R v R CA33/03 [2003] NZCA 370 (29 May 2003)

Last Updated: 1 January 2019

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF RETRIAL

IN THE COURT OF APPEAL OF NEW ZEALAND

33/03

THE QUEEN

v

[G S R]

Hearing: 27 May 2003

Coram: McGrath J Panckhurst J Doogue J

Appearances: A Isac for the Appellant
B M Stanaway for the Crown Judgment: 29 May 2003

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

[1] On 7 August 2002 the appellant was convicted by a jury of one count of arson. He was sentenced in the District Court to three years imprisonment. He seeks leave to appeal against his conviction.

R V [G S R] CA 33/03 [29 May 2003]

The facts

[2] The appellant lived on a boat moored at Shakespeare Bay, near Picton, with his wife and grandson. Shortly after 2pm on 7 February 2001 he rowed ashore. He approached the shade of a bank where overhanging gorse bushes grew, removed a cigarette lighter from his pocket and lit it. It was common ground at the trial that this action was the cause of a fire which started in a gorse bush overhanging the beach. The fire took hold and with the assistance of a northerly wind, travelled up the bank, jumped Queen Charlotte Drive and continued to spread uphill, cresting the hill and then burning down towards Picton. It came within meters of houses on the outskirts of the town. Approximately 50 hectares of bush and pine forest was destroyed. Fire fighters from all over Marlborough using helicopters and fire fighting equipment took several days to bring the fire under control. Fire fighting resources were thereafter deployed until 23 March 2001.

[3] Fire investigators who gave evidence for the Crown and the appellant at his trial were agreed that the point of origin of the fire was a branch of the gorse bush situated approximately 1.5 meters above the ground on a bank. The same experts differed as to the time required to achieve ignition after heat from a flame had been applied to the branch. The Crown’s expert said it would have taken fifteen to thirty seconds. The appellant’s witness said ignition would have been almost instantaneous with application of the flame.

[4] The appellant gave a full video interview to the police on 8 February 2001. He acknowledged that his use of a cigarette lighter had started the fire and contended that it was an accident. He said that in the course of use the cigarette lighter had exploded in his hand, causing him to throw the lighter on the ground. The gorse had then ignited at ground level. The appellant handed a lighter to the authorities which had a small hole in one side. He said in his interview that a flame had emerged out of the lighter around his hand. During the interview he had rejected a suggestion by the detective that the point of origin of the fire was 1.5 meters above ground level. In response to a question from the police on the point he said that he would have had to throw the lighter up into a bush and denied he had done so.
[5] Expert witnesses for each side were agreed that the hole in the side of the lighter was caused by external pressure rather than an internal event. They also agreed there was no evidence that the lighter had exploded at all. A visual examination indicated that the operating mechanism of the appellant’s lighter remained in good working order.

[6] The Crown called a Mr Achmad, an employee of the manufacturer of the lighter, who gave evidence on how the lighter functioned and as to the ease with which its plastic body might be broken by an external force. He also said that the lighter showed no signs of malfunction. In his opinion there was no possibility that a flare-up from the lighter had occurred.

[7] The Crown case at the trial was that the appellant’s explanation in the video interview was incorrect and untruthful. According to the Crown, the point of origin of the fire, coupled with its evidence of the time required for ignition, precluded any possibility of an accidental ignition of the bush. The Crown also emphasised the unanimous opinion of investigators that the point of origin of the fire was the branch
1.5 meters above ground level. That branch was close to the base of the gorse bush on the bank and was one of its inner branches. Finally the experts had agreed that the lighter showed no signs of malfunction. The Crown said that together these factors pointed conclusively to a deliberately lit fire.

[8] The defence case was that the fire was an accident, or at least that the Crown had not disproved that possibility. While it was accepted that the fire had started 1.5 meters above ground level, on a particular branch, and that it was caused by an external event rather than by an explosion, the fire was nevertheless accidentally started, when in the course of lighting a cigarette the appellant’s ignited lighter came into contact with dry dead gorse.

Appellant’s submissions

[9] In this Court Mr Isac for the appellant advanced three grounds of appeal. The first was that the direction on lies given to the jury by the Judge was inadequate. Mr Isac said that the Crown’s case at the trial was that the explanation given by the
appellant during his video interview as to how the fire started was a lie. The Judge had told the jury that it was for them to decide whether the appellant had told deliberate lies or whether he had simply become confused during the interview and rabbitted on in the aftermath of the events. Mr Isac submitted that this direction was incomplete as the Judge had not given any direction about the appropriate use by the jury in their reasoning of any lies that they found the appellant had told. The summing up was also silent on the standard direction that lies should not be equated with guilt and that jurors should guard against that kind of impermissible reasoning in reaching their verdict. Mr Isac submitted that as a result of the direction they had received the jury was likely to have been left with a positive impression that if they decided the appellant had lied during his video interview that was a fact from which they could go on directly to infer guilt of arson.

[10] The second ground of appeal was that Mr Achmad the witness who was employed by the distributor of the lighter as a quality control officer, was not properly qualified as an expert and should not have been allowed to give the evidence he did which was prejudicial to the appellant. The third ground is that the verdict was unreasonable and could not be supported by the evidence at the trial.

[11] Mr Isac finally submitted that if the first ground of appeal in particular were made out a miscarriage of justice had occurred which could not be saved by the proviso to s385 of the Crimes Act 1961.

Crown submissions

[12] Mr Stanaway for the Crown accepted that the Judge’s direction on lies was a limited one but submitted that it was adequate in all the circumstances of the case. He said there was no unfairness to the appellant from a limited direction because to prove that he had lied to the police the Crown had to prove both the true place of ignition of the fire, and the speed of ignition of the branch, which was the very evidence the Crown relied on to prove the appellant’s guilt. Counsel submitted that the reasoning processes of the jury would have proceeded initially to determine those factual questions in issue without being influenced by the prior formation of a view
that the appellant had lied. Alternatively he submitted that no miscarriage of justice had resulted from the lies direction that had been given.

Decision

[13] We first address the second and third grounds of appeal. From his employment as a quality control officer Mr Achmad was familiar with the company’s testing work and with the operations of the type of lighter in question. He tested the operating mechanism of the lighter the appellant had used. His evidence was limited to areas within his experience and tests which he had undertaken. There was no challenge at the trial to his competence to give the evidence he did and we are satisfied that he was sufficiently qualified on the basis of his working experience to give that opinion evidence. Accordingly this ground of appeal must be rejected. Mr Isac argued the third ground of the appeal on specific instructions from the appellant set out in a memorandum provided to us. We are however satisfied that there was sufficient evidence at his trial to support the jury’s verdict of guilty. It was open to the jury to accept the Crown’s evidence as to the point of origin of the fire, and the time it would take for a flame to ignite the gorse bush branch, as proving that the fire was deliberately lit. The evidence that there had been no flare-up of the lighter or damage caused by its operation supported that conclusion. The lack of any apparent motive for the appellant to start the fire does not indicate that the verdict is unreasonable.

[14] We turn accordingly to the ground concerning the Judge’s direction to the jury on lies. As indicated, at the trial the expert witnesses were agreed that the fire had started in the branch of a gorse bush some 1.5 metres above the ground. The defence accepted that the appellant’s statement to the police that the fire had started at ground level was wrong. The Crown prosecutor maintained that this part of the statement was a lie. The Judge said of this aspect of the Crown case when summing up to the jury:

He said to you, well the Accused in his explanation was just misrepresenting the truth. He actually used the word lies. Well I will come back to that when I deal with Mr Hardy-Jones’s submissions. It is a matter for you. Remember the Accused has been in this incident, a major fire has started, he

is being interviewed in a Police Station about his involvement in it and you saw and heard in the way he chatted on and spoke over the officer from time to time. You have just got to judge from what you saw and heard. Whether they were deliberate lies or whether he was just getting confused in the aftermath of the events and was rattling on and not appreciating what he was saying. They could have been lies. It could have been something else. You have got to decide that.

Later he summarised the principal Crown submission as follows:

Mr Turner’s main submission and thrust to you was, well if you accept the ignition time of the gorse and the point of origin of the fire, then how could it be anything else but someone standing there deliberately firing it. He submitted to you there is no room in that scenario for an accident.

And in the course of putting the defence case to the jury the Judge said:

He dealt with the interview and he said well more people are more articulate than others and some can handle themselves better and Mr Hardy-Jones accepted that some of the things that the Accused said in the interview have been quite wrong. Plainly so. But, was he deliberately trying to mislead the interviewing office or is he rabbiting on and saying the first thing that came into his head, bearing in mind that he was in the interview room and that these things whatever happened, happened rather quickly. Mr Hardy-Jones submitted to you on the real issue there is a doubt.

[15] Whether a trial judge should give a lies direction to the jury is generally a matter of judgment, turning on how the trial has been run by both sides. Likewise, what is an adequate direction in the circumstances where one is required will vary from case to case. In R v Toia [1982] 1 NZLR 555 this Court said:

...proved lies by an accused, whether in evidence or in statements out of Court, may be relevant to credibility. This is no more than a matter of common sense. They may help the jury to decide whether the evidence for the prosecution should be preferred to an account put forward by the accused. To jump to the conclusion that an accused who has lied must be guilty is a human tendency that has to be guarded against. So, whenever lies by an accused figure in a case, it is customary and desirable to give a warning to the jury, as the Judge did here, on the lines that people may have various motives for lying and that a lie does not necessarily mean guilt. (p559)

[16] While there is no hard and fast rule as to when a direction is required where an allegation that an accused person has lied in an out of court statement is a significant issue in a criminal trial a lies direction will generally be necessary. In R v Walker [2000] NZCA 121; [2001] 2 NZLR 289 this Court said:

This is a case where it was appropriate for a lies direction to be given because the appellant’s out-of-Court statements conflicted with the case advanced by him at trial. He was therefore vulnerable to the conclusion that his out-of-Court statements contained deliberate falsehoods. Furthermore the Crown relied on the inconsistency to advance its case.

[17] In this case the appellant, in his out of court statement, admitted that his actions had started the fire and also said that the initial ignition took place on the ground when he dropped the lighter. This conflicted with the evidence of the expert witnesses including the defence’s own expert and also what the defence accepted at trial was the correct position. Significantly the Crown prosecutor relied on the inconsistency to support the Crown’s case and characterised the incorrect out of court statement as a lie in his final address to the jury. His purpose was undoubtedly to weaken the accused’s credibility in asserting in his statement that the fire had been accidentally started.

[18] These circumstances put the appellant precisely in the situation of vulnerability to impermissible reasoning by the jury that the Court in Toia was concerned about. This required of the Judge an expression of caution that a person may have various motives for lying, that lies do not equate with guilt, and that the jury should guard against that kind of reasoning. The Judge’s direction in the present case may have gone a considerable way towards meeting the first of the elements as it raised the possibility that the appellant was confused, did not appreciate what he was saying, and had said the first thing that came into his head. But in the second of the passages we have cited above from his summing up he also directly referred to the Crown prosecutor’s assertion that the appellant was lying. After then telling the jury that what the appellant had said to the police officer in the interview could have been lies “but also could have been something else” the Judge directed the jury to decide that question. That approach in our view required that at least the second element of the Toia direction should have been given and the jury told that lies did not equate to guilt. Without it the jury was left without guidance on how it should take into account a finding that the appellant had lied, if it reached that situation. What the Judge said did not amount to an adequate lies direction in circumstances where the Crown had made alleged lies by the appellant an important issue in the case and the Judge had said they would have to decide that question.
[19] Mr Stanaway’s alternative submission was that even if a full lies direction was required in the circumstances no substantial miscarriage had occurred as a result of the limited direction given by the Judge. Counsel’s argument here depended on the probability that the jury had followed one of two particular courses of reasoning in relation to the elevated location of the origin of the fire and, in particular, the period of 15 to 20 seconds that the gorse would have taken to ignite. He argued that the jury could reasonably have reached their guilty verdict on the basis of that evidence by either accepting that the appellant had not deliberately told lies during the interview or finding that he had and concluding that his explanation for the fire should be given no weight in deliberations. On either basis there would be no miscarriage.

[20] The difficulty with the Crown’s argument is that it requires a degree of speculation on the Jury’s approach in a context where no guidance on that subject was given by the Judge. The Court cannot exclude the reasonable possibility that the jury first decided that the appellant had lied during the interview and then concluded that this finding resolved the question of an accidental ignition adversely to the appellant. Only a complete lies direction would have avoided that risk. In those circumstances we cannot be satisfied that the incompleteness of the lies direction has not caused a miscarriage of justice to the appellant. Accordingly we cannot apply the proviso to s385 to uphold the jury’s verdict.

[21] For these reasons the appeal is allowed, and the conviction set aside. We do not accept Mr Isac’s submission, based on the fact that the appellant would have shortly been eligible for parole, that we should discharge the appellant. We accordingly direct that there should be a new trial, accepting that whether it takes place is for the Crown to decide.

Solicitors:

Young Hunter, Christchurch, for Appellant Crown Solicitor, Christchurch