R v Schriek CA283/96 [1996] NZCA 285; [1997] 2 NZLR 139; (1996) 14 CRNZ 449; (1996) 3 HRNZ 583 (18 December 1996)

Last Updated: 13 February 2019

IN THE COURT OF APPEAL OF NEW ZEALAND CA 283/96
CA 285/96
CA 287/96
CA 288/96

THE QUEEN

v

NATHAN EARL SCHRIEK STEPHEN JAMES WEBB ERIK ALIAN SANTOS

ANGELIQUE MARGARET MCKAY

Coram Eichelbaum CJ Blanchard J

Heron J

Hearing 25, 26 & 27 November 1996

Counsel M J Glue for appellant Schriek

S J Shamy for appellant Webb

C B Atkinson QC for appellants Santos & McKay

J C Pike for Crown

_{Judgment 18 December 1996}

_{JUDGMENT OF THE COURT DELIVERED BY EICHELBAUM CJ}

These appeals arise from the kidnapping and murder of a young man named Darryn Buckfield. When arraigned at the commencement of the trial Eugene Wayne Turner, who was charged with the appellants, pleaded guilty to both crimes. At trial in the High Court at Christchurch, following the close of the Crown case, the appellants Schriek and Webb pleaded guilty to the charge of kidnapping. The jury found the appellants McKay and Santos guilty of kidnapping and the appellants

Schriek, Webb and McKay guilty of murder. In respect of the murder convictions, the Judge imposed sentences of life imprisonment; for the kidnapping, Schriek and Webb received eight years, McKay four and Santos three. The appellants appeal against the convictions which followed the guilty verdicts, and against the sentences for kidnapping.

At the time of the offending the appellants Schriek, McKay and Santos were living together in a house at Langdons Road, Christchurch. The other occupants were Ms Buckingham, Santos’s partner (who was confined to a wheelchair) and the co-offender Turner. The house was owned by Schriek’s father and Schriek fulfilled the role of landlord, deciding who could stay in the house, and collecting the rent.

The victim, a “street kid”, had also been flatting at the Langdons Road house but had returned to the streets owing money for rent. It appears this had happened on at least one occasion in the past, and the response of those occupying the flat had been to capture Buckfield and hold him captive until he had received enough of his social welfare benefit to repay any debt. On 4 August 1995 he escaped by climbing out a window. At that time he owed money to Schriek for unpaid rent, and to Schriek and Webb for a drugs deal that had miscarried. It seems he may also have informed on Schriek over the theft of letter box numerals. In any event, at the time Buckfield escaped from the Langdons Road house both Schriek and Webb had reason to feel animosity towards him and in the following days they with other occupants of the house sought to locate him in order that he might be punished.

At a joint trial, the case against each accused must of course be considered on the basis of the evidence available against that person; but as background we set out an overall picture of events. In the evening of 15 August 1995 Schriek, Turner, McKay, Santos and Buckingham drove into town in Schriek’s van. It was the only regular form of transportation available to the occupants of the house. When the group met Webb in town he told them that Buckfield was in the City Mission. The group drove there and paid an associate, Mark Lewis, $20 to lure him outside. He was captured and taken back to the Langdons Road house, where for some hours he was subjected to a sustained beating. It appears all those present took some part although the precise roles played are not clear. After a while Santos and

Buckingham retired to their room and did not participate further.

Later that night Schriek, Turner, Webb and McKay decided to take Buckfield out into the countryside in the van. Against at least some of the appellants, evidence was available that the intention was to kill him, although it was contended that the purpose was to give him a further beating and leave him to walk or find his way

back. At a picnic site near the Rakaia Gorge, over an hour’s drive from Christchurch, in McKay’s presence the victim was further beaten by Schriek, Webb and Turner. The assaults culminated in Turner striking blows with a sledgehammer to the neck and head of the victim who, although on some accounts still alive, was then thrown over a bank. Schriek, Turner, Webb and McKay then returned in the van to Christchurch; the sledgehammer (which was not recovered) and other incriminating items were thrown into a river.

Turner’s evidence - the hostile witness point

Since this ground relates to all the appeals, it is convenient to consider it first. When Turner pleaded guilty, after the Crown had given the position consideration it elected not to request the Court to fix a non-parole period. Turner’s sentencing took place when the trial was in its second week, and later the same day the Crown called him

as a witness. To commence he gave evidence about the occupants of Langdons Road and the living arrangements there. He deposed to Buckfield leaving the house, and about the attempts of the occupants to find him. He spoke of his own visit to the City Mission to make enquiries. He agreed that one night with others from Langdons Road he went to

the City Mission in Schriek’s van. From the transcript it is apparent that at this stage he became increasingly reluctant to give any meaningful evidence. Although he agreed he had been to Rakaia Gorge he said he did not know when, and when asked what happened

_{there answered “I wouldn’t have a clue”. Asked what that meant he responded:}

“What do you think? Why the hell should I be sitting here telling you the answers when it’s your job to find them out.” (116)

At that stage the Crown made application to cross-examine Turner as a hostile

witness, a request opposed by all defence counsel. Following argument in the absence of the jury, the Judge ruled that the witness was hostile, basing this on the animus shown by Turner as illustrated by his remarks to the Crown prosecutor. There was argument on the further issue whether the Crown should be permitted to cross-examine Turner on the transcript of the videotaped statement he had made to the police. That was opposed on the ground that it had been made not with a view to his giving evidence in Court but rather as a statement in his own defence when questioned about his involvement in the offences. It was further submitted that even if Turner in whole or in part rejected the

truth of the contents, there was a risk that the jury nevertheless would take the view that the statement contained a true version of events. The Judge however rejected these arguments and granted leave to the Crown to cross-examine on the statement. While at that stage it was envisaged that the cross-examination would be conducted on the basis of the contents of the transcript, the Judge concluded his ruling as follows:

“If in the course of the Crown’s cross-examination the point is reached where it is necessary for the videotape of Turner’s interview to be played then I will hear counsel afresh as to that course. For the moment it seems to me that the playing of the videotape will be inevitable if Turner denies making the statements contained in the transcript of his interview.”

No doubt this was said for the reason that if Turner declined to accept the truth of any part of the transcript, absent a signed document the most conclusive way of demonstrating that he had, in fact, said what was contained in the transcript was to play the video in his presence. In the event the cross-examination on the transcript did not get far. When in his fourth question the prosecutor asked the witness to look at the transcript he replied “Don’t know, I can’t read”. There was further argument in the absence of the jury. The Judge made a ruling, the reasons for which were delivered the following day.

In the reasons the Judge recorded that the exercise of putting to the witness a transcript of his videotaped interview “was futile because Turner could not read”. The Judge then recorded Mr Atkinson’s submission that the Crown should not be permitted to put Turner’s previous statement to him in any form unless and until the witness gave an answer to a specific question which was “hostile”, meaning that it was not until the witness gave answers contradictory to the statement that the Crown should be permitted

to resort to it. The Judge however pointed out that hostility had already been established and the Crown was entitled to cross-examine Turner on his previous statement in such

manner as the Crown thought fit. As a statement of law, taken literally that was too broad but the Judge’s meaning must be understood in the light of the ruling already

made, permitting cross-examination on the statement. The only remaining issue was how that cross-examination was now to be conducted, given that the witness was unable to read the transcript. On that, the Judge’s first suggestion was that the prosecutor might read to Turner such portions of the transcript as the Crown wished to use as a basis for cross-examination, but that “piecemeal” approach did not meet with defence counsel’s approval. Further it did not overcome the difficulty that Turner would be unable to

accept that the prosecutor was reading accurately from the transcript, let alone that the transcript was an accurate record of the interview. The ruling then recorded that it was accepted on all sides that the only appropriate method of putting Turner’s previous statement to him was to play the videotape in his presence. The final matter with which the Judge had to deal was whether that was done continuously or in a piecemeal fashion, allowing cross-examination at convenient stages. The Judge permitted the Crown to proceed in the latter manner.

There was in fact room for doubt whether Turner’s claim that he could not read was correct. At depositions one of the detectives who conducted the interviews with Turner was extensively cross-examined. Among the matters which emerged were that at one stage Turner signed an acknowledgement in the detective’s notebook while at another he was shown and apparently recognised the signature of one of the co-accused on a statement. Further there was evidence that he had sent a letter to a social worker, although it does not necessarily follow he had written the letter himself. These matters could have come to the attention of the trial Judge either through a reading of the depositions or because of knowledge obtained during the hearing of pre-trial

applications. In fact however, in the course of the extensive reasons the Judge had to deliver for his rulings on those applications, he twice noted that Turner could not read. Mr Atkinson said he had not read those portions of the rulings, relating as they did not to his clients but to applications concerning Turner. Mr Atkinson himself was under the impression that in fact Turner could read and he told us he did not think “that the Judge was any more misled than I was”.

Given that the Judge would not have said that Turner was unable to read

unless he believed that was the position, we are left somewhat puzzled by counsel’s explanation of these events. In light of counsel’s present contention, that it was the playing of the videotape which was particularly prejudicial, one might have thought that when he had the means of possibly preventing that, or at any rate a ground for arguing against it, he would have ensured that any possible misapprehension on the Judge’s part about Turner’s reading ability was cleared up. However, in the view we have reached nothing turns on this aspect.

The cross-examination proceeded in accordance with the Judge’s ruling. It is apparent that Turner was a most unsatisfactory witness. He adopted some of his earlier statements, but not all of them and then when cross-examined by defence counsel readily withdrew some of his answers. As the following examples show (a few will suffice) the answers he had given at interview were damaging to his co-accused. He implicated all of them in the kidnapping, and the assaults at Langdons Road. He implicated Schriek,

Webb and McKay in the trip to Rakaia Gorge. He credited Schriek with saying “let’s kill him” and “he’s going to die”. He said that in the van, he asked Buckfield about his thoughts on death and stated that the response was “I know I’m going to die there”. He said that McKay was holding a torch while Buckfield was given a hiding. He said that Schriek took the sledgehammer to Rakaia Gorge; and that Schriek and Webb, as well as himself, used it on Buckfield. He said that Schriek, Webb, Santos and McKay burned Buckfield’s clothing.

At the hearing of the appeal Mr Atkinson accepted he could not successfully challenge the ruling declaring Turner hostile. His principal points, under this heading, related to the fact that the Crown called Turner at all, and the mode in which the cross- examination was permitted to be carried out.

On the first issue, the principle is that the Crown should not call a witness known to be hostile for the purpose of getting otherwise inadmissible hearsay before the Court, see Blewitt v The Queen [1988] HCA 43; (1988) 62 ALJR 503 and R v Allen [1989] NZCA 128; (1989) 5 CRNZ 316. In R v Lawless & Basford (1994) 98 Cr App R 342, 349 the Court of Appeal said that in the ordinary case the Crown ought not to call a co-accused unless they had a clear indication from that person that he was willing to give evidence in favour of the prosecution.

However, in the light of an affidavit filed by junior counsel for the Crown at trial we are satisfied that the case does not infringe those principles. Counsel deposed that Turner at no time prior to being called gave any indication he would be hostile to the Crown. Further, he told the Crown what he said to the police on interview was correct. It may also be noted that the deponent’s impression was that Turner either was unable to read or at most had very limited reading ability. Turner had the potential to be a significant witness for the Crown, although in the end his unreliability was so starkly demonstrated that it is unlikely that the jury would have given much if any credence to what he said. However, subject to the caveat about calling witnesses known to be hostile, the Crown was bound to make efforts to place his evidence before the Court.

Turning to the second issue, when a witness has properly been declared hostile, the mode in which he is to be cross-examined by the Crown is a matter very much in the discretion of the Judge, dependent on the circumstances. Whether in fact Turner could read or not, defence counsel, in the knowledge that the subject might be open to debate, allowed matters to proceed on the assumption that he could not. The contents of the tape were potentially prejudicial to the appellants but the Judge gave clear instructions about the evidentiary limitations on the use of the tapes.

A final objection was to the manner in which the Judge allowed re-examination to be conducted on behalf of the Crown; but given the circumstances, and in particular the witness’s tendency to swing about according to who was questioning him, we do not

think that there was anything objectionable in the way the Judge dealt with this aspect. In the result we do not uphold any of the objections raised under this heading.

Severance

Mr Glue’s first point on behalf of Schriek related to the Judge’s refusal to grant severance. Similar submissions were made on behalf of the other appellants. However, having regard to the prosecution theme, throughout, of a joint enterprise in relation to both the kidnapping and the homicide, it was on its face a case for a joint trial. In principle the difficulties created by the videotaped interviews were no different from what in the past was the ordinary case of written or oral statements.

From an early stage of the trial the Judge repeatedly and appropriately informed the jury of the principles to be applied. The Judge’s ruling and directions relevant to this issue were correct and we find no substance in any of the complaints advanced on behalf of the appellants under this heading.

Encouragement

Although at the commencement of his submissions Mr Atkinson said this point related to both Santos and McKay, later he limited it to McKay alone. In view of the outcome of McKay’s appeal, it may therefore be unnecessary to decide the issue; but since the matter is one of some practical importance on which we have heard full argument, we will state our conclusion on it. In the section of the summing up dealing with liability under Section 66(1) of the Crimes Act 1961, after referring to the general rule that a passive bystander, onlooker or spectator was not a party the Judge pointed out that in some circumstances, such as where in kidnapping a victim’s resistance was overcome by weight of numbers, anyone present and making up the numbers might be a party, if they had the necessary intention. He continued:

“But that exception aside, generally speaking some active participation is required to make somebody a party. The assistance or help does not have to be great, a minimal

level of assistance will suffice to make somebody a party. Any assistance given does not have to cause the principal party to commit an offence, he may have committed it regardless. But some assistance must be proven before a helper can be convicted as a party.

Similarly with encouragement. Encouragement must be communicated to the main offender to make the encourager liable as a party. The words of encouragement do not have to be effective. The Crown does not have to prove that the principal offender was actually encouraged to go on and commit the offence. As long as words of encouragement were uttered, as long as the encourager intended to encourage the principal offender, and as long as that encouragement was communicated to the principal offender, that is enough.” (12)

It is the sentence we have emphasised that has led to argument, the appellant’s contention being that the law required a “causative link”; that the

direction was wrong in saying that provided the encouragement was communicated it did not have to be established that it in fact encouraged the principal offender.

It is useful to commence with two citations often quoted. The first is from the summing up in R v Young [1838] EngR 876; (1838) 8 C. & P. 644. The accused were indicted for the murder of Mirfin, who was killed in a duel. The accused did not act as seconds, nor was there other evidence of active participation on their part, but on the evidence

they could be regarded as supporters of one of the participants. In a well known passage Vaughan J said:

“... Principals in the second [degree], those who are present at the time it is given, aiding and abetting, comforting and assisting the persons actually engaged in the contest. Mere presence alone will not be sufficient to make a party an aider and abettor, but it is essential that he should by his countenance and conduct in the proceeding, being present, aid and assist the principals..... If either [of the prisoners] sustained the principal by his advice or presence, or if you think he went down for the purpose of encouraging and forwarding the unlawful conflict, although he did not do or say anything; yet, if he was present and was assisting and encouraging at the moment when the pistol was fired, he will be guilty of the offence imputed by the indictment.” (652-3)

The second citation is from the equally celebrated case of R v Coney (1882) 8

QBD 534. This was a prize fight case, the accused being spectators who were charged with assault upon one of the contestants, on the basis that they were a party

to an assault upon him by the other participant. The direction which was put in issue, after stating that prize fights were illegal, continued:

“....all persons who go to a prize-fight to see the combatants strike each other, and who

are present when they do so, are, in point of law, guilty of an assault. ... If they were not casually passing by, but stayed at the place, they encouraged it by their presence,

although they did not say or do anything.” (536)

The majority of the 11 Judges who sat on the Case Reserved held that the direction was not correct, in that mere voluntary presence at a fight did not necessarily and as a matter of law render persons so present guilty of an assault as aiding and abetting in the fight. Among the many relevant passages in the judgments, the one cited most often is the following in the judgment of Hawkins J:

“In my opinion, to constitute an aider and abettor some active steps must be taken by word, or action, with the intent to instigate the principal, or principals. Encouragement does not of necessity amount to aiding and abetting, it may be intentional or unintentional, a man may unwittingly encourage another in fact by his presence, by misinterpreted words, or gestures, or by his silence, or non-interference, or he may encourage intentionally by expressions, gestures, or actions intended to signify approval. In the latter case he aids and abets, in the former he does not. It is no criminal offence to stand by, a mere passive spectator of a crime, even of a murder. Non-interference to

prevent a crime is not itself a crime. But the fact that a person was voluntarily and purposely present witnessing the commission of a crime, and offered no opposition to it, though he might reasonably be expected to prevent and had the power to do so, or at least to express his dissent, might under some circumstances, afford cogent evidence upon which a jury would be justified in finding that he wilfully encouraged and so aided and abetted. But it would be purely a question for the jury whether he did so or not. So if

any number of persons arrange that a criminal offence shall take place, and it takes place accordingly, the mere presence of any of those who so arranged it would afford abundant evidence for the consideration of a jury of an aiding and abetting.” (557-8)

Mr Atkinson placed reliance on R v Clarkson and Ors [1971] 3 All ER 344. The appellants were serving soldiers in Germany. One night, in the barracks, a woman was taken to a room and raped at least three times by fellow soldiers of the appellants. The latter, hearing noise, had entered the room and been present for at least some of the time during which the rapes occurred, watching what took place. They were charged with aiding and abetting the rape. There was no evidence that any appellant had done any physical act or uttered any word which involved direct physical participation or verbal encouragement. There was however sufficient evidence to justify the inference that the presence of the appellants was not accidental. A Courts-Martial Appeal Court held that nevertheless it was not sufficient to establish that the mere presence of the appellants had in fact given encouragement to the crime; it must be proved that they intended to give encouragement. Further, mere intention to encourage was not in itself enough, there must also be encouragement in fact (“actual encouragement”). After citing the passage from R v Coney which we have quoted ourselves, the Court continued:

“It is not enough, then, that the presence of the accused has, in fact, given encouragement. It must be proved that the accused intended to give encouragement; that he wilfully encouraged.” (347)

From this and subsequent passages it is clear that on appeal the issue related to the need for the prosecution to establish an intention to encourage, and that in this respect the Judge Advocate’s summing up had been deficient. But on the issue of “actual encouragement” the Court, in addition to the remarks already quoted, said:

“There must be an intention to encourage; and there must also be encouragement in fact, in cases such as the present case.” (348)

To obtain the flavour of those comments however it is necessary to return to the immediately preceding quotation from R v Allan [1963] 2 All ER 897, 898-901:

“In our judgment, before a jury can properly convict an accused person of being a principal in the second degree to an affray, they must be convinced by the evidence that, at the very least, he by some means or other encouraged the participants. To hold otherwise would be, in effect, as counsel for the appellants rightly expressed it, to convict a man on his thoughts, unaccompanied by any physical act other than the fact of his mere presence.” (348)

Other cases we have considered are Attorney-General v Able [1984] QB 795 and R v Calheam [1985] QB 808. We doubt there is any advantage in further multiplying citations, because no case brought to our notice addresses the issue in the precise terms of the arguments for the appellant. We will however cite a helpful passage from Smith and Hogan, Criminal Law, 7th Edition at pages 127-8. After stating that procurement required proof of a causal link between the actus reus and

the commission of the offence, the authors continued:

“The natural meaning of “abet” and “counsel” on the other hand does not imply any causal element because, unlike “procure”, these words do not even imply that the offence has been committed. Instigation, incitement, encouragement, counselling, may all be unsuccessful and they have occurred no less because the offence is not committed. Of course, the law is that the offence must have been committed before anyone can be convicted as an abettor or counsellor of it; but, when the offence has been committed, it is certainly still true to say that D2 “counselled” it, in the ordinary meaning of the word, even if his counsel was ignored by D1; and the same seems to be true of abetting. There

is nevertheless the high authority of Stephen for the view that one who counsels or commands (as well as procures) is liable and, by implication liable only, for an offence “which is committed in consequence of such counselling, procuring, or commandment”. It is clearly the law that an attempt to counsel does not amount to counselling. Proffered advice or encouragement which has no effect on the mind of the principal offender is not counselling. This is not to say that the counselling must be a cause of the commission of the offence. So to require would be to insist that, but for the counselling, the offence would not have been committed. This would confine counselling (and abetting) much

too narrowly. If it were incumbent on the prosecution to prove that the offence would not have been committed but for D2’s advice or encouragement it seems safe to say that the point would figure much more prominently in the law reports. On the contrary, the facts of many cases where D2 has been held liable suggest that the offence would have been committed whether he had participated or not and no one seems to have suggested that

this should be a defence. There must, however, be some connection between the counselling and the commission of the offence. It is probably not necessary to prove that D1 was influenced in any way by D2 but he must at least be aware that he has the authority, or the encouragement, or the approval, of D2 to do the relevant acts.”

The authors state that what had been said of counselling applied to abetting, and that aiding, likewise, did not imply any causal connection. At page 129 they

venture the opinion that the law probably is that abetting “implies consensus but not causation”. Part of the problem lies in interpreting “consensus”.

With the assistance of the citations we have set out we can now limit and define the point at issue. By way of one boundary it can be stated with confidence that the prosecution need not prove a causal connection between the act of encouragement and the commission of the offence. At the other limit, with equal confidence it can be said that some connection between the abettor and the principal offender is required. To illustrate, persons who while monitoring a closed circuit television system happen to witness an assault, which they approve by sounds and gestures of encouragement, cannot thereby be said to “abet any person in the commission of the offence”. Likewise, had the soldiers in Clarkson been behind a soundproof one-way glass, the principal offenders being unaware of their presence, their guilt could not have been argued.

In terms of attempting a definition of the remaining middle ground we consider the Judge’s expression, that the encouragement must be communicated to the principal offender, put the position adequately, for purposes of the case before him. It is not necessarily an all embracing or exhaustive definition to suit all circumstances, nor will we attempt to construct one. In the prize fight or duel situation, or the more commonly found equivalent today where violence is inflicted or sexual offending perpetrated in the presence of others, it would be a manifest nonsense to require proof that the principal offenders were aware of the encouragement provided by each individual. If “by his countenance and conduct” the secondary party intentionally is giving encouragement of which the principal offender could be aware, even if only by virtue of being conscious of the presence of a group of people behaving in similar fashion, in the generality of cases there will be sufficient evidence of abetting. Indeed, as Smith and Hogan say with reference to Coney and prize fights:

“Presence at such an event is certainly capable of amounting to an actual encouragement. If there were no spectators there would be no fight and, therefore, each spectator by his presence, contributes to the incentive to the contestants.” (136 - emphasis added)

It needs to be noted that the foregoing discussion is separate from the situation where the spectators are present pursuant to a joint enterprise. It remains only to mention two New Zealand authorities referred to in argument. In R v Misitea [1987] 2 NZLR 257, 260-1 this Court set out with approval a lengthy extract from a summing up in a notorious gang rape case. The passage included directions that the secondary party must actually encourage, that is “the person committing the offence must in fact be encouraged by the alleged party”. And the Judge continued that if the person committing the offence did not know that the alleged party was present, the latter could not be guilty as a party, even though he may have intended to encourage, because in those circumstances he would not actually have encouraged the principal offender. Then in Larkins v Police [1987] 2 NZLR 282, a High Court decision concerned principally with the questions whether where aiding was the issue, knowledge by the principal offender was required, and whether actual assistance had to be proved, there are obiter references to the need for “actual encouragement” before a secondary party can be convicted as an abettor. In neither case was it necessary to explore the precise shade of meaning to be given to “actual encouragement”. As explained for purposes of the present case, its use in the two authorities cited does not cause any difficulty; although if the summing up in R v Misitea were read so as to require a causal connection (which is not necessarily what the Judge intended) it would have been too favourable to the accused.

For these reasons we hold that the challenged passage in the summing up did not contain any misdirection.

Schriek - murder

Apart from severance, Mr Glue’s principal point was that there was insufficient evidence to justify a verdict of murder as distinct from manslaughter. On his own statement there was clear evidence that Schriek, who was in charge of and drove the van was aware that the purpose of taking Buckfield to a remote place was, at the least, to give him another severe hiding. The jury were justified in holding that at the stage when the sledgehammer was brought out, if not before, Schriek knew

that Turner had one or other of the murderous intents under Section 167(a) and (b) of

the Crimes Act. In terms of Section 66(1) his continued presence and his failure to intervene could properly be seen as both assistance and encouragement. In terms of Section 66(2) he continued to be part of the prosecution of the unlawful purpose. Thus even without resort to evidence of other statements made by Schriek relating to his knowledge and intent, there was sufficient material to sustain the verdict of murder.

Webb - murder

At trial the essence of Webb’s case on the murder charge was that what was in his mind was that Buckfield would be taken somewhere, given another hiding and then made to walk home. Turner’s attack at the Gorge was unforeseen. On appeal it was submitted that the evidence did not justify more than a finding of manslaughter. For the reasons given in dealing with the similar contentions made on behalf of Schriek however, we reject this argument.

_{Webb - Bill of Rights points}

The body was found on or about 1 October 1995. According to evidence given by Webb at the pre-trial hearing, on 7 or 8 October he and Turner left Christchurch to go to Nelson for the fruit picking season. They were hitchhiking, and Webb said that they went via Greymouth to obtain money. When it was put to him that he was aware the police were looking for him in connection with the Buckfield homicide he denied it.

Detective Reeves, who was working on the homicide investigation, rang Senior Constable Edgerton, stationed at Greymouth, at about 1pm on 10 October (a Tuesday) requesting that he pick up Webb on cheque charges. It has been accepted that these were bona fide charges. Detective Reeves requested that when Webb had been arrested he should be held until he, Reeves arrived. Edgerton was instructed that Webb and Turner were not to be advised that the police wanted to speak to them in relation to Buckfield. He duly carried out these instructions. Reeves and another Detective flew over from Christchurch the same afternoon by chartered plane and

took Turner, who had also been arrested, and Webb back with them. Although Webb and Turner could scarcely had failed to realise that the purpose of the exercise was almost certainly in connection with Buckfield’s disappearance the subject was not mentioned until detectives commenced to interview them in Christchurch. After the party arrived at the Christchurch Central Police Station at about 6.30pm Detective Reeves explained the reason for the interview. He cautioned Webb and advised him of his rights under the New Zealand Bill of Rights Act. There followed what the detective described as a low key, general discussion which continued until about

8.30pm at which stage the appellant volunteered that he would tell what had happened. He then said that he and some associates had fallen out with Buckfield, taken him up to the Rakaia Gorge, given him a hiding and ultimately killed him. This was followed by a videotaped interview at 9.30pm, at the commencement of which the appellant was again cautioned and informed of his rights. This was an extensive interview covering Webb’s involvement at Langdons Road and Rakaia Gorge in detail, the transcript running to 89 pages. The following morning the

appellant agreed to accompany detectives to Rakaia Gorge. He was again cautioned and given his rights. The detective gave evidence about a number of comments the appellant made along the route. At Rakaia Gorge a videotaped interview was conducted, concluding at 9.05am. On return, at 11.30am Reeves charged Webb with murder. At 12 noon he was taken to Court.

At the pre-trial hearing it was contended that the appellant’s oral statements, and both videotaped interviews, should be excluded. It was argued that there had been breaches of provisions of the New Zealand Bill of Rights Act, specifically Section 22 (arbitrary arrest or detention) and Section 23(1)(a) - the entitlement to be informed at the time of arrest or detention, of the reason for it; Section 23(1)(b) - the obligation to advise a person arrested or detained under any enactment of his right to consult and instruct a lawyer without delay; and Section 23(3) - the right to be brought before a Court as soon as possible. The Judge rejected all the objections, each of which was repeated in argument on the appeal. We deal with them in turn although in a different order.

(a) Section 23(1)(a) - Failure to mention homicide investigation; (b) Section

23(1)(b) - Right to consult lawyer

These two subheadings can conveniently be dealt with together. In essence the argument is that until the detective, at Christchurch, disclosed the real reason for the enquiry the appellant did not have the necessary information on which he could properly exercise his right to consult a lawyer. Thus the points arising under Section

23(1)(a) and 23(1)(b) are linked in that without the information to which he was entitled under the former provision, Webb could not effectively exercise the rights of which he was informed under the latter.

This argument may have created difficulty for the police had the appellant made any admissions before he was notified of the homicide enquiry. However, in fact this did not occur. Before the commencement of the interview relating to the homicide, and before he made any admissions he was informed of the purpose of the interview, cautioned and advised of his rights. Since he did not then avail himself of the right to consult a lawyer, there is no reason to assume he would have reacted differently had he been specifically told the purpose of the enquiry while in Greymouth.

Cases such as R v Black (1989) 70 CR (3rd) 97 (applied in New Zealand in R

v Tawhiti [1993] 3 NZLR 594, a decision of the High Court) have decided that where there has been a change in the direction of a police enquiry, for example where an assault victim has died and the enquiry thereafter relates to a homicide, the suspect needs to be informed so that he can effectively exercise his right to consult a lawyer. Without that information the advice under Section 23(1)(b) is ineffective. In

principle that approach would appear to cover a case such as the present, but in the circumstances we do not have to decide that issue, as clearly any breach was inconsequential.

_{(c) Section 23(3) - Not brought before Court as soon as possible.}

The police detained the appellant in Greymouth at around 1.30pm. By the time they had completed processing on the cheque charges, it was well after 3.30pm.

The District Court was not sitting in Greymouth that day. Any sitting that might have been specially arranged would have had to be before Justices of the Peace who needed to be called away from their normal business. There was evidence that while in appropriate circumstances an afternoon court sitting could be arranged, 3.30pm would have been the cut-off time for a minor matter like cheque offences. That was confirmed by an experienced deputy registrar. The police did not make any enquiries about the position, but given that they were aware of the practice, it would be unreasonable to have required that. The Judge found that the cheque charges were

not of a sufficiently serious nature to justify a special late sitting. There is no basis for going behind these findings of fact.

Thus the earliest occasion on which Webb could reasonably have been brought before the Court was at 10am the following day. That morning, he agreed to go with the police to be interviewed on video at the scene. Although in the event he was not brought before the Court at 10am, the interview was concluded well before that time, and Webb did not make any statement adverse to his interests after Court sitting time. Any breach involved in his delayed appearance was therefore inconsequential.

The expression “as soon as possible” in Section 23(3) is not absolute. It calls for a reasonable application to time and circumstances: see the decision of this Court in R v Greenaway [1995] 1 NZLR 204, 207 where the judgment continued that the courts as well as the police could be expected to take whatever steps are necessary to ensure that an arrested person is accorded the rights contemplated by the Act, within the limits of proper administrative and financial constraints. It cannot be suggested that the circumstances of the cheque charges, on which the appellant had been properly arrested, necessitated the convening of a special sitting. This contention therefore fails on the facts.

(d) Section 22 - Arbitrary or unlawful detention

The Judge held that there was nothing artificial or contrived about the appellant being detained and subsequently arrested on the cheque charges; the

charges having been laid the police had a duty to pursue them. We agree with the conclusions and the reasoning. No authorities were cited to us under this heading but we refer to R v Edwards (1994) 91 CCC (3d) 123, a decision of the Court of Appeal of Ontario where the accused whose driver’s licence had been suspended was under police surveillance as a suspected drug trafficker. Police officers, observing the accused driving a car, pulled him over. As they did so they saw him swallow a small cellophane wrapped object. Although the normal procedure, so far as driving

without a licence was concerned, would have been to impound the car and hand out a ticket, the officers arrested the accused for driving without a licence and took him

into custody. Eventually he was charged with possession of drugs for the purpose of trafficking. The contention that since the only reason the accused was arrested and taken into custody was to facilitate the ongoing drug investigation, therefore it constituted an arbitrary detention in breach of Section 9 of the Charter was dismissed. Whether or not the accused was actually charged with possession for the purpose of trafficking when he was first arrested, there was no doubt that he was properly arrested and detained on the driving charge. Given however that in any event the police were held to have reasonable and probable grounds to arrest the appellant for possession for trafficking, the decision is of limited value for purposes of the present argument.

The contention of arbitrary detention is without merit. Given the findings of fact, Webb’s position was that he could not have been taken to Court until 10am the next morning. Whether that appearance was in Greymouth or Christchurch (his home town) made no difference. Subject to the proper caution and advice the police

were entitled to question him about the homicide that evening and again, whether this took place in Greymouth or Christchurch was immaterial in the circumstances.

Under this heading the appellant submitted further argument on the basis that the arrest or detention was arbitrary and unlawful taking into account other breaches of the Bill of Rights, namely failure to advise the reason for the detention, failure to allow exercise of the right to consult a lawyer, and failure to charge the appellant promptly and bring him before a court as soon as possible. However, as none of these alleged breaches has been sustained there is no foundation for the further

submission.

Santos - Kidnapping

In respect of Santos, who was not charged with murder, Mr Atkinson’s contention was that there was insufficient evidence to sustain the verdict of guilty on kidnapping. While accepting that Schriek and Webb had, as he put it, a bone to pick with Buckfield,

he said Santos was in a different position. When the van first left Langdons Road Webb was not present, and Mr Atkinson submitted the evidence did not take the matter beyond the point where Santos may simply have gone along for the ride. His presence thereafter, when Buckfield undoubtedly was kidnapped by Webb and Schriek, was merely accidental. There was no evidence that at the time the van left Langdons Road there was a plan in existence to kidnap Buckfield. Putting it in legal terms, there was no evidence

of an intention on Santos’ part to aid or abet nor was there any evidence of an actus reus.

_{The transcript of Santos’ videotaped police interview included the following:}

“So before you all left Langdons Rd you get in the van, you’re like a pack and you’re going out hunting for DJ. Would that be a fair.

Yeah probably cos we just muck around at times. And you’ve done this before.

No not really. We just ah yeah sort of gone looking for him before cos.

_{And previously you’ve got him and taken him back to Langdons Road.}

Yeah given him a talk and yeah sweet not a problem.

_{(pp 39-40)}

So this time you’ve all been talking about it, you get in the van, you’re going out hunting to find DJ, bring him back.

Yeah.

You go to the Dog House. Yeah.

And and get Mark [Lewis]. Why did you get Mark.

Well Mark, Mark sort of. Ah one of them had heard that Mark knew where he was.” (pp 40-41)

These passages provide evidence capable of acceptance by the jury that before setting out from Langdons Road Santos was aware Schriek’s purpose was to capture Buckfield and bring him back to the house. On the material the jury could find that by deciding to go along, Santos was adding to the numbers involved in the enterprise, and was both encouraging and assisting the principal offenders. This evidence alone is sufficient to refute the submissions for the appellant. It is true that at a later stage Santos said that to start with his intention (together with that of his disabled girlfriend) was just to go for a ride, but given Santos’ other statements the jury could have rejected that as merely an attempt to minimise his involvement.

The evidence did not stop there. Santos accepted that at Langdons Road he struck Buckfield (he pleaded guilty to a charge of assault) and that this was indeed the commencement of violence of an escalating kind, others then proceeding to assault the victim. Again, the jury could have taken the view that when seen in the context of what followed, Santos’ explanation that he struck Buckfield in response to some provocation was only another attempt at exculpation.

The evidence was sufficient to justify the jury holding Santos was a party to the kidnapping in terms of Section 66(1).

McKay - Bill of Rights point

Ms McKay was living as Schriek’s partner at 81 Langdons Road. Detective Kerr and Constable McCormick called there on 11 October, informed McKay that they were

investigating Buckfield’s murder, cautioned her and invited her to accompany them to

the police station for an interview. She agreed. Shortly after arriving at the police station the detective commenced to interview McKay on video, continuing for about an hour. After a break there was a second videotaped interview taking about three quarters of an hour. Following the second interview the detective arrested the appellant for murder. At the commencement of the first interview the following exchange occurred:

K Okay and also you eh have a right to consult and instruct a lawyer without delay, eh you have a right to refrain from making any statements and you can also speak to a lawyer in private in you wish to. Eh do you understand what that means?

M Yep.

K Okay. Do you wish to have a lawyer present? M Don’t have a lawyer.

K Okay are you happy to talk to us? M Yep.

K Okay. If at any stage you change your mind you just let us know.

M Okay. (pp 4-5)

In the course of the interview which followed, the appellant made a number of remarks inculpating herself in both the kidnapping and the murder. There were further inculpatory passages in the second interview.

The trial Judge dealt with the question of admissibility as one of a number of issues raised in a pre-trial argument. At depositions, Detective Kerr had been fully cross- examined on matters relevant to the Bill of Rights issue. At the pre-trial hearing no further evidence was called on the point, which was decided on the basis of the depositions evidence.

For completeness we need to add that at the trial, the detective was again cross-examined at length regarding the manner in which he put to the appellant her rights under the New Zealand Bill of Rights Act, and particularly on whether the passage set out above recorded the first occasion he did so. In his ruling on the pre- trial application the Judge noted that from some of his answers under cross-

examination at the depositions hearing the detective appeared to be saying that the appellant had first been given her Bill of Rights advice at Langdons Road, although the brief of his evidence-in-chief tendered at the preliminary hearing did not state as much. The Judge also noted that at the depositions hearing, when counsel asked the detective whether the first time the appellant had been advised of a right to consult a solicitor was at the police station, Detective Kerr replied yes. The Judge proceeded on the basis that the only safe conclusion was that the extract from the videotaped interview represented the first time that McKay had been advised of her right to consult and instruct a lawyer. Under cross-examination at the trial, on the other hand, the detective maintained that he had given the appellant her Bill of Rights advice immediately prior to the commencement of the video interview. Indeed the detective said that in this preliminary discussion she was firm that she did not want a solicitor present. He did not record this, nor was this preliminary advice mentioned

on video when the videotaped interview commenced. Detective Kerr said that he did not mention it at depositions because he was not given the opportunity. The

detective also said that because of her reaction during the preliminary discussion, he was “surprised” at the appellant’s answer “don’t have a lawyer”. Had the appellant given any indication at all that she wanted a lawyer he would have obtained one.

The cross-examination at depositions, extending to some 12 pages, concentrated on the significance of the appellant’s answer. It was clearly designed to develop the point that the detective had not properly afforded the appellant her rights, and if as he maintained at the trial, he had already been over the ground in an unrecorded conversation prior to the commencement of the videotaped interview, it seems surprising that as an experienced detective, he was unable to find an opportunity to bring that point out. The detective knew he was dealing with an unemployed 17 year old who had no previous convictions.

We have gone into this aspect in some little detail, because an issue arises as to the factual basis on which we should decide the question now raised on appeal. There is no finding of fact apart from the one made by the Judge during his pre-trial ruling, since no subsequent opportunity arose for the Judge to comment on the issue. Strictly speaking, it may appear that in considering whether the decision to admit the evidence was an error of law we should restrict ourselves to the same evidence as was available to

the Judge; whereas in deciding whether there has been any miscarriage of justice we could look at the whole of the evidence given at the trial. However, in this case it makes no difference because on a consideration of the trial transcript we would not be prepared to reach any conclusion differing from the Judge’s own finding on the more restricted evidence before him, namely that the Bill of Rights advice recorded in the videotaped interview represented the first occasion when the appellant was given that advice.

Cross-examination at the depositions hearing established that the Christchurch police had a list of solicitors prepared to give advice to suspects being questioned. That list it may be assumed was compiled pursuant to a scheme established under the authority of Section 158D of the Legal Services Act 1991 under which lawyers acting for unrepresented persons pursuant to the scheme may be remunerated by the Legal Services Board. As the Judge said, there would have been no difficulty in facilitating the appellant’s exercise of her rights, if facilitation was required. After considering what this Court had said in R v Mallinson [1992] NZCA 163; [1993] 1 NZLR 528 the Judge said that counsel of perfection might require that the detective should have advised the appellant of the existence of a panel of lawyers immediately available at no charge. Notwithstanding

that, he found that the appellant had been advised of her right to consult and instruct a lawyer without delay in a manner that brought home that right to her. He was further satisfied that the appellant’s response did not trigger any obligation upon the police to facilitate the exercise of the right, given the questions and answers quoted above that immediately followed her initial reply. He held therefore that there had been no breach of Section 23(1)(b) of the New Zealand Bill of Rights Act.

The final preliminary matter we should mention is that for purposes of the pre- trial application the Judge assumed that the appellant at the relevant time was “detained”, meaning no doubt that she was under de facto arrest. Although at first inclined to make an issue of it, Mr Pike agreed, in our view properly, that the present argument appropriately should proceed on the same assumption.

The critical points from R v Mallinson are nos. 6 and 7:

“6 The crucial question is whether it was brought home to the arrested person that he or she had those rights. That is not the same question as whether the police were

justified in assuming that he or she did understand them. To look at it simply from the perspective of the police officer would mean that the person arrested who did not in fact understand the position would not be able to make an informed choice with respect to the exercise or waiver of the guaranteed right.

7. Informing persons arrested of their s 23(1)(b) rights ordinarily carries with it the obvious implication that they are entitled to exercise those rights. But there is no duty on the police when informing persons arrested of their right to a lawyer to go on to give advice designed to facilitate the exercise of that right. The police officer may decide to do so in order to assist in the understanding of the right. But any duty to facilitate the

manner of its exercise is not triggered until there is an indication by the person arrested of the desire to consult a lawyer. What, if anything, is then required of the police will depend on the particular circumstances.” (531)

The present case raises issues under both those paragraphs. Although the appellant purported to understand the position, her answer about not having a lawyer could be regarded as raising a doubt whether she really did. The question arises whether the officer should have given advice designed to facilitate the exercise of her right, in order to assist the appellant to understand what was involved. A second question is whether the appellant’s answer triggered a duty to facilitate the exercise

of the right.

In R v Hotereni CA 99/96, 19 August 1996 the appellant, asked whether he wanted to ring a lawyer, responded as here, that he did not have one. The constable gave him a copy of the yellow pages telephone book. When a few minutes later he asked the appellant whether he would like to telephone anybody, the reply was he did not. The appellant deposed that he had been unable to find any listing of a lawyer

that took calls after hours, it then being after 5.30pm. The Judge held that the provision of the yellow pages had been an adequate response, and that the failure to provide a roster of available lawyers was not a deprivation of the appellant’s rights. Stating that the appellant had said clearly and unequivocally that he did not wish to ring anybody, this Court dismissed the appeal.

Mr Pike properly referred us to the decision of the Supreme Court of Canada in R v Brydges (1990) 53 CCC (3d) 330. Six years after a homicide, which occurred in Alberta, the appellant was arrested in Manitoba. When informed of his right to retain and instruct counsel the appellant said he did not know any lawyers and asked whether Manitoba had free legal aid. The police officer, who was from Alberta, said he was not familiar with that, and the accused then stated “won’t be able to afford

anyone, hey? that’s the main thing”. The officer then asked appellant if there was a reason for his wanting to talk to a lawyer to which the appellant replied “not right now no”. Following some questioning, in the course of which he made admissions, the appellant indicated that he should talk to someone at which stage the officer checked the position regarding the availability of legal aid. After the appellant had spoken to a legal aid lawyer he would not say anything further. Lamer J said:

“Fair treatment of an accused person who has been arrested or detained necessarily implies that he be given a reasonable opportunity to exercise the right to counsel because the detainee is in the control of the police, and as such is not at liberty to exercise the privileges that he otherwise would be free to pursue. There is a duty, then, on the police to facilitate contact with counsel because, as I stated in R v Manninen (1987), 34 C.C.C. (3d) 385 at p. 392, 41 D.L.R. (4th) 301, [1987] 1 S.C.R. 1233:

[t]he purpose of the right to counsel is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights... For the

right to counsel to be effective, the detainee must have access to this advice before he is questioned or otherwise required to provide evidence.” (340)

Later in his judgment, with which in this respect all other members of the

Court agreed, Lamer J said:

“....the appellant did not understand the full meaning of his right to counsel.... On the specific facts of this case, the court is faced with the following question: when an accused expresses a concern that his inability to afford a lawyer is an impediment to the exercise of the right to counsel, is there a duty on the police to inform him of the existence of duty counsel and the ability to apply for Legal Aid? In my view there is. I

say this because imposing this duty on the police in these circumstances is consistent with the purpose underlying the right to retain and instruct counsel.” (342-3)

The Court concluded that the appellant’s rights under Section 10(b) of the Charter, equivalent to those under Section 23(1)(b) of our legislation, had been infringed, with the result that inculpatory statements made by the appellant should have been excluded. As is evident from discussion in Ministry of Transport v Noort, Police v Curran [1992] NZCA 51; [1992] 3 NZLR 260 to date New Zealand caselaw has not gone in all respects as far in the construction of Section 23(1)(b) as has been the case in Canada. However, New Zealand would be at one with Canada in approaching questions of interpretation of the legislation on the basis that a generous approach is required, designed to give citizens the full measure of the fundamental rights and freedoms set out; see generally the judgments of this Court in Ministry of Transport v Noort,

Police v Curran. Parliament having affirmed the rights contained in the statute could not have intended that they would be regarded as satisfied by lip service only.

In determining whether the present appellant received the rights guaranteed by the statute, we are in the same position as the Judge, since we have to decide the issue on the materials he had available, namely the depositions evidence and what is depicted on the videotape itself. On the facts, we take a different view from the Judge. To our mind, the answer “haven’t got a lawyer” indicated at least an ambiguity as to whether the appellant understood the nature of the right of which she was being informed. Certainly in the case of an inexperienced 17 year old the

answer may have indicated a belief that what was meant was that if she had a lawyer she was entitled to have that person present; and it may not have occurred to her that she might obtain, without cost, the temporary services of a lawyer not previously known to her specifically to advise her about the present situation. If so, the opportunity to obtain such advice simply went by default. The subsequent discussion did not clear up that point, and if the appellant remained under a misapprehension the offer that she could change her mind at any time would have been meaningless. Focusing therefore on point 6 of the Mallinson judgment as much as no. 7 we are not satisfied that the nature of the right to consult and instruct a solicitor before questioning began was brought home to the arrested person; the Crown has not discharged the burden in that respect.

Issues like the present raise questions of balancing the need to make the Bill of Rights Act work in an effective way against the risk of hindering law enforcement officers unduly in an increasingly difficult task. Concern that our decision might add further to their burdens is lessened however by the knowledge, obtained from the depositions evidence, that in similar circumstances police officers normally would have made a suspect aware of the existence of the legal aid scheme, and offered the suspect the list of lawyers. Indeed Detective Kerr said that generally, if a suspect

said that they did not want a lawyer because they could not afford one, or stated that they did not have a lawyer, he would supply the suspect with the list.

In R v Brydges Lamer J went so far as to express the view that as a matter of

routine, in all cases of arrest or detention suspects should be told of the existence and availability of duty counsel and legal aid schemes. He pointed out that quite apart from the cases where suspects expressly referred to the fact that they did not have a lawyer or could not afford one, there may be others where a detainee says nothing about inability to afford counsel owing to a belief that it is a foregone conclusion that unless he or she can pay for a lawyer, there is no other way to exercise the right to retain and instruct counsel. Otherwise, as the Judge pointed out, police officers were put in the situation of having to make a judgment whether to make further enquiries

of a detainee who does not express concerns about affordability but whom the officer suspects may not be able to afford a lawyer and may be ignorant of the availability of duty counsel. He referred to a well known passage from the landmark decision of the United States Supreme Court in Miranda v Arizona 384 US 426 (1965) at 473. In

this respect, the members of the Court sitting with Lamer J were divided. In New Zealand, a pronouncement on whether the obligation on police officers should go so far should await a case where that issue can be fully debated. As noted, in instances where it matters most, current New Zealand police practice would appear to be in favour of providing that information.

It was common ground that if the videotaped interviews were excluded the evidence was insufficient to sustain the appellant’s convictions for either kidnapping or murder or to justify a new trial. Although as noted earlier Turner at interview had implicated McKay in the homicide, in evidence he departed from that and made statements exculpating this appellant. Accordingly it is unnecessary to refer to other grounds argued on behalf of McKay. We allow the appeal, quash the convictions

and direct that a judgment and verdict of acquittal be entered. Other arguments

We have now dealt with the points which appeared to us to have the most substance, in respect of which we required a response from the Crown at the hearing. Other heads of argument advanced were as follows. For Webb, misconduct and unfairness by prosecuting counsel in his opening statement. For Santos and McKay, that the Crown opened in a way which did not distinguish sufficiently between the

evidence available against individual accused; that there was misdirection as to the law regarding to the significance of mere presence, that the Judge should not have criticised defence counsel as to certain references in his final address; that the defences were inadequately put to the jury, and that there was misconduct and unfairness on the part of the prosecution in the opening and final addresses. We are satisfied there is no merit in any of these contentions. Some other points, listed separately in counsels’ written submissions, merged with those with which we have dealt in the course of this judgment.

Sentence appeals

Schriek and Webb appeal against the sentence of eight years imposed for the kidnapping, and Santos appeals against his three year sentence. It was argued that the sentences were manifestly excessive, and disparate with the sentence of six and a half years imposed on Turner. The latter however pleaded guilty at the commencement of the trial, whereas Schriek and Webb did not plead guilty until

over two weeks into the case. Further, while as the Judge recognised, it was only Turner who used the sledgehammer, so far as the kidnapping was concerned Schriek and Webb, who regarded themselves as aggrieved by Buckfield’s actions, initiated the sequence of events culminating in his death. Santos’s much lesser role was recognised by the distinctions the Judge made.

The sentences were within the range available to the Judge. As to the apportionment of culpability between Schriek, Webb, Turner and Santos, we see no reason to differ from the assessments made by the Judge. Nor are we persuaded by the disparity argument.

_Conclusion

The result is that the appeals by McKay are allowed with the consequences

stated. In regard to both conviction and sentence the other appeals are all dismissed.

Solicitors

McGillivray Callaghan & Co., Christchurch for Webb

Crown Law Office, Wellington