Webb v The Queen
[2013] NZCA 666
•18 December 2013 at 2:30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA261/2013 [2013] NZCA 666 |
| BETWEEN | KELVIN MARK WEBB |
| AND | THE QUEEN |
| Hearing: | 19 November 2013 |
Court: | Randerson, Heath and Asher JJ |
Counsel: | F D Steedman for Appellant |
Judgment: | 18 December 2013 at 2:30 pm |
JUDGMENT OF THE COURT
The appeal against conviction is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Randerson J)
Background
The appellant Mr Webb was convicted after a jury trial on four counts of arson committed at the Foxton Racing Club over a one month period in late 2011. He was acquitted on a further charge of arson.[1] He was later sentenced by the trial Judge, Mallon J, to six years and eight months imprisonment.[2]
[1]Count 1 in the indictment.
[2]R v Webb [2013] NZHC 746.
Mr Webb now appeals against his conviction on three grounds:
(a)The verdict was unreasonable.
(b)The acquittal on count 1 was inconsistent with the verdicts of guilty on the four remaining counts.
(c)The Crown prosecutor misconducted himself by the use of emotive language.
Background facts
Mr Webb commenced working at the Racing Club at the end of August 2011 as its caretaker. He was provided with accommodation in the caretaker’s house on land owned by the Club.
Between 18 November 2011 and 18 December 2011, five fires were deliberately lit at the Club. Substantial damage was caused. The following table summarises the dates of the offences, the timing of the 111 calls[3] made to emergency authorities and the buildings involved on each occasion:
[3]It was not suggested Mr Webb made any of these calls.
Date
Time of 111 call
Location
18/11//11
11.54 pm
Grandstand
19/11/11
10.47 pm
First stable
23/11/11
10.52 pm
Second stable
27/11/11
4.43 am
Caretaker’s shed
18/12/11
1.08 am
Third stable
Mr Webb denied he was the perpetrator and the sole issue at trial was whether the Crown had proved he was. The trial proceeded on the common basis that the same person lit all the fires.
The Crown case at trial
The Crown’s case against Mr Webb was circumstantial. There was no evidence of motive;[4] there was no forensic evidence linking Mr Webb to the fires; there was no evidence as to how the fires were ignited; and no one observed Mr Webb lighting the fires. However, in each case, he was later present at the scene with others who had gone there after the fires had started and emergency services had been called. The circumstantial evidence the Crown relied upon can be summarised as follows:
Timing
[4]There was no evidence, for example, that Mr Webb’s bore a grudge against the Racing Club. There was evidence that he was well treated by the Club.
There had been no history of arson at the Club prior to Mr Webb’s arrival. Within two and a half months of his arrival the fires began on 18 November 2011 and continued over the one month period until the last of them on 18 December 2011. Mr Webb was arrested that day. There have been no fires since.
Opportunity
Mr Webb was the only person living permanently at the site. The caretaker’s house was in a somewhat elevated position with a good view of the racecourse and surrounding buildings. The house was close to the location of several of the buildings at issue. The furthest was no more than 300 metres away. Mr Webb knew the two security guards and the route they followed on their nightly inspections.
False trails
Mr Webb was said to have falsely cast suspicion on other people as the perpetrator. Mr Webb particularly pointed to a track rider at the Club, Danny Stamm.
Diesel
A trail of diesel was located between the opening to the caretaker’s shed (the site of the fourth fire) to the edge of the caretaker’s house. Mr Webb had access to a key for the diesel tank located next to the shed.
Surveillance
By the time of the last fire on 18 December 2011, a covert surveillance camera had been installed by the police facing the caretaker’s house. This showed Mr Webb was awake inside the house with the lights on until 12.19 am when both the interior kitchen light and the exterior porch lights were turned off. At 12.23 am, a light was seen in the kitchen area which the Crown submitted was the flash of a cigarette lighter. At 12.24 am there was an interference with the lights at a nearby station service which showed in the background beside the rear of the caretaker’s house. The Crown submitted that this blocking of the lights was caused by a person walking out of the back porch area of the caretaker’s house towards the driveway of the address in a westerly direction. At 1.06 am there was a further interference with the lights which the Crown submitted was a person returning from the west to the back door of the caretaker’s house. The first 111 call in relation to this fire was made two minutes later at 1.08 am.
The Crown submitted that this evidence showed that Mr Webb had not told the truth when he told the police he had gone to bed that evening at 11.00 pm and also suggested that Mr Webb had left his house heading in the direction of the site of the fifth fire and had returned to his house only a short time before the emergency services were called.
Mr Webb was different from others associated with the Club
It was not in dispute that Mr Webb had suffered neurological injury and was in receipt of accident compensation at the time of his employment at the Club. Part of his rehabilitation was to drive tractors mowing the course. It was said that, in contrast to others associated with the Club, Mr Webb had no empathy with the horses and had been disparaging of people involved in the Club. It was also common ground that Mr Webb was often intoxicated and also used cannabis. In short, Mr Webb was said to be an “oddball” who did not fit with the Club and those associated with it.
Odd behaviour
The Crown submitted that Mr Webb had engaged in odd behaviour after the fires. For example: after the second fire he offered alcohol to a woman who had gone to the scene to see what was happening after the fire had started. After the third fire, a fire officer noted that Mr Webb had been drinking and the officer could smell alcohol. A police constable also observed that the kitchen light in the caretaker’s house was on when he arrived at 11.52 pm. He then noticed that the light had been turned off and observed a figure standing at the kitchen window. The figure ducked below the windowsill before returning to look out the window and then ducking out of sight again. A firefighter also saw Mr Webb “bolting” after the two had conversed. After the fourth fire had started, there was evidence of a lack of cooperation by Mr Webb which was said to have hindered the efforts of firefighters attempting to put out the fire. There was also evidence of an exaggerated or feigned reaction by Mr Webb apparently to the inhalation of smoke.[5]
Lies
[5]Coughing and spluttering but laughing during the time oxygen was administered.
The Crown also relied on evidence that it was submitted showed Mr Webb had lied about several matters, particularly about the timing of his activities on the evenings of the first and fifth fires.
On the evening of the first fire, Mr Webb said he had been socialising with Dustin Halidone at the caretaker’s house. He told the police soon after the first fire that Mr Halidone had left about 9.30 pm after which he (Mr Webb) had gone to bed. But in a later interview Mr Webb said Mr Halidone had left at 12.36 am. Mr Webb was confronted by the police with evidence from a security camera showing that he had visited the nearby service station that night at 11.09 pm and had purchased an ice cream and a lighter. This was not long before the 111 call at 11.54 pm. He initially said he could not have been there that night at that time but later accepted he must have been mistaken.
On the night of the fifth fire, he told the police he had gone to bed at 11.00 pm but this was inconsistent with the surveillance evidence which the Crown said showed he was up and about after that time and shortly before the 111 call was made at 1.08 am.
The defence case at trial
In broad terms, the defence case at trial was that the Crown had not proved its case beyond reasonable doubt. As well, a determined effort was made to suggest that the arsonist was Mr Stamm. He was called by the Crown to give evidence. He denied any involvement and was extensively cross-examined. Mr Webb did not give evidence. He had been interviewed by the police on video on four occasions. The videotapes of these interviews were before the jury.
Unreasonable verdict
Mr Steedman submitted on Mr Webb’s behalf that the verdict was unreasonable as being against the weight of evidence. His submissions on appeal closely echoed the points he made on Mr Webb’s behalf at trial. In particular:
·No motive for the arsons was established.
·There was no forensic evidence linking Mr Webb to the arsons.
·Mr Webb made no admissions to the police.
·The fact that the fires stopped after Mr Webb was arrested might well be explained on the basis that the true perpetrator was aware of the arrest and did not wish to risk lighting further fires.
·Mr Stamm also had an extensive view of the racecourse, had the same opportunity as Mr Webb and had behaved oddly.
·Attempting to shift suspicion onto Mr Stamm was not evidence of Mr Webb’s guilt but consistent with his belief as to who was responsible for the fires.
·The trail of diesel had little probative value since there was no evidence as to how recently this had occurred. The fuelling of equipment for legitimate purposes could equally explain the diesel found.
·There was no evidence that diesel had been used as an accelerant in relation to the caretaker’s shed fire or any of the other fires.
·The surveillance evidence was of little probative value since the officer responsible for analysing it admitted he had no technical expertise; there had been technical difficulties in presenting the evidence to the Court; the officer had accepted he could not say whether the interference in the lights was caused by a human as distinct from an animal; and the officer’s interpretation of what was happening was speculative, all of which led the Judge to urge the jury to exercise caution in dealing with that evidence.
·While acknowledging the evidence about Mr Webb’s drinking habits, Mr Steedman submitted that the so-called odd behaviour relied upon by the Crown was weak and not consistent with Mr Webb’s guilt. Moreover, there was no evidence as to how an arsonist would be expected to behave at the scene of a fire.
Unreasonable verdict – discussion
There is no dispute about the legal principles to be applied when s 385(1)(a) of the Crimes Act 1961 is relied upon as a ground for appeal. As the Supreme Court said in R v Owen:[6]
The question is whether the verdict is unreasonable. That is the question the Court of Appeal must answer. The only necessary elaboration is that expressed earlier, namely that a verdict will be unreasonable if, having regard to all the evidence the jury could not reasonably have been satisfied to the required standard that the accused was guilty.
[6]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].
The Supreme Court in Owen endorsed this Court’s decision in R v Munro[7], which set out the principles to be applied when considering an appeal on the unreasonable verdict ground:
(a)The appellate court is performing a review function, not one of substituting its own view of the evidence.
(b)Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.
(c)The weight to be given to individual pieces of evidence is essentially a jury function.
(d)Reasonable minds may disagree on matters of fact.
(e)Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.
(f)An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.
[7]R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.
We accept the Crown’s submission that there was sufficient evidence upon which the jury could have been reasonably satisfied to the required standard that Mr Webb was guilty. In a circumstantial case, it is trite that the Crown is entitled to rely upon the cumulative effect of a number of strands of evidence or circumstances in order to support a finding of guilty to the criminal standard. While it may be possible to challenge aspects of each of the strands, it is the combined weight of the evidence that counts. The present case is a classic example of the operation of this principle in practice.
It is unnecessary for us to rehearse the evidence upon which the jury could rely. We accept Mr Lillico’s submission that the evidence relied upon by the Crown as elaborated above was sufficient, if accepted by the jury, to support the verdicts. Prominent among the strands of evidence was the timing of the fires in relation to Mr Webb’s arrival at the Club and his arrest; the opportunity he had by virtue of his residence at the property and his knowledge of the routine of the security guards; his behaviour after the fires which the jury was entitled to accept as odd; and, importantly, the lies and other inconsistencies in Mr Webb’s account when interviewed by the police.
We accept Mr Steedman’s submission that there was little probative value in the trail of diesel and that the Judge was right to caution the jury about reliance on the surveillance evidence. But all of these points were before the jury and were carefully and fairly summarised by the Judge in her summing-up, as Mr Steedman properly acknowledged.
Mr Steedman made concerted efforts at trial and before us to suggest that the real perpetrator was Mr Stamm. We have reviewed all the points he has made but none has persuaded us that they raised a reasonable doubt about the verdicts. Again, all of this material was before the jury including the 25 points that Mr Steedman submitted supported Mr Webb’s case in relation to Mr Stamm’s role.
Importantly, the Judge directed the jury in her summing-up on the onus of proof. It was for the Crown to prove beyond reasonable doubt that Mr Webb was the perpetrator. If the jury was not sure then the Crown would not have discharged its onus. The Judge then added:
[20] You will not be sure if, having considered all the evidence, you consider it to be a reasonable possibility that it was Mr Stamm. Even if you think that there is no reasonable possibility that it was Mr Stamm, the Crown will not have proven its case if you consider on all the evidence that there is a reasonable possibility that it was not Mr Webb.
We reject the first ground of appeal.
Inconsistent verdicts
The principle to be applied when reliance is placed on appeal on inconsistent verdicts was set out by this Court in R v Shipton:[8]
The general principle has long been that a conviction is unsafe if no reasonable jury, properly instructed, could have arrived at the conclusion which was in fact reached … The burden is on the accused to demonstrate that the only explanation for the inconsistency must be that the jury was confused or adopted the wrong approach, thus making the verdict unsafe. Only this can warrant the intervention of an appellate Court, and generally there ought to be a curial reluctance to interfere with a jury verdict …
A prima facie inconsistency is never enough to set aside a verdict. Once a prima facie inconsistency is established, the Court must inquire whether there is any rational or logical explanation for the inconsistent verdict.
[8]R v Shipton [2007] 2 NZLR 218 (CA) at [75] and [76].
Mr Steedman submitted that there was no rational or logical explanation for the verdict of acquittal on count 1. He submitted that the evidence relied upon by the Crown in relation to count 1 was very much the same as that relied upon for the remaining four counts on which Mr Webb was found guilty. If anything, Mr Steedman submitted, the evidence in relation to count 1 was a little more compelling than on the others. In this respect, counsel referred to the irrefutable evidence that, shortly before the grandstand fire, Mr Webb had visited a nearby service station and purchased a cigarette lighter. While there was no evidence that a cigarette lighter was used to light any of the fires, there was an available inference that Mr Webb had used the lighter to light the fire which occurred shortly afterwards.
Mr Steedman also emphasised that the Crown had maintained throughout the trial that Mr Webb was responsible for all the fires. It had not been suggested, for example, that someone else had lit the first fire and that Mr Webb had then committed copycat arsons for the remaining four. We add that there is also evidence on which the jury was entitled to find that Mr Webb lied about his movements that evening.
Inconsistent verdicts – discussion
We consider there was a logical explanation for the jury’s verdict of acquittal on count 1. Plainly, the prosecutor considered the Crown’s strongest case lay in relation to count 5 (which related to the last of the fires). He commenced his closing address by discussing that count. He then worked back through each count. There was some justification for this approach given there was evidence from one of the security guards that he saw Mr Webb earlier that evening outside with a t-shirt and a towel on. The surveillance camera confirmed that this occurred at 10.44 pm. Then there was evidence that the lights in Mr Webb’s house went out at 12.19 am. The strong inference is that Mr Webb was awake at least until that time.
Despite the shortcomings in the surveillance evidence on count 5, the jury might have attached some weight to the evidence that someone or something had briefly blocked the vision of the service station lights at 12.24 am and again at 1.06 am. The jury was also entitled to take into account the inconsistency (which the Crown contended was a lie) between Mr Webb’s statement to the police later on the day of the fire that he went to bed at 11.00 pm that evening and the fact that the lights were switched off at 12.19am. If the jury accepted the police interpretation of the surveillance evidence, then Mr Webb was moving about outside as late as 1.06 am, just two minutes before the 111 call was made.
In relation to the second, third and fourth fires there was the evidence of unusual behaviour already discussed.
·Second fire (count 2): Offering a spectator an alcoholic drink and giving dubious explanations to the police as to what he could or could not see from his house. In addition, Mr Webb made several statements at the time about heat blast; feeling like the fire had “singed our heads”; “it must be burning for a while before to get that hot surely”; and then “unless they used an accelerant”. There was also Sergeant May’s evidence that when he attended the second fire, he saw Mr Webb (bare-chested and with shorts or a towel round his waist) running from the caretaker’s house towards a road on the Club’s property described as the middle road. Sergeant May spoke later that evening to Mr Webb. He appeared to be intoxicated and he had a can of Cody’s in his possession.
·Third fire (count 3): There was the evidence of the fire officer who observed Mr Webb bolting away and the police constable’s evidence of Mr Webb ducking out of sight in his house.
·Fourth fire (count 4): There was the evidence that Mr Webb had hindered efforts being made by the emergency services and had absented himself while one of the security guards was trying to fight the fire on his own before the brigade arrived. Also, on that occasion there was the apparently bizarre behaviour of the feigned coughing fit.
Comparing the evidence in relation to count 1, we acknowledge that the jury could perhaps have attached weight to the lies Mr Webb told about the time Mr Halidone had left his (Mr Webb’s) house and also the purchase of the lighter by Mr Webb not long before the fire. But, as the Crown accepted, there was no evidence that the lighter was used or indeed any evidence as to how the fires were lit or what materials were used. And, in contrast to counts 2, 3 and 4, there was no evidence of any odd behaviour by Mr Webb at the scene of the first fire. Although there was no particular evidence of odd behaviour at the time of the fifth fire, the Crown case in relation to that fire was stronger for the reasons we have already set out.
We accept Mr Lillico’s submission that a logical explanation for the jury’s verdict on count 1 is that the jury was looking for something more than timing, opportunity and Mr Webb’s lack of connection to horses or to the welfare of the Club. The additional evidence of odd behaviour on counts 2, 3 and 4 and the other supporting evidence on count 5 is sufficient to explain the jury’s verdict and does not lead us to conclude that there was any unexplained inconsistency in the verdicts. There is nothing to suggest that the jury acted perversely or was confused about the correct approach to adopt.
While the trial proceeded on the basis that the offender was responsible for all of the fires, the Judge properly directed the jury that they were to consider each count separately. She said:
[21] In all cases where an accused is charged with more than one offence you are required to consider each charge separately on the evidence that relates to the charge and to reach a verdict on each charge. Here, however, the evidence on the charges overlaps. If you are sure on all the relevant evidence that Mr Webb lit one of the fires that is the subject of the charges, that is a relevant circumstance in your assessment of the other charges. That is because, as the defence said in opening, five fires within a close timeframe, may suggest a single perpetrator. So, although there is this overlap in the evidence, you are required to be satisfied in respect of each charge that the Crown has discharged its onus in relation to that charge.
There is nothing to suggest that the jury did not conscientiously follow this direction. There was room for the jury to entertain a reasonable doubt on Mr Webb’s guilt on count 1 and there was a sufficient basis in the evidence to support the convictions on counts 2 to 5. On that footing there was no need to “defer to the acquittal”.[9]
[9]R v H [2000] 2 NZLR 581 (CA) at [27].
We reject the second ground of appeal.
Prosecutorial misconduct
Mr Steedman submitted that the prosecutor’s language during the course of his closing address must have been designed to prejudice the jury against Mr Webb and to draw a distinction between Mr Webb’s character and that of Danny Stamm. Mr Steedman placed particular emphasis on the prosecutor’s frequent references to Mr Webb’s conduct as being inconsistent with his innocence. Counsel also criticised observations made by the prosecutor to the effect that Mr Webb was an oddball who did not fit into the community of the Club and had been a disruptive influence in the otherwise dedicated group connected with the Club and its activities. Mr Steedman’s final point was that the prosecutor’s observations about how an arsonist behaves were not supported by any evidence.
Principles
The authorities in relation to prosecutors’ obligations are well settled and have been recently summarised by the Supreme Court in Stewart v R[10] and by this Court in T v R[11] and in Pickering v R.[12]
[10]Stewart v R [2009] NZSC 53, [2009] 3 NZLR 425 at [19]–[22].
[11]T (CA483/2012) v R [2013] NZCA 298 at [17]–[20].
[12]Pickering v R [2012] NZCA 311, [2012] 3 NZLR 498 at [165]–[169].
Prosecuting counsel must not strain for a conviction nor adopt tactics that involve an appeal to prejudice or amount to an intemperate or emotional attack upon the accused. That is not to say that a prosecutor may not be firm or even forceful in a closing address or in the cross-examination of witnesses so long as counsel does not employ language or other tactics likely to inflame the jury against the accused or otherwise prejudice the fairness of the trial. It is the duty of the trial Judge to intervene if counsel oversteps the mark.
One of the most commonly cited passages on the standards expected of prosecutors is that of Tipping J in R v Hodges:[13]
Counsel is entitled, indeed expected, to be firm, even forceful. Counsel is not entitled to be emotive or inflammatory. The Crown should lay the facts dispassionately before the jury and present the case for the guilt of the accused clearly and analytically. Although different counsel will naturally and appropriately have different styles and different methods of addressing the jury, the Crown’s closing address should, at least at some stage, traverse the legal ingredients of the count or counts in the indictment, and call the jury’s attention to the evidence which the Crown says satisfies that onus and standard of proof in relation to each ingredient, and in particular those which are the subject of dispute. Crown counsel are important participants in the dispassionate administration of criminal justice. They are entitled to contend forcefully but fairly for a verdict of guilty; but they must not strive for such a verdict at all costs.
Prosecutorial misconduct – discussion
[13]R v Hodges CA435/02, 19 August 2003 at [20].
We must confess to some concern about aspects of the prosecutor’s closing address. There was a major focus on the contention that those associated with the Club were a close-knit community and shared “a deep love and passion for horses and passion for the racing industry”. This was to be contrasted with Mr Webb after whose arrival, everything changed:
Because, put bluntly, the Crown submits to you, he does not fit. It’s not cruel, it’s not a function of his accident, it’s not a function of anything that goes on, he just does not fit. And therein lies, members of the jury, an introduction into the difference between the accused and any other suspect for the arsons at the racecourse. It’s a starting point for your thinking. We know he’s there for rehabilitation. There is no evidence of any affinity for horses. In fact in his interview he said “I’m not a horseman”. You’ll recall in the interview perhaps a little condescending of the members of the community, talking about suits and suitos and matrons and the like, and regarding some of the older trainers as hard men. That’s his view of it. For him it was a tractor job, it was a job driving tractors and it suited him and it was an opportunity for him to rehabilitate.
The prosecutor went on to elaborate on the character, personality and passion for the Club by everyone except Mr Webb. In particular, the prosecutor painted Mr Webb’s attitude towards the Club in stark contrast to that of Mr Stamm who was said to have a genuine ability to handle difficult horses. The prosecutor said that Mr Stamm was not able to say so himself, but others had confirmed this. He continued:
And that’s the starting point that tells you what sits at the core of [Mr Stamm’s] heart and at the core of his thinking. It drives everything that he does. And the Crown’s submission is there isn’t a single component nor a shred of that core, not a fibre of that core that suggests that he would put anything of that in jeopardy. Nothing in him would put anything about his involvement in the racing sector in jeopardy.
The prosecutor continued:
And what happens is the accused then approaches the [Foxton] Racing Club and wants to be part of the community and the life of the racing club is effectively disrupted for the period of the next five months, for as long as he is there. And for whatever reason beyond his arrest there are no more fires and what presumably happens is, we haven’t heard much, but logic and human nature tells you that people get on and rebuild their lives.
The prosecutor then went on to refer to the systematic destruction and major damage caused to the five buildings, the distress caused to the horses and to the trainers and riders associated with the Club, and the risk to the lives of firefighters responding to the 111 calls.
The prosecutor returned to this theme at the end of this closing address:
For five months the caretaker in the midst of this community set five arsons within a period of a month. The accused is disinterested in both the consequences of it and in the industry which has employed him. The accused is, the Crown says disinhibited by his consumption of alcohol. He’s bored and lonely and he is a misfit, the Crown says, in this close racing and equestrian community. None of those qualities are attributable to Danny Stam[m]. And when he leaves, when the accused leaves this community a chapter in the history of the Foxton Racing Club closes.
Our concern is that these and other passages in the prosecutor’s closing amount to a plain attempt to disparage Mr Webb’s character and to contrast him with all other members of what was described as the passionate and close-knit community associated with the Club. Mr Webb is denounced as a disruptive presence in the otherwise harmonious life of the Club and all associated with it. A clearly emotional appeal is made to engender jury sympathy in relation to the risk of injury to the horses and firefighters.[14] In contrast to the picture painted of Mr Webb, the prosecutor presented a glowing description of Mr Stamm expressed in extravagant and particularly emotive terms.
[14]Even though there was no evidence that any of the horses were in the buildings set fire.
We are satisfied that aspects of the prosecutor’s address went beyond the measured and dispassionate approach that the Courts are entitled to expect from a prosecutor. It amounted to a strong appeal for jury sympathy for the Club and those associated with it. The language employed to achieve that goal was both extravagant and emotive.
Having said that, we note that Mr Steedman accepted that the evidence of Mr Webb’s behaviour at times when others were attempting to control the fires was relevant evidence that the Crown had the right to call. We also note that the bulk of the prosecutor’s address was concerned with a detailed analysis of the evidence the Crown relied upon in relation to each of the five counts. All of these parts of the closing address were presented in a way that was consistent with a prosecutor’s responsibilities.
As to the comments made by the prosecutor about Mr Webb’s conduct (which he submitted was inconsistent with Mr Webb’s innocence), we do not accept Mr Steedman’s submission that this was improper. Indeed, the whole purpose of a prosecutor’s address is to persuade the jury that the accused’s conduct is not consistent with innocence. We do not see any cause for concern on this point.
Given Mr Webb’s determined attack on Mr Stamm and the strategy of casting blame on him, it could be expected that the prosecutor would deal with that issue in some detail and in forceful terms in his closing address. Obviously, if the jury were persuaded that Mr Stamm was the perpetrator or at least that there was a reasonable possibility that he was, then the jury would have been obliged to acquit Mr Webb. Aside from the issue of extravagant language we have already identified, we do not see any particular difficulty with the prosecutor’s approach on this issue.
It could be expected that the trial Judge would direct the jury to disregard any feelings of sympathy or prejudice. The Judge did this in strong terms:
[25] An aspect of deciding the case on the evidence is that feelings you might have of sympathy or of prejudice are irrelevant. You do not decide the case because you feel sorry for someone: whether that is for any of the people who you heard who lost all their property in the fire, or whether you feel sorry for Mr Webb or his parents or for anyone else involved in this case.
[26] You also do not decide the case on prejudice. For example you might have had a negative reaction to something you have heard about Mr Webb during the trial. There was evidence that both he and Mr Halidone had smoked a joint of cannabis. That might not be surprising or particularly alarming. But if you did have strong feelings about cannabis then you must ignore that. You also heard that Mr Webb assaulted his step-son. We don’t know much of the details about that except what Mr Webb said in his video interview. If you had a negative reaction to that, you must put that reaction completely to one side. In particular you must not reason that Mr Webb sounds like a bad person or a bit dodgy and therefore he must be the person who lit the fires. That would be to apply prejudice and you are not to do that.
[27] Because of the risk of unfair prejudice, you are no doubt aware that juries are sometimes not told of matters of this kind. Here you were told of them so that you had the full circumstances of these events and Mr Webb’s background. Mr Webb does not have any history of this particular kind of offending before. And you are entitled to take into account the absence of such a history and give it whatever weight you think it should have.
(Emphasis added.)
This direction and the highlighted passage in particular would have helped to neutralise the prosecutor’s excessive disparagement of Mr Webb’s character and the attempt to contrast him unfavourably with the rest of the Club community.
We also note that the Judge specifically directed the jury about the lack of evidence about how an arsonist behaves. She said:
[28] Counsel’s submissions to you in their closing addresses are obviously not evidence. For example the Crown made submissions about how an arsonist would behave. That is just a submission. As the defence said, there is no evidence before you about how arsonists do behave – whether they would watch, whether they would flee, whether they would all behave the same way. We don't know that and we don’t have evidence of that. You must focus on the evidence you do have and what you make of that evidence using your collective experience and knowledge of the world.
Finally, although it is not determinative, Mr Steedman did not object to the prosecutor’s closing address.
We conclude that, while aspects of the prosecutor’s closing address were unfortunate and exceeded proper bounds, we are not persuaded that his remarks were capable of giving rise to a miscarriage of justice.
We reject this ground of appeal.
Result
The appeal against conviction is dismissed.
Solicitors:
Fergus Steedman, Palmerston North for Appellant
Crown Law Office, Wellington for Respondent
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