Smith v R [2013] NZCA 362; [2014] 2 NZLR 421; (2013) 27 CRNZ 76 (27 September 2013)

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ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (EXCEPT THE RESULT AS SET OUT IN THE JUDGMENT OF THE COURT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF RETRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

Hearing:	16 September 2013
Court:	O'Regan P, Ellen France and Wild JJ
Counsel:	C W J Stevenson for Appellant C L Mander for Respondent
_Judgment:	_{27 September 2013 at 10.30 am}

B The conviction entered by the High Court is quashed. C A retrial is ordered.

news media or on the internet or other publicly available database until final disposition of retrial. Publication in law report or law digest

	Para No
Introduction	[1]
Factual background	[4]
What the appellant said to the police	[11]
Trial issues
Self-defence	[15]
Murderous intent	[20]
Issues on the appeal against conviction
Cellmate confession	[21]
Offender caution	[28]
Prosecutorial misconduct	[31]
(a) Inviting the jury to infer guilt from appellant’s silence before trial	[32]
(b) Exceeding established constraints	[59]
(c) Lying to hide guilt	[63]
(d) Opening propensity point lacking an evidentiary foundation	[66]
(e) “Duty to retreat”	[69]
Summary	[72]
The proviso	[74]
_Result	[79]

[1] Mr Smith appeals against his conviction for murder following a trial in the High Court at Timaru over three days in May 2011. He appeals also against the sentence of life imprisonment imposed on him by Fogarty J on 17 June 2011.¹

_{against conviction, is that justice miscarried in the appellant’s
trial as a result of the}

jury being invited by the prosecutor to infer that the appellant was guilty, because he did not disclose his defence that he stabbed the victim in self-defence until he gave evidence in his trial.

[3] The ground of appeal against sentence was that life imprisonment was a manifestly excessive and inappropriate sentence for a number of reasons, and that a finite sentence of around 10 years imprisonment was the appropriate one. As the appeal against conviction succeeds, we say nothing more about the appeal against sentence.

[4] The early part of the narrative is not much in dispute. At about 9.45 pm on 1

April 2010 the appellant was walking home along Thames Street in the centre of Oamaru when he was confronted by Mr William Lewis and Mr Donovan Smith. All three young men were aged 16 at the time.²Mr Lewis accused the appellant of claiming that he had slept with Ms Alexis Smith, Mr Lewis’ recent girlfriend. Mr Lewis abused the appellant and challenged him either to fight or surrender his hoodie. There was evidence that Mr Lewis tried to head the appellant down an

alleyway. The appellant refused to fight, instead continuing to walk northwards along Thames Street.

[5] Messrs Lewis and Donovan Smith got in a car driven by Ms Alexis Smith and followed the appellant down the street. At the intersection of Thames and Torridge Streets, Messrs Lewis and Donovan Smith got out of the car and pursued the appellant, who was still ahead of them. At the next intersection, with Exe Street, Mr Lewis confronted the appellant a second time and headed him down Exe Street, abusing him and still intent on taking his hoodie.

[6] Halfway down Exe Street, the appellant found himself, back against a car, facing Mr Lewis who was perhaps half a metre away. Mr Donovan Smith was out in

_{the middle of the street about four or five metres from the appellant.
They were both}

²We think that is correct of Mr Donovan Smith – his answer in evidence was inaudible: Notes of

abusing the appellant, who recalled Mr Lewis calling him a “bitch” and a “fucken pussy”, and Mr Donovan Smith calling him a “faggot”.

[7] Mr Lewis then tried to pull the appellant’s hoodie off him. The appellant broke Mr Lewis’ grip and drew out from beneath his clothing a 12.5 centimetre hunting knife.

[8] It is at this point that the accounts given in evidence by Mr Donovan Smith for the Crown, and by the appellant in his own defence, diverge. Mr Donovan Smith said that Mr Lewis immediately turned away, he thought with the intention of getting away. He said the appellant then took hold of Mr Lewis’ shoulder with his left hand and, with his right hand, stabbed Mr Lewis in the back three times.

[9] The appellant’s account was that after he broke Mr Lewis’ grip on his hoodie, Mr Lewis rotated to his right, drawing back his right arm to punch him. He said that he reacted defensively, pulling out his knife and first swinging it defensively across Mr Lewis’ front. It was accepted by Crown and defence that was consistent with a J-shaped cut on the front of Mr Lewis’ T-shirt. The appellant said he then took a step to the right and swung his knife a second time. By then Mr Lewis was side on to him and he inflicted the first of the three knife wounds to his back. He accepted – as he had to – that he stabbed Mr Lewis twice more in the back.

[10] Dr Sage, the pathologist who examined Mr Lewis forensically, accepted that the appellant’s account of what had happened was not inconsistent with the three back wounds Mr Lewis sustained, assuming the appellant had swung his knife in a “right-handed round house” fashion, while standing off the end of Mr Lewis’ left shoulder.

[12] At about midnight, Detective Duncan went to the appellant’s home. He explained to the appellant’s father, who answered the door, that he wanted to speak to the appellant about the stabbing. He told Mr Smith Senior that the victim had

died. The detective was invited in and spoke to the appellant in his bedroom. He “issued the Bill of Rights” to the appellant. He noted the appellant’s acceptance that he understood his rights. He told the appellant that he was entitled to have a nominated person with him and the appellant nominated his father.

[13] The notes the detective made of what the appellant then told him include the following:

The accused states he has been home all night and hasn’t gone out. He wasn’t involved in an altercation with anyone downtown and doesn’t know anything about it.

I then asked the accused if he knows Will Lewis. The accused denies knowing Will Lewis.

[14] It was only at the Oamaru Police Station at about 2.30 am, after speaking to a lawyer, that Mr Smith Senior advised the detective that the lawyer had “advised them not to say anything”. Subsequently, after again being advised of his rights under the New Zealand Bill of Rights Act 1990 and acknowledging that he understood them, the appellant declined to answer further questions put to him by the detective.

[15] The primary issue for the jury was whether they were satisfied that the appellant, in stabbing Mr Lewis, was not acting in self-defence. The jury needed to decide whether it was convinced by Mr Donovan Smith’s eyewitness account. Against the fact that Mr Lewis, and to a lesser extent Mr Donovan Smith, were the aggressors until the appellant pulled out his knife, the jury had to weigh the fact that the appellant had earlier in the evening armed himself with the knife, and used it to stab Mr Lewis three times with very considerable force. The appellant did that in response to a threatened punch. Two of the wounds extended to the length of the blade, the third was of even greater depth. The jury had to set this evidence against the other eyewitness evidence, which was comparatively insignificant, against

Dr Sage’s expert forensic evidence, and also against two other important strands of evidence.

[16] The first of those strands was a series of text messages the appellant sent his girlfriend during the evening, beginning before he was confronted by Mr Lewis and Mr Donovan Smith, and ending shortly before he was spoken to by the police at home around midnight.

[17] Before the critical incident the appellant sent a text to his girlfriend: “It’s okay baby, all good. Don’t worry about it hon. I’m getting chased at the moment because you said you don’t want me to fight, so I run LOL”. Then a little later: “Can I fight just this once please?” And then, once his girlfriend had replied that he could: “Don’t worry about me, I’m strapped”. In evidence the appellant accepted that the “strapped” text referred to the knife he was carrying. He claimed that these texts demonstrated bravado, whereas in fact he was scared.

[18] After the incident he sent a text telling his girlfriend he had stabbed Mr Lewis. When she asked him why, he replied: “He cheap-shotted me”. When she asked him what he was thinking at the time he replied: “I was thinking about today and got real angry, baby”. The Crown submitted that last text referred to an argument about work the appellant had with his father earlier that day. That argument had been the subject of texts earlier in the day.

[19] The second strand of evidence comprised what the appellant said about the incident on two later occasions. First, there was evidence from a Mr Douglas and a Mr Turnbull about what the appellant had said to Mr Douglas while the three were held in separate cells at the Oamaru Police Station two nights after the incident. Second, Mr Parlato gave evidence about what the appellant had said to him about two weeks later when the two spoke at the residential centre where the appellant was

³In R v Smith HC Timaru CRI-2010-045-249, 16 March 2011 [Pre-trial Ruling], Fogarty J recorded: “The defence have withdrawn objection to a third witness, a Mr Parlato.” Mr Stevenson made it clear to us that, had he been trial counsel, he would have objected to the admissibility of Mr Parlato’s evidence. That is a matter, not for this Court, but for the Judge who retries the appellant. If objection is taken to Mr Parlato’s evidence, we consider the governing provision will be s 69 of the Evidence Act 2006.

[20] If the Crown persuaded the jury that the appellant had not acted in self-defence, then the other issue was whether the Crown had proved murderous intent. That involved establishing that the appellant intended to injure Mr Lewis, knew that stabbing him was likely to cause Mr Lewis’ death, and was reckless whether Mr Lewis died or not.

[21] This ground relates to the evidence of Crown witness Corey Douglas. Mr Douglas gave evidence about what the appellant had told him, when the two were in cells at the Oamaru Police Station on the night of 3 April – two days after the stabbing. In particular Mr Douglas said the appellant had told him:⁴

Then the guy tried to stand over him for his hoodie, wanted to take his hoodie, and he said the fellow turned around and he stabbed him twice in the back and once in the stomach.

[22] In a pre-trial ruling Fogarty J ruled this evidence sufficiently reliable to qualify for admission under s 27 of the Evidence Act 2006, but ruled some other parts of Mr Douglas’ proposed evidence inadmissible.⁵

[23] Mr Stevenson argued that the Judge should have given the jury a warning in terms of s 122 of the Evidence Act about Mr Douglas’ evidence. He made four points in particular. First, the jury may not have understood why Mr Douglas’ evidence might not be reliable. By way of reinforcement he pointed out that the prosecutor, in his closing address to the jury, had said: “There’s no need at all to be cautious about [Mr Douglas’] evidence.”

incident had come from the appellant. In evidence Mr Douglas said that he had earlier heard about the incident on the news.⁶

[25] The third point was that the Crown relied strongly on Mr Douglas’ evidence, describing him as one of the “key witnesses” in the case from the Crown’s perspective. Mr Stevenson relied on the Supreme Court’s decision in Hudson v R, where the Court said a direction “will normally be required” about the reliability of a confession by one prisoner to another.⁷

[26] Fourthly, Mr Douglas’ account was contradicted in several respects by that of Mr Turnbull, who was also in the cells and heard the exchange between the appellant and Mr Douglas. Mr Turnbull’s evidence was read by consent.

[27] We do not accept these submissions. The defence did not ask the Judge to give a s 122 warning. As Mr Mander submitted, this was no doubt because the defence wished to rely on some parts of Mr Douglas’ evidence, in particular that the appellant had said he “just didn’t mean to kill him. He just thought the fella would go to hospital”.⁸So the submission now made is inconsistent with the defence strategy at trial. This was not a situation where a s 122 warning was appropriate, let alone required.

[28] Similarly, Mr Stevenson submitted that the Judge ought to have given the jury a s 122 warning about the evidence of Mr Donovan Smith. As the only eyewitness to the stabbing, he was obviously the key Crown witness. Mr Stevenson’s submission was that Mr Donovan Smith and Mr Lewis were involved in a two-on-one standover and attempted aggravated robbery of the appellant. That gave Mr Donovan Smith a motive to minimise his own role in the

[29] For much the same reasons we gave in relation to Mr Douglas’ evidence, we do not accept that the Judge needed to warn the jury about the reliability of Mr Donovan Smith’s evidence.

[30] As Mr Mander pointed out, in his closing address to the jury, counsel for the appellant said: “Now, I’m not saying for a minute that Donovan Smith is lying. I’m not saying that. I’m saying that he is an honest but mistaken witness.” Thus the defence did not suggest that Mr Donovan Smith was a witness “who may have a motive to give false evidence that is prejudicial to [the appellant]” in terms of s 122(2)(c) of the Evidence Act. As with Mr Douglas, the defence did not seek a s 122 warning in respect of Mr Donovan Smith’s evidence because such a warning would have jarred with the defence case. Beyond the combined aggression toward the appellant by Mr Lewis and Mr Donovan Smith, Mr Mander is correct in submitting nothing is advanced to demonstrate that Mr Donovan Smith’s evidence was unreliable. And the aggression of the two men toward the appellant leading up to the stabbing was all squarely before the jury. This was not a situation where a s 122 warning was either appropriate, or required.

[31] There are five aspects to this ground, which the appellant advanced singly, or certainly in combination, as establishing that a miscarriage of justice had occurred at his trial.

_{(a) Invit in g the jur y to i nfe r guil t from app ell
ant’s silence before trial}

[32] Mr Stevenson submitted that the prosecutor, both in cross-examining the appellant and in his closing address to the jury, had invited the jury to infer guilt from the fact that the appellant had not before he gave evidence disclosed that his defence was that he had stabbed Mr Lewis in self-defence. Mr Stevenson contended this breached s 32(2)(a) of the Evidence Act. Further, Mr Stevenson argued that s 32(2)(b) required Fogarty J to direct the jury that it may not infer that the appellant was guilty because he had not before trial disclosed that he was acting in self-defence. In Mr Stevenson’s submission, the result was a miscarriage of justice.

[33] For the Crown, Mr Mander submitted s 32 had not applied to the appellant at his trial and there had been no miscarriage of justice.

[34] So the first question is obviously: did s 32 apply? We will answer this question although, for the reasons we explain in [57] below, the outcome would be the same whether or not s 32 applied to the appellant.

(1) This section applies to a criminal proceeding in which it appears that the defendant failed—

(a) to answer a question put, or respond to a statement made, to the defendant in the course of investigative questioning before the trial; or

(a) No person may invite the fact-finder to draw an inference that the defendant is guilty from a failure of the kind described in subsection (1); and

(b) if the proceeding is with a jury, the Judge must direct the jury that it may not draw that inference from a failure of that kind.

[36] Prior to the enactment of s 32 the law in New Zealand was that a defendant had a right to silence and accordingly an inference of guilt could not be drawn if that right was exercised. But, if a defendant gave evidence at trial, it was open to the prosecutor and the Judge to comment that the defendant’s failure to take an earlier opportunity to explain his conduct or advance any defence reflected on the defendant’s credibility.⁹This Court’s best explanation of that earlier law and the

But, in our opinion, those statutory provisions [ss 151 and 156 of the Justices of the Peace Act 1927] do not affect the right to comment generally on the fact that a defence is raised for the first time at the trial. Such comment is by way of answer to the defence – a test applied in order to determine its truth or falsity – and differs essentially from any suggestion that silence is in itself evidence from which guilt may be inferred.

[37] As this Court observed in E(CA727/09) v R: “Many Judges think that this is a distinction that would test the skills of a philosopher.”¹¹The Court observed that it had been rejected as a practical distinction for a jury by the majority of the High Court of Australia in Petty v R.¹²The one Judge who dissented from that view in Petty was Dawson J. Because it sets out rather neatly what the distinction is and how it might be drawn in a practical way, but on the other hand why at least one respected commentator thought it unworkable, we set out this passage from Dawson J’s judgment:¹³

Thus in Reg v Ryan,¹⁴Melford Stevenson J, having considered the authorities, delivered the judgment of the Court of Criminal Appeal saying:

It is, we think, clear as a result of those authorities that it is wrong to say to a jury ‘Because the accused exercised what is undoubtedly his right, the privilege of remaining silent, you may draw an inference of guilt’; it is quite a different matter to say ‘This accused, as he was entitled to do, has not advanced at any earlier stage the explanation that has been offered to you today; you, the jury, may take that into account when you are assessing the weight that you think it right to attribute to the explanation.’

Professor Cross has described that passage as gibberish, alleging that it says on the one hand that a jury cannot draw an inference of guilt from the accused’s exercise of his right to silence and that on the other hand it says that the jury may do just that.¹⁵Properly understood, the passage says no such thing. It is one thing to draw an inference of guilt from the mere exercise of the right to silence. It is quite another thing to say that, if an accused who has previously maintained his silence gives evidence, the jury may take his previous silence, if they consider it to be relevant, into account in assessing the weight which they give to that evidence. In short, the exercise of the right to silence cannot of itself provide evidence of guilt; that must be established by other evidence. But the previous silence of the accused may be taken into account in assessing the credibility of evidence given by the accused at trial.

¹⁵Rupert Cross “The Evidence Report: Sense or Nonsense – A very wicked animal defends the

11th Report of the Criminal Law Revision Committee” [1973] Crim LR 329 at 333.

[38] As this Court noted in Coombs,¹⁶the English Court of Appeal in R v Gilbert also saw no clear and therefore workable dividing line between drawing an inference of guilt from silence and taking prior silence into account as diminishing the weight of any explanation given by the defendant for the first time in evidence at the trial.¹⁷

[39] Although acknowledging that the law was not creating major problems in practice, the Law Commission obviously accepted the difficulty inherent in the distinction the law drew, because it drafted two proposed sections: ss 32 and 33 in its draft Evidence Act. The effect of those two sections was to prevent all comment on the exercise of the right to silence before trial, including not disclosing a defence

McDonald records the Government’s response to the Commission’s proposal:¹⁹

This proposed change to the common law was rejected by Cabinet, following advice from the Ministry of Justice that the prosecutor should have the right to comment generally on the fact that a defence is raised for the first time at trial.²⁰The Associate Minister of Justice stated:²¹

I do not agree with the Law Commission’s suggestion that this ban [on permitting a fact-finder to draw an inference of guilt] should be extended to include an inference about a defendant’s truthfulness. This would preclude adverse comment on a defendant’s failure to disclose a defence before trial. Nor do I agree with the Law Commission’s suggestion that there should be a statutory ban on the fact-finder drawing inferences from a defendant’s failure to respond to official questioning. This would invite delving into the workings of the jury.

recommendation either, because it enacted s 32 and not the two sections proposed by the Commission.

¹⁸Law Commission Evidence: Reform of the Law (NZLC R55(1) 1999), at [129] and Law

_{Commission Evidence Code and Commentary (NZLC R55(2) 1999) at
[C158]–[162].}

¹⁹Elisabeth McDonald Principles of Evidence in Criminal Cases (Brookers, Wellington 2012) at

²⁰Cabinet paper “Evidence Bill: Paper 2: Admissibility of Evidence” (4 December 2002)

[42] Section 32 is a proscription only on inviting or drawing an inference of guilt from silence before trial, whether in response to “investigative questioning” or in not disclosing a defence before trial.²²It does not proscribe challenges to the defendant’s credibility because the defendant said nothing before advancing a defence in evidence at trial. Thus, the prosecutor could have challenged the appellant’s credibility in claiming for the first time in his evidence in his trial that he had stabbed Mr Lewis in self-defence, when he had never before made that claim despite the several opportunities he had to do so.

[43] But that is not what the prosecutor did. What happened at the trial was as follows, and we deal in turn with the prosecutor’s cross-examination of the appellant, his closing address to the jury, and Fogarty J’s summing up. The prosecutor’s cross-examination of the appellant included these exchanges: ²³

Q Well, you get home and continue your text conversation with [your girlfriend], and not once do you talk about doing what you did in self-defence, or that you were scared of Will Lewis, did you?

Q And when the police arrived on your doorstep, you said to them that you had been there all night long?

Q Golden opportunity for you to say, “I genuinely feared for my life.” Wasn’t it?

²²The Law Commission had favoured a change only in relation to “official questioning”, leaving the law unchanged in relation to silence in response to an allegation when the parties were on even terms: Law Commission Criminal Evidence: Police Questioning (NZLC PP21, 1992) at

He never told his girlfriend when he was texting her, immediately after this incident, that he was acting in self-defence. He never told Mr Caudwell, as he ran down the road to 2 Exe Street, that he acted in self-defence.

He never told Mr Douglas when he was in the cells talking about what had happened, a couple of days later, he never told him that he acted in self-defence, nor did he tell Mr Parlato, a few days after that, when he’d gone up to Palmerston North. He didn’t tell any of those people that he acted in self-defence, that the victim had actually thrown a punch at him first, and he was simply retaliating. He didn’t say any of those sorts of things, and the Crown say that is a very, very telling factor in this case.

[6] There is no doubt that Daniel Smith told some lies to Detective Duncan when he came to Daniel’s home around midnight. The Crown submit Daniel has lied also in his evidence. That is a matter for you to judge. If you are satisfied that one or more lies have been told, you must avoid thinking that because Daniel lied, he is guilty. A lie is a piece of circumstantial evidence to be added to the mix in determining whether or not the prosecution has discharged its burden. People can lie for reasons other than because they are guilty. They can panic. They can be trying to make the best of the situation. Before you place weight on a lie you must first satisfy yourself that it is a lie. If you reject any part of Daniel’s evidence, you must continually remind yourself that the Crown has the onus of proof. If you are satisfied you have detected a lie, that fact can be used by you as evidence against the accused. But remember, you still have to judge whether all the evidence proves guilt beyond reasonable doubt. The onus remains on the Crown.

[7] When speaking to the police, particularly Detective Duncan, Daniel had the right of silence. He was advised by lawyers not to make a statement. He cannot be criticised for not raising self-defence then. His conversation with Mr Douglas in the cells was private, he thought. Likewise with Mr Parlato. When considering the Crown’s argument that if he had been acting in self-defence he would have said so earlier, you may not treat his discussions with the police as an opportunity to do so. You may treat his

discussions with Mr Douglas and Mr Parlato as an opportunity. Whether you think it was, in fact, is a matter for you.

[46] Dealing first with [6] of the Judge’s summing up, this was a reasonably orthodox direction about the appellant’s lies to Detective Duncan when first spoken to, and (on the Crown’s submission) in his evidence. Importantly, the Judge directed the jury that the appellant’s lies were not necessarily indicative of guilt.

[47] Notwithstanding Mr Mander’s submission to the contrary, we consider that the prosecutor, both in his cross-examination of the appellant, and certainly in his closing address, invited the jury to infer that the appellant was guilty because he had not claimed that he had acted in self-defence before he gave evidence at his trial. There is no other sensible interpretation of the passage we have set out in [44] above, particularly the last sentence we have emphasised.

[48] As we noted in [32] above, Mr Stevenson submitted that the prosecutor’s cross-examination and closing breached s 32(2)(a) and that the Judge failed to correct the position by giving the direction mandated by s 32(2)(b).

[49] Despite Mr Mander’s submission to the contrary, we consider s 32 did apply to the appellant at his trial. Mr Mander founded his submission that s 32 was not engaged on the heading to the section:

[50] Certainly, the appellant was not silent before trial. We have set out in [13] above what he said to Detective Duncan when first spoken to at his home around midnight on the night of the stabbing. So on one view the appellant is not covered by the heading to s 32. But, in terms of s 5 of the Interpretation Act 1999, the heading to s 32 is an “indication” that “may be considered in ascertaining the meaning of” s 32. As the authors of Statute Law in New Zealand correctly state:²⁴

... it must be remembered that these headings are only “indications”: because of their brevity they cannot even be regarded as summaries. Thus, even though s 5(2) and (3) [of the Interpretation Act] do not expressly say so,

²⁴J F Burrows and R I Carter Statute Law in New Zealand (4th ed, LexisNexis, Wellington, 2009)

it must be the case that the substantive provisions of the section prevail if there is inconsistency. Indeed, on a few (thankfully rare) occasions, section headings have been actively misleading,²⁵sometimes because a section has been hurriedly amended on its way through Parliament.

[51] The operative or substantive part of s 32(1), as applied to the appellant at his trial, provides:

We point out that s 32(1)(a) and (b) are disjunctive. Section 32 applies if either the

[52] We consider the position here is very much as this Court saw it in R v Panine

While s 5 of the Interpretation Act 1999 permits consideration of the heading “Aggravated burglary” and the fact that there is no simple burglary included within the offence asserted by the Crown, that section makes clear that recourse to such indications is permissive; it is not mandatory. We are satisfied that the argument based on the heading is overridden by the language and the history of the measure.

[53] Accordingly, we consider s 32 applied to the appellant at his trial. In inviting the jury to infer guilt from the appellant’s failure to disclose self-defence before the trial, the prosecutor breached s 32(2)(a). Section 32(2)(b) required Fogarty J to direct the jury that it may not accept the prosecutor’s invitation – it may not infer guilt from the appellant’s failure to disclose self-defence before trial.

[54] Fogarty J did not do that. His only relevant directions are in [7] of his summing up. We think the jury would have understood the Judge was directing them

²⁵Until it was amended in 2002, the heading to s 59 of the Personal Property Securities Act 1999 was actively misleading. Sometimes a select committee may recommend amendments to a heading or note: for example, (9 October 1981) 441 NZPD 4003: a committee recommended changing the note to cl 39 (Summary Offences Bill 1981).

• The appellant could not be criticised for not raising self-defence when he was being spoken to by Detective Duncan at the Oamaru Police Station. In other words, they should not infer guilt from the appellant’s silence on that occasion.

• But the appellant’s discussions with Mr Douglas in the police cells and with Mr Parlato at the residential centre, although private, were opportunities for the appellant to say that he had acted in self-defence. He had not done so on either occasion. From that the jury could infer the appellant had not acted in self-defence – in short, it could infer guilt.

[55] That was not the required direction. It was simply a misdirection because it instructed the jury that they could infer guilt from the appellant’s silence about self-defence when speaking to Mr Douglas and then later to Mr Parlato.

[56] The position was compounded by the fact that the Judge did not give the jury any assistance in respect of the appellant’s evidence. This Court has held on several occasions that the so-called “tripartite” direction is not mandatory.²⁷Nevertheless, it is a direction which became – and remains – well used because it can help a jury, and we think it would have helped the jury in this case.

[57] If we are wrong in our interpretation of s 32, and it did not apply to the appellant at his trial, then the law as we have explained it in [36] would apply. The position would be no different, because that law proscribes the drawing of an inference of guilt from the defendant’s exercise of his right to silence.

[58] The regrettable conclusion is that justice miscarried in the appellant’s trial.

[59] Mr Stevenson submitted that the prosecutor, in his closing address to the jury,

Instead, the Crown say the accused, angry from an incident earlier in the day, this argument he had with his father, pulled out a knife, slashed William Lewis across the front, then stabbed him three times in the back as he ran away. Now, the Crown say it would be a very, very sorry world if this type of behaviour was considered acceptable in any society.

I don’t know about you, but he certainly didn’t convince me that he was scared or frightened that particular night. I just heard a lot of what he wanted to do, which was to get home and to avoid Mr Lewis following [him] home.

He was using that knife on a retreating victim, and the Crown say in no society should that be a reasonable response to any threat that was faced.

[60] Mr Stevenson submitted that the first and last of these passages was inappropriately emotive and moralistic, in particular in its reference to the implications of an acquittal. He argued that the prosecutor, in the middle passage, quite improperly inserted into the trial his own opinion as Crown solicitor.

[61] There is no need to add to what this Court said in R v Mussa, and earlier in R v Hodges, about the duties of prosecutors in criminal trials.²⁸It can be summarised in the proposition that a prosecutor’s duty is to put the Crown case fully and firmly, but fairly. That may be done forcefully, but it must always be done dispassionately, shorn of unnecessarily emotive or inflammatory comments and language.

[62] Here, the prosecutor’s expression of personal opinion was inappropriate. The Court made exactly that point in Hodges.²⁹Further, we accept Mr Stevenson’s submission that those parts of the prosecutor’s closing address instanced in [59] above were not appropriate. For example, in telling the jury that “it would be a very, very sorry world if this type of behaviour was considered acceptable in any society”, the prosecutor was inviting the jury to decide the case on the wrong basis. Implicitly, he was saying that whatever the law is, the jury should not accept what

the appellant had done because it was not acceptable behaviour. Nevertheless this

[63] Mr Stevenson’s third criticism was of the following comments by the prosecutor in closing to the jury. We have emphasised the words Mr Stevenson complains of, but set them in their immediate context in the prosecutor’s address:

You’re going to be given a direction by His Honour about lies, and he’s going to indicate to you that there may be any number of reasons why a person lies, but the Crown say in this case the only reason why a person is lying, or the accused is lying, is to hide his guilt for what happened that night.

So the Crown say this issue of intoxication is a smoke-screen. The accused has relied upon it to say that he was so drunk that he was unable to form this necessary intent. He didn’t know what he was thinking. Everything was blurry. The Crown say disregard that evidence, because that was not the case at all. He simply said that in order to try and escape this murder charge. So the Crown say the accused must have had a conscious appreciation that what he was doing could result in death, that is to say that he knew there was a real risk that death may ensue. Any reasonable person would have such an appreciation, but the test is whether he, himself, had that appreciation, and the Crown say as a result of his lies in his evidence to you, you cannot accept what he’s said in that regard. The reason he’s lied is because he did have that appreciation.

[64] In advancing this criticism Mr Stevenson relied on what this Court said in R v

Unlike [the complainant] and [S], [Mr E] has every reason to tell untruths about what occurred because he has the reason for avoiding a finding of guilt in this case.

[96] ... However, this pales into insignificance beside the remark about Mr E having a motive to lie to avoid a finding of guilt. It has been held that it is never legitimate for a Judge to make such a suggestion and it is just as unacceptable (if not more so) for a prosecutor to do so. Making such a submission has the effect of suggesting that the evidence of an accused should be scrutinised more carefully than that of a complainant or other Crown witness simply because he or she is the accused. This is wrong and unfair ... The situation may have been saved by a very strong direction by the Judge but none was given.

[65] Mr Mander is correct in responding that the prosecutor here did not do what this Court in R v E(CA308/06) ruled was impermissible. He did not invite the jury to infer guilt, or suggest the appellant had a motive to lie, simply because he was facing a murder charge he wanted to get off. That would have been altogether improper. Here, the prosecutor cannot be criticised for suggesting to the jury that the appellant had lied and/or said he was drunk in order to obscure his guilt for what he had done. We observe that this criticism could have been obviated had the prosecutor adopted a more measured approach.

[66] In opening the Crown case, the prosecutor told the jury: “Well a few weeks earlier [the appellant] had been involved in an altercation where his friend stole, where his friend Sou stopped him from using a knife.”

[67] Mr Mander accepted Mr Stevenson’s point that the Crown called no evidence to support this, and the Crown said nothing more about it. Mr Mander explained that “Sou” appeared to be a reference to the witness Mr Fuluasou Feu’u who was to be called by the Crown, but was not. Instead, the matter was covered in the statement of admitted facts dated 4 May 2011, which was the third day of the trial:

The knife (exhibit 4) was returned to the accused earlier that evening from his friend Fuluasou Feu’u (known as “Sol”) after they had dropped off Logan Weir. ...

[68] Mr Mander pointed out that the defence did not seek a direction correcting and explaining the position, and submitted that this demonstrated it had not resulted in a miscarriage. We are inclined to agree, but the Crown should be vigilant in dealing properly with the position at the retrial.

[69] Mr Stevenson submitted that it was improper for the prosecutor to suggest to the jury that the appellant had a duty to retreat from the confrontation. It suffices to give two of the five instances where he said the prosecutor had suggested this:

Well, he certainly had options available to him. He could have run, and in particular he could have run when he saw Mr Lewis again after the Domino’s incident ...

He said he genuinely feared for his safety, yet every chance he had to do something about it, he didn’t do anything. He said he couldn’t run yet he could certainly run after he had stabbed the victim.

[70] The Judge did not direct the jury about this. Mr Stevenson argued that was an omission.

[71] We agree with Mr Mander that none of the prosecutor’s comments was improper. Given that the appellant had said he was frightened and scared, it was not beyond proper bounds for the prosecutor to put to the jury the rhetorical question “Why didn’t he retreat then?” Again, we observe that the prosecutor should have adopted a more measured approach in addressing the jury on this point. Had he done so, it would not feature in this appeal.

[72] Only the first of the five aspects of prosecutorial misconduct alleged has been made out. For the reasons we have given in [32]–[58], justice miscarried in the appellant’s trial.

[73] In [62], [65] and [71] we have been critical of the prosecutor’s conduct in his closing address to the jury. However, the points of which we have been critical did not give rise to a miscarriage of justice. Taken together the other four grounds of prosecutorial misconduct marginally bolster our conclusion that there was a miscarriage of justice at the appellant’s trial.

[74] We have considered whether we can apply the proviso to s 385(1) of the Crimes Act. In terms of the Supreme Court’s decision in R v Matenga, we could do so only if, having reviewed all the admissible evidence, we consider the guilty

verdict was inevitable notwithstanding that the errors caused justice to miscarry at the trial.³¹

[75] Counsel did not address us about the proviso. We have therefore considered whether we should convene a separate hearing in relation to the application of the proviso, just as this Court did in E(CA113/2009) v R (No 3).³²We have concluded that such a separate hearing could not result in our “feel[ing] sure of the guilt of the accused”, to adopt the Supreme Court’s words in Matenga.³³That is because all the evidence in this trial was given viva voce.

[76] This case is therefore different from E(CA113/2009) v R. There, at the resumed hearing, the Court was able to view the videotaped interviews of both the complainant and the accused. By contrast, we would have to make our assessment of the witnesses and of the evidence they gave based on the transcript of evidence, possibly also listening to some parts of the recording of that evidence (something the Court also did in E(CA113/2009) v R).

[32] In coming to its conclusion concerning the inevitability of the verdict, the appeal court must of course take full account of the disadvantage it may well have in making an assessment of the honesty and reliability of witnesses on the sole basis of the transcript of the oral evidence. In a case turning on such an assessment the court will often be unable to feel sure of the appellant’s guilt and will therefore be unable to apply the proviso.

[78] That is exactly the position we find ourselves in. We are unable to feel sure of the appellant’s guilt. Accordingly, the only course open to us is to allow this appeal.

[79] The appeal is allowed. The conviction entered by the High Court is quashed. We order a retrial. Any question of bail pending that retrial is for the High Court.

³¹R v Matenga [2009] NZSC 18, [2009] 3 NZLR 145 at [31]–[32]. The effect of s 397(1) and (2) of the Criminal Procedure Act 2011 is that s 232 of that Act does not apply to this appeal, because the proceeding against the appellant was commenced before 1 July 2013.

³²_{E (CA113/2009) v R (No 3) [2010] NZCA 544,
particularly at [2]–[3] and [97].}

[80] To ensure a fair retrial, we make an order prohibiting publication of the judgment and any part of the proceeding (except the result as set out in the judgment of the Court) in news media or on the internet or other publicly available database until final disposition of retrial. Publication in law report or law digest permitted.

BETWEEN	DANIEL ETHAN SMITH Appellant
AND	THE QUEEN Respondent

Court of Appeal of New Zealand

Smith v R [2013] NZCA 362; [2014] 2 NZLR 421; (2013) 27 CRNZ 76 (27 September 2013)