[1] The two appellants are Terence (Terry) and Stacey Giles. They are, respectively, father and son and for the sake of convenience we will refer to them by their first names. They held liquor licences in respect of two premises in Hanmer, the Hot Springs Hotel and the Saints Cafe and Bar. The case concerns events which occurred on 11 February 2007 and, in particular, interactions that day between the two appellants and two young local men, Duncan Wright and Dene Hill.
[2] It is common ground that Messrs Wright and Hill and a third man were at the Hot Springs Hotel around lunch time on Sunday 11 February. As a result of some unpleasantness, Terry Giles served all three men with trespass notices. This was in the presence of a local police officer, Senior Constable Chris Hughey, who had arrived in response to a 111 call. The trespass notices related to both the Hot Springs Hotel and the nearby Saints Cafe.
[3] The Crown case at trial proceeded on the basis that later that afternoon the two appellants lured Messrs Wright and Hill into the Saints Cafe and seriously assaulted them. They then sought to cover up those assaults and add to the grief of Messrs Wright and Hill with a false complaint of trespass, a complaint which resulted in Messrs Wright and Hill being arrested and charged with wilful trespass.
[4] The appellants were tried in a District Court at Christchurch before Judge Farish and a jury in March last year on an indictment which contained three counts:

(a) count one: an allegation against Stacey Giles that he assaulted Duncan Wright with intent to injure;

(b) count two: an allegation against Terry Giles that he assaulted Dene Hill; and

(c) count three: an allegation against both appellants that they had attempted to pervert the course of justice by making a false complaint of wilful trespass.

[5] The jury were unable to agree on count one, Terry Giles was acquitted on count two and both appellants were found guilty on count three.
[6] They now appeal against conviction.

An overview of the facts

[7] The Crown case at trial depended primarily on the evidence of Messrs Wright and Hill.
[8] Both men had spent the preceding night at the farm owned by Mr Wright’s parents. They and a number of other young men had consumed a substantial quantity of alcohol. The next morning, and without breakfast, they went pig hunting. On their return from pig hunting they consumed some more alcohol. They also managed to spray each other with a blue paint or dye meant for use on sheep. Mr Wright then had a shower and changed his clothes but Mr Hill remained throughout in the clothes he had worn during the previous night’s drinking and while pig hunting. Blue paint remained on him.
[9] The defence case at trial was that when Messrs Wright and Hill and their friend arrived at the Hot Springs Hotel around lunch time they were already (or perhaps still) intoxicated. They were nonetheless initially served (a jug of beer each). The staff on duty, however, were plainly not comfortable with their patronage (which, irrespective of how intoxicated they were, is understandable given their appearance). The three young men reacted badly to being refused service and used abusive language to the female staff members involved. As they left there was something of a scuffle with the chef employed at the hotel. Also unsatisfactory was the behaviour of Messrs Wright and Hill when served with trespass notices in front of Senior Constable Hughey. Mr Wright screwed up his trespass notice and threw it at Terry Giles while telling him to “stuff it up your arse”. Mr Hill’s reaction was not much better.
[10] All of that said, Senior Constable Hughey did not regard them as being particularly intoxicated. On his evidence it would also appear that some of those in the Giles party, in particular Stacey Giles, were reasonably agitated.
[11] After the service of the trespass notices, Messrs Wright and Hill parted company with the third member of their group. They did not have lunch, but instead went to the Jolly Jacks bar where they spent most of the rest of the afternoon drinking. They left that bar at around (or perhaps just before) 4.30pm. They were holding small Jim Beam bottles (from which they were drinking). As they walked away from the bar, their course took them across the car park of the Saints Cafe.
[12] There was evidence at trial which suggested that in the meantime, Terry and Stacey Giles had been ruminating over what had happened at the Hot Springs Hotel. This evidence came from one of two people who had spoken to Terry and Stacey Giles at the Saints Cafe just before Messrs Wright and Hill came across the car park. The discussion, on the Crown case, extended to Terry and Stacey Giles advancing the proposition that if people trespassed onto their property they would be entitled to shoot them and/or beat them, and if they did so then they would not be prosecuted. The Crown case was that when this proposition was advanced, Terry and Stacey Giles had Messrs Wright and Hill in mind. On the defence case, the proposition was just a general reference to what had been in the media and had nothing to do with Messrs Wright and Hill.
[13] There was some debate at trial as to the particular route Messrs Wright and Hill took when they left the Jolly Jacks bar. There were three routes they could have taken to where they wanted to go, route A which would have enabled them to avoid the Saints Cafe, route B which meant that they had to go across the car park but not very close to the entrance to the cafe, and route C which meant that they would have to walk right in front of the entrance. It is common ground that they did not take route A. They claimed to have taken route B whereas the defence case at trial was that they took route C, which if true might be thought to have been provocative given the trespass notices.
[14] It is perfectly clear that there was some interaction in the car park between Messrs Wright and Hill with at least Terry Giles, but possibly also Stacey Giles and Mr Scott Raumati who was the bar manager at the Saints Cafe. After this interaction, Messrs Wright and Hill entered the Saints Cafe bar and went into the rear area of the cafe. It appears that they followed Stacey and Terry Giles who had gone in first. In or around the bar when they entered were Mr Raumati and another Saints Cafe employee, Mr Sean Bowyer. In the rear of the premises there was an altercation between Messrs Wright and Hill on the one hand, and Terry and Stacey Giles on the other. The latter two men, with the assistance of Mr Raumati who came through from the bar when called by Terry Giles, soon over-powered Messrs Wright and Hill. Mr Wright received some reasonably significant injuries, particularly to his face. The police were summoned by a 111 call made by Stacey Giles (in which he noted that Messrs Wright and Hill had “push[ed] their way into our bar” and had earlier been trespassed). Senior Constable Hughey arrived soon afterwards and after further discussions with Terry and Stacey Giles, arrested Messrs Wright and Hill for trespass.
[15] The accounts given by Terry and Stacey Giles to Senior Constable Hughey the following day (ie 12 February) were along the lines that Messrs Wright and Hill had been ranting and raving and generally behaving in a threatening way in the car park. As a result Terry Giles told Stacey to ring the police which is why he walked to the rear of the bar premises. Stacey was followed by Terry (who assumed that Messrs Wright and Hill would stay outside). Unexpectedly, however, they went into the bar after them and followed them into the rear area. There the altercation started when Terry Giles challenged Mr Hill as to why he was on the premises. The narratives given by Terry and Stacey Giles to the police were very similar; indeed so much so that if they are not true they must have been the result of collusive concoction.
[16] The position adopted by Messrs Wright and Hill was that they had been acting entirely peacefully as they went across the car park and that they had been invited onto the premises to sort out the difficulties that had arisen earlier in the day. On their evidence Terry and Stacey Giles attacked them without provocation or warning once they got to the rear of the premises.
[17] Subsequent investigations resulted in the police forming the view that the account of events given by Messrs Wright and Hill was correct and that they had, in effect, been lured onto the premises. So the charges of trespass were withdrawn and instead Terry and Stacey Giles were charged.

The trial – general comments

[18] Terry Giles represented himself at trial and Mr Eaton appeared for Stacey Giles. The Crown was represented by Mrs Orchard.
[19] The decision by Terry Giles to appear for himself may not have been a wise call because there was something of a theme in the way in which he conducted his case which rather suggested that he considered that he was entitled, and perhaps had been driven, to take the law into his own hands. This attitude was entirely consistent with, and in reality tended to reinforce, the Crown case.
[20] At trial, Mr Eaton mounted an all out attack on Messrs Wright and Hill. His case proceeded on the basis that they were two drunken louts who barged their way into the cafe in defiance of the trespass notice. The defence went as far as to suggest that Messrs Wright and Hill were or may have been under the influence of drugs – a suggestion for which there was at best a limited factual basis. And a central feature of Mr Eaton’s argument was that both men were disinhibited as a result of being severely intoxicated.
[21] The countervailing contention for the Crown is captured in the followed extract from the closing address of the prosecutor, Mrs Orchard:

Well, you might ask yourselves having seen both these young men in the witness box and having heard their evidence just exactly what type of young person you think they are. Now, first of all, I [concede] that of course they had not been drinking at all when you heard them give evidence but aren’t they simply young, first of all, obviously country boys and sportsmen, outdoorsy types who sometimes overdo the drink. Well goodness me, that sets them apart from most of the young male population of the country now doesn’t it? It hardly makes them Tony Soprano sort of mobsters does it? They are simply ordinary, young country men who sometimes overdo it.

[22] The contention that Messrs Wright and Hill were intoxicated found some support in concessions which Messrs Wright and Hill made when cross-examined as to how much alcohol they had consumed on the Sunday and on the night before. It was also supported by the evidence of employees from the Hot Springs Hotel as to the state of Messrs Wright and Hill prior to the service of the trespass notices.
[23] On the other hand, the fact Messrs Wright and Hill had got up early on the Sunday morning and gone pig hunting might be thought to suggest that they had started the day in reasonable shape. There was also a marked lack of evidence from anyone independent of Terry and Stacey Giles which supported the argument that they were anything like as drunk as the defence contended. On this point, it is important to recognise that the defence case as to intoxication was necessarily contextual in that it was part of a wider, and more relevant argument, namely that by the time Messrs Wright and Hill got to the Saints Cafe car park they were rowdy and threatening. Independent witnesses who saw Messrs Wright and Hill in the car park did not regard their behaviour as disorderly or indicative of intoxication. Certainly, they may not have been close enough to them discern drunkenness in terms of glazed eyes, slurred speech, and the smell of alcohol. But if these two young men had been intoxicated in the drunk and disorderly sense alleged by the defence, this should have been reasonably obvious. Very importantly, Senior Constable Hughey, who dealt with Messrs Wright and Hill twice on 11 February, did not regard them as intoxicated on either occasion.
[24] Indeed the reality is that the general account of events given by Messrs Wright and Hill was supported by other evidence. Of contextual relevance was the evidence of the discussion already referred to between the two Giles and others preceding the altercation at the Saints Cafe.[1] The independent witnesses who were present outside the Saints Cafe when Messrs Wright and Hill went through the car park gave evidence which supported their claims that they were neither obviously intoxicated nor acting in a disorderly or threatening way. This evidence also suggested that they were walking away from the cafe entrance when first spoken to by Terry Giles. Significantly, there was no independent credible evidence supporting Terry and Stacy Giles’ accounts as to how the incident started. Mr Raumati who gave evidence as a Crown witness at trial did suggest that there had been something of a confrontation in the car park, but this evidence was in marked contradistinction to what he had originally told the police and indeed his depositions statement. Mr Bowyer, the other employee at the Saints Cafe, saw what happened in the car park but was not concerned. To get into the rear area of the Saints Cafe, Messrs Wright and Hill had to go through the bar area where Messrs Raumati and Bowyer and some customers were. So their alleged trespassing would have been seen by a number of independent people. Mr Raumati is very professional, physically formidable and trained in control and restraint. He was conscious of their presence in the car park and it seems inconceivable that he was not monitoring their behaviour. He was aware of the trespass notices and it is most unlikely that he would have stood by if they had burst into the cafe uninvited. Yet there is no suggestion that he intervened. Mr Bowyer did not even notice them or Terry Giles go in. Although Messrs Wright and Hill were prone to drunken and perhaps abusive behaviour, the level of defiance, risk taking and criminality which the defence theory attributed to them was, at least on the Crown case, distinctly out of character.
[25] Stacey Giles gave evidence at trial but Terry Giles did not. In his evidence Stacey Giles backed away, to a considerable degree, from what he had said in his statement as to the conduct of Messrs Wright and Hill in the car park.
[26] In favour of the account given by the appellants was that there was evidence from some Crown witnesses which suggested that Messrs Wright and Hill had taken the provocative route C. As well, in his statement to the police, Mr Wright named Mr Aaron Greenwood as having been involved in the assault on Mr Hill. This identification was plainly incorrect and at trial there was a dispute as to whether it was a lie (as the defence maintained) or just a mistake which was understandable given the head (including eye) injuries received by Mr Wright. Finally, there was perhaps room for doubt as to whether:

(a) Terry and Stacey Giles, with all that they had to lose, would have acted in the dastardly way that the Crown alleged (ie luring two young men onto their property for the purpose of giving them a beating and having them falsely charged); or, if so inclined

(b) they would have had sufficient time to make the plan which the Crown case presupposed.

[27] For the sake of completeness we should note what the Judge said when she sentenced the appellants:

It defies common sense on both sides for either of these two young men to have barged their way in to your premises, in the Saints Cafe, when you have patrons sitting outside, patrons inside and a rather professional bar manager on the inside prior to them gaining access to the rear of the premises. Likewise, it is equally ludicrous to suggest, on my finding of the facts, that the two of you planned somehow to invite these two young men in with the whole purposes assaulting them in the rear of the premises. Again I do not accept that.

She instead took the view that Terry Giles had invited Messrs Wright and Hill to come on to the premises of the cafe in a genuine attempt to sort out the differences which had arisen. While we are not inclined to regard the Crown case as “ludicrous”, we accept that there was scope for argument concerning whether the speed at which events occurred would have left enough time for the sort of planning between Terry and Stacey Giles which the Crown case presupposed.

The appellants’ challenge to their conviction

[28] The appellants raise four broad grounds of appeal:

(a) the contention that the guilty verdict should be set aside as unreasonable and unable to be supported having regard to the evidence;

(b) misdirection as to the elements of the offence of which they were found guilty amounting to a miscarriage of justice;

(c) inconsistent verdicts; and

(d) an unbalanced and unfair summing up amounting to a miscarriage of justice.

Was the verdict unreasonable or unable to be supported on the evidence?

[29] The Crown case on count three necessarily rested on the contention that the appellants had alleged to the police that Messrs Wright and Hill had, after receiving their trespass notices, trespassed on the premises of the Saints Cafe. In closing (but not as we understand before this) Mr Eaton maintained there was no evidence of a complaint of trespass.
[30] Mr Eaton’s argument before us was that the references to trespass which were made by Terry and Stacey Giles in their dealings with the police were at best incidental to what was in effect a complaint of assault. He also contended that there was no sound evidential basis for a conclusion that they intended the police to prosecute Messrs Wright and Hill for trespass or otherwise be influenced by the allegation of trespass.
[31] It is true that neither Terry nor Stacey Giles had complained in a formal or explicit way to the police that Messrs Wright and Hill were guilty of trespass. Each, however, had alleged a trespass. In the case of Stacey Giles, such an allegation or assertion was made in his 111 call to the police. Terry Giles also alleged conduct amounting to a trespass to Senior Constable Hughey when he arrived at the Saints Cafe in response to the call. The next day (12 February) Terry and Stacey Giles made formal statements to Senior Constable Hughey which, as we have noted, were in very similar terms, and both alleged conduct which amounted to trespass. That Messrs Wright and Hill were initially arrested and charged with trespass also might be thought to suggest that there had been a complaint.
[32] On this point, we think that it was open to the jury to conclude that the appellants alleged to the police that Messrs Wright and Hill had been guilty of trespass. Indeed, being realistic, it would have been surprising if the jury had not so concluded.

Was there a misdirection?

[33] In an issue sheet which she prepared for the jury, the Judge set out the questions which the juries had to answer in order to return verdicts of guilty. It was in these terms:

Are you sure that Mr Giles did an act that had the tendency and was intended to pervert the course of justice? To find this element proved, you would have to be sure that Mr Giles ... made a false complaint of trespass against Mr Hill and Mr Wright.

Are you sure that Mr Giles did this deliberately that is that he intended that his acts would have the objective or purpose of defeating the course of justice? To find this element proved you would have to be sure that Mr Giles made a false complaint in an effort to cover up the actions (of both Giles).

There must be evidence that the accused has done enough for there to be a risk, without further action by him, that injustice will result. In other words, there must be a possibility that what has been done “without more” might lead to injustice.

[34] When she summed up, the Judge explained the concept of trespass. She made it clear that if Messrs Wright and Hill went onto the premises without invitation or licence from Terry or Stacey Giles or Mr Raumati they would be trespassing and would have been in breach of the trespass notice. On the other hand, if they had been invited onto the premises by one or more of the men she mentioned, that would not be a trespass. She then went on to say:

[52] So the first element in relation to this charge is: Was there in fact a false complaint? And in deciding that issue you are going to have to resile [sic] the conflicting cases here about what Mr Wright and Mr Hill said about what happened outside and what Mr Stacey Giles and what Mr Terry Giles have said about how these two boys gained entrance to the Saints Cafe and Bar.

[35] Mr Eaton’s complaint about this is essentially that the expression “false complaint” conflated two distinct elements: (a) a complaint of trespass; and (b) the falseness of that complaint.
[36] We suspect that the issues sheet was prepared before Mr Eaton submitted in his closing address that there had not been a complaint of trespass. The Judge did, however pick up his submission later in her summing up:

[116] Mr Eaton said to you towards the end of his address that there is no evidence here of an actual complaint of trespass. The 111 call is not a complaint of trespass and what Mr Stacey Giles said to the police the next day likewise is not a complaint of trespass. That is a matter entirely for you, ladies and gentlemen. It’s what you make of what Mr Giles said on the 111 call and then the following day to the police.

In any event, however, after the Judge had summed up, Mr Eaton complained about the conflation and the Judge re-directed the jury in his way:

[130] The second issue in relation to Mr Stacey Giles, and it really applies to Mr Terence Giles as well, is in relation to ... the attempting to pervert the course of justice charge and again it’s in relation to the first element of that charge. I have set that out for you and this is: Are you sure that Mr Giles did an act that had the tendency and was intended to pervert the course of justice? And to find this element provided, you would need to be sure that in this case Mr Stacey Giles made a false complaint of trespass against Mr Hill and Mr Wright. That means, ladies and gentlemen, you would have to be sure that the 111 call and the statement made by Mr Stacey Giles, if you are considering his case, and also the subsequent statement he made to Tania Drake was in fact a false complaint of trespass, not just a false complaint but it has to be a false complaint of trespass.

[131] And again, if you are considering Mr Terence Giles’ position, you would also have to find that what he said to Constable Hughey at the scene when the two young men were arrested at the Saints Cafe and then the following day when he made his statement to Constable Hughey about what had occurred that that was a false complaint of trespass. So they are the two legal directions.

[37] We agree that it would have been better if the Judge had invited the jury to consider first whether each of the appellants had complained to the police that Messrs Wright and Hill had acted in defiance of the trespass notices, before considering the falsity of any such complaint. But we think that the combined effect of what she said did make it clear to the jury that the Crown case depended upon it showing that each man had made a complaint of trespass.

Alleged inconsistency of verdicts

[38] As noted, Terry Giles was found not guilty of assaulting Mr Hill and the jury disagreed on the count against Stacey Giles in relation to Mr Wright. This gives rise to the complaint about inconsistency.
[39] Plainly the jury did not (at least unanimously) accept the Crown case as pitched at its highest, in effect that the appellants lured Messrs Wright and Giles into the cafe with a view to giving them a beating and having them prosecuted on a false charge of trespass. But likewise, the jury must have rejected the defence case that Messrs Wright and Giles simply barged into the cafe in defiance of the trespass notices.
[40] Given that the jury disagreed on count one (the charge involving Stacey Giles and Mr Wright), there is no need for us to attempt a reconciliation with the verdicts on the other counts. In relation to count two, it would appear that the jury was left with a reasonable doubt as to the events surrounding the actual violence which took place, in particular as to whether Terry Giles acted in self defence in his altercation with Mr Hill. In relation to the first count, Mr Wright’s mis-identification of Aaron Greenwood as being involved in the incident may also have troubled the jury. Doubts on the part of the jury (or some of them) as to whether the first two counts had been established were not inconsistent with the jury being sure that the appellants were guilty on the third count.
[41] As to this it is important to re-emphasise that the statements given by Terry and Stacey Giles to Senior Constable Hughey were remarkably similar.[2] On the basis of the evidence given by the independent witnesses and what can be legitimately inferred from the initial inaction of Messrs Raumati and Bowyer, it was obviously well open to the jury to conclude that Terry and Stacey Giles had put their heads together and had come up with a false story as to what had happened in the car park and how Messrs Wright and Hill came to enter the Saints Cafe. Such a conclusion on the part of the jury would have made verdicts of guilty on count three practically inevitable. But given that there was an absence of independent evidence as to how the altercation in the rear of the premises started, it is not entirely surprising that the jury had more difficulty with the Crown case in relation to counts one and two.
[42] So we reject this ground of appeal.

An unbalanced summing up?

Overview

[43] Mr Eaton complained about the summing up in terms of balance. It was submitted that the summing up lacked the fairness and balance required by R v Keremete.[3]
[44] It is right to say that Mr Eaton challenged the fairness of the summing up immediately after it was delivered and to some extent (but by no means completely) his complaints were addressed by the Judge when she redirected the jury.
[45] Before we discuss Mr Eaton’s particular complaints, some general comments are appropriate.
[46] Despite the increasing use of written directions, summing up is still largely an oral process. To be effective, a judge must talk to, rather than at, the jury. So informality of language is inevitable. So too are some infelicities, such as repetition of what becomes a stock phrase or the use of throat clearing or bridging expressions while the judge decides on the words to use next. It is not easy (and indeed it is not practicable) for judges to preserve the spontaneity which is fundamental to a good summing up and at the same time use the sort of utterly neutral and dispassionate language which can be a feature of written communication. It is not surprising therefore that when judges put the conflicting cases advanced by the prosecution and defence, the words they use sometimes reflect a possible preference for, or endorsement of, some or the arguments advanced.
[47] It is very rare indeed for an appeal to be allowed on the basis of an unbalanced summing up. Given the oral nature of the process, detailed analysis of the transcript of what the Judge said has the tendency to over-emphasise the significance of any infelicities. As well, juries can be expected to approach their task conscientiously and in particular to form their own views on factual issues. This after all is what juries are told to do by judges – and in a way which is almost always far more explicit and unequivocal than the expression of the alleged judicial preference for one side or the other. As well, judges are entitled, within limits, to express a view on the merits of a case or on some of the issues of fact which the jury must address.[4] And there is no need to strive for an artificial balance between the rival cases.[5]
[48] This was a hard fought case, with Mr Eaton putting the defence case very robustly – indeed so robustly in relation to the characters of Messrs Wright and Hill that there was scope for the view that the defence omelette had been over-egged. As well, there were substantial difficulties in correlating the defence theory of what happened with both the independent evidence and the actions and inaction of Messrs Raumati and Bowyer just before the incident in the back of the Saints Cafe occurred. Further, the defence case was perhaps not much assisted when Stacey Giles backed away substantially from what he had earlier told the police as to the events in the car park and the behaviour there of Messrs Wright and Hill.

Directions on lies

[49] Mr Eaton complained about the following passage in the summing up:

[79] I want to turn now to the next matter which has been raised fairly and squarely in this case and it’s in this issue of credibility and reliability and that is this question of lies. Both parties contend that their respective witnesses or clients are lying or have lied. Now a lie, ladies and gentlemen, is a deliberate untruth. We all know that but it’s important for me to restate it. It’s something that someone tells deliberately knowing that it is untrue.

[80] In this case the defence say that Mr Wright lied about Aaron Greenwood when he told the police that Aaron Greenwood had kicked Mr Hill in the back of the head twice when he was lying on the ground. Mr Wright has given you an explanation for that. He said, “When I was lying on the ground I was trying to look up. I had just been beaten, had blood over my face” and we can see the damage to his eyes “and I was mistaken. I was genuinely mistaken and it wasn’t a lie” because he is saying it wasn’t a deliberate untruth. The defence, however, contend the other way. They say this was an out and out lie told to get Mr Greenwood into trouble and also Mr Eaton says it is more than that. It’s a lie about kicking and it’s another lie that Mr Wright has told consistent with the lie he’s told against Mr Stacey Wright (sic). That is, that Mr Stacey Wright (sic) kicked him whilst he was on the ground.

[81] Also the Crown say here that the accused lied, that is, Mr Stacey Giles lied and also Mr Terry Giles lied to the police when they said that these two young men outside of the Saints Cafe were ranting. I think Mr Terry Giles said that Mr Dean Hill was screaming and jumping around and the Crown say that that’s a deliberate untruth.

[82] On the other hand, Mr Stacey Giles has given you an explanation as to why he may have overstated what he saw or heard going on outside because of his earlier involvement with these two young men.

[83] So before you can consider whether a lie is important, you have to determine was it a lie. Was it a deliberate untruth or was it a mistake in relation to Mr Stacey Giles and Mr Terry Giles? Was the inconsistency explainable by a difference in perception or a lack of perception? Do you accept what they told you about why it was that Mr Stacey Giles’ statement is different from what he said in Court?

[84] The other thing you need to consider is that people can say a deliberate untruth for varying different reasons, just not because they are guilty. It may be because they are embarrassed, they are panicked, they are confused or they might be trying to cover up for someone else so you just can’t leap from the conclusion that because somebody might have told a lie they are therefore dishonest as a whole. That would be quite wrong and that’s important in this case because, as I said to you from the outset, you don’t have to accept all of what a witness has said. You can accept part of what a witness has said or you can reject part of what a witness has said and in relation to any particular witness if you are certain that there was in fact a lie, you need to consider whether or not that lie affects their overall reliability and honesty in relation to that particular witness.

[85] If you accept that a lie has been told then it comes part of the case, the circumstantial evidence in the case. It’s just another piece of evidence to put into the factual matrix.

[50] As is apparent, the Judge gave a lies direction in relation to Stacey Giles which was based on the watering down in his evidence of what he had originally said about the behaviour of Messrs Wright and Hill in the car park. This had led the prosecutor to claim that Stacey Giles had lied in his statement to the police where he claimed that there was ranting and raving behaviour on the part of Messrs Wright and Hill in the car park and also that he had been driven to back away from the false allegation because of the evidence from independent witnesses that nothing untoward had happened.
[51] Mr Eaton has two complaints about this passage in the summing up.
[52] The first is that in [80] the Judge endorsed Mr Wright’s explanation with her comment “and we can see the damage to his eyes” and that if she was going to give that sort of endorsement she should have rehearsed the defence challenges to Mr Wright’s account in detail, rather than summarily (which is effectively what she did in the second half of [80] of the summing up).
[53] Underpinning this argument is an expectation of balance which we see as unrealistically high given that a summing up is delivered orally, the desirability of judges talking to, rather than at, jurors and the overall exigencies of the criminal trial process.
[54] The second complaint is that the Judge linked her lies direction in relation to Stacey Giles with what she had to say about the “lie” regarding Aaron Greenwood which was attributed to Mr Wright.
[55] A direction in relation to lies allegedly told by a defendant necessarily addresses issues which do not arise in the case of alleged lies told by a witness. The way in which the Judge combined the directions was not orthodox. Conceivably by doing so, she may have drawn some of the sting of Mr Eaton’s attack on Mr Wright (and in particular by juxtaposing the alleged lies told by Mr Wright with those allegedly told by Stacey Giles). But the summing up made clear to the jury the critical point that the lie attributed to Mr Wright was relevant to his reliability and credibility and accordingly we can see no associated prejudice to the appellants.

The summarising of the respective cases

[56] Mr Eaton complained that the Judge often adopted the expression, “as Mrs Orchard said” when she summarised the Crown closing address, something which she did in fact do on a number of occasions. In contradistinction, the words “as Mr Eaton said” were used only twice by the Judge when she summarised his address. Instead the phrase “on Mr Eaton’s submission” was usually preferred in relation to his arguments. As well, on five occasions the Judge made interpolations when she paraphrased Mr Eaton’s address, once to correct a submission which Mr Eaton had misattributed to Mrs Orchard, once to correct a mistaken assertion as to when Mr Wright first alleged assault, two of the “it’s entirely a matter for you, ladies and gentlemen” kind and once to give a transcript reference in relation to evidence to which Mr Eaton had referred.
[57] The words “as Mrs Orchard said” may have become something of stock phrase for the Judge and their repetition may, at least in part, simply be a function of the oral nature of the summing up process. But we accept that the expression may well have been taken by the jury as endorsement of the submissions to which the Judge was referring. In the main the relevant Crown submissions were in response to the attack made by the defence on Messrs Wright and Hill. In particular, we think that by the use of this expression, and in context the Judge could be taken to have invited the jury to:

(a) put aside feelings of prejudice associated with the less satisfactory aspects of the behaviour of Messrs Wright and Hill;

(b) evaluate the attacks on them in light of the evidence before the Court and their assessment of them;

(c) focus on the limited nature of the evidence of them having a propensity for violence or as to their untruthfulness; and

(d) concentrate on the evidence as to how intoxicated they were.

[58] Although in one sense these invitations (at least as expressed by us) are unexceptionable, we accept that they may have left the jury with the impression that the Judge considered that the attack on Messrs Wright and Hill had gone beyond what was justified by the evidence. But, as indicated, the rules that govern the conduct of criminal trials do not prevent a Judge sharing his or her views about the evidence with the jury. To the extent to which the Judge did this, it was in mild terms. Given this and the fact that the defence was put fairly to the jury, the Judge did not in any way usurp the function of the jury.
[59] We are likewise not persuaded that the Judge’s interpolations were other than entirely appropriate.

(a) She was plainly entitled to correct mistakes made by Mr Eaton in the misattribution of a submission to the prosecutor and his error as to when Mr Wright first alleged an assault.

(b) The first of her “it’s entirely a matter for you, ladies and gentlemen” remarks was in relation to what might be thought to have been a rather cavalier dismissal by Mr Eaton of the significance of the discussion in which Terry and Stacey Giles indicated a preoccupation with Messrs Wright and Hill and talked of an effective entitlement to shoot or assault people on their property. This discussion was concluded only five or ten minutes before Messrs Wright and Hill arrived at the car park.

(c) The second of the “it’s entirely a matter for you” remarks was in the context of a contention that there had been no complaint of trespass and was coupled with an invitation by the Judge to the jury to look at the relevant exhibits. Given that the argument that there had not been a complaint seems to have been raised for the first time in Mr Eaton’s closing address, coupled with what Terry and Stacey Giles had actually said to the police, we have no difficulty with what the Judge did.

(d) Giving the jury a transcript reference in relation to evidence to which Mr Eaton referred seems to us to be entirely anodyne.

The alleged propensity for violence of Messrs Wright and Hill

[60] At trial, Mr Eaton relied on two incidents to establish (or illustrate) this propensity for violence on behalf of the appellants. Firstly, an alleged assault by Mr Wright on the chef of the Hot Springs Hotel during the lunchtime incident there on 11 February and secondly, an incident in a bar about three weeks later between Mr Wright and Mr Raumati (which involved some shoving and provocative behaviour by Mr Wright).
[61] In relation to the first of these incidents, there was evidence of a physical altercation involving at least Mr Wright and the chef at the Hot Springs Hotel but there was no direct evidence to contradict the accounts given by Messrs Wright and Hill as to how that incident happened and its nature (namely that the chef came towards Mr Wright and that he and Mr Wright locked arms and went to the ground). On this point, the Judge directed the jury that the evidence of Messrs Wright and Hill was uncontradicted.
[62] Mr Eaton maintained that the Judge should have left it to the jury to draw inferences from the whole of the circumstances and, if they saw fit, to reject the evidence of the complainants. In this way he claimed that it would have been open to the jury to conclude that Mr Wright at least had assaulted the chef.
[63] We accept that the Judge’s comment that the evidence of Messrs Wright and Hill was uncontradicted was incomplete. This is because the jury might have still been able to reason to a conclusion that Mr Wright had started the scuffle with the chef. This might have been on the basis that it was not altogether likely that the chef would have initiated a scuffle with one of three men who were in the process of being evicted from the hotel.
[64] But that said, we see no substantial prejudice to the appellants. Importantly, there was no evidential basis for concluding that the scuffle was other than minor. Significantly, no complaint of assault was made to Senior Constable Hughey when he arrived shortly afterwards. There was a world of difference between that scuffle (even assuming it was initiated by Mr Wright) and the home invasion-like conduct at the Saints Cafe which the defence attributed to Messrs Wright and Hill. And there was, in any event, ample evidence of Messrs Wright and Hill behaving badly at the time of, and just after, the incident at the Hot Springs Hotel.
[65] The complaint about the second incident is simply that the Judge recorded Mrs Orchard’s submission in relation to it with the prefatory phrase, “as Mrs Orchard said”. In this case, the proposition to which the Judge gave apparent endorsement was that if the events at the Saints Cafe had occurred in the way Mr Wright alleged, he might be thought to have had some grounds for complaint about Mr Raumati’s actions. This was so self-evidently right that the Judge’s apparent endorsement can have added nothing of value.

Intoxication

[66] A final complaint related to the way in which the Judge summed up on the intoxication issue, which Mr Eaton suggested down-played the strength of his case and placed undue emphasis on the evidence of the independent witnesses who saw what happened in the car park.
[67] After the summing up, the Judge re-directed on the detail of the evidence relied on by the defence and the qualifications (in terms of experience in the licensed trade) of the witnesses relied on by the defence in a way which seem to us to have adequately addressed the first aspect of Mr Eaton’s complaint. The criticisms made by Mr Eaton of the weight placed on the independent Crown witnesses ignores the point already made earlier, that those witnesses were reasonably well-placed to observe whether Messrs Wright and Hill were acting in a drunk and disorderly manner.[6]

Overall evaluation

[68] We appreciate that the sort of argument which Mr Eaton made about the summing up cannot necessarily be fairly addressed by the dissection of some or all of its individual components. But we think that what we have just said gives some indication of the style of the summing up and the nature of the complaints. And the reality is that the Judge was entitled to comment on the facts. None of her comments seem to us to have been wrong or unfair in this sense. There can be no doubt that the Judge put the substance of the defence case to the jury and she made it perfectly clear that all factual issues were for them to decide. Further, there can be no suggestion that she usurped the function of the jury.
[69] Overall we consider that the summing up was fair.

Disposition

[70] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] See above at [12].
[2] See above at [15].
[3] R v Keremete CA247/03, 23 October 2003 at [18]–[19].

[4] See R v Hall [1987] 1 NZLR 616 (CA) at 622, 626; R v Fotu [1995] 3 NZLR 129 (CA) at 138; and Bruce Robertson (ed) Adams on Criminal Law (looseleaf ed, Brookers) at [Ch5.18.02].
[5] R v Keremete at [19].
[6] See above at [24].

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