R v Shaw CA159/05 [2005] NZCA 392 (22 November 2005)

Last Updated: 21 January 2014

NOT TO BE PUBLISHED IN NEWS MEDIA OR ON INTERNET OR PUBLICLY ACCESSIBLE DATABASE UNTIL COMPLETION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA159/05

THE QUEEN

v

FRANCIS MANEWHA SHAW

Hearing: 16 November 2005 and 20 November 2006

Court: O’Regan, Baragwanath and Doogue JJ Counsel: G J King and T Sagaga for Appellant

K B F Hastie for Crown

Judgment: 22 November 2005

Reissued: 7 December 2006 at 4 pm: see minute of 7 December 2006

Effective date of judgment: 22 November 2005

_{JUDGMENT OF THE COURT}

A The appeal against conviction is upheld, the conviction set aside and a new trial ordered.

B Order prohibiting publication in news media or on internet or publicly accessible database until completion of trial. Publication in Law Report or Law Digest permitted.

R V FRANCIS MANEWHA SHAW CA CA159/05 22 November 2005

REASONS

_{(Given by Doogue J)}

Table of Contents

_{Para No}

Introduction [1] Background [4] General [19] Crown relying, in the alternative, on the appellant being a secondary party to the crime if not a principal offender [20] Failure in the summing-up to put the defence properly [44] Admission of similar fact evidence [60] Disclosure by the appellant of his criminal history [63] Improper leading of a Crown witness’s evidence-in-chief [64] Result [68] Addendum [69]

Introduction

[1] Francis John Shaw was found guilty by a jury following a trial in the District Court at Palmerston North of being a secondary party to the crime of wilfully setting fire to the Rangiatea Maori Anglican Church, Te Rauparaha Street, Otaki in October

1995. He was sentenced to four years imprisonment by the trial judge, District Court

Judge Connell. He now appeals against his conviction but not against his sentence.

[2] Five separate grounds of appeal are advanced on behalf of the appellant who represented himself at this trial to support his claim that there was a miscarriage of justice. They are:

a) Admission of similar fact evidence;

b) Disclosure, by the appellant, of his criminal history;

c) Improper leading of a Crown witness’s evidence-in-chief;

d) Crown relying, in the alternative, on the appellant being a secondary party to the crime if he was not a principal offender; and

e) Failure in summing-up to put the defence properly.

[3] The Crown acknowledges that cumulatively the grounds of appeal give cause for concern but submits that a miscarriage of justice has not actually occurred.

Background

[4] The Rangiatea Church in Otaki was an historic building of national importance. It had been built by Te Rauparaha between 1844 and 1851 as a symbol of unity between his tribe, Ngati Toa, Te Ati Awa and Ngati Raukawa. It was wooden and intricately carved inside. A two-year restoration project had been completed in November 1994.

[5] At about 3.00 am on Saturday, 7 October 1995, a security officer noticed flames coming from the back of the church. By the time the Fire Service arrived, six minutes later, the whole of the church was engulfed in flames and beyond saving. It was totally destroyed.

[6] The Police and the Fire Service established that the fire was deliberately lit.

[7] The appellant made certain oral comments, which were a critical part of the Crown case. The appellant, then represented by counsel, challenged their admissibility pre-trial. They were ruled admissible. That ruling was not appealed. The comments were:

a) On 30 November 1995 a unit manager at a prison where the appellant was a remand prisoner overheard a conversation between the appellant and his sister. The appellant was heard to say:

“I already fucking have done something about it, I have already burnt down one fucking church” (p 97/25) “I have already burnt one church down. Do you want me to do it again” (p 97/31).

b) On 14 February 1996 an Inspector of Penal Institutions visited the appellant in prison regarding a complaint he had had in respect of the appellant’s treatment and conditions. The appellant admitted to the Inspector during the course of an informal meeting that he had burnt down the Rangiatea Church. He said that he had done so because he believed his elders had been misled and used by the church. He blamed the church for leading people away and corrupting their way of life and said he was not remorseful for his actions.

c) On 3 January 2003, the appellant was travelling in a police car with two constables. During the course of a general discussion with one of the constables the appellant said to her:

I was the one that burnt down the Rangiatea Church.

The appellant told the constable that he had done it because of the feud between his tribe, Ngati Toa, with the Anglican Church over land and tribal issues. The appellant also said that:

It didn’t matter that the new church had been built because he had already moved the historical figure or feature from that place.

The appellant added that he would burn down the new church if he had the chance. This conversation was overhead by the second constable.

[8] The Crown case also relied upon similar fact evidence that in February 1999 the appellant attempted to burn down a Mormon Church in Titahi Bay. The appellant had pleaded guilty to the charge of attempted arson. At the trial there were four witnesses called about that offence.

[9] The appellant represented himself at trial but there was counsel acting as amicus curiae. At the trial the Crown relied upon the evidence already traversed.

[10] In addition there was the evidence of a witness, Ms Lemaire, who had seen suspicious activity at a neighbouring property at approximately 2.15 am in the morning of the fire. The properties were about 400 metres from the church. The witness saw a male she described as Caucasian arrive at the property. He appeared to have a crow bar or jemmy with him. The witness saw him have a conversation with three men who came out of the house, who she described as Maori. She said the man she described as Caucasian siphoned some petrol into a small bucket. She then said that he left the property and drove and away in the direction of the church. She saw him return less than 10 minutes later. He had a conversation with the others that had remained at the house and left a few minutes later, again in the direction of the church. Approximately 20 minutes later the witness realised the church was on fire. The description that this witness gave of two of the men she saw that night was consistent with the description given by the appellant in his evidence at trial of the persons that he said were the principal offenders.

[11] The case advanced by the appellant at trial was that he had not burnt down the church although he knew it was going to happen. He said that he did not intend to incite anyone else to do so. He said that when he realised the church was about to be set alight he wanted no part in it and he immediately asked to be (and was) taken home. Thus he said that he withdrew from participating in the offence.

[12] In his evidence the appellant described his genealogy and sense of grievance against the Anglican Church. The Rangiatea Church was of great sentimental value to him and his ancestors. However, he believed it was a symbol of oppression and he felt a genuine sense of betrayal that the Anglican Church had failed to honour its promise to Te Rauparaha’s son to donate land for a boarding school. He also believed there were underlying issues between Ngati Toa and Ngati Rawkawa that needed to be dealt with. The destruction of the church was a way in which these issues could be confronted and addressed.

[13] The appellant, in his evidence, acknowledged that:

...the truth of the matter is you may conclude that I could share some of the blame for Rangiatea Church being burnt down.

[14] He went on to give evidence that when he was in Linton Prison in 1995, some months before the firing of the church, there was talk about burning two other Maori buildings in Otaki. He said he suggested “why don’t you hit Rangiatea Church if you wanna make a stir”. He said he “didn’t think it would get carried out” and that “it would all just blow over”. He later said: “From now on I’ve learnt a good lesson, don’t say something unless you mean it."

[15] The appellant named who he said were the two principal offenders. Both of the men were dead. He said that on the night of the fire they came to his home and he then took them to the address where Ms Lemaire saw the suspicious activity. This evidence essentially confirmed what she saw. The appellant said that he saw the principal offenders fill a container with petrol. He said he asked why and was told that they were: “Off to torch the church.”

[16] The appellant said his response was that he should be dropped off at home and that that occurred.

[17] Under cross-examination the appellant admitted that he knew that the church was going to be burnt down. So far as his admissions were concerned, he admitted making the statements to the inspector of penal institutions and to the constables, but said that they were not true statements and were made only to annoy and upset them. In so far as the discussion with his sister was concerned, he said that while he did not deny that he was talking to his sister, it was not as described by the police officer and that he had made no admissions in respect of the church.

[18] In the light of the evidence of the appellant and Ms Lemaire as to the suspicious events prior to the fire, the Crown in closing its case to the jury contended that the appellant was guilty either as a principal offender or as a secondary party. The Crown had not opened on this basis. The Crown alleged that the appellant’s comments in the Linton Prison made him guilty as a party to the crime through inciting, counselling or procuring the offence.

General

[19] Because of the view taken by us in respect of this appeal, we do not intend to traverse in detail each point of appeal and the submissions made in respect of them. We deal with them in the order that we consider best relates to the ultimate outcome. To the extent that is necessary, other aspects of the summing-up and the trial will be dealt with under the various grounds of appeal.

Crown relying, in the alternative, on the appellant being a secondary party to the crime if he was not a principal offender

[20] As already noted in [18] the Crown in its closing address to the Jury submitted that regardless of whether the appellant was guilty as a principal party in respect of the arson he could be found guilty as a secondary party.

[21] Crown counsel in his closing address, first put it to the jury that the appellant was the arsonist, but in the alternative sought to put it to the jury that he was a party to the offence by inciting, counselling or procuring the arson. Counsel specifically asked the jury to note his reliance on s 66(1) Crimes Act 1961 and asked the jury to write down relevant portions of that section. It seems clear that the appellant had no knowledge prior to that moment that the Crown sought to rely upon what had been said months before the fire in the exercise yard at Linton Prison as a basis for convicting the appellant.

[22] It is further clear that the Judge subsequently asked the jury, if they reached a verdict of guilty, to state whether they found the appellant guilty as a principal party or as a secondary party through inciting, counselling or procuring the fire. The jury’s verdict made plain that they convicted the appellant as a secondary party and not as a principal party.

[23] It is submitted for the appellant that a miscarriage of justice resulted from the Crown being permitted to present its case on this radically alternative basis of the appellant being a secondary party to the arson in reliance upon what he had said in

his evidence. That evidence was given as part of the appellant’s explanation as to why he was not a principal party to the offence.

[24] It is submitted for the appellant that the position can be readily distinguished from the notion of “included offences”. The facts relied upon by the Crown in respect of the allegation that the appellant was the secondary party were entirely separate and distinct from the facts relied upon for alleging that he was a principal offender. There could have been no reasonable expectation or contemplation by the appellant that the Crown would radically change its approach in its final address to the jury.

[25] It is submitted that at the very least there should have been an application to the Court for leave to proceed in that manner. If that had been done there might have been an application for an adjournment, an application to recall witnesses, or an application to call other evidence. In any event, such an application would have been opposed. The appellant had come to Court expecting to meet one case and was suddenly at the last stages of the trial, asked to meet an entirely different case.

[26] Counsel for the appellant argues by way of analogy from the principles applicable in the summary jurisdiction of the necessity for particulars and of the need for leave before an information is amended.

[27] It is noted for the appellant that in R v McKewen [1973] 2 NZLR 683 this Court described counselling or procuring in respect of an offence before the event as an instance of the old common law category of accessory before the fact. The Court distinguished it from aiding and abetting the actual offence. It is submitted that effectively the appellant was being asked to meet a different form of the same offence without any prior knowledge of that position and with no opportunity to make any informed decision as to the appropriate manner of defending himself against it. In the particular circumstances he was not even heard as to whether the Crown should have the opportunity to change its stance in respect of the alleged offending in the way that it did.

[28] The Crown submits in response that there was no prejudice to the appellant notwithstanding the lateness of the change. It is submitted that the factual basis for the change came from the appellant’s own evidence. He had conducted his defence and cross-examination on the basis that he had not set fire to the church. The Crown’s position was entirely consistent with his evidence.

[29] Like the appellant the Crown refers by analogy to what occurs in the summary jurisdiction and the general policy behind amendments to charges as considered by this Court in Jones v The Police [1998] 1NZLR 447, 451 where the Court said:

Whether to allow an amendment would usually involve striking a balance between the interests of the prosecution and the policy of the section on the one hand and what, if any, prejudice there may be to the defendant to the other.

[30] It is submitted for the Crown that in the present circumstances the appellant had not been prejudiced or misled and nor was he unable to adequately answer the Crown case or meet the charge. The Crown referred to examples of where these principles had been applied such as R v Durno [1973] 1 NZLR 357 and R v Bovey [1964] NZLR 865.

[31] We have no doubt that what occurred in this case, despite the submissions of the Crown, has resulted in a clear miscarriage of justice.

[32] Section 329(4) Crimes Act 1961 requires an indictment to:

Contain so much detail of the circumstances of the alleged crime as is sufficient to give the accused reasonable information concerning the act or omission to be proved against him, and to identify the transaction referred to; but the absence or insufficiency of such details shall not vitiate the count.

[33] Here the count in the indictment charged that the appellant did wilfully set fire to the church on or about the 7^th day of October 1995. There was nothing within the indictment relying upon any other particulars and certainly not upon the appellant being a secondary party in respect of a conversation that he had had months earlier.

[34] Crown counsel, in his closing address, purported to provide alternative particulars of support for the indictment by having the jury write in a reference to s 66(1) Crimes Act 1961. If the Crown had sought to amend the indictment, where there appeared to be a variance between the proof and the charge, it would have been necessary for it to obtain the leave of the Court under s 335(1) Crimes Act 1961.

[35] What the Crown did was, effectively, very similar to an amendment of the indictment by the addition of an alternative charge. However, because of the course adopted by the Crown, there was no opportunity whatever for the appellant to be heard as to whether he opposed the position of the Crown. The Judge did not intervene. The appellant was not heard as to whether he claimed any prejudice or to be misled by the course adopted.

[36] The Crown now submits that the appellant was not prejudiced and was not misled as the material relied upon by the Crown arose out of his evidence. However, the case the appellant was facing was that of being the principal party in respect of the fire. The acts relied upon by the Crown in respect of that were the actual acts relating to the lighting the fire on the night that the church was burnt down.

[37] The Crown, in relying upon the events in the prison yard, was relying upon acts of an entirely different nature some months before. That was not the charge that the appellant had gone to Court to meet or that he had addressed in his defence. He was never given a fair opportunity to take issue with that charge or to answer it. He was left to deal with it as best as he could in his final address.

[38] The evidence upon which the Crown sought to rely for proceeding in the alternative against the appellant was an alleged admission by him that he was a secondary party. However, the comment relied upon was in the context that he never intended or expected that the persons to whom he made it might act in the manner as possible by him. If his language was taken at its face value it could not give rise to his conviction.

[39] If the Crown intended to rely upon that language for his conviction as a secondary party, the appellant had to be given a reasonable opportunity to defend

himself in respect of that. He could well have sought to have cross-examined other witnesses already called. He might well have wished to give other evidence himself as to the particular conversation. He might have sought to call other evidence in respect either of the conversation or of the context in which it took place. Because of the course adopted at trial he had none of those opportunities.

[40] In that situation he had to have been prejudiced in his defence to the alternative allegation. He had also to be seriously misled as to his position in defending himself when the Crown changed its position in its closing address without any prior warning to him or the Court.

[41] That the appellant was seriously prejudiced and misled in his defence is made plain by the Judge’s summing-up, to which we will return shortly. Suffice to say, at this stage, that the Judge in his summing-up never clearly put the appellant’s defence to the allegation that he was a secondary party and worse, compounded the position by suggesting the appellant had acknowledged that he had been a secondary party. It seems the Judge was himself caught out by the Crown’s late change of position. But if the Judge was able to get it so wrong, it is inevitable that the appellant must have been seriously prejudiced and misled by the quite unfair course adopted by the Crown in its closing address.

[42] If the Crown had raised the matter with the Judge, the Judge would have had an opportunity to consider whether the accused had been misled or prejudiced in his defence and in that event, could have considered adjourning or postponing the trial on such terms as the Court thought just.

[43] It is of the essence that an accused person shall have fair notice of the allegations against him. That simply never occurred in this case. The alternatives being put to the jury were separated by place and time and involved wholly different acts on the part of the appellant. The basis upon which the jury found the appellant guilty was simply not part of the case the appellant had to meet in the trial. The defect in what occurred is so fundamental that it cannot be corrected other than by quashing the conviction and sentence and ordering a new trial.

Failure in the summing-up to put the defence properly

[44] Under this heading we are dealing solely with the position in respect of the finding of the jury that the appellant was guilty as a secondary party. As the appellant was not found guilty as a principal offender, those parts of the summing-up dealing with that issue are at this time irrelevant.

[45] The Judge gave unexceptionable directions as to the law as to parties and the necessity for some degree of active involvement by the appellant. We concentrate solely upon those parts of the summing-up that touched upon the facts of the case and the Crown and the appellant’s set of arguments. During the course of his summing-up the Judge said this:

[28] That is something that you need to understand about what the Crown is saying to you in this case because they say as an alternative you could come to a conclusion of guilt really on the basis of what it was, as you heard it in evidence, Mr Shaw said to those people at Linton Prison in the yard. You will remember the wording. You can check that. What the Crown argues here is that that is inciting or counselling or procuring other people to commit the crime. ...

... The evidence that Mr Shaw gave was effectively offering to others the notion that the Rangiatea Church would make a good target. The Crown argument is that that is inciting this crime of arson. It’s the way it has been put to you.

[29] Now you need to understand that inciting involves the talking of some positive or active step by words and that’s the Crown argument here.

...

... What the Crown say here is that there is enough but there was here the offering of a target. The Crown say that is inciting the offence, instigating the offence, urging others to do it. That’s the Crown approach. To be balanced about it you will understand that the defence is that that was not counselling others to commit the crime.

[31] I need to add something that Mr Vanderkolk touched on and did so really as a matter of fairness because he said that as a matter of law and it’s right, an accused person could not be a party to an offence if that accused person withdraws from it before the offence is committed. The withdrawal, he emphasised with you, and again he is right, that withdrawal must be operative and effective. It must be communicated to the principal offender. In this case the Crown say given the circumstances of what was happening that night as you heard it in evidence, the suggestion of the church as a target earlier in the prison, the fact that the church was destroyed by fire some two days after Mr Shaw was released from prison, his knowledge of what was likely to happen or going to happen as the Crown argue to you, what was going to happen that night he had some knowledge of it. He had some

knowledge of the petrol being siphoned and so on. They were matters from his own evidence. To some degree his later telling other people about burning the Rangiatea Church, those circumstances the Crown ask you to look at and come to a conclusion that on this alternative argument as they have put it to you, you should find Mr Shaw guilty.

[32] Mr Shaw, in answer to that, says of course that he withdrew form the offending. He says that that was an operative and effective withdrawal when he says to you in his evidence he did not counsel or incite. He says to you that while he may have had knowledge of what was happening he pulled out of that offending before it occurred. He says to you that he said to the people in the car “drop me off home” and that’s, he said, what happened. He says that that was something that indeed happened. There had been discussion of the business of the church at his home but when it came to the offence actually being carried out then he said “drop me off home”. He is saying if you add those things up members of the Jury you should see that there was an effective withdrawal from that situation. He is saying then in answer to it all that he could not be found liable or found guilty as a party. Now I have concentrated on that issue of parties. I have presented to you both the arguments for Crown and for defence in respect of it.

[64] In terms of whether or not he is a party to the offence in the way that the Crown put it, we know that Mr Shaw’s answer to that is that he effectively and operatively withdrew from the offence. He communicated that to the perpetrators of it and thereby considers that as a matter of law he should be seen by you and as a matter of fact he should be seen by you as someone who pulled away from the offending and did not become a party to it.

[68] To bring in a verdict of not guilty you would have to be unanimous

... that he effectively withdrew from the plan to burn the church on that night when he was together with those other people that he says were the

perpetrators of this offence. In other words, when he asked to be dropped at

home he was withdrawing. On that basis that would be the basis for which you could come back with a not guilty plea.

[46] Following the retirement of the jury, they asked a question of the Judge for a definition of what it means to be a party to a criminal offence and the Judge answered that question.

[47] In the course of the answer the Judge said:

[6] ... There has to be that mental element of intent, knowing that what is said by him, as the Crown would put this case, that it’s going to assist or encourage in the committing of the crime.

[7] Then, to be balanced about it, I indicated to you and it was fairly put by Mr Vanderkolk that as a matter of law, an accused could not be a party to an offence if that accused withdraws from the offending before the offending is actually committed and, in the way the Crown put it to you, they say that that must be an operative, an effective withdrawal, it must be something that’s communicated to the principal offender so if someone else is saying,

right, well we’re about to do this and I’ll get the material for the fire and come on, you come with us or whatever and a person says, I don’t want any part of that and communicates that to the principal offender, that would effectively be an operative and effective withdrawal as a party and, of course, that’s an issue here for the Defence because that’s exactly what Mr Shaw is saying, that he pulled out and went home to bed. Now that’s question for you as the jury as to whether you accept or reject that but that is the defence that Mr Shaw has put to the argument that he is a party to the offending by way of what he said in offering the church as a target at the time that he was talking at the Linton Prison Camp.

[48] The appellant submits that the summing-up was seriously flawed, as the appellant’s true defence to the secondary party allegation was never put. That defence was that he had never intended or expected his language to be taken seriously. It is submitted that the Judge’s suggestion the defence was one of withdrawal made the position worse. Implicit in that is an acknowledgement there was earlier procuring, inciting or counselling of the offence. However, the appellant had denied that. In any event the withdrawal defence related to the appellant being a principal party, not a secondary party.

[49] It is submitted the position was made worse again by the Judge, in his answer to the question by the jury, as once again there was no mention of the appellant’s denial that he had ever intended to incite or procure the commencement of the offence. The emphasis, again, was solely on the issue of whether the appellant had effectively withdrawn from any involvement that he might have had earlier.

[50] Thus the Judge, by his directions, effectively removed from the jury the principal defence that the appellant had made to the allegation he was a secondary party.

[51] It is submitted for the appellant that the position was made worse by what was said in paragraph [68] of the summing-up. There, on this issue, the Judge made clear that the jury would have to be unanimous that the appellant effectively withdrew from the plan to burn the church on that night. This it is submitted completely misled the jury because the first point that they had to determine was whether in fact the appellant had incited, procured or counselled the commission of the offence. The appellant’s true defence was that he had never done that. What the Judge said made it even worse for the appellant.

[52] It is submitted for the Crown that the directions of the Judge were adequate and that there could have been no doubt in the jury’s mind that the defence was in fact a twofold one, namely that the appellant did not intend by what was said at Linton Prison to be taken seriously, and that in any event the appellant when he realised the principal offenders were serious about the burning of the church he sought to withdraw and have nothing to do with it.

[53] The Crown submitted that this is consistent with the appellant’s own submissions to the jury in his closing address. Perhaps understandably the appellant did not in his closing address, refer to the fact that he had no intention of inciting or procuring the crime, although he did say that he wasn’t counselling the offenders.

[54] We are left in no doubt that on this issue, as on the first issue discussed, a clear miscarriage of justice has arisen. The closest the Judge came to correctly identifying the appellant’s primary defence to being a secondary party is in the last sentence in paragraph [29] of the summing-up: “To be balanced about it you will understand that the defence is that that was not counselling others to commit the crime.” However, that was only part of the appellant’s position as the appellant made clear he did not intend or expect the offenders to take him seriously. When explaining the appellant’s defence the Judge did not return to these critical aspects of the appellant’s defence. Instead he has given a clear indication to the jury, not only in the summing-up but also in his answer to their question, that that was not the issue. The only issue he defined for the jury was whether the appellant had effectively withdrawn from his involvement in the crime. It was implicit in that approach the appellant was guilty as a secondary party unless the jury was satisfied he had withdrawn from participation. In fact the appellant could only be guilty as a secondary party if the Crown established that he had intended and did incite, counsel or procure the arson. The jury was never directed to consider that issue.

[55] At no point was it made clear to the jury that the issue of withdrawal related primarily to the appellant being a principal party. It only became relevant to a role as a secondary party if the jury was satisfied that the appellant had intended to procure, incite or counsel the committing of the crime.

[56] At no point was it put to the jury that the discussion upon which the Crown relied was some months prior to the crime in idle conversation in a prison yard. At no point was it put to the jury that in raising the issue in his evidence the appellant had specifically denied any belief it would lead to the commission of any crime.

[57] We are left in no doubt that in this case not only was the appellant’s defence on this unfortunate allegation by the Crown not fairly put to the jury, but that the jury was seriously misled by the Judge indicating that the true defence was effective withdrawal. That contained within it the assumption that the appellant had indeed incited, procured or counselled the commission of the crime.

[58] Thus on this issue also we have no doubt that the only appropriate course is to quash the conviction and to order a new trial.

[59] Before leaving this issue, we would make it clear that we have considerable sympathy with the trial Judge in this case. The errors that occurred in this trial were a direct result of the manner in which the trial was conducted by the experienced Crown counsel. When the appellant was not represented, the Judge was entitled to rely upon Crown counsel to a greater extent than might otherwise have been the case. It is apparent that the problems in this case arose as a result of the manner in which the Crown sought to rely upon the alternative basis of finding the appellant guilty as a secondary party.

Admission of similar fact evidence

[60] Because of the conclusions already reached by us it is unnecessary for us to say much upon this topic. The similar fact evidence relating to the attempted arson of the Mormon Church some three years after the burning of the Otaki church was admissible in respect of the Crown’s initial allegation that the appellant was the principal offender in respect of the arson. The Judge’s direction to the jury under this head was appropriate and dealt with a difficult question well.

[61] Because of the course adopted by the Crown prosecutor, the Judge was never asked to rule or direct the jury in respect of how the similar fact evidence could be

used in respect of the allegation that the appellant was a secondary party in respect of the arson. There has simply not been a finding as to whether the attempted arson of the Mormon Church could be led as similar fact evidence in respect of the allegation that the appellant was a secondary party in respect of the arson of the Otaki church. We have heard, understandably, no considered argument in respect of that question, and in event it is inappropriate that we express a considered view upon it when the issue is not clearly before this Court.

[62] It is clearly arguable that evidence of the attempted arson is similar fact evidence that can be led against the appellant on whatever basis the case is made out against him. Nevertheless, it may be that on careful consideration there is a distinction between his position as an alleged principal offender and his position as an alleged secondary party. If there is to be a new trial, that is something that will require further consideration. In any event, should the evidence be found to be admissible, it will be necessary for the trial Judge to direct on how the evidence could be used in respect of the appellant’s alleged role as a secondary party.

Disclosure by the appellant of his criminal history

[63] In this case the appellant made extensive reference to his criminal history. It is submitted that for him that the trial Judge was under a duty to intervene to protect the appellant against himself. We would not have been disposed to accept that submission having regard to the decision of this Court in R v Cumming CA43/03 2

November 2005.

Improper leading of a Crown witness’s evidence-in-chief

[64] This relates to the evidence of the witness Ms Lemaire. The evidence was led in an extraordinary fashion by the Crown prosecutor. The evidence-in-chief was not led in the ordinary way. The Crown prosecutor, without seeking any ruling from the trial Judge, treated the witness as a hostile witness and cross-examined her on notes made by her at the time of her observations. He sought to use those notes to undermine her oral evidence. Subsequently he engaged in a lengthy re-examination of the same kind seeking to denigrate the evidence of the witness. Remarkably, at

the closure of her evidence he introduced as an exhibit the notes that the witness had made as to her observations. Neither the amicus nor the trial Judge intervened in this unusual conduct by the Crown prosecutor.

[65] Understandably, the appellant submits that the Crown’s handling of its own witness was so objectionable that a miscarriage of justice should result.

[66] The Crown submits that in any event a miscarriage of justice could have not arisen from the course adopted by trial counsel as the witness’s evidence was not inconsistent with the appellant’s own evidence and the appellant was not found guilty as the principal offender.

[67] Because of the position already reached by us, it is unnecessary for us to enter upon this topic in any further detail. Suffice to say that we could not condone in any manner what occurred in this case, as in our view the Crown prosecutor acted in a totally inappropriate way. Of course he was entitled to have the witness refresh her memory from her contemporaneous documents. He was not, however, without the leave of the Judge, entitled to treat the witness as a hostile witness as he did. He was not entitled to cross-examine her or re-examine her as he did. He was not entitled to introduce as an exhibit the notes made by her, unless there was an informed consent by the appellant to that course or a ruling by the Judge to that effect after considered argument. What occurred should never have occurred and it is just one more feature of this quite unsatisfactory trial.

Result

[68] The appeal is allowed. The appellant’s conviction for arson and the consequential sentence are quashed. A new trial is ordered.

Addendum

[69] On 7 December 2006, the Court recalled and reissued this judgment with this addendum, because it was drawn to the Court’s attention that the criticisms of the

prosecutor in the original judgment were unfounded. The circumstances are set out in [3]-[7] of the Court’s minute of 7 December 2006, as follows:

[3] By a memorandum dated 26 October 2006, the Deputy Solicitor- General sought a hearing as to whether the Court would consider issuing an addendum to its judgment so as to correct two aspects of this judgment, namely the criticisms of the prosecutor referred to above. The hearing took place on 20 November 2006.

[4] We have now received an affidavit from the second counsel for the Crown at the trial. It is not challenged. Having considered the affidavit, and having heard from counsel, we are satisfied that the criticisms we made were based on incomplete or incorrect information. Now that we have the correct information, it is clear to us that there was no basis for either criticism. In particular we are now informed that:

(a) At the end of the penultimate day of the trial, before closing addresses had been made, the prosecutor saw the trial Judge in chambers in the presence of the amicus and the appellant. After discussion with the Judge, the prosecutor signalled his intention to close on the “encouragement” point. So the appellant, the amicus and the Judge had prior notice of the prosecutor’s intention and there was no objection taken to it, and no ruling against it by the Judge.

(b) The prosecutor did seek, and obtained, a ruling from the

Judge declaring Ms Lemaire to be a hostile witness.

[5] We have therefore decided to recall and reissue the judgment with an addendum dealing with these matters.

[6] It is unfortunate that there was no record of these matters in the trial file and that Crown counsel did not draw them to our attention during the hearing of the appeal. We regret that the result was that criticisms were made of the prosecutor which were undeserved.

[7] Nothing in this minute affects the decision of the Court to allow the appeal and order a new trial.

Solicitors:

Crown Law Office, Wellington