This Student Companion by Bernard Robertson appeared in the April 2015 edition of the New Zealand Law Journal [2015] NZLJ 101.

STUDENT COMPANION: EVIDENCE

Ahsin v R [2014] NZSC 153

 
This appeal dealt with two persons charged with participation in a murder under s 66(1) or s 66(2) of the Crimes Act 1961. This note is concerned only with the question of whether the trial Judge should have directed the jury that it had to be unanimous in each case as to whether the defendant was guilty under s 66(1) or (2). The Chief Justice said “yes”; the remainder of the Court said “no” in two separate judgments. Although it is respectfully submitted that the correct decision was reached, the majority judgment of McGrath, Glazebrook and Tipping JJ does not take a clear enough line. The judgment of William Young J is based on an analysis of the development of the substantive law of parties.

All Judges referred to numerous previous cases, including the Supreme Court’s own decision in Mason v R [2010] NZSC 129, [2011] 1 NZLR 296. The Court regarded this as relevant to when a unanimity direction had to be given, but in Mason the issue was severance of charges. As will become apparent, it is submitted that the correct course to take in any such case is the severance of charges and not to require a unanimity direction.

R v Chignell [1991] 2 NZLR 257 (CA) was referred to approvingly including by the majority at [183] as an example of when a jury had to be directed about unanimity as to different bases of guilt. With respect, Chignell was not only clearly wrongly but cursorily decided. The issue was dealt with in one page with no citation of either the cases the Crown had referred to or any relevant writing. It was submitted to vigorous criticism by this author and a co-author in Rethinking verdicts: Chamberlain, Chignell and Stratford [1993] NZ Recent Law Rev 122. In Chignell, the defendant had severely beaten the victim as part of sexual activity. The defendant thought that she had killed him. She loaded his body in a car and drove from Auckland to the Huka Falls where she threw the body over the falls. The Court of Appeal held that the beating and the dumping over the falls had been two separate acts and that the jury should have been directed that it had to be unanimous as to which had caused death (there were then mens rea issues in relation to each.) If the victim had been beaten in a flat in a tower block and then thrown over the balcony, this would clearly be one incident. What if the victim was dragged 100 metres to a river and thrown in? Or 1 kilometer? Or 10 kilometres? Or 100 kilometers? Where does the line lie? There cannot be any analytically correct answer to this question. Any “act” can be subdivided into sub-acts. In Attorney-General’s Reference (No 4 of 1980) [1981] 2 All ER 617, a murder victim had had her throat cut, been thrown downstairs and then been hanged. The trial Judge withdrew the case from the jury on the ground that the prosecution could not prove which of these assaults had caused death. The Court of Appeal considered it “clear beyond argument” that that had been wrong. Where is the dividing line between that and Chignell? It cannot even be where there are two different stories, aspects of which contradict each other, as that was the situation in Thatcher v R (1987) 39 DLR (4th) 275 which the majority cites with approval. It is difficult to see how one can approve of both Thatcher and Chignell.

The difficulty inherent in trying to decide whether a charge should be dissected and a unanimity direction given is demonstrated at [186] of Ahsin, where the majority discuss R v Shaw CA159/05, 22 November 2005, in which the Court of Appeal divided on whether a unanimity direction was required and the majority of the Supreme Court preferred the dissenting view. At [185] the majority admits that: “[w]hether the factual alternatives amount to separate transactions or are merely different forms of involvement in a single one may require careful analysis”. In other words, there will be meat for endless appeals. Twice, at [182] and [189], the majority refers to prejudice to the defendant being avoided either by laying separate charges or by giving a unanimity direction.

It is submitted that unanimity directions are to be avoided. Once admitted, there are no clear criteria for when they are required. They also enormously complicate the job of the chairperson of the jury. Each juror should simply be asked to say in respect of each charge, “guilty” or “not guilty”. As has been said many a time, what has to be proved beyond reasonable doubt is the charge (for example see R v Thomas [1972] NZLR 34, 38 (CA)). If the defence is prejudiced by the complexity of a charge or it is possible to have committed the crime in materially different ways, then there should be separate charges.

 

The full April 2015 edition of the New Zealand Law Journal is available on the LexisNexis research database.

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