The Queen v Walter Robert Anderson [1999] NZCA 319; [2000] 1 NZLR 667; (1999) 17 CRNZ 506 (16 December 1999)

Last Updated: 29 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA393/99

THE QUEEN

V

WALTER ROBERT ANDERSON

Hearing:	24 November 1999
Coram:	Elias CJ Gault J Goddard J
Appearances:	R. Wade for Appellant AR Burns for Crown
Judgment:	16 December 1999

JUDGMENT OF THE COURT DELIVERED BY ELIAS CJ

[1] The appellant appeals his conviction in the High Court at Auckland on 19 August 1999 on a charge of wounding with intent to cause grievous bodily harm. The sole grounds advanced in support of the appeal are the Judge’s ruling pursuant to s 5 (4) of the Evidence Act 1908 that the appellant could be cross-examined by Crown counsel in relation to a previous conviction for assault in 1990 and the Judge’s failure in the summing-up to refer to the use to which evidence of the earlier conviction could properly be put.

BACKGROUND

[2] The appellant was acquitted at trial on 4 counts of assault with intent to injure, but convicted of the wounding with intent to cause grievous bodily harm which is the subject of the appeal. The assault charges were laid in respect of two complainants. They arose out of the same incident when the appellant and his wife went to business premises operated by the complainants to attempt to recover payment of a debt. It was common ground in the trial that the debt existed and its repayment was overdue.
[3] The Crown case was that when the full amount of the money owed was not available, the appellant became angry and head-butted the two complainants before biting one on the fingers and cutting his cheek with a knife. The case for the appellant was that he had gone to the assistance of his wife who had been threatened by the complainants and in the course of the subsequent struggle had accidentally cut the complainant’s face with a knife resorted to only after the altercation began. Apart from the accidental cuts inflicted by the knife, the appellant denied the other acts of assault alleged against him.
[4] An important part of the Crown case was a video interview in which the appellant admitted losing his temper, deliberately head-butting the complainants, and deliberately cutting one of the complainants with the knife. He also admitted twisting the testicles of both complainants but that admission is not reflected in the charges and the evidence of the complainants at trial makes no reference to such an assault.
[5] The inculpatory video interview was a second interview undertaken by the police the morning after the incident. In the first video interview the appellant had denied any involvement. Following what the appellant and the officer in charge of the enquiry, Detective Sergeant Alexander, described as an “off the record conversation,” the appellant gave the inculpatory interview.
[6] The second interview was extremely damaging to the appellant’s case. It was the subject of a pre-trial application under s 344A of the Crimes Act 1961. The interview was ruled admissible.
[7] The contention of the defence was that the second interview had been induced by a statement made by Detective Sergeant Alexander that, if the appellant did not admit his culpability in the incident, his wife would be charged as well and their child might be placed in Social Welfare care. The appellant gave evidence at the trial that as a result of this suggestion the account given by him in the second interview was untrue and made by him out of concern for his wife and child. His wife had a health problem which meant that any period in custody would be distressing for her. The child had never been parted from her parents and was likely to become anxious if separated from both.
[8] These suggestions were put by defence counsel to Detective Sergeant Alexander and Constable Smith. Constable Smith had spoken to the appellant between the “off the record” discussion and the second interview. It was to him that the appellant had indicated his preparedness to make a further video statement. Detective Sergeant Alexander agreed that in the “off the record” discussion, the appellant had expressed concern about his wife and daughter. He confirmed that he had answered in response to an inquiry by the appellant, that his wife could be charged and that in that case, his daughter might be placed in care. The officer denied that any inducement or threat had been made to the appellant relating to any charges against his wife.
[9] The appellant’s wife, although initially taken to the police station as a suspect, was released without charge after the second interview with the appellant was made.

The trial

[10] Constable Smith gave formal evidence in chief about a computer check carried out on the registration plate of the car belonging to the appellant’s wife. He was then cross-examined by defence counsel about the circumstances in which Mr and Mrs Anderson were taken to the police station for the interviews. The answers elicited established that when the police officers arrived at the Anderson home to execute a search warrant, the appellant’s 5 year old child was present in the house. When Mr and Mrs Anderson went in police cars to the police station, the child was not taken along.
[11] Constable Smith confirmed that after Detective Sergeant Alexander had spoken to the appellant following the first video interview, the other officers felt they were not making much headway. Constable Smith then suggested that he talk to the appellant. Constable Smith denied that he knew that Detective Sergeant Alexander had informed the appellant that his wife could be arrested and the child placed in Social Welfare custody:

Did Detective Sergeant Alexander tell you that during the course of his conversation with Mr Anderson did Detective Sergeant Alexander tell you that he had told my client that his wife could be arrested and their child put in social welfare custody?.......No.

That’s the real reason you went into the room isn’t it because Detective Sergeant Alexander had delivered the threat and you had gone in there to assess whether the desired effect had taken place on Mr Anderson?......No that’s incorrect and to the best of my knowledge there were no threats ever made........

You knew that Detective Sergeant Alexander had told Mr Anderson that his wife could be arrested with the consequence that his child would be placed in Social Welfare custody and you went in there to assess what Mr Anderson’s present attitude was didn’t you?......No I didn’t.

......and immediately after your intervention in the room Mr Anderson makes the second video tape?......When I spoke to Mr Anderson for a couple of minutes he acknowledged what had happened, yes.

He said he was protecting his family didn’t he to you in that brief conversation?......Words to that effect yes, that he was sort of embarrassed by his actions.

.....and he was protecting his family?......As well as the embarrassment he had caused to his family, along those lines, after stabbing Mr Cole......

What I am suggesting is that you were sent in there by Detective Sergeant Alexander to assess the lie of the land?......No I went in there of my own accord, it was on my own back that I went in there to speak to the accused.

[12] Detective Sergeant Alexander gave evidence at the end of the Crown case. Crown counsel elicited from him the circumstances of the search of the appellant’s home, the arrangements made for care of the appellant’s child while the parents were taken to the police station to be interviewed and the sequence of the interviews at the police station. Detective Sergeant Alexander acknowledged that after the first video interview he had a further conversation with the appellant:

We had what is termed as an off the record discussion where I made no notes of that discussion and Mr Anderson asked me what was going to happen, what would be the worst case scenario, I explained to him his wife was still being interviewed and that if as a result of that interview she was implicated with regards to the offence would be arrested and charged accordingly and if bail was not granted and a family relative or friend could not be located I would have to contact the appropriate authorities to have the child placed.

Did you simply volunteer that information or was that information conveyed as a result of any questions or something that the accused had said?......The accused asked me what was going to happen, what would be the worst case scenario and that was to me the worst case scenario.

Did you specifically mention his child or did you raise the issue of his child?.....He initially mentioned what was going to happen to his wife, I can’t honestly recall whether he mentioned his child or whether I did bring it up.

[13] Detective Sergeant Alexander said that the appellant did not raise the state of his wife’s health. He confirmed that Constable Smith had asked if he could go and have a word with the appellant and that this was while the wife was still being interviewed. It was put to Detective Sergeant Alexander in cross-examination that the real reason for sending Constable Smith in there was to see if Mr Anderson had succumbed to the threat about his wife and child? His response was:

I did not send Constable Smith in there. He asked to go in. There is a difference. Secondly, there was no threats or inducements made to your client. I did not send Constable Smith in there to see if any inducements were made because none were made.......

Mr Anderson didn’t ask what the worst case scenario was at all did he? You told him unless he admitted to these offences his wife would be charged, placed in custody and their child would be placed in a Social Welfare home?......

I did not threaten your client. Your client asked me for the worst case scenario and he was given the worst case scenario.

[14] Detective Sergeant Alexander rejected the suggestion that he had held out any inducement or offered any threat to the appellant to cause him to make admissions of guilt. Nor, in his presence or to his knowledge, did any other officer. While Constable Smith was aware of Mrs Anderson’s ill-health, Detective Alexander said he was not aware of it.
[15] The appellant gave evidence of the discussion with Detective Sergeant Alexander after the first video interview

He said that if I didn’t admit to it that my wife Lyn would go into custody and my daughter would go into, I think its Social Welfare care and I got very – I actually got very frightened about it, I was very – I was actually very fearful for my wife.

Why?......I knew that she wouldn’t be able to handle it – I just took up – I was a lot more stronger and just did what the police wanted me to say – that’s when I actually did the second interview.

How did you know what the police wanted you to say? They actually told me what to say.

Who did?......The taller gentleman......he told me just to admit to it and I just didn’t have any choice, he didn’t give me any choice.

[16] The appellant explained that his fear for his wife was because of her bad heart complaint, “She wouldn’t be able to handle it being locked up”. He therefore resolved to tell the police that he cut the complainant. At that stage he wanted to tell the police what they wanted to hear “just to get it over with”. The advantage would be that “Lyn and Marie would be together again because I love them very much and it’s really what it comes down to”. He thought the daughter would fret and be upset if deprived of both mother and father.
[17] During the course of his evidence in chief, the appellant made reference to the fact that he was a ju-jitsu instructor. He was asked by his counsel whether, as a “martial arts exponent”, he used any martial arts in the course of the incident with the complainants. The appellant denied that he had and said in explanation “It’s really not for to go around looking for trouble, only for protection for looking after yourself, no I didn’t. I just held him that was all.” The appellant did however acknowledge losing his “cool”, as he had in he video interview. When asked what he meant, he replied,

I probably myself got very agitated with him too, you know silly thing, stupid.

Is that consistent with your training?......

No it isn’t, it should have been the opposite, it was ridiculous.

[18] Later the appellant explained that one of the complainants had been apologetic to him and that he, in turn, had been apologetic. When asked why he had been apologetic he answered:

Well it’s something I really don’t do, it was stupid what I did but in saying that he was no different he did the same thing – because it’s something that I really don’t do and he was really apologetic as well.

When you say it’s something you don’t do what do you man?.......

I don’t really get bad tempered or lose my cool as they say, it was just one of those things I suppose.

[19] Following the appellant’s evidence in chief the Crown sought leave to cross-examine him as to his previous convictions. The appellant has seven previous convictions, dating from 1977. Four entail violence or threats of violence. The most recent conviction in 1994 was one of cruelly ill-treating an animal. The grounds advanced by the Crown in seeking to cross-examine the accused as to his previous convictions are not recorded. It appears from the Judge’s ruling on the matter that the main ground put forward by the Crown was that the defence had attacked the character of the two police witnesses by suggesting they had used threats or inducements to obtain the confession in the second video interview.
[20] In his ruling, the trial Judge referred to R v Accused [1989] NZCA 54; (1989) 4 CRNZ 293. Leave should not be given lightly and required either “an attempt to estimate good character by the accused or an attack on the veracity of the Crown’s witnesses”. The Judge concluded that those pre-conditions were made out:

Here my view is that both in the way that counsel cross-examined Detective Sergeant Alexander and Constable Smith there was an attack on the character of both of those Police Officers, it being put to them, in effect, that they had held out an inducment or a threat in relation to what might happen to the accused’s wife and his child if he did not tell them the truth and the evidence of the accused himself in-chief is to the effect that he was told what would happen to them if he did not tell the truth and because he was frightened and concerned he made the second statement which clearly inculpates him. Additionally it seems to me that the defence has been run on the basis that there was no intention to use any violence and it was just a situation which got out of hand and that as a jujitsu instructor the accused normally exercises self-control and never intends to hurt, merely to defend himself.

In all those circumstances my view is that the Crown has established the foundation for the exercise of discretion.

[21] It is not clear whether the second ground relied upon by the Judge was one raised by Crown counsel.
[22] In the exercise of his discretion, the Judge considered it unfair to place before the jury offending “unrelated to violence against people” and offending which took place between 17 and 22 years ago. He considered however that two convictions for common assault in May 1990, (which arose out of the same incident) “are not so far removed from the present or the result perhaps of conduct when the accused was immature that the discretion should be exercised to exclude them”. Accordingly the Crown was given leave to cross-examine the appellant on the 1990 convictions of common assault.
[23] The only use made of the leave in cross-examination by Crown counsel came after the appellant had said that he did not know his legal rights and felt the atmosphere in the police station to be oppressive. He was then asked about his previous experience with police stations and admitted being convicted of two charges of common assault in 1990. Counsel asked further:

Was that another example of this lack of self-discipline that you are so keen to tell us about?.....No sir.

By that stage you had been practising this self-discipline of ju-jitsu for some 25 years according to you?......You could say that sir.

Yes?......Yes, probably a little bit longer.

So it must have been another example of lack of control?......That’s a while ago sir.

[24] Nothing further was asked in cross-examination by Crown counsel. In re-examination, defence counsel simply elicited the facts that the penalty imposed in respect of the 1990 convictions was a fine of $800.
[25] In summing-up to the jury the Judge made no reference to the evidence of the appellant’s previous convictions for assault. The omission was not drawn to the attention of the Judge by counsel, despite an invitation at the end of the summing-up to identify any error into which the Judge might have fallen.

The appeal

[26] On behalf of the appellant Mr Wade (who was not counsel at trial), contends that the Judge should not have granted leave to cross-examine the appellant on previous convictions “at all”. He draws attention to the fact that no warning, such as is conventionally given, was given to counsel that he was running the risk of putting his client’s character in issue. Secondly he contends that the convictions upon which the Crown was granted leave to cross-examine the appellant were not ones which should have been referred to in evidence. Finally it is contended that the Judge erred in failing to give any direction to the jury as to the legitimate use the jury could make of the evidence as to the previous convictions.
[27] In support of the first proposition, Mr Wade submits that the conditions for exercise of the discretion under s 5 (4) of the Evidence Act 1908, as settled by authority, were not observed by the trial Judge in that

• There was no imputation on the character of the police witnesses justifying a reference to the convictions in circumstances where it was necessary for the defence to challenge the reliability of the second video interview
• The evidence given by the appellant as to the discipline he obtains through his martial arts was not such as to amount to an assertion of good character

[28] In addition, Mr Wade submitted that the trial Judge erred in the exercise of his discretion by admitting the conviction because it was evidence of propensity to commit acts of violence, rather than evidence relating to the appellant’s credibility. Because the Crown did not elicit whether the appellant had pleaded guilty to the offending in 1990, “the purpose of putting the conviction can only have been to introduce evidence of the accused’s propensity to commit acts of violence and could not and did not relate to his credibility”.
[29] With reference to the omission of any reference to the evidence of the convictions in the trial Judge’s summing-up, the appellant cites R v Kalo [1984] NZCA 92; (1984) 1 CRNZ 413 and R v Kino and Mete [1997] 3 NZLR 24. In those cases this Court emphasised the importance of warning the jury as to the limited use to which evidence of previous convictions may be put.

Decision

[30] S 5(4) of the Evidence Act 1908 confers a wide discretion upon the trial Judge, as was recognised in R v Leadbitter [1958] NZLR 336, R v MacLeod [1964] NZLR 545 and R v Fisher [1964] NZLR 1063. In R v Clark [1953] NZCA 18; [1953] NZLR 823, the Court while recognising that the matter in New Zealand is one of discretion, considered that “the limits prescribed by the English statutory position......should, in general, be observed in the exercise of the discretion”. That general approach was confirmed in R v Leadbitter where the Court however recognised that the discretion was not necessarily restricted to the occasions where cross-examination is permissible under s 1(f) of the Criminal Evidence Act 1898 (UK). In the intervening years the English authorities have continued to be looked to by the New Zealand Courts in the exercise of the discretion under s 5(4): R v Kalo at 414 per Eichelbaum CJ.
[31] Where leave under s 5(4) is given, evidence of previous convictions is relevant only to the credibility of the accused. It is not relevant to the likelihood of his having committed the offence. If, as the Judge thought, the defence was that the accused would not have lost his temper and caused the injuries to the complainants because of the self-control developed through his martial arts training, then there would be some foundation for the exercise of the discretion. The accused would then have put in issue his character.
[32] Where the accused puts his character in issue, it may be proper in a trial for an offence of violence for a trial Judge to admit evidence of convictions for previous assaults, notwithstanding the prejudicial effect of such evidence. The convictions are admissible not to show propensity to resort to violence, but as evidence upon which the jury might conclude that the accused is not to be believed in saying that he could not have committed the offences because of his particular self-control or belief in non-violence or some other explanation based upon his own good character. While in some circumstances the difference in practical terms might not be great, the distinction in principle is clear. Even then, the Judge would have to consider carefully whether the evidence was sufficiently cogent to overcome the recognised prejudicial tendency of such evidence, as emphasised in R v Kalo.
[33] In this case, even had a proper foundation for admission of the evidence been laid by the accused putting his good character in issue, we are of the view that leave should have been refused. The 1990 convictions were nearly 10 years old. The convictions of themselves do not allow any inference to be drawn as to the appellant’s ability to control himself, because it was not known whether their context was one of loss of self-control. The fine imposed in respect of the 1990 offences does not suggest that the violence was comparable to that in issue in the present case. There was a serious risk that the jury might form the view that the convictions for assault in 1990 meant the appellant was likely to have committed the offences for which he was on trial, rather than as evidence against which to test the appellant’s credibility on the subject of his general powers of self-control. That was a particular danger when the previous convictions were for offending of the type under consideration.
[34] More fundamentally, however, we are not able to accept the Judge’s conclusion that the appellant, in giving evidence of the self-control he generally practices as a martial arts exponent, put his good character in issue in a way which made his previous convictions for assault relevant. The passages taken from the appellant’s evidence set out above include acknowledgements that he did lose his self-control at the time of the incident upon which the charges were based. In that, they may be seen to be admissions against interest. They are not consistent with the line, assumed to be part of the defence case by the Judge in his ruling, that the appellant was unlikely to have committed the offences because of his powers of self-control. The appellant acknowledged loss of self-control. He said that it should not have happened because of his training, but that amounts to an acknowledgement that the training did not inhibit his conduct at the time. The foundation for the leave granted was not therefore made out.
[35] The second basis upon which the Judge granted leave to the Crown to cross-examine on the 1990 convictions, was on the “tit for tat” basis that the appellant had attacked the character of the police witnesses. Mr Burns, for the Crown, submits that the allegations were of “serious impropriety” by the police: “in effect that there was a conspiracy to extort an untrue confession from the appellant”.
[36] In England, the conditions upon which an accused can be cross-examined as to previous convictions include the case where the conduct of the defence “is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution”: s 1(f) Criminal Evidence Act 1898 (UK). What amounts to an imputation upon the character of a prosecution witness depends upon the circumstances. An emphatic denial of the prosecution case does not amount to such imputation: Selvey v Director of Public Prosecutions [1970] AC 304; R v MacLeod [1964] 1 NZLR 545.
[37] Where the accused seeks, as part of his case, to resile from a statement made to the police, the line between appropriate challenge to the statement and an attack upon police conduct in obtaining it may be difficult to draw. Thus it has been held that an accused’s statement that he had been bribed to make a confession, was an imputation on the character of the police officer involved: R v Wright (1910) 5 Cr.App.R. 131. On the other hand, in R v Westfall (1912) 7 Cr.App.R. 176 it was held that an allegation that the arresting constable had acted improperly did not entitle the prosecution to cross-examine the accused as to character. In R v Wright the Court of Criminal Appeal drew a distinction between attacks on the character of a witness intended to show his unreliability and efforts to “elicit the facts in connection with the very matter with which the prisoner is charged.”
[38] In Selvey v Director of Public Prosecutions the House of Lords settled a controversy which had raged for some years as to whether cross-examination of an accused as to character was permitted by s 1(f) of the English Act in circumstances where the making of the imputation was necessary for the defence put forward. It was held that the language of the section permitted cross-examination even where the imputation was necessary to enable the accused to establish his defence.
[39] The result in Selvey v Director of Public Prosecutions was reached as a matter of statutory interpretation. The decision affirms, however, that even where the statutory foundation is established, the trial Judge has a discretion to refuse to permit cross-examination of the accused as to previous convictions. That discretion is part of the trial Judge’s general power to exclude evidence which would be unfair. The purpose behind such general discretion was referred to by Lord Du Parcq in Noor Mohamed v The King [1949] AC 182, 192:

......in all such cases the judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial, having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted. If, so far as that purpose is concerned, it can in the circumstances of the case have only trifling weight, the judge would be right to exclude it. To say this is not to confuse weight with admissibility. The distinction is plain, but cases must occur in which it would be unjust to admit evidence of a character gravely prejudicial to the accused even though there may be some tenuous ground for holding it technically admissible. The decision must then be left to the discretion and the sense of fairness of the judge.

[40] In New Zealand, s 5(4) of the Evidence Act leaves the question of admissibility to the discretion of the trial Judge. Although some guidance is properly to be obtained from the English statutory provision, the wider questions of fairness relevant to exercise of the residual discretion in England, are directly relevant under s 5 to the admissibility of the evidence.
[41] We have some doubt whether the Judge was correct in characterising the suggestions of intentional inducement or pressure as amounting to sufficient imputation upon the character of the two police officers to justify admission of evidence as to previous conviction: In R v Kalo assertions that the police were lying in their evidence were made on a number of occasions in the course of the evidence and covered “several distinct topics”. In addition and as the court put it “more importantly”, there were allegations of violence on the part of the police.
[42] Here there was no such wide-ranging attack. The police officer confirmed that an indication had been given on a “worst case” basis that the appellant’s wife might be charged and their daughter placed in care. While it may not have been essential for the defence case to suggest any improper motive or conscious pressure on the part of the police, a close examination of the circumstances in which the second statement was taken was a necessary part of the defence case. We are not convinced that the conduct of the defence over-stepped the mark between firm advancement of the defence and attack upon the character of the police witnesses to the extent which justified admission of the previous convictions. Where the conduct of police officers in taking statements is in issue, the question of imputation against character is not to be too sensitively assessed. It is not necessary however to express a concluded view on this point, because of the view we take that the Judge erred in approach.
[43] In Kalo the court assumed that the suggestions of police lying and violence were sufficient to enable the Judge to consider whether, as a matter of discretion, the evidence should be admitted. But the “critical question” which remained was “whether or not leave to cross-examine should have been given having regard to the prejudice involved, see R v Fisher [1964] NZLR 1063, 1065”. The Court in Kalo concluded that the danger of prejudice was considerable and that the evidence itself had only slight probative value. In those circumstances it was held that leave should have been refused.
[44] In the present case the Judge considered his discretion only in relation to the nature of the convictions and their age. He excluded offending which occurred between 17 and 20 years ago and the convictions for offending other than “violence against persons”. They were excluded on the basis that they were too “far removed from the present”. The Judge did not, however, go on to assess whether, in the exercise of the discretion conferred by s 5, the 1990 convictions should in any event be excluded because of the risk of prejudice in circumstances where the probative value of the evidence was slight. Nor did he consider whether the fact that the imputation was so closely linked with an essential part of the accused’s defence should be taken into account in exercise of the discretion. That connection was thought to be a relevant consideration in Selvey v Director of Public Prosecutions where Lord Guest at p352 remarked of the discretion:

The guiding star should be fairness to the accused.....In following this star the fact that the imputation was a necessary part of the accused’s defence is a consideration which will no doubt be taken into account by the trial judge. If, however, the accused or his counsel goes beyond developing his defence in order to blacken the character of a prosecution witness, this no doubt will be another factor to be taken into account.

[45] We agree with the suggestion in Selvey that a connection between the imputation and the defence case is relevant to the exercise of the discretion.
[46] The evidence as to previous convictions was of extremely slight probative value, if not to rebut a defence of good character. It was admitted on a “tit for tat” principle permitted by the English legislation upon the basis that “it is only fair that the jury should have before them material on which they can form their judgment whether the accused person is any more worthy to be believed than those he has attacked”: R v Jenkins (1945) 31 Cr.App.R. 1 at 15 per Singleton J.
[47] It is not necessary to decide whether that policy, without any statutory basis in New Zealand, justifies admission of evidence of previous convictions where the character of a prosecution witness is impugned for reasons central to the defence being advanced. In any event, it is clear that the “tit for tat” principle is not sufficient justification for the exercise of the discretion conferred by s 5. It is necessary always to consider whether the interests of justice are best served by that course. The seriously prejudicial nature of evidence of previous convictions, recognised in R v Kalo, makes it necessary for the Judge to assess whether, notwithstanding the attack upon the character of the prosecution witnesses, it is appropriate in the interests of justice to reject the evidence. The Judge in the present case did not attempt this assessment.
[48] The appellant’s conviction on a charge of assault almost 10 years previously was of little, if any, help to the jury in deciding whether he was to be believed when he said that the inducement or threats made to him in the present case caused him to give a false statement. It had no real probative value. The circumstances in which the second statement were taken were critical to the defence case. It may be possible, with hindsight, to say that matters could have been put on a basis which did not expose the accused to the jeopardy of having his previous convictions disclosed. The statements acknowledged by Detective Sergeant Alexander to have been made by him to the appellant could have provided sufficient inducement, irrespective of whether that effect was intended by the officers. It is unrealistic to expect such exactness of counsel in the conduct of a trial. Where, as here, it was necessary to the defence case to challenge the account of police witnesses about the circumstances in which a confession was made, some fortitude on the part of the police witnesses may properly be expected.
[49] In our view the evidence of the convictions was insufficiently cogent and the challenge to the police officers was sufficiently linked to the defence case to make it unfair to admit the evidence of the previous convictions. The line between appropriate and inappropriate challenge was not a clear one. No warning that he was close to crossing it appears to have been given to defence counsel by the prosecutor or Judge. While the absence of such warning may not be fatal to the granting of leave, it is good practice: R v Cook [1959] 2 QB 340. The absence of such warning in a case where it may be difficult to draw the line between necessary challenge to the prosecution case and imputation upon the character of the witness challenged is itself a matter relevant to the exercise of discretion. In the circumstances, we are of the view that leave ought not to have been granted.
[50] Mr Wade submits that the Judge also erred in failing to refer in his summing-up to the use to which the evidence could properly be put. Such explanation should in general be given: R v Kalo. In a case where the conviction related to an offence of the type for which the appellant was on trial, in our view it was important that the jury be told how this evidence may be used.
[51] The appeal is allowed. The conviction is set aside and a new trial ordered.

Solicitors for Appellant: J. Bioletti Esq., Auckland

Solicitors for Crown: Crown Solicitor, Auckland

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