THE QUEEN v ALEXANDER MAURICE CULLEN [2000] NZCA 85 (15 June 2000)

IN THE COURT OF APPEAL OF NEW ZEALAND

Ca445/99 ca454/99

THE QUEEN

V

ALEXANDER MAURICE CULLEN

PAUL ANTHONY HOLLOWAY

Hearing:	18 May 2000
Coram:	Keith J Robertson J Baragwanath J
Appearances:	M S Gibson for A M Cullen E R Fairbrother for P A Holloway K Raftery for the Crown
Judgment:	15 June 2000

judgment of the court DELIVERED BY BARAGWANATH J

[1] On 21 September 1999 Alexander Maurice Cullen was convicted by a jury in the High Court at Auckland of aggravated robbery and Paul Anthony Holloway of robbery committed on Monday 27 July 1998 outside the ANZ Bank at Otahuhu. Mr Cullen challenges his conviction as not being open on the evidence and Mr Holloway his on the ground that the trial Judge failed adequately to put his defence and that fresh evidence requires a new trial.We are satisfied that both appeals must fail.

[2] The crime was committed at 3.28pm.The complainants worked at the head office in Miami Parade, Te Papapa, of a chain of retail butchers shops.They had made the 15 minute trip from the office with three days' takings to deposit and parked in the car park of the bank on the eastern side of Atkinson Avenue. They had just got out of their car when a bronze Ford Laser car pulled up immediately behind them.Its driver rammed a stun gun into the side of the female complainant and administered an electric shock to her.He ran around to where the male complainant was holding a satchel containing the cheques and cash to be banked.He presented the stun gun again, seized the satchel and escaped into the adjoining property through a gap in the fence that had been prepared by the removal of fence palings.

[3] The robber was disguised.The complainants described him as wearing big thick round glasses with an orange tint.The male complainant said he was wearing a hood or a beanie, covering most of his face, pulling his hair forward to cover the rest of his face, and was about average height, medium build.At trial he could not remember whether the robber had facial hair.He acknowledged that in an earlier statement he had described him as clean shaven. His recollection was that the robber had no moustache and that he had no hair on his bottom lip.The female complainant said that not much of his face could be seen, his appearance was like a big bush.She considered him not large, just above average in build and height.She had the impression that he was wearing gloves.

[4] Mr Cullen is 169cm tall and of medium build.When photographed the following day he had a wispy black moustache and a line of hair below his lower lip; his chin and the rest of his face were clean-shaven.He had medium length hair except for a thin plait of approximately shoulder length.A co-accused, Mr Wilson, whom Mr Gibson submitted to have been the robber, is 184cm in height.He was described by Detective Lavea near the scene as of athletic build and clean-shaven.When photographed almost a month after the robbery he had a short beard and moustache which it was submitted would have grown during that period.

[5] The major Crown evidence was that of Detective Shirley who had been assigned to seek out Mr Cullen.His counsel conceded that at 10.17am on the day of the crime the detective had sighted him driving his sister's motor car near her home in Te Atatu and returning there at 10.37am.But except for one occasion in the vicinity of McDonalds in Otahuhu, every subsequent alleged sighting of Mr Cullen deposed to by the detective, prior to his arrest in a bus at the bus terminus in King Street diagonally across Atkinson Avenue from the bank, was challenged.

[6] Mr Gibson submitted that, while the good faith of the officer was not challenged, he had committed the well-known error of believing he was seeing what he was expecting to see and had rationalised the conclusion that the man he saw at successive stages was Mr Cullen.Mr Cullen was not well known to him and the related phenomenon of honest but false identification, against which the law is careful to guard, may well have occurred.Putting that series of sightings aside, there was no basis in the evidence for a conclusion of guilt and had an application for discharge been made to the trial Judge under s347 of the Crimes Act 1961 it should have succeeded.So the appeal should now be allowed.

[7] To determine what is effectively a no case submission it is necessary to consider what evidence was available to the jury.It began with the undisputed ability of the detective at the outset of the episode to identify Mr Cullen accurately.This is not the Turnbull kind of case (see [1977] QB 224), where the identifying witness has had scant opportunity to see someone previously unknown.

[8] At 11.02am the detective identified Mr Cullen as the man who left Mr Cullen's sister's home as a passenger in a white Mazda Capella SG1385 registered in the name of Mr Wilson's de facto wife.The detective followed that vehicle which at 11.25am stopped outside an address in Frost Road, Mt Roskill.He gave evidence identifying Mr Cullen as the man emerging from the Capella.At 11.30am he identified Mr Cullen as the driver of a Ford Laser NF9972 which came out of that property and drove off, followed by the Capella.A radio enquiry revealed that the Laser had been stolen.

[9] The detective followed the two vehicles to Otahuhu.There the Laser parked in the East City Ford car park on the north west of the intersection of Atkinson Avenue, which runs north south, and King Street.It is directly across the road from the bank which is on the eastern side of Atkinson Avenue. He deposed that Mr Cullen got out of the vehicle and walked to King Street, which forms the southern boundary of the car park, to where the Capella was parked.He said that Mr Cullen got into the Capella which drove west to the next intersection, the Great South Road, and there turned north.

[10] After a trip to another address in Wattle Downs, in the course of which the detective identified Mr Cullen as one of two persons in the Capella, at 1.15pm it returned to the East City Ford car park.The detective stated that at 1.18pm Mr Cullen got out and walked to the Laser which was parked nearby.He said that, after apparently looking in the window of the Laser, Mr Cullen spoke on a cellphone.Telephone company records established that at 1.21 and 1.22pm there were brief calls to Mr Cullen's cellphone, followed by a longer call at 1.25pm.Those times are broadly consistent with the detective's evidence.

[11] Mr Cullen and another person then got into the Capella, joining a third. At 1.23pm by the detective's watch the Capella left the car park and again drove along King Street to the Great South Road.He followed it first north and then west to Te Papapa, where it turned into Miami Parade, which is a dead end street containing the complainants' office.At 1.35pm the Capella emerged on to Neilson Street and turned left into Nelson Street and continued up the road, before turning left into Alfred Street.There the Capella did a U turn and stopped for three minutes.It then returned to Nelson Street and stopped.Shortly afterwards a white Hiace van WD3151, distinguished by a ladder on the roof, pulled up in front of the Capella and a man, later identified as Mr Holloway, got out and joined three others already in the Capella.Subsequently the Capella drove east along Nelson Street, while the Hiace turned right into the Miami Parade cul de sac.

[12] The detective followed the Capella as it returned to Otahuhu, but lost sight of it between 2.23pm and 2.59pm when it was located in the McDonalds car-park on Atkinson Avenue, one block south from King Street.The detective saw three people in the vehicle, identifying one of them as Mr Cullen.At 3.15pm he thought they seemed to be waiting.

[13] At3.20pm the Capella drove on to Atkinson Avenue. The detective said that at 3.21pm he saw Mr Cullen get out of the vehicle, carrying a yellow plastic bag about a foot in length and two inches in diameter.The Crown submits that it contained the stun gun.He said he saw Mr Cullen cross to the eastern side of Atkinson Avenue towards the bank and then disappear from sight.The detective followed the Capella.Near the Atkinson Street intersection another person got out of the vehicle and walked to the Laser in the East City Ford car park.He was identified by Detective Lavea from the second floor of the East City Ford building as Mr Wilson.He was wearing a baseball cap and wrap around glasses with a yellow tinge.He started the Laser and drove to Atkinson Avenue where he turned left and drove out of sight in a northerly direction.The time was variously stated by Detective Shirley as within a minute of 3.21 pm and by Detective Lavea as 3.33pm.

[14] At a time fixed by Detective Shirley as 3.26pm the Laser returned to the East City car-park, coming from the Hills Flooring car-park some four buildings north of the bank on the eastern side of Atkinson Avenue.He said that the driver was Mr Cullen, who was now wearingwhat appeared to be a balaclava rolled up to cover his hair, glasses which had a reflectorised tinge to them, and gloves.

[15] At 3.28pm the Laser drove out of the car park and across Atkinson Avenue, into the driveway to the left of the bank.Detective Shirley made contact with the armed offenders squad.They were parked in an alleyway off Gordon Road, which runs into Atkinson Avenue from the west, immediately north of the East City Motors block.Just before they turned into Gordon Road heading towards the bank, what was later found to be a stolen blue Ford Telstar came at some speed out of the driveway of a restaurant on the eastern side of Atkinson Avenue, one property north of the bank.It drove south on Atkinson Avenue, right into King Street and was later found abandoned in Station Road, which runs west from the Great South Road between Gordon and King Street.

[16] At 3.35pm Detective Shirley saw Mr Cullen walking east into King Street from the direction of the Great South Road and get on to a yellow bus bound for Panmure.

[17] Mr Cullen was arrested and charged.Messrs Wilson and Holloway were also charged, together with a fourth man who was discharged for lack of evidence.

[18] In addition to the detective's evidence the Crown relied on the evidence of cell phone conversations between Mr Cullen and Mr Holloway.The Crown contended that Mr Holloway's role was first to advise the men waiting in the car park when the complainants left their premises at Miami Parade; then to pick up Mr Cullen after the robbery.It pointed to his presence at Miami Drive; to telephone calls with Mr Cullen, including a seven second call which Mr Holloway made at 3.18 pm - 10 minutes before the robbery; and to the presence of his Hiace in the centre of Otahuhu where it was filmed by a street camera at 3.45 pm.The Police relied upon telephone records that indicated Mr Cullen had made a call to Mr Holloway at 1.38pm from a position probably within the area of the Onehunga East cell site, not far from Miami Parade.They relied upon the gloves and also a screwdriver found in Mr Cullen's possession.The ignition of the Laser car had been damaged but it could be started with the use of a screwdriver.

[19] Mr Cullen offered a defence of alibi, stating that he had been misidentified by the detective at every stage from the man said to be a passenger in the Capella when it departed from Te Atatu at 11.02am until and including the sighting of the man in the balaclava wearing reflectorised glasses and gloves.

[20] He asserted that he had in fact left the Te Atatu property with two friends, one Mr Davidson and a man named Barry who was later killed in an accident.They left, he said, not in a white Mazda Capella but in "a white Mazda station wagon 926 or 929".He planned to meet a drug dealer named Mr Marriner and then to see his children who lived in Mt Wellington.They did not go to Frost Road but via New Lynn towards Balmoral and on to the Onehunga-Mangere motorway.They went to Otara to see another friend and then to Otahuhu to meet Mr Marriner at McDonalds, where as it happened, the Capella was located by the Police at 2.59pm.He acknowledged that Detective Shirley could have seen him at that stage.He said that Mr Marriner arrived at about 2.50pm and his other friends left them.They walked to the nearby bus depot where Mr Marriner gave him a 12 inch cannabis bud.They were together about 25 minutes, bought some food and returned to the bus depot to ask the time for the Panmure bus that would take him to visit his children.His hat was a peaked cap; the screwdriver and gloves happened to be in the pocket of a jacket he had taken from his mother's garage.Neither of the two pairs of sunglasses in another pocket was the kind that the robber had worn.Phone calls with Mr Holloway during the day were unrelated to any crime; he had been a friend for some time and a confidant in relation to problems, including a non-molestation order which affected Mr Cullen's relationships with his children who were on his mind that afternoon.

[21] Mr Davidson was called for the defence.He said that he and Barry had been in Te Atatu to pick up some motor cycle parts and were travelling in Mr Davidson's white Mazda station wagon `78.They decided to pay a random visit to Mr Cullen.He had arranged to visit his children but had no transport so they offered to drop him off.They travelled via Waikaraka Park, which happens to be near both Miami Drive and the Onehunga East cell site. They went to Otahuhu for a rendezvous with a friend of Mr Cullen's and left him there with that friend at about 3pm.

[22] Mr Marriner gave evidence that he had agreed to obtain some cannabis for Mr Cullen.They arranged to meet and did so in Otahuhu at a time and place that suited the convenience both of Mr Marriner, who was a bus driver in the area, and of Mr Cullen who was en route to see his children.

[23] Mr Holloway had given notice of alibi.The Crown called evidence that he had brought forward to 9am a 1-2pm appointment to install a television aerial in Grey Lynn.The job was completed at about 11-11.30am.A Ponsonby customer had made a 4pm appointment.The customer arrived half an hour late for that appointment and found Mr Holloway waiting at the address.

[24] Mr Holloway called alibi evidence from a Mrs Muller who described his meeting her in the Onehunga Mall.She had expected him at about lunch time but he arrived late, somewhere about 1.45 and 2pm.They walked to the Blue Strawberry cafe and had lunch.Mr Holloway was making telephone calls which extended the lunch until about 3.15pm.They then walked back to her office. He left her about 3.30 to 3.45pm.So on her timing he could not have called Mr Cullen from Miami Drive at 3.18pm to warn that the complainants were on their way.

[25] In his argument for Mr Cullen, Mr Gibson challenged a variety of aspects of the Crown case.At the forefront was the matter of identification.Mr Gibson contended that, with the exceptions we have noted, the detective was simply wrong.An unhappy coincidence of the police expectation that Mr Cullen was involved in some offence and would therefore be the person they later saw, the visit of a different white Mazda to his home in the morning and the assignation with Mr Marriner en route to seeing his children, together caught him up in a robbery with which he had nothing to do.His conviction was a miscarriage of justice which this Court should put right.

[26] He criticised a lack of detail in the evidence of Detective Shirley:

· his failing to offer any description of Mr Cullen or his identifying features;

· the absence of any description of his companions;

· his failure to take any photograph through the telescopic lens of the camera he was using as a telescope.

[27] He contrasted the characteristics of Mr Cullen and those of Mr Wilson and submitted that the detective had confused them.

[28] He particularly challenged the identification as Mr Cullen of the man wearing the balaclava rolled up to cover his hair and the glasses with the reflectorised tinge, who drove the Laser first out of the Hills Flooring car-park to the East City Ford car-park and then into the bank.It had been Mr Wilson, wearing wrap around glasses with a yellow tinge, who had immediately before started the Laser, driven into Atkinson Avenue and turned left, driving out of sight in a northerly direction.Mr Gibson emphasised the time discrepancy, which according to Detective Lavea's account would have had Mr Wilson, not Mr Cullen, driving into the bank.He submitted that the complainants' description of the robber resembled Mr Wilson rather than Mr Cullen.

[29] The Crown had asserted that Mr Wilson, who was in the Capella with the third man when Mr Cullen was dropped off, was the getaway driver and not the robber, driving the blue Telstar from the restaurant; the third man picked up Mr Wilson in the Capella and Mr Holloway was due to pick up Mr Cullen in the Hiace.

[30] Mr Gibson challenged the Crown's evidence that Mr Cullen got out of the Capella, carrying the yellow plastic bag, crossed to the eastern side of Atkinson Avenue towards the bank and then disappeared from sight.He invited the Court to consider

· where did Mr Cullen go on foot and how did he get to the Hills Flooring car park?

· why was the Laser moved from the East City car park to the Hills Flooring car park only to be driven back to the East City car park prior to entering the ANZ car park to commit the robbery?

· why did Mr Cullen walk back to the bus stop after being dropped off from the Telstar when or before it was abandoned?

· what happened to his balaclava/beanie, the tinted glasses and the stun gun?

[31] The jury had before them the circumstantial evidence of the meeting of Mr Wilson and Mr Cullen at Te Atatu; of the presence at that address of the Capella registered in the name of Mr Wilson's de facto wife; of the stolen Laser emerging from the Mt Roskill property to which the Capella had been driven; of the meeting with Mr Holloway in Neilson Street close to the complainants' premises; of the fact of phone calls between Messrs Cullen and Holloway at significant times; of the coincidence of the presence of the Capella, the Laser, Messrs Cullen, Wilson and Holloway's Hiace vehicle at the time and place of the robbery.They may have considered that Mr Cullen went up Atkinson Avenue on foot to pick up the Laser; timed the trip to the East City car-park and then to the bank in order to coincide with the arrival of the complainants' vehicle; performed the robbery; escaped through the hole in the fence; was picked up by Mr Wilson who took the satchel and money later found in his possession and the other missing items as well, dropped off Mr Cullen to be picked up by Mr Holloway who was in the vicinity eight minutes after the robbery, and was himself picked up by the other man in the Capella; and had no means of escape when Mr Holloway's plans were disrupted by the arrival of the police.

[32] But it is unnecessary to retrace the jurors' reasoning: see Thomas v The Queen [1972] NZLR 34.There being no challenge to the detective's good faith or to the summing up, we are satisfied that the weight of his identification evidence, supported as it was by a good deal of circumstantial evidence, was as Mr Raftery submitted a matter for the jury, free of the kind of fundamental flaw that would put the conviction in doubt.

[33] For Mr Holloway Mr Fairbrother did not advance a challenge to the adequacy of the evidence, although after the hearing he made a submission about new evidence ([para [49]).His contention was that the trial Judge in summing up had failed adequately to put his client's defence before the jury.

[34] There were four aspects of the Crown case against Mr Holloway:

· the cell phone calls between him and Mr Cullen;

· the meeting in Neilson Street;

· his van's going towards the complainants' premises in Miami Drive;

· his van's presence in Otahuhu at 3.45pm.

[35] His defence on the first of these points was that the phone calls resulted not from participation in the robbery but from the friendship and guidance he provided for Mr Cullen and his family, on whose well-being Mr Cullen was focused that afternoon.He complains that evidence from Mr Cullen tending to support this defence was not adequately referred to in the summing up.

[36] His defence on the second and third was that he was on his way to lunch in Onehunga with Mrs Muller.His defence on the last was that she provided him with an alibi at the critical time of 3.28pm and there was no evidence to support an inference that his vehicle's subsequent presence in Otahuhu was other than innocent.He complains that the summing up did not sufficiently put these matters to the jury.

[37] Wereproduce the following passages from the summing up

[26] Of coursethe Crown suggests that important inferences can be drawn from the evidence of telephone calls made on 27 July 1998 by each of the accused in the geographical areas from which they were made, as detailed on the chart. For Mr Cullen, attention was drawn to the fact that he is a prolific cellphone-user.In respect of Mr Holloway, he used his cellphone for his business and there was evidence that he was installing Sky TV aerials on 27 July.His cellphone was essential to his business and he used it for his business.The defence say that the inferences suggested by the Crown, that can be drawn from the cellphone and telephone calls made on 27 July, are not inferences that can be fairly and logically deduced from proven facts.Those are matters for you.

...

[32] ...the onus of proof of the essential ingredients of each of the charges against each of the accused is on the Crown and it rests on the Crown from beginning to end.There is no onus on any accused at any stage to prove that he is innocent.The accused does not need to give evidence.In this case, Mr Cullen has chosen to do so but he still carries no onus.What Mr Cullen said in the witness box is evidence; evidence, like all the other pieces of evidence that you have heard in this trial.By going into the witness box, he does not take on the task of proving anything.I will come back to that point in a minute.

...

[35] I want to return to the issue of Mr Cullen, one of the accused, giving evidence.I've already said, and I emphasise, that the fact he gave evidence does not alter the onus of proof.It remains with the Crown.You may accept Mr Cullen's evidence on the essential ingredients or he may have created a reasonable doubt in your mind by his evidence.If so, you will find him not guilty.You may reject his evidence on the essential ingredients.If you do so, you must still examine all the evidence before you to decide whether the Crown has proved the case against Mr Cullen beyond reasonable doubt.

[36] There are four counts here in the indictment and you have got to look at the alleged offence in each count quite separately although, of course, the background evidence is relevant to them all.The first three counts relate to Mr Cullen and Mr Wilson.The fourth count concerns Mr Holloway and it is the only charge against him.

[37] There are really four separate trials going on here and you must examine each of the charges separately.You can't just take material which relates to one charge and carry it over to the others.You must consider each charge and the evidence that relates to it, separately.

...

[41] The evidence in this case, as presented by the Crown, is that Mr Cullen carried out the actual robbery.You will need to consider whether Mr Wilson and, quite separately, whether Mr Holloway, aided, encouraged or helped in the robbery.If Mr Wilson or Mr Holloway or both of them helped in the commission of the robbery or aided, encouraged it or instigated it, then they are a party to, and guilty of it.It is necessary for a party to know the essential facts of the crime and to intend to help or encourage the commission of it.The party does not need to know precisely the offence intended to be committed nor precisely the manner in which it is to be committed, but he must be aware of the essential facts.Mr Holloway has been charged . . . with robbery, not with aggravated robbery which is the charge . . . against Mr Cullen and Mr Wilson.It is not essential, therefore, for the Crown to prove that Mr Holloway was aware of the use of the stun gun, or a gun of any sort for that matter, in the robbery.

...

[50] The Crown says that Mr Holloway's involvement started earlier in the day in the staking out of the premises of the Aussie Butchery, then in the afternoon, phoning Mr Cullen when Vicky Smith and her brother departed from the Onehunga premises of the Aussie Butchery with the banking, and that he then had a pick-up role when he came into Otahuhu, to act as the pick-up vehicle for Mr Cullen.

...

[55] In relation to Mr Holloway, the Crown says he also helped in the robbery and was a party to it.He is charged with robbery and not with armed robbery for the reason I explained previously, namely, that there is no evidence that he knew the gun was to be used.

...

[61] Mr Holloway.It is stressed, and I pointed out to you, that there is only one charge against Mr Holloway.It is ... robbery.Mr Holloway denies being a party to that offence.You will recollect the need to consider separately the evidence in relation to Mr Holloway's involvement in this case. The submission was made to you that Mr Holloway is indeed a long-standing friend of Mr Cullen but that does not make him a robber; he was working on the day this robbery was committed and he was not involved in it.He reminds you of the alibi evidence of Aniva Muller, and for Mr Holloway it is said if you accept her evidence, then the inference which the Crown invites you to draw that at 3.18 pm the call from Mr Holloway to Mr Cullen was to alert Mr Cullen that Vicky Smith and her brother were leaving the Aussie Butchery, is not an inference that you can draw, because Mr Holloway was not there to make that call.The same things I have said to you about alibi evidence in relation to Mr Cullen relate to the evidence of Aniva Muller. If her evidence leaves you in reasonable doubt, then you must bring in a verdict of not guilty in respect of Mr Holloway.

[62] Mr Holloway said that the Crown has not offered evidence which proves he was involved as a party to the offence of robbery.Mr Leabourn made the point in submissions that even if he was in Neilson Street/Angle Street, Onehunga at 1.40 pm (which Mr Holloway says he was not), how can you draw an inference that that places him as a party to this robbery.

[38] The essential feature of a summing up is to ensure that the essential issues in the case are placed fairly before the jury prior to their retirement, so as to allow them properly to perform their function.

[39] Provided the summing up maintains a fair balance between the parties, which may well include pointing out the strength of a strong case and the weakness of another, it is usually unnecessary for it to do more than sketch the essential features of the respective cases.That was the course adopted by the Judge.

[40] The Judge's statement at paragraph [32] that "[w]hat Mr Cullen said in the witness box is evidence; evidence, like all the other pieces of evidence that you have heard in this trial..." correctly informed the jury of the law.

[41] A practice usefully adopted by some Judges is to spell out that "the evidence of one accused is available, like any other evidence, to assist the Crown or defence case in relation to any other accused".The evidence must of course be relevant to the other matters.

[42] We have reflected on whether the following statement in paragraph [37] may have misled the jury into considering that Mr Cullen's evidence as to the friendship with Mr Holloway could not be relied upon.

There are really four separate trials going on here and you must examine each of the charges separately.You can't just take material which relates to one charge and carry it over to the others.You must consider each charge and the evidence that relates to it, separately.

[43] But in fact the only evidence of that friendship, properly referred to at paragraph [61] in putting Mr Holloway's defence, was the evidence of Mr Cullen.We do not consider it reasonably likely that the jury would have been misled.Indeed given the gravity of the counts faced by Mr Cullen to have focused on his evidence when summing up the defence of Mr Holloway might have worked to Mr Holloway's disadvantage.

[44] The final issue is whether the defence based on the evidence of Mrs Muller was adequately put.The Judge referred to it appropriately in the context of the crucial point - whether Mr Holloway had an alibi for the crucial stage of the robbery at 3.28pm and the alleged pickup.

[45] The Judge did not do so in relation to the earlier point of the Crown case - the meeting with the occupants of the Laser in Neilson Street.

[46] Mr Fairbrother submitted that the Judge ought to have reminded the jury of the defence explanation that Mr Holloway was en route to his appointment with Mrs Muller, and Neilson Street is a convenient and major thoroughfare.

[47] We are however of the view that, in view of the economical way in which the Judge had referred to the Crown case, the allusion to the fact that he was working on the day of the robbery and to the evidence of Mrs Muller was both sufficient to remind the jury of the defence of honest presence in the area and a fair balancing of what had been said as to the Crown case at paragraph [50] of the summing up.

[48] No doubt the Judge could have gone further and spelled out the detail of the defence position.But balance would have required her then to have elaborated the Crown case about the Neilson Street meeting of the two vehicles, Mr Holloway's getting into the Capella, and his going down the cul-de-sac containing the complainants' premises.

[49] By memorandum filed on 29 May 2000, which we treat as an application under s389 of the Crimes Act, Mr Fairbrother sought to introduce fresh evidence that the cellphone records of the duration of a conversation commence registering when the network connects with the number being called.That will occur even before the call phone starts to ring and will continue for however long the caller waits on the line, whether or not the call phone is answered.It became apparent from evidence to which Mr Raftery referred, given at a previous trial, that the new evidence can apply only to calls made by Mr Cullen's Vodophone cellphone.Calls made from Mr Holloway's Telecom cellphone are charged only from the stage of its being answered (no doubt by either the person receiving the call or an answerphone).

[50] The calls between Messrs Cullen and Holloway were recorded as follows:

· 1121 hours Cullen to Holloway 1 minute 23 seconds (Vodophone)

· 1229 hours Cullen to Holloway 2 minutes 43 seconds

· 1321 hours Holloway to Cullen 07 seconds (Telecom)

· 1322 hours Holloway to Cullen 05 seconds

· 1325 hours Holloway to Cullen 45 seconds

· 1338 hours Cullen to Holloway 35 seconds (Vodophone)

· 1409 hours Holloway to Cullen 1 minute 20 seconds (Telecom)

· 1420 hours Cullen to Holloway 15 seconds (Vodophone)

· 1439 hours Cullen to Holloway 1 minute 42 seconds

· 1518 hours Holloway to Cullen 07 seconds (Telecom)

· 1533 hours Cullen to Holloway 1 minute 35 seconds (Vodophone)

· 1535 hours Holloway to Cullen 31 seconds (Telecom)

· 1540.13 hours Holloway to Cullen 05 seconds

· 1540.57 hours Holloway to Cullen 05 seconds

[51] It will be recalled that the robbery occurred at 3.28pm (1528 hours).Mr Cullen was in police custody shortly after 3.35pm (1535 hours) when he was arrested on the bus.It is possible that his cell phone rang following his arrest.

[52] Mr Fairbrother submits that had the fresh evidence been introduced at trial the jury might have concluded that Mr Holloway failed to establish contact with Mr Cullen at 1518 hours, 10 minutes before the robbery.It would have strengthened Mr Holloway's argument in response to the Crown case summarised at paragraph [50] of the summing up, that Mr Holloway phoned "Cullen when [the complainants] departed from [their] premises ... with the banking ... ".

[53] It would equally have strengthened the defence submission summarised at paragraph [26] of the summing up that the inferences invited by the Crown " ... are not inferences that can be fairly and logically deduced from proven facts."

[54] It would have been the duty of the Judge to have mentioned the possibility of that inference in the course of summing up: R v Maxwell [1988] NZCA 192; (1988) 3 CRNZ 644. Further, the fresh evidence would have added to the credibility of Mr Cullen's account that he was not aware of answering calls of 45 seconds or less.The telephone call at 1518 hours was pivotal to the case and the verdict given in the absence of the fresh evidence entailed miscarriage of justice which requires a new trial.

[55] Mr Fairbrother's essential point is that the two calls of five seconds duration timed at 1540.13 hours and 1540.57 hours are likely to have constituted unanswered calls following Mr Cullen's arrest.Equally, it is contended, the 7 second call at 1518 hours is reasonably to be treated as in the same category, and as unrelated to the robbery.

[56] But the call at 1518 was from a Telecom phone, as to which the proposed evidence is that the receiving party had answered the call.We agree with Mr Raftery's submission that there is therefore nothing in the new evidence that assists Mr Holloway.

[57] A further difficulty with Mr Fairbrother's submission is that no reason is suggested as to why that call should not have been answered.On the Crown case Mr Holloway was communicating to Mr Cullen the simple fact that the complainants were on their way.While Mr Cullen deposed that it is not normal when you are talking to persons to make phone calls for 8 seconds, on the Crown case there was no occasion for this to have been a lengthy call.On the contrary, that the call was the trigger for action by Mr Cullen. There had been nine calls between Messrs Holloway and Cullen prior to 1518 hours, all except two being of 15 seconds duration or longer.The two calls following 1518 hours were in excess of half a minute.Plainly all got through. Had the point been taken, the jury would have had reason to wonder why the 1518 call did not also get through.

[58] While the overriding test for the admission of fresh evidence is the interests of justice, the Court will normally require to be satisfied that the evidence was not available at the trial: R v Collier (1996) 14 CRNZ 439 at 443 lines 20-21 (CA).

[59] The issue for this Court is whether it is of the opinion that there was a miscarriage of justice.Our function is not to attempt to retrace the thought processes of the jury: compare Stafford vDPP [1974] AC 878 at 893.

[60] There was no submission that Mr Holloway was not competently represented at trial.Had the defence been differently conducted there could no doubt have been a sharper focus in submissions and in summing up on this point, which was important to Mr Holloway.

[61] But even apart from the Telecom evidence, in the absence of any particular reason why the call should not have got through, and with cogent reasons why a call at that time should have been brief, we do not regard the evidence as such to warrant a conclusion that there has been a miscarriage.On the contrary, the combination of factors which we have recorded at paragraph [34] and Mr Fairbrother's realistic acceptance that he could not challenge the verdict as against the weight of evidence, lead us to the opposite conclusion.

[62] We are satisfied that there was sufficient evidence to justify the verdict against Mr Cullen, that Mr Holloway's defence was fairly before the jury, and that the fresh evidence provides no grounds for a conclusion that there was a miscarriage of justice.We accordingly dismiss the appeal.

[63] Mr Holloway also appealed against his sentence.That was not however pursued at the hearing before us and that appeal is also dismissed.

Solicitors:

S Anderson, Auckland for Mr Cullen

Crown Solicitor, Auckland for the Crown