Singh v R

• Jurisdiction: New Zealand
• Judge: Harrison,French JJ,Harrison J,Ellen France J
• Judgment Date: 03 July 2014
• Neutral Citation: [2014] NZCA 306
• Docket Number: CA566/2013 CA685/2013
• Court: Court of Appeal
• Date: 03 July 2014

Between

Ranjit Singh

Appellant

and

The Queen

Respondent

And Between

Doulton Edwardson

Appellant

and

The Queen

Respondent

And Between

Steve Nathan Edwardson

Appellant

and

The Queen

Respondent

[2014] NZCA 306

Court:

Ellen France, Harrison and French JJ

CA566/2013

CA615/2013

CA685/2013

IN THE COURT OF APPEAL OF NEW ZEALAND

Appeals against conviction — appellants were found guilty following jury trials where the judge had used lengthy jury question trails — appellants argued that the question trails had been unnecessarily complicated in relatively simple single issue trials — best practice approach for question trails — whether lengthy question trails were unfair — whether question trails were unfair if they devoted more of their contents to the Crown case than to the defence case — whether a lies direction should have been given and whether it would be in the interests of justice to direct a retrial when guilt had been admitted at sentencing.

Counsel:

E R Fairbrother QC for Appellant (CA566/2013)

H Roose for Appellant (CA615/2013)

N P Chisnall for Appellant (CA685/2013)

K Bicknell for Respondent (CA566/2013)

A Markham for Respondent (CA615/2013 and CA685/2013)

JUDGMENT OF THE COURT

A The appeal in CA566/2013 is dismissed.

B The appeal in CA615/2013 is dismissed.

C The appeal in CA685/2013 is dismissed.

REASONS

Harrison and French JJ	[1]
Ellen France J (dissenting)	[67]

Harrison AND French JJ

(Given by Harrison J)

Contents

Introduction	[1]
Ranjit Singh	[4]
(a) Background	[4]
(b) Question trail	[7]
(c) Decision	[11]
(d) Result	[18]
Steve Edwardson	[19]
(a) Background	[19]
(b) Question trail	[24]
(c) Decision	[34]
(i) Lies direction	[34]
(ii) Visual identification evidence	[37]
(iii) Miscarriage	[43]
(d) Result	[56]
Doulton Edwardson	[57]

Introduction

1 While they have no statutory basis, question trails or issues sheets – written directions provided by judges to assist juries in reaching a verdict – are regarded as “contemporary best practice” in criminal trials. 1 Their principal purpose is to supplement the judge's oral summing-up by distilling in written form the issue or

issues for determination in a series of logical steps which relate the essential factual allegations of a charge directly to its legal elements. The judicial expectation is that the question trail will give proper contextual guidance on the relevant legal principles and serve as a structural framework for the jury's deliberations

2 Adopting a best practice approach, the question trail should: (a) correctly state the substantive law; 2 (b) remind the jury that the Crown has the onus of proof and that its standard is beyond reasonable doubt; 3 (c) emphasise that a not guilty verdict must be delivered if the jury is unsure about proof of an essential element of the charge or charges; and (d) not strive for artificiality if the evidence clearly favours one side – fair presentation depends on the facts of the case. 4 Best practice also requires that the judge should consult with counsel about the contents of the document before finalising its terms. 5

3 Otherwise a trial judge enjoys a measure of discretion in settling the contents of a question trail or issues sheet. These three appeals against conviction following two separate trials were heard together because they raise the same primary ground: did the trial Judge err in exercising that discretion by preparing detailed question trails in relatively simple, single issue trials and, if so, did a miscarriage of justice result?

Ranjit Singh

(a) Background

4 Ranjit Singh was found guilty following a trial before Judge Rollo and a jury in the Tauranga District Court on five charges of dishonestly using a document with intent to defraud by knowingly issuing worthless cheques on an associate's bank account and on one charge of receiving stolen cricket gear. Mr Singh used the cheques over a ten day period to obtain cricket gear, agricultural equipment, beds, food, alcohol and other items.

5 In the face of a strong Crown case, Mr Singh gave evidence at trial. His defence was that he did not know his associate's account was out of funds when he wrote the cheques. Apart from the implausibility of this assertion, Ms Bicknell for the Crown pointed to the difficulties arising from Mr Singh's admissions and lies to police and his conduct following advice that the cheques were dishonoured.

6 The trial was short – fewer than three full days. An agreed statement of facts was tendered by counsel. On the morning of the third day the Judge distributed to counsel copies of a question trail in the form that later went to the jury. Mr Fairbrother QC, who appeared for Mr Singh at trial, noted before us that the document was prepared before the evidence was concluded or counsel had given closing addresses. However, he accepted that counsel were offered an opportunity to comment, and that he objected to neither the document's contents nor the Judge's intention to provide it to the jury. Mr Fairbrother's advice that he was unfamiliar with question trails of this nature is not a satisfactory explanation for his failure to raise with the Judge the arguments he advanced on appeal.

(b) Question trail

7 An excerpt from the question trail is appended to this judgment. In summary, the document opened with the Judge's formulation of the primary question followed by references to Mr Singh's admission to a police officer that he knew the cheques would not be honoured, some of the undisputed facts, a recitation of Mr Singh's explanation in evidence, a summary of the contending cases and a notation that it was “not a full review of the relevant evidence, merely a summary of key points intended to illustrate the issues and, in short form the cases for the Crown and the defence”. This part of the document comprised 20 paragraphs. Directions on the legal elements followed.

8 We agree with Mr Fairbrother that the question trail was unnecessarily long and complex. The facts were not in dispute – the relevant ones were recited in the agreed statement which was with the jury. There was only one issue: had the Crown proved that Mr Singh acted dishonestly?

9 In reality the issue was even narrower (and narrower than the Judge's formulation): was it reasonably possible that when writing the cheques Mr Singh was unaware there were no funds in the account? Its determination required the jury's evaluation of the credibility of Mr Singh's evidence against an agreed factual basis. Written summaries of evidence or contending submissions were unlikely to have helped in this exercise. Judges must be astute to the risk of overcomplicating a relatively straightforward exercise.

10 By contrast, the Judge's concluding legal directions were likely to have assisted the jury: they were logical, succinct and clear expositions of the five sequential elements which the Crown had to establish on each dishonesty charge. An explanation of the concept of “claim of right” was appropriately included given Mr Singh's reliance on it.

(c) Decision

11 The issue then is whether the question trail was unfair, as Mr Fairbrother argued, in that it effectively undermined Mr Singh's defence and led to a miscarriage. Mr Fairbrother advanced three principal grounds in support. First, he submitted that the document deflected the jury away from the defence case because it omitted to recite key directions on inferences and lies.

12 In addressing that submission we observe that the question trail and the summing-up must be considered together. The Judge directed the jury orally on both inferences and lies. Mr Fairbrother did not suggest that the Judge's oral directions erred nor did he explain how their omission from the question trail deflected the jury away from Mr Singh's defence. It was quintessentially a matter for the Judge's discretion as to whether he included any reference to either subject and we agree with Ms Bicknell that his decision to exclude them cannot be criticised.

13 While, as we shall discuss more fully in the Edwardson appeals, documents of this nature may run the risk of diverting a jury, that risk could not have arisen here given that the essential facts were not in dispute and intention was the only issue. The document was of neutral effect. But it does illustrate that the more expansive a question trail becomes, the greater chance of complaint about a material omission, imbalance or error.

14 Second, Mr Fairbrother submitted that the document failed to capture the impact of his carefully designed oral argument. He said that in closing he sought to establish a degree of empathy for Mr Singh's position. His strategy was to portray Mr Singh as the innocent victim or dupe of his associate's wrongdoing; and Mr Singh's admissions made to the police as attributable to embarrassment and language misunderstandings.

15 Mr Fairbrother did not claim that the Judge's outline of the defence case in summing-up was unfair or unbalanced. Nor did he direct such a criticism at the Judge's factual summary within the question trail – if anything, the summary may have artificially elevated the strength of Mr Singh's defence. This ground cannot be sustained.

16 Third, Mr Fairbrother submitted that the question trail confused proof of certain elements of the charges. He focussed on a direction to this effect: “if you are not sure of all four of these matters, find Mr Singh not guilty of count 6”. In his submission, a jury might interpret this direction as requiring uncertainty on each of the identified matters, not just one.

17 Mr Fairbrother's construction of the direction is possible but remote. Even if the jury did apply it in the same way, the concluding part of the document clarified any doubt. It directed the jury to remember...