THE QUEEN v DANNY JOHN CANCIAN [1999] NZCA 122 (22 July 1999)

IN THE court of appeal of new zealand

ca 444/98

THE QUEEN

V

DANNY JOHN CANCIAN

Hearing:	20 May 1999
Coram:	Thomas J Baragwanath J Goddard J
Appearances:	AJ Ellis for appellant CL Mander for the Crown
Judgment:	22 July 1999

judgment of THE COURT DELIVERED BY BARAGWANath j

[1]Mr Cancian appeals against his convictions following the verdicts of a jury in the District Court at Wellington on 35 counts of obtaining by false pretences.He advances two grounds:(1) that fresh evidence which should be admitted suggests a risk of miscarriage of justice if the convictions stand; (2) that there is reason to apprehend interference with a defence witness.

The facts

[2]Remarkable Homes Limited of Lower Hutt specialises in building residential houses.It had trading accounts with a number of suppliers of building materials and from time to time its staff were allowed to charge to its accounts materials that they wished to purchase for their own use.

[3]Between December 1996 and February 1997 Mr Cancian charged to the firm's accounts with various suppliers building materials to a value of some $32,154.49 which he used to build his own house at Tirohanga in the hills to the west of the Western Hutt Motorway.

The issue at trial

[4]The crucial issue was whether the appellant honestly believed he had authority from Mr McKernan, the principal of the complainant company, to charge to accounts of the company with various wholesalers the cost of builders' supplies intended and used for the purpose of his own new house.

[5]That issue was the subject of competing evidence for the prosecution of Mr McKernan and for the defence of the appellant and two supporting witnesses, Messrs Nichol and Roberts.

The Crown case

[6]The appellant had been an employee of the company.In 1966 he was appointed as Contracts Manager.His responsibilities were to go to the company's building sites and oversee the construction of new houses.That included getting supplies on to site from suppliers.

[7]The Crown acknowledged that Mr McKernan was in the practice of permitting the company's staff, including Mr Cancian, to charge certain orders intended for them personally to the company's account with suppliers and thereby secure a discount.Mr McKernan's evidence was that the practice in the appellant's case was to seek his authority to charge items and then make payment the following month.He said that the highest figure so charged by the appellant had been about $600.

[8]Mr McKernan gave evidence that the appellant approached him to seek authority to book up some $3,000 of concrete for which he had not arranged an account;he said he would repay the debt when his mortgage came through.The request was made in December 1996 to allow construction of the house in January 1997;Mr McKernan was to be away over the Christmas holiday period.

[9]On 11 February 1997 the appellant informed Mr McKernan that he was resigning.Mr McKernan told him that there were a number of items that had been booked up and that needed to be sorted out before he left.He left the business on 20 February.

[10]Prior to that date invoices for over $20,000 had been received by the company on account of debts booked up by the appellant;a further $10,000 odd came in after 20 February.

[11]The invoices showed that the supplies had been delivered to the appellant's property at 150B Tirohanga Road.

[12]Mr McKernan deposed that he would not have allowed an employee to book up such amounts;an agreement of some kind would have been required for that to have been authorised.

[13]Mr McKernan acknowledged that the appellant spent many hours working on Mr McKernan's house at Silverstream which was undergoing renovation.Mr McKernan stated that the appellant did so voluntarily and not on the basis that he could in exchange book up items on the company's accounts.In March the appellant rendered to the company an account for $36,000.The Crown contended that to be a bogus invoice created for the purpose of giving colourable justification for the amounts the appellant had charged to its accounts without authority.

[14]The Crown contended that the appellant knew he lacked entitlement to incur the debts with suppliers and thereby defrauded them.

The defence case

[15]The defence case was that the appellant at all times acted openly and honestly believed that he had authority to secure the discount by use of the company's accounts which he would have paid off on the 20th of the following month.It was contended that the "bogus invoice" was simply a clumsy attempt at rationalisation of the appellant's claimed authority to debit the company's accounts but not evidence of antecedent fraud.

The submissions on appeal

[16]The appellant advanced two grounds:

[a]fresh evidence;

[b] interference with the fairness of the trial by Mr McKernan "nobbling" the witness Roberts whose account was said not to come up to brief.

[17]To these grounds Mr Ellis sought during the course of argument to add a third advanced obliquely in Mr Ellis's typed submission, that trial counsel had been insufficiently diligent in seeking out evidence of which they had notice.

Fresh evidence

[18]The test of whether fresh evidence establishes miscarriage was considered in Crime Appeal CA 60/88 (1988) 3 CRNZ 512, 513

This Court has refrained from attempting to set any exclusive test which should be applied in order to determine whether the fresh evidence is of a nature sufficient of establishing that there was a miscarriage of justice at the trial..The overriding test must be the interests of justice (R v Arnold (1985) 1 NZLR 193, 196).In general the evidence must be new or fresh in the sense that it was not available at the trial and be relevantly credible and of a nature that, if given with the other evidence adduced, might reasonably have led the jury to return a different verdict (R v Fryer (1981) 1 NZLR 748, 753 and the cases referred to there).

(emphasis added)

Mr Burns

[19]The fresh evidence relied on was from Mr Burns, Mr Crispin and the appellant.In an affidavit tendered in support of an application for leave to admit new evidence in this Court Mr Burns described working on the appellant's house and seeing bundles of timber with the name "Remarkable Homes" written on them.That topic had not been raised at the trial.He repeated the account which had been given in evidence that there was also an official sign out the front of the Tirohanga property with "Remarkable Homes" written on it.He said that Mr McKernan visited the property on two occasions and must have been aware of the Remarkable Homes materials on what he knew was the appellant's project and not that of Remarkable Homes.

[20]It is plain from the cross-examination of Mr McKernan by defence counsel that the defence knew that on a couple of occasions Mr McKernan had visited the site at Tirohanga Road where the appellant was building his house.

[21]The appellant must also have been well aware of the facts deposed to by Mr Burns that

4. On the two occasions that McKernan visited the site there were a lot of building materials present.As one would expect, these were mostly packets or bundles of timber, which had the name "Remarkable Homes" written on them. There was also an official sign outside the front of the property with "Remarkable Homes" written on it.McKernan would have seen building materials at the property with the value of some thousands of dollars, timber not being cheap.

5. These building materials were everywhere when McKernan visited the site ...

[22]Mr Burns added the comment

6. A person of McKernan's experience, being a man who is running a business that specialised in the construction of houses, could not have left the property not knowing that RH building materials were being used on site ...

7. I understood that the appellant was allowed by McKernan to use RH materials for construction of his house in the form of "top up" on his salary ...

8. ... McKernan knew full well from his visits to Tirohanga Road that the appellant was using RH materials to construct his house.

[23]In reply Mr McKernan deposed

30. The only times that I ever visited the site at 150B Tirohanga Road was in late January 1997 and on one other occasion when the appellant resigned.This would have been in February 1997. At the time of me visiting the site in late January, the site was completely framed and at the stage of being closed in.I do recall Michael BURNS being there on these occasions.

31. I also recall seeing items on site with Remarkable Homes written on them. I was somewhat suspicious about why items on the site had Remarkable Homes on them, and I made enquiries back at work with James ROBERTS and Danny CANCIAN.

32. I was advised by both that the items that I had seen had in fact been supplied by Philip CRISPIN of Maramatia Consultancy.CRISPIN was, as far as I understand, supplying building materials to CANCIAN as I have previous outlined.

33. I do remember a sign on the fence at the address that had the name Remarkable Homes on it.I assumed that the reason the sign had been put up was to assist with the delivery of goods to the site by truckies, so that the site could be easily identified, as no letterbox was in existence at the address at this stage.

[24]Since the appellant must have known very well both the appearance of the bundles of building materials delivered to the Tirohanga property and the fact that they bore the name "Remarkable Homes" on them, and that Mr McKernan had visited the property, it was well open to him to instruct his counsel to challenge Mr McKernan more specifically on the points which Mr Burns' affidavit raises.He could also have made further inquiry as to who else may have seen Mr McKernan at the property.

[25]Moreover, since the fact of Mr McKernan's visit was not disputed, the proposed evidence of Mr Burns could not reasonably be said to be likely to have led the jury to return different verdicts.

Mr Crispin

[26]The affidavit of Mr Crispin contained very general evidence

3. From my frequent visits to the premises of RH and from talking to James McKernan, the Managing Director of RH, the appellant and other RH staff, it appeared obvious to me that McKernan knew, condoned or authorised the appellant to purchase building materials for personal use on the RH account.I say this based on my observations, conversations with people at RH and what appeared to me to be the convivial nature of the relationship between McKernan and the appellant.

[27]The affidavit lacks the specificity required to be cogent and to be such as might reasonably have led the jury to return different verdicts.

The appellant

[28]The appellant's evidence is by way of explanation of why that of others was not called.It is relevant only within that context.

Mr Phillips

[29]Mr Ellis relied also on the evidence of Mr Phillips, which he conceded falls into a different category in that it may not be seen as fresh.In his affidavit the appellant acknowledged that he had contacted Mr Phillips, whom he approached some time before his trial for the purpose of calling him to give evidence.Mr Phillips described a discussion between the appellant and Mr McKernan.His affidavit contains an account of discussion about the appellant's purchasing aluminium windows on the Remarkable Homes account for his personal use for a house he was building.Mr Phillips took from the discussion, which he noted as occurring on 6 or 7 November 1996, that Mr McKernan had authorised the appellant to purchase on the company's account aluminium windows valued at some thousands for the house he was building personally, to allow the appellant the benefit of the company's trade discount. Mr Phillips said he was aware that other company employees had the same type of arrangement.

[30]The value is well above the $600 figure acknowledged by the appellant.

[31]We do not accept the Crown's submission that what is attributed by Mr Phillips to Mr McKernan is inadmissible by reason of the hearsay rule;its relevance would be as going to Mr McKernan's credibility in denying that he had allowed the appellant more than $600 on any occasion.

[32]In his written submission filed to comply with the Criminal Appeals Practice Note effective from 1 January 1998 Mr Ellis stated:

2. The assistance of [trial counsel] who disqualified himself and seeks to present an affidavit is acknowledged, particularly in preparing all affidavits.

3. The Notice of Appeal identified two grounds namely

A. Verdict against weight of the evidence (and inconsistent)

B.Fresh evidence

4.Counsel would prefer to categorise the grounds

A.Fresh evidence

B.Lack of Fair Trial - potential "nobbled" witness

which overlap.

Nothing was suggested as to incompetence of trial counsel.

[33]Under the heading "Available and Cogent?" he referred to the evidence of other witnesses.As to Mr Phillips' evidence he made the concession:

19. Clearly the evidence of Mr Phillips falls into a different category in that it may not be seen as fresh

and continued

It is submitted that given that Mr Canc[ia]n was a first timer in the Criminal Justice system, his knowledge of what was required should be seen in that light.In any event the evidence is corroborative of what Burns and Crispin say.

There is similarity to R v Gilfoyle [1996] 3 All ER 889 commented on in Adams at 389.05.4

There may also be cases where the appellant's legal advisers have not been sufficiently diligent in seeking out evidence of which they had notice.In such cases the interests of justice may require the evidence to be admitted on appeal although it was, ex hypothesi, discoverable by due diligence at the time of the trial:R v Gilfoyle [1996] 3 All ER 889.

The headnote set out at tab 23 reading in part

The interests of justice were not simply confined to receiving evidence which would result in an appeal being allowed, particularly when the court was being asked to review as unsafe and unsatisfactory the verdict of the jury, after an impeccable summing up, on the ground that there was a lurking doubt.It follows that where, as in the instance case, the court was asked to consider fresh evidence which the appellant contended reinforced such a doubt, the court could receive admissible evidence which tended to dispel that doubt.

...

[34]The Court of Appeal Criminal Practice Note provides:

(6) Trial complaints and fresh evidence applications

Where an appellant intends to support the appeal

(a) by reference to complaints against defence counsel at the trial, ... or

(b) by reference to fresh evidence to be introduced on appeal,

those matters must be disclosed to the Crown in a detailed way no less than three weeks before the date set for the appeal fixture.

Comment:Grounds resting upon complaints about the conduct or competency of defence counsel a the trial cannot realistically be advanced unless the appellant provides to the Crown no less than three weeks before the date set for the hearing full details of the complaint in affidavit form (where that is appropriate) and a waiver of privilege addressed to the practitioner concerned. This will enable the Crown to approach the practitioner involved and secure any response seen as appropriate for the purpose of assisting the Court.

[35]It is to be emphasised that the appellant did not add to the grounds of appeal a further specific attack on the conduct of trial counsel.Nor did paragraph 19 make explicit that the appellant was asserting an attack on the conduct of trial counsel, whose assistance in preparing the appeal had been acknowledged in paragraph 2.Had that occurred one would have expected a full account from trial counsel of the history of his consideration of what witnesses should be called in support of the defence and the discussions held with the appellant whom he may have been expected to probe n the point.

[36]It is to be observed that Crown counsel did not perceive the need to approach trial counsel as provided by the Practice Direction;Mr Mander's written submissions were understandably not directed to an incompetency argument.

[37]We emphasise that attacks on counsel's conduct must be made directly and within the time limits specified in the Practice Direction.

[38]Gilfoyle can permit a dispensation from the ordinary requirement of due diligence of trial counsel.But submissions involving it must be based on a full presentation of the evidence which the failure to take the point directly has foreclosed.

[39]We reject the claim that trial counsel acted incompetently in failing to obtain the evidence of Mr Phillips and put it before the Court.

Interference within the fairness of the trial

[40]The second ground of appeal was that on conclusion of day one of the trial while defence counsel was cross-examining Mr McKernan, Mr McKernan telephoned a defence witness Mr Roberts at his house and discussed the case. The next morning 12 May defence counsel was advised by the appellant of the fact of the phone call.Counsel spoke to the witness about what Mr McKernan had said.

[41]Counsel deposed that:

4. Roberts seemed fairly matter of fact about McKernan contacting him, and advised me that all McKernan had said to him was something alone the lines of "good luck" and "I hope we can remain friends".(Roberts used to be employed by McKernan at Remarkable Homes Limited ...)

5. Although I was concerned that McKernan had contacted Roberts, given what Roberts had said to me, the contact seemed, at face value, to be somewhat minor.I should say here that I had interviewed Roberts about two or three times about the giving of his evidence and on all occasions he was co-operative and open.He appeared to be a good friend of the appellant.Given these facts, I was quire prepared to accept what Roberts said ... about the McKernan contact;at the time, I had no cause not to accept this.

6. For the above reasons, I did not inform the presiding Judge ... abut the contact.I presumed that if I had, the Judge would have done what I did, namely speak to Roberts, ascertain from him the contact was of a relatively minor nature and as Roberts did not seem perturbed by the contact, allow the trial to continue.

7. On Tuesday, 12 May, Roberts gave evidence (after the contact from McKernan). I have had approximately 11 years of experience as a trial lawyer.Based on my experience I found Roberts evidence to be somewhat disappointing because it came across as being somewhat equivocal or "fence sitting" resulting in Roberts, whom I believed was gong to be a strong witness for the appellant, being a weak one.

[42]He then gave examples of what he believed to be Mr Roberts' weak evidence.

[43]Our impression of the passages relied upon is that they did not on their face signify any particular reluctance to give an account favourable to the defence.

[44]No affidavit from Mr Roberts was filed because he was out of New Zealand. He was interviewed by telephone in the USA at 1300 hrs New Zealand time on 17 May 1999 by Detective Sergeant SC Mills.The Detective Sergeant's record of the conversation is as follows:

Jim McKernan rang me prior to the Danny Cancian trial.He spoke to me about the Cancian matter in general conversation.He basically said that he had no ill feeling against me for giving evidence for Cancian.I told him the same but I also explained to him that I was not happy about the manner in which Cancian had been charged.By this I mean that it was being inferred that Jim did not know that Danny Cancian was booking the property up when he knew that Danny was booking the property up but not in the manner he was anticipating.

Jim McKernan did not influence me in any way in regards to the matter in which I gave evidence.

Conversation ends.

Roberts informed me that he returns to New Zealand for ten days from 29 March 1999.

[45]There is nothing in this material to suggest an improper attempt by Mr McKernan to influence Mr Roberts;and such was the impression formed by defence counsel at the time.

[46]This evidence did not however stand by itself.Defence counsel represented another accused who stood trial in the District court in October 1998 on a charge of fraud.The main prosecution witness was again Mr McKernan.

[47]At the end of the first day of the trial Mr McKernan, who had finished giving his evidence, telephoned a defence witness Philip Gerard Bentley who had not yet commenced his evidence.Mr McKernan knew the thrust of what Mr Bentley was going to say on behalf of the defence because that had been put to Mr McKernan by counsel in cross-examination.

[48]Mr Bentley has deposed:

2. In October last year I agreed to be a witness for CLINTON GORDON, who faced trial in the Wellington District Court on one charge of using an altered document with intent to defraud.The document in question was a Remarkable Homes Limited ("RH") contact between RH and Gordon.

3. My evidence was going to be on an issue involving the standard form of contract that RH entered into with independent builders to construct houses for RH, because I had been one of those independent builders who had signed an RH building contract.I understand that this was a critical issue in the case against Gordon.JAMES McKERNAN, the managing director of RH and the main prosecution witness at the trial, would have been aware of this.

4. I believe that the trial commenced on 22 October 1998.At the end of the day, as my evidence had not yet been reached, I was aware that I would need to attend court the next day to give it.I was surprised that on the night of 22 October, McKernan telephoned me at home.I knew that McKernan was the main prosecution witness against Gordon and that McKernan would have been aware that I was going to be giving evidence on behalf of Gordon the next day.

5. I do not remember exactly the verbatim discussion I had with McKernan, however I do remember clearly that the reason McKernan was ringing me was because he wanted to discuss with me what he believed to be my faulty recollection of the RH contracts (I take it that McKernan had had put to him in cross-examination what I, as a witness for Gordon, would be saying in my evidence).McKernan wanted to "correct" my memory so that my evidence would now support what he had said in evidence.

6. I told McKernan that I would be giving evidence as I had discussed it with Gordon's lawyer, because that was my genuine recollection.I also told him that I was not impressed with him ringing me to discuss this very important issue over the telephone during the course of the trial.This is when the telephone conversation ended.

7. The next morning, I told Gordon's lawyer of the conversation I had had with McKernan.I was not called as a witness because the trial was prematurely terminated for some reason or other.

8. The only reason McKernan rang me on 22 October 1999 [sic] was to discuss the evidence I was going to be giving the next day in the Gordon trial.There was no other reason and nothing else was discussed.

[49]Defence counsel deposed:

10. On the morning of 23 October 1998 I spoke with Bentley, who informed me of the contact by McKernan.Bentley informed me that McKernan had contacted him by telephone and that the purpose of the phone call from McKernan was to attempt to dissuade Bentley from stating certain facts in his evidence, on the grounds that Bentley was wrong or did not have an accurate recollection of matters.In essence, McKernan wanted Bentley to "correct" his evidence so that it would now corroborate McKernan's evidence on the issue of the building contracts.I believe the reason for this is because McKernan believed that any other evidence from Bentley would be wrong or untruthful

11. I did not bring this matter to the attention of the presiding Judge DCJ Keane, because a mis-trial was applied for and granted on separate, unrelated grounds, early on the morning of the second day of the trial.I did, however, bring the matter of the contact to the attention of the prosecutor and the police officer in charge of the case.Neither seemed concerned about the contact.

12. Sometime after the appellant's trial in May 1998, I became aware that there had been a falling out between the appellant and James Roberts, although I am not sure as to when this happened.I was aware of this because of discussions I had had with both the appellant and Roberts himself (in about September & October 1998, I was instructed to act for Roberts concerning bankruptcy proceedings which had been initiated against him, resulting in his ultimately being adjudicated bankrupt.It was through this contact that I came to discuss with him his relationship with the appellant).

13. At the conclusion of the Gordon trial, in October 1998, I was now able to reflect on the following facts:

13.1 That Roberts had appeared to me before the appellant's trial to be a strong witness on behalf of the appellant because he could positively say, by reason of his having been an RH employee, that RH employees, including the appellant, were authorised by McKernan to purchase materials for personal use on the RH account.

13.2 That Roberts had been contacted by McKernan during the course of the appellant's trial with such contact involving, I was informed, just an exchange of pleasantries.

13.3 That after the McKernan contact, Roberts had given evidence in a manner which I believed was disappointing and had not really "come up to brief".

13.4 That Roberts and the appellant had "fallen out" sometime after the appellant's trial.

13.5 That Phil Bentley, a witness for Clinton Gordon, had been contacted by McKernan before he was due to give evidence (in a manner similar to the Roberts contact).On this occasion the contact appeared t be more sinister than the Roberts contact, by reason of McKernan clearly conveying to Bentley that his memory needed to be "refreshed" or corrected so that his evidence would corroborate McKernan's evidence.

14. Reflecting on the above facts, I believe that there may well have been more to the McKernan contact of Roberts than what I was first led to believe.Why, for example, was there a need mid-trial for McKernan to telephone Roberts to exchange pleasantries if such could easily have been done pre- or post- trial? Given what happened with Bentley, if McKernan was prepared to telephone one witness with a view to having that witness change or "correct" his evidence, why would he not do this on another occasion (perhaps with Roberts)?These facts and reflections caused me real concern.

15. If, at the time it was brought to my attention that McKernan had contacted Roberts, I had had the same knowledge of all the above facts that I do now, I would most certainly have approached the trial Judge with my concerns.I cannot speak for the Judge as to what weight she may have given my concerns, but DCJ Lee would surely have given these concerns more weight that my initial sole concern that a prosecution witness had contacted my defence witness simply to exchange pleasantries.

[50]In his affidavit in reply Mr McKernan deposed:

15. I acknowledge that in relation to this matter, I was the complainant that made the complaint against Clinton GORDON.I gave evidence at that trial on Thursday the 22nd October 1998, which was the first day of the trial.While I was in the witness box, I came under cross examination from Defence Counsel. Some of the facts that I stated was obviously refuted by Defence.

16. When I left Court, I did not see Philip BENTLEY present in the Courtroom, and I did not know that he was a witness for the defence. Because Defence Counsel had refuted some of the facts I had given from the witness box, I phoned Mr BENTLEY to try and clarify some of these disputed facts.The conversation took approximately one minute.

17. The reason that I contacted Mr BENTLEY was to try and find out if he had any knowledge that an unrecovered copy of the contract in issue was in existence.I also had a discussion with him bout the cost of building frames, which also related to the same contract.He was very short with me and not a lot of "two way" conversation was held between myself and Mr BENTLEY.Had I known that Mr BENTLEY was going to be called as a defence witness, I would not have contacted him.

18. The reason that I did contact him was to try and clarify refuted facts that Defence Counsel had put to me in the witness box when I was under cross examination.

19. I fully understand the implications of trying to sway or change a perspective [sic] witness who is going to give evidence in Court, and there would be no way that I would contact someone and try and force them to change their evidence.

20. During the course of my conversation with Mr BENTLEY, I do not recall him stating to me that he was about to be called as a defence witness for the prosecution cause in that particular matter.

[51]Mr Ellis put before us the transcript of the trial which records that on 22 October 1998 defence counsel had put to Mr McKernan a series of questions premised upon Mr Bentley's giving evidence.

[52]Mr McKernan's account that when he called Mr Bentley the same evening:

... I did not know he was a witness for the defence

is therefore plainly inaccurate.

[53]One of the available inferences was that Mr McKernan did seek to interfere with the evidence that Mr Bentley was to give.

[54]Mr Ellis submits that since the inference is open on the second occasion, it is equally open on the first, and the recent denial by Mr Roberts is consistent with the attempt having been successful.

[55]For a complainant to contact a defence witness who is known to be about to give evidence in the case is potentially a most dangerous act.Even if innocent it risks being misconstrued as an interference with the due process of justice.The principle that justice must not only be done but manifestly seen to be done requires that such conduct be examined with particular care.

[56]In view of

[a] Mr McKernan's unacceptable explanation for the call to Mr Bentley and

[b] the alleged "falling out" between the appellant and Mr Roberts deposed to by trial counsel

we directed that Mr Roberts' account be given by affidavit following his return to New Zealand.

[57]On 8 June 1999 Mr Roberts swore an affidavit in the following terms

1. I acknowledge that I was a defence witness in the case of Danny CANCIAN in a trial in May 1998.

2. I have read a copy of the affidavit supplied by Timothy Grant VOGEL, Barrister of Wellington.

3. In reference to paragraph three of that affidavit, I do recall having a conversation via telephone with James McKERNAN.This conversation definitely did not take place during the trial, and I am absolutely certain that this telephone conversation took place on the Friday prior to the trial taking place.

4. James McKERNAN phoned me at home and the basis of that conversation was along the lines that he realised the situation I was in having to give evidence on behalf of defence and that he held no animosity towards me because of this situation.

5. I explained to James McKERNAN why I was going to give evidence on behalf of defence for Danny CANCIAN.During that conversation with Mr McKERNAN, at no stage did he try to stop me giving evidence, or attempt to get me to change my evidence that I might give.In actual fact, there was no conversation held between the two of us about what our respective evidence was to be given during the trial.

6. The evidence that I gave during Mr CANCIAN's trial was evidence of my recollection of events as I recalled them.I told the complete truth during my evidence, to the best of my ability, and at no time during the giving of my evidence did I ever mislead the Court in the evidence that I gave.

7. I simply answered the questions that were put to me to the best of my ability from my recollection of events.None of my answers given were as a result of any influence that Mr VOGEL has purported to have been held over me by James McKERNAN.

8. In reference to paragraph 13.5 of Mr VOGEL's affidavit, Mr VOGEL has stated why there was a need mid-trial for myself and Mr McKERNAN to have contact. Again I reiterate that this contact that had occurred did not take place during the course of the trial and occurred prior to the trial, as I have previously indicated.

[58]By minute dated 17 June 199 the court offered counsel the further opportunity to make submissions in writing relating to the affidavit, its contents and what, if any, modifications or extensions counsel would wish to make to their previous submissions.Crown counsel were invited to make any submissions within seven days and the appellant to respond within a further seven days.

[59]The Crown submissions were filed on 18 June;no submissions were made by the appellant.

[60]Having considered the affidavit we are satisfied that there is no reason to regard the call from Mr McKernan as conceivably leading him to give a false account.Rather the episode was innocuous, as trial counsel was originally disposed to think

Result

[61]Both grounds of appeal having failed the appeal is dismissed.

Solicitors:

Crown Solicitor, Wellington for Crown