be expected that jurors are becoming computer literate and could use a search facility in the jury room. The main difficulty in giving the jury a copy of the judge’s notes is ensuring that they are accurate and the abbreviations intelligible. This could become the joint responsibility of judge and counsel, with the vetted notes being provided to the jury shortly after they retire to consider their verdict.
[131] This case, given the length of the trial, the number of witnesses and the number and complexity of issues, is the type of case where the modern practice would be to provide the transcript to the jury unless there were strong reasons for that course not to be followed. These same considerations would, in our view, suggest that the jury should be given assistance in identifying the parts of the transcript that are relevant to the particular issues. This means that we not only consider it allowable for an issues document to have been given to the jury but highly desirable that such a document should have been provided. We note that the Law Commission was of a similar view, stating the following at [91] of Juries in Criminal Trials Part Two: A discussion paper:
91. The Commission believes that written aids and visual representations should be used whenever they can accurately and efficiently encapsulate evidence put before the jury. It is significant that jurors in the Research emphasised that they would appreciate being given written summaries of the charges and key issues, explanations of legal terms (in relation to glossaries, see paras 108-109 below), witness lists, flowcharts and diagrams ….
[132] Implicit in Mr Hall’s submissions was that written material given by the Judge will be taken into account by jurors to the exclusion of any written material given by counsel (despite directions by the Judge that the jury could have regard to that material). It is also implicit that the jury will pay no regard to any oral directions on the use of the Judge’s written material and on the matters covered by it (presumably on the assumption that not one of the jurors would take notes of those instructions or otherwise remember them). It is also implicit in his submission that the jury will not take into account counsel’s addresses and their own perception of the issues and the evidence heard over the length of the trial. We do not accept this submission. Juries are conscientious and it is inconceivable that all of the jurors would have such bad memories and be so neglectful of their obligations to consider all the material placed before them.
[133] We are also not prepared to assume that the jury necessarily worked through the issues document in the manner suggested by Mr Hall, although it will be clear from what we have said above that we would not have considered there to have been anything wrong with them doing so. The jury had been told that they were free not to use the document or to depart from it should they wish. They had been told they were free to follow the Crown or defence approaches or documents or their own approach. They may well have done so.
[134] We move now to Mr Hall’s submission that the issues document was incomplete and unfairly slanted toward the Crown. The principles relating to summing ups have recently been collated in R v Keremete CA247/03 23 October 2003 (and confirmed in R v Burrett CA260/03 12 February 2004):
[18] 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.
[19] 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.
[135] We consider that these principles are equally applicable to any written material provided. Mr Hall submitted that, if evidential references are given, then they should be complete, at least as to disputed facts. This is an impossible stipulation and not in accordance with Keremete, where it is made clear that there is a wide discretion as the level of detail that a judge provides on the factual issues. A requirement for comprehensiveness could inhibit judges from providing written material to juries, whereas this is a practice that should be encouraged in trials of this nature.
[136] Mr Hall could have gone back to the Judge if there were omissions in the references given. While we acknowledge that it may have been too time-consuming to check all the evidential references, the ones of particular significance to the defence could have been checked and we have no doubt the Judge would have been amenable to providing the jury with the extra references. We note that one of Mr Hall’s complaints was that reference to particular witnesses was left out altogether with regard to certain of the issues. That would have been very easy to check and remedy.
[137] We do accept the proposition, however, that errors or omissions in a written document (or indeed in an oral summing up) may lead to a miscarriage of justice. This could occur, for example, where a central issue of fact is actually withdrawn from the jury, or simply never left to it, or where a Judge has given a direction (even as to the facts) which sets out an improper approach or fails adequately to put the defence case. It is clear, however, that a judge rightly has a very wide latitude as to how to sum up on the facts, including as to what is contained in the oral summing up and as to what is covered by any written material. The judge’s approach will necessarily be heavily tempered by the context of the particular trial, the way the parties have framed their cases, and what has been given emphasis during the course of the case.
[138] Whether a factual error or omission by a judge in an oral summing up and any related written material will render a conviction unsafe is a question of degree. It must be shown first that there was an error or errors. If there were such an error, the question is was it a significant error which might have misled the jury thereby occasioning a miscarriage of justice. We have already assessed the specific errors alleged by Mr Hall and concluded that there was no such risk.
[139] Mr Hall also complained that the Judge did not direct the jury on what they were to do with their conclusions on particular issues or questions. In our view the Judge did do so when appropriate. For example, he directed the jury that, if they considered the Beckford/Chambers sighting reasonably possible, then they were to acquit. In general, however, the jury’s task was to consider whether the Crown had proved its case. As the jury were instructed, this had to be assessed on the basis of all the evidence.
[140] Mr Hall submitted further that, when a written document is exclusively directed to disputed facts, it must not be skewed towards the Crown case. As indicated by the Court in Keremete, there is nothing wrong in a Judge expressing a view (even a strong view) on a case as long as it is done in moderate language and it is made clear (as it was here) that the jury are entitled to disregard it. If that can be done orally, there is no reason it cannot be done in written form, provided the written document, as appropriate, includes, in accordance with the Keremete principles, the important features of the cases for both sides.
[141] We accept that the defence case may not have been properly put if a major issue or a significant piece of evidence that was vital to the defence case had not been referred to in the issues document. A document that purports to be giving relevant evidential references for the issues on the case and which leaves out major issues or significant items of evidence favourable to the defence may certainly be amenable to challenge. Mr Hall was not, however, able to point to any factual issue that was important to the defence case and that was not put to the jury in the issues document. He was only able to point to certain evidential references (of minor significance) that were not included. All the issues of significance to the defence were covered in the issues document.
[142] It is also necessary to have regard both to the issues document and what was said in the oral summing up. The summing up included a careful analysis of the competing submissions with regard to the various issues of importance, strong warnings to remember to keep an open mind until all the issues had been considered and a summary at the end of the case for the Crown and defence as a whole. In his oral directions the Judge went through each of the questions set out in the issues sheet, drawing the jury’s attention to particular parts of the evidence and to the contentions of counsel relating to it. While we do not consider that a balanced oral summing up would necessarily have cured an unbalanced (in the Keremete sense) written document, the two have to be considered together. In this case, with regard to each issue set out in the issues document, the jury were, through the oral summing up, made well aware of the defence case.
[143] We also remark that it is inevitable in a circumstantial case of this sort that the Crown case would appear to have more relevant evidence and issues than the defence case. From the defence point of view, the issues in the case were relatively confined. That was not the case for the Crown. As indicated above, at times Mr Hall appeared to be submitting that the issues document was unbalanced merely because it covered issues that were part of the Crown case (but not thought significant by the defence). This submission is untenable. The Judge has the same obligation to put the Crown case to the jury as he or she does with regards to the defence case.
[144] Mr Hall’s submissions as to lack of balance related mostly to the order in which issues were set out in the document, inappropriate inclusions and the concerns about the grouping of issues. We have already dealt with (and rejected) his specific complaints. As a general comment we remark that there will be many cases where the order in which a jury should approach the evidence is dictated by the legal elements of a charge. This was not such a case. Mr Taylor effectively agreed (although not formally conceded) that someone had murdered Ms Blakie. The real question for the trial, therefore, was whether the Crown had proved beyond reasonable doubt that Mr Taylor was the murderer. The case was a circumstantial one and, from the Crown’s perspective, required a consideration of a large number of circumstances to assess if the case had been so proved.
[145] There must be a wide latitude for a Judge in such a case to order and group the issues in the way he or she thinks fit. There can be no one correct order. We acknowledge that the order in which the questions or issues are put in either an oral summing up or in written material could, in a circumstantial case in some circumstances, be seen as reflecting a particular view of a case. Even though there would have been nothing wrong with the document being slanted to the Crown case (see at [140] above) we do not, in any event, consider that it was so in this case. In some ways, both the summing up and the issues document were quite favourable to the defence, in that the Judge, when discussing the defence case, did not dwell on the sheer improbability of the various (conflicting) defence hypotheses, as he would have been entitled to do.
[146] What is necessary is for the jury to understand the nature of its task. In our view, the summing up and the issues document were models of their kind. The oral summing up contained all the necessary directions, that and the issues document marshalled the evidence and the opposing contentions under topics and the oral summing up at the end presented the Crown and defence cases in summary as a whole. The jury can have been in no doubt as to their task.
[147] Finally, as to the failure to show the issues document to counsel before it was distributed, we remark that everything to do with a summing up is entirely the Judge’s responsibility. There is no requirement to consult with counsel on the content of the oral summing up. There is equally no requirement to do so in relation to written material. It would, however, be prudent to consult counsel on written material as it may limit the chances of it being challenged later or of there being a mistake in the material. The failure to show the material to counsel, however, cannot, of itself, constitute a miscarriage of justice.
Conclusion
[148] Mr Taylor has failed on both his grounds of appeal. The appeal is accordingly dismissed.
Solicitors:
Crown Solicitor, Christchurch