The Queen v Biddle [2008] NZCA 398 (30 September 2008)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

---

The Queen v Biddle [2008] NZCA 398 (30 September 2008)

Last Updated: 13 October 2008

IN THE COURT OF APPEAL OF NEW ZEALAND

CA243/2008

[2008] NZCA 398

THE QUEEN

v

JAMES HEMI BIDDLE

Hearing: 24 September 2008

Court: Glazebrook, Rodney Hansen and Ronald Young JJ

Counsel: R D Stone for Appellant
A Markham for Crown

Judgment: 30 September 2008 at 2.30 pm

JUDGMENT OF THE COURT

A An extension for time for appealing is granted.

B The appeal is dismissed.
____________________________________________________________________

REASONS OF THE COURT
(Given by Glazebrook J)

Introduction

[1] Mr Biddle was convicted, after a trial in the Napier District Court before Judge Adeane and a jury, on one count of aggravated robbery. He wishes to appeal against his conviction. Mr Biddle’s notice of appeal was late but an adequate explanation for the delay has been given. An extension of time to appeal is granted.
[2] Mr Biddle’s conviction appeal is on two grounds:

• (a) The summing up failed to differentiate between reliability and credibility.
• (b) The trial Judge did not fairly summarise the defence case and the summing up in totality was unjustly favourable to the Crown.

Background

[3] At about 11.10 pm on 29 August 2007 a car drew up outside a BP Service Station in Hastings. The rear passenger got out of the car, placed a red bandanna over his face and entered the service station, where he robbed the attendants at knifepoint of approximately $125 in cash. He returned to the car, which sped off towards Flaxmere. A witness noted the registration number and the car was stopped en route a short time later by Police.
[4] The car was found to have three occupants: Mr Biddle, his brother-in-law, Mr Joseph Tawhito, and his cousin, Ms Kura Tumanako. It was common ground at trial that Mr Biddle was sitting in the front passenger seat of the car while the aggravated robbery took place. It was also common ground that the robber was Mr Tawhito, and the driver was Ms Tumanako.
[5] The Crown alleged that Mr Biddle knowingly assisted in the aggravated robbery by acting as a lookout. For this submission, it relied on the evidence of a witness, Mrs Singh, who was parked on the forecourt at an angle alongside the robbers’ car. As the robber got out of the rear door and put on his bandanna, she heard a male voice (inferentially Mr Biddle’s) yell “go!”, and the robber ran inside. As he did so, she saw the front passenger put what Mrs Singh described as a black and white bandanna over his face. He looked towards the road and then turned back and looked towards her, possibly twice. She said that the robber then ran back to the car, a man’s voice again said “go!” and the car sped off.
[6] Mr Biddle denied that he had taken part in the robbery. He told Police that he and Mr Tawhito had been picked up by Ms Tumanako earlier that evening to go for a “ride”. He said that he was drunk and “half-asleep” and had no idea what was happening. He only “woke up a bit” when they were pulled over by the Police.
[7] A search of the car revealed the stolen cash strewn in various locations, a knife, a screwdriver, and two bandannas, one of which was red. The second bandanna was coloured blue, black and white and was found in the handbrake area between the front seats. In addition, two torn halves of a plastic money bag were found in the area where Mr Biddle had been sitting. One was underneath some items on the foot well, and the other was tucked underneath the front part of Mr Biddle’s seat.

Direction on credibility and reliability

[8] Judge Adeane, in summing up, said the following about how the jury should assess Mrs Singh’s evidence:

When you consider the oral evidence that’s come from the witness box, you’ll take into account what the witness has said and also the demeanour of the witness. In other words, the way that person came across when giving evidence to you and this is particularly relevant of course, in the case of Mrs Singh, who is the pivotal Crown witness. What you make of this case may very well depend on how Mrs Singh came across to you. Was she a reliable witness or was she not? Was she a sturdy soul who was here to tell the truth, or was her position in these matters such that you cannot rely on what she’s got to say? So, you’ve got to make that decision. You do it in everyday life of course. It’s second nature to all of us, to judge people on the basis of what they say and the way they come across when they’re saying it and that’s what you’re going to do in considering the evidence in this case. [Emphasis added]

[9] Mr Stone, for Mr Biddle, submits that the primary issue for the defence was the reliability of Mrs Singh. He submits that the summing up would have been interpreted by the jury to mean that Mrs Singh was a reliable witness if she was there to tell the truth. Mr Stone pointed specifically to the highlighted words in the passage set out above at [8]. In his submission, whether or not Mrs Singh was there to tell the truth relates to her credibility and not her reliability. The Judge should, in his submission, have clearly differentiated between the two.
[10] The Crown submits that there was no danger of the jury misunderstanding its task. The trial was a short one and the accuracy or reliability of Mrs Singh’s evidence was the central issue. Her honesty was never in question, a point that defence counsel made plain in closing. In the Crown’s submission, the jury would have understood the Judge’s direction in this light. In context, the Judge’s reference to a “sturdy soul who was here to tell the truth” was obviously intended to refer to the witness’ reliability and whether she was telling the objective truth (as opposed to her honesty or sincerity). Given that Mrs Singh’s credibility was not at issue, the Crown submits that the standard direction distinguishing between credibility and reliability was unnecessary. Further, the Crown submits that any conceivable doubt on this score would have been dispelled when the Judge came to summarise the respective cases. His summary focussed exclusively on reliability issues.
[11] It is unfortunate that the Judge made the comment that we have italicised in the extract set out at [8]. We accept Mr Stone’s submission that, taken alone, the comment confused the concepts of credibility and reliability. It is even more unfortunate that the Judge did not take the opportunity to correct the comment when invited to do so by Mr Stone after the summing up.
[12] Nevertheless, we accept the Crown submission that there was no danger of the jury misconstruing its task in the context of such a short trial, given the nature of the defence case (and indeed the nature of the evidence) and the remainder of the summing up (including the immediate context of the impugned comment). The question the Judge posed just before the italicised comment referred specifically to Mrs Singh’s reliability. This is a perfectly ordinary English word and in all the circumstances we have no doubt that it would have been understood by the jury as having its ordinary meaning.

Unbalanced summing up?

[13] The second ground of appeal alleges that the summing up was unbalanced. Mr Stone’s first complaint is the way in which the Judge dealt with Mrs Singh’s description of the robber’s shirt. Mrs Singh described the robber who went into the service station as wearing a chequered shirt. The shirt was, however, shown in stills from the closed circuit cameras at the service station to be striped. In relation to the defence suggestion that Mrs Singh had not described the shirt the robber was wearing correctly, the Judge said:

Well the evidence about that, members of the jury, and just what Mrs Singh had to say about the man she saw going in is at page 13 of the evidence at line six. She had a bit more to say than just that there was a checkered shirt.

She described other aspects of the shirt itself and you’re welcome of course to have a look at what she did say and decide whether her description of the robber and what he was wearing suggest to you that she is reliable, or whether in fact it is deficient in a way that suggests to you that she’s unreliable.

[14] Mr Stone submits that the framing of the summing up on the question of the shirt clearly indicates that the Judge’s view was that Mrs Singh’s evidence was reliable. This was unfair in his submission.
[15] The Crown submits that there was nothing objectionable about the Judge referring the jury to the relevant pages in Mrs Singh’s evidence in respect of the “checkered shirt” issue. Even if the jury might have interpreted the Judge’s statement as an indication of the Judge’s views, there is nothing wrong with a Judge expressing his or her views on the facts, provided it is made clear that the jury is the sole arbiter of facts: R v Keremete CA247/03 23 October 2003. In this case, the Judge reminded the jury that, “at the end of the day you’re the judges of facts”.
[16] We accept the Crown submission that there was nothing inappropriate in the Judge’s comments on this issue.
[17] Mr Stone’s next complaint relates to two diagrams, which related to the positions of Mrs Singh’s car and the robbers’ car at the time of the incident. One was produced by the Crown in the trial. The second diagram was drawn by Mrs Singh at the depositions hearing. Mr Stone submits that the diagrams were important as the positions on the various diagrams threw doubt on whether in fact Mrs Singh could see the front seat passenger from the position she was seated in her car. More importantly, the fact that she was unable to give clear evidence on the diagrams also highlighted her general unreliability.
[18] In his summing up the Judge referred to the difference between the diagrams. He indicated that the “slightly different orientation” of the two motor vehicles created doubt about Mrs Singh’s view into the robber’s car. Mr Stone submits that, while that was an issue, the fundamental issue was that the diagrams, and her inability to say which was correct, cast doubt on Mrs Singh’s reliability as a witness.
[19] The Crown submits that it is not incumbent on trial Judges to repeat every point made by counsel in closing: R v Anderson [1951] NZLR 615 (CA). That is so particularly where, as here, the trial is short and the issues narrowly defined.
[20] The Judge, it seems to us, highlighted the most important point about the diagrams: that there may have been a doubt about whether Mrs Singh was able to see what she maintained that she saw. The Judge was not obliged to repeat what was, in our view, a secondary point made by Mr Stone. Indeed, there is no obligation on a Judge to repeat everything, or indeed anything, said by counsel in their closing addresses. The obligation is to set out the essential features of each side’s case and to relate that to what the jury has to decide. Merely repeating what counsel said is often of limited assistance to the jury and, in some cases, inadequate to fulfil this obligation.
[21] Mr Stone’s third complaint is the way the Judge dealt with the suggestion that there was an explanation for the word “go” which was consistent with Mr Biddle not wanting to be involved with the robbery. It was suggested by defence counsel in closing that the word “go” could have been said not as encouragement for the robber, but in an effort to get the driver to drive away, thereby disassociating himself from the robbery.
[22] The Judge, in his summing up, reacted to this suggestion by referring to the fact that Mr Biddle did not give evidence. Mr Stone submits that the explanation provided in closing was a reasonable inference from the evidence. Mr Biddle’s statement did not directly contradict that inference. In those circumstances, Mr Stone submits that it was a proposition that the defence was entitled to raise without the Judge referring to the fact that the accused had not given evidence: R v McRae (1993) 10 CRNZ 61 at 64 (CA).
[23] The Crown submits that this was a paradigm case where the Judge was justified in commenting on the accused’s absence from the witness box. Notwithstanding that Mr Biddle told police that he was “half asleep” and oblivious throughout the aggravated robbery, the suggestion was made in closing that it was possible he may have shouted “go!” to the driver and not to the robber. There was, in the Crown’s submission, no evidential foundation for that suggestion. Indeed, all the evidence suggested otherwise. The Crown referred to R v Harbour [1995] 1 NZLR 440 where this Court held, at 449:

Speculation in aid of an accused is no more permissible than speculation in aid of the prosecution. The defence is of course entitled to put hypotheses to the jury. But if there is no evidential foundation for them the Judge is entitled to point that out to the jury. This is not to put an onus on the defence, but simply to keep the case within limits of realism. The Judge must of course make it clear that the onus remains throughout on the Crown.

[24] In the Crown’s submission, the Judge’s comments appropriately emphasised that there was no onus on the accused to prove anything, and that the jury was not to infer guilt as a result. Further, the Judge left to the jury the question of whether there was an evidential basis for the defence suggestion (although in the circumstances there was no need to have done so). There was therefore no unfairness in the Judge’s approach.
[25] Not all Judges would have commented on the fact that there was no evidence from Mr Biddle on this issue. They may merely have pointed out (as the Judge did) that Mr Biddle’s statement contained nothing about him having said “go” at all, let alone having said it to the driver rather than to the robber. It was, however, open to the Judge to point out that there had to be an evidential foundation for the suggestion by the defence and that it could not be found in any evidence given by Mr Biddle.
[26] Mr Stone next complains about the terms of the direction on prejudice given by the Judge. He considers that it was so explicit about the type of prejudice that may be involved that it may have reinforced such prejudices.
[27] There is room for legitimate difference of opinion as to whether it is better to be explicit as to the likely prejudices held or more circumspect. There are good arguments in favour of each view. It is thus a matter of individual judgement as to the approach taken. The important thing is to stress that juries should put any prejudices aside. That was done by the Judge in this case.
[28] The final complaint is that, at the end of the summing up, the Judge referred to the circumstances that would justify the jury returning a verdict of guilty (ie that Mr Biddle did knowingly assist and/or encourage the aggravated robbery in some material fashion). The Judge did not refer to the circumstances which would justify a verdict of not guilty.
[29] While it may have been better to make it explicit that the jury should acquit if not satisfied that Mr Biddle knowingly assisted and/or encouraged the aggravated robbery, that was abundantly clear from the summing up as a whole. There is nothing in this point.
[30] Mr Stone submits that all of the above matters, when considered in totality, created a closing that was unreasonably favourable to the Crown. The Crown submits that the summing up highlighted the main issues and was appropriately tailored to the circumstances of the case. In its submission, no miscarriage of justice arises.
[31] We accept the Crown submission that the matters raised do not give rise to a miscarriage of justice, either individually or in combination. We also comment that the defence chose to run its case on the basis of alleged general unreliability on the part of Mrs Singh. Many of the matters relied on in this regard were peripheral to her evidence on the point at issue in the appeal: Mr Biddle’s alleged role in the robbery. It was never put directly to Mrs Singh that she was mistaken in her evidence about Mr Biddle’s actions. The Judge could have, but did not, point this out to the jury.

Result

[32] An extension for time for appealing is granted.
[33] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington