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HAKARAIA v R [2004] NZCA 81 (1 June 2004)

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HAKARAIA v R [2004] NZCA 81 (1 June 2004)

Last Updated: 30 June 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA420/03

THE QUEEN

v

RICHARD HARRY HAKARAIA

Hearing: 27 May 2004

Coram: Hammond J
Laurenson J
Doogue J

Appearances: S D Cullen for Appellant
K Raftery for Crown

Judgment: 1 June 2004

JUDGMENT OF THE COURT DELIVERED BY HAMMOND J

Introduction

[1] On 10 September 2003 the appellant, Mr Hakaraia, was convicted on one count of murder, following a jury trial in the High Court at Rotorua.
[2] On 17 October 2003 Mr Hakaraia was sentenced to life imprisonment, with a minimum period of imprisonment of ten years.
[3] Mr Hakaraia now appeals against his conviction on the ground that a miscarriage of justice was occasioned by one or more of the following:

a. leading, irrelevant and highly prejudicial evidence concerning the initial police interview of Mr Hakaraia;
b. improper comments made by Crown counsel in closing that were not properly remedied by the trial Judge in summing up;
c. evidence given by an expert witness called by the Crown which went beyond the giving of expert evidence and into the realm of advocacy.

The background facts

[4] On the night of 14 June 2002 Mr Hakaraia was socialising with friends, for a number of hours, at various taverns and bars in Tokoroa.
[5] At approximately 2.30am on 15 June Mr Hakaraia had made his way to the Chill Bar where Mr Jarden Paora, the victim, was drinking. At that bar, another man tried to start a fight with Mr Paora. Mr Hakaraia, who was sitting nearby, was knocked off his bar stool. He became involved in the struggle with this other man. Eventually both Mr Hakaraia and this other man were removed from the bar by bouncers. Mr Hakaraia’s friends then joined him. Together they repaired to a friend’s house where Mr Hakaraia’s car was located. The other members of the group then went to bed.
[6] Mr Hakaraia then left this address on a mountain bike that he kept in his car, and cycled back into town. He attempted to withdraw money from an ATM. He then visited an unlicensed bar, which was closed. Mr Hakaraia then started to cycle back towards his friend’s address.
[7] On the way, Mr Hakaraia met Mr Paora outside the Tokoroa police station. Words were exchanged, and Mr Hakaraia began to follow Mr Paora down the street. Mr Paora hailed a taxi. Both he and Mr Hakaraia asked the driver to call the police. The taxi driver backed up his vehicle and drove off to avoid the pair.
[8] Mr Paora then began to run. He was chased by Mr Hakaraia to a church yard. There Mr Hakaraia broke a beer bottle and used it to threaten Mr Paora, who responded by covering his head to protect himself. Mr Hakaraia then dropped the bottle, and began to punch and kick Mr Paora. Mr Paora fell to the ground and Mr Hakaraia began to kick Mr Paora repeatedly about the head.
[9] Mr Paora’s injuries included numerous broken bones in his face, bruising and cuts. The cause of death was, however, asphyxiation caused by Mr Paora’s blocked airways.
[10] Mr Hakaraia admitted assaulting Mr Paora. And there was no dispute that it was this assault which had caused his death. The issue at trial was whether Mr Hakaraia had assaulted Mr Paora with murderous intent, and was therefore guilty of murder, or whether the proper verdict was one of manslaughter.

The first ground of appeal: the evidence of the initial interview

[11] The officer in charge of the case was a Detective Donaghy. He gave evidence concerning an initial interview with Mr Hakaraia.
[12] After Mr Hakaraia had gone to the police station with the detective, some time was spent arranging for a lawyer to be present. Mr Grieve QC, senior counsel at the trial, arrived. He spent 35 minutes with Mr Hakaraia. The detective gave the following evidence of what then occurred:

I then put it to Mr Grieve that I was going to put the allegations to Richard and prior to that I spoke with my supervisor and then I have recorded at 12.30 begin putting allegations to Richard on lined A4 paper, Grieve interrupts and state that Richards will not answer any more questions and tells Richard that they are leaving.
Q Leaving the police station?
A Leaving the police station and they both stood up to leave, that then put me in a position where I had to arrest the accused. I had sufficient evidence I felt, so I arrested him for murder.

[13] At trial, the appellant’s counsel were apparently concerned about this evidence. Accordingly the detective was cross-examined by Mr Cullen, who elicited acknowledgements that the detective had persisted in questioning the appellant even after he (the appellant) had informed the detective that he wished to exercise his right to silence.
[14] Crown counsel then began re-examination by asking:

A When you were putting the allegation to him, did you ask him any questions as such?
Q I think I recorded three questions on a piece of A4 paper and he began responding to those questions and it was at that point that Mr Grieve decided he wanted to leave with the accused.

[15] At this point, Mr Cullen objected. No further re-examination was undertaken. The trial was adjourned for the weekend. The following Monday morning, trial counsel submitted to the trial Judge (Nicholson J) that this evidence could have unfairly prejudiced Mr Hakaraia. The Judge considered that the evidence was unlikely to cause a miscarriage of justice, but considered a direction to the jury was appropriate.
[16] Accordingly, the Judge directed the jury as follows:

On Friday afternoon Detective Donaghy gave evidence about speaking with Mr Hakaraia in Auckland on 25 June last year and then arresting him. You will recall Detective Donaghy’s evidence that at the outset he told Mr Hakaraia of his right to refrain from making any statement and his right to consult a lawyer in private and without delay. He told you how Mr Hakaraia exercised both of those rights and after speaking with a lawyer that lawyer, Mr Grieve, confirmed to Detective Donaghy that Mr Hakaraia exercised his right to refrain from making any statement. Detective Donaghy then sought to put allegations to Mr Hakaraia. Mr Grieve interrupted, stating that Mr Hakaraia would not answer any more questions. As Mr Hakaraia stood up to leave with Mr Grieve Detective Donaghy then arrested Mr Hakaraia.
I direct you that what Mr Hakaraia and his lawyer, Mr Grieve, did was in accordance with the law and Mr Hakaraia’s rights. No inference adverse or unfavourable to Mr Hakaraia should be drawn from the fact that he consulted a lawyer and refrained from making any statement to the police.

[17] On these facts, Mr Cullen submitted that the conduct of Mr Grieve and the appellant at the interview, beyond the exercise of his right to silence, was inadmissible as irrelevant. And Mr Cullen submits that the detective’s evidence was grossly prejudicial in that the jury may have inferred from it that Mr Hakaraia was willing to be interviewed and was answering the police questions prior to Mr Grieve’s interruption. Accordingly, the lawyer had perceived that Mr Hakaraia had something to hide and had prevented the truth from coming out. In order to mitigate this prejudice, Mr Cullen submits, it was necessary for trial counsel to cross-examine the detective in more detail about the interview process. However, that in turn led to re-examination by Crown counsel that elicited what, Mr Cullen says, was a particularly prejudicial statement by the detective.
[18] Mr Cullen submitted that although a direction was given to the jury, this was insufficient. He suggests that the direction was not sufficiently strong in its terms, and that the Judge had failed to emphasise that the evidence should not have been led and that the jury should completely disregard it. Mr Cullen acknowledges that the Judge was in something of a dilemma in this case: there was no way to give the jury a direction on the potential inference that trial counsel had prevented the truth from emerging without drawing attention to that allegedly prejudicial aspect. However, by choosing a minimalist approach, Mr Cullen submits that the jury may have felt free to draw the adverse inference.
[19] Mr Raftery submitted that the detective’s evidence was simply background information from which no real prejudice could be said to have arisen. He submitted that there was no real risk that the jury would follow the inferential chain proposed by Mr Cullen; juries are frequently called upon to accept that the exercise by the appellant of his right to silence gives no indication of guilt. In any event, the Judge’s direction was sufficient to remove any prejudice that might possibly have arisen.
[20] There were really two aspects to this complaint. The first was that the jury might draw (or so it was said) an inference that Mr Hakaraia was prepared to tell the truth, but was stopped from doing so by his lawyer. We have grave difficulty in seeing how the inference suggested is anything other than speculative, and after the event. And we have the gravest difficulty in seeing how anything adverse to the accused could have been taken from this happenstance. The second aspect is as to whether Mr Grieve’s position as counsel was somehow impaired by what in fact occurred. The short answer here is that Mr Grieve did not raise any objection of that character at the time or seek to stand down and have a new trial. Mr Grieve is a very senior and well respected member of the criminal bar. It seems utterly improbable that he felt constrained by what had happened and we have no evidence he did. In any event, given the events that had occurred, in our view the direction given by the trial Judge was perfectly adequate and the trial then advanced in satisfactory fashion. This appeal point is therefore dismissed.

Expert evidence

[21] Some further background is necessary here. Dr Martin Sage gave evidence for the Crown on the cause of death. The following exchange took place in the doctor’s evidence-in-chief:

Q Well, a lot of questions have just been asked of Doctor Synek about whether this man would have survived, given appropriate medical treatment and similar types of questions were directed at Doctor Mayall by my learned friend as well. Your comment on those types of questions doctor, survivability if appropriately treated?
A They are interesting questions in a hypothetical sense, but of course the circumstances did not include the possibility that some good Samaritan would pick him up and take him for medical attention. My understanding is he was not found for some two and a half hours after time at which he was probably assaulted. This is a very common place event, for me in seeing people that die from a variety of injuries, that you have to take your victim in the context in which things happen and you can hypothesise about whether those injuries would kill them, forever, but you cannot get around the fact that the circumstances were such that they proved to be fatal. For example, if you were solo climbing at 6000 metres in the Peruvian Andes and broke your leg, your chances of survival are very small, not necessarily impossible but very small, whereas if you did the same thing around in Ranolf St, I would be very disturbed if you died. So that we have to accept that this man has a combination of circumstances which lead to his death and it’s the sum of the parts including the circumstances which is the important issue.

[22] Mr Cullen’s submission is that in this answer, Dr Sage moved beyond giving expert evidence, and into the role of an advocate. Mr Cullen said that whether one takes ones victim as one finds him, is a matter of law. It was not for the witness to say, in effect, that Mr Hakaraia had to take his victim as he found him.
[23] Mr Cullen noted that the doctor did not in fact answer the question posed at all, despite "survivability" of the injuries being an issue of clear importance to the inference of murderous intent. Mr Cullen said the witness should have restricted his answer to the question actually asked. He further submitted that had this evidence appeared in depositions, it would have been ruled inadmissible. He said, the defence was taken by surprise by the evidence.
[24] Mr Raftery argued that whilst the doctor did not answer the question put to him directly, he did so indirectly. The implication of his evidence was that it was not possible to say with certainty whether the victim would have survived had he received early treatment. Mr Raftery further noted that had the defence wished to obtain a more direct answer, it could have objected to the evidence or cross-examined the doctor. This issue was not, however, raised at trial. Mr Raftery accepted that in the last sentence of his answer, the doctor made a statement that might appear to be directed towards the legal issue in the case rather than a medical question. However he said this caused no real prejudice to the appellant simply because the doctor’s evidence was in fact a fair statement of the legal position and, in any event, amounted to a single sentence in the course of the whole trial. The witness did not say that survivability was not an issue, but rather that the whole circumstances must be viewed in context.
[25] In our view there is nothing in this point either. The first matter to be noted is the context in which the impugned answer arose. The defence was distinctly concerned about the issue of "survivability", and understandably so. Two other pathologists had already been asked questions in this trial relating to that issue. Crown counsel therefore quite appropriately, thought that it ought to be put to the Crown expert whether that expert had any comment on the sorts of issues which had been raised. The expert (Dr Sage) was therefore asked a question at a high level of generality. The answer he gave was relatively abstract, and quite unsurprisingly he gave a response which we read as indicating that it "all depends on the circumstances".
[26] Turning to that part of the answer to which strongest objection is taken ("that you have to take your victim in the context in which things happen ...") that answer was not, we think, intended to nor did it convey, that the doctor was somehow entering the arena (as suggested) and conveying that (in legal terms) an accused must take his victim as found. Further, there was no commentary at all by the doctor (which would have been utterly objectionable) on how the accused might have viewed the victim’s state. Finally, again no objection was taken by very experienced trial counsel at the time. This appeal point is dismissed.

Statements in Crown closing

[27] Then it is said that, in closing, Crown counsel made a number of comments about which complaint is now made:

• That the "last independent witness" who saw Mr Paora was Mr Fraser;
• That "most murders in New Zealand are committed in a blink of an eye. A young man hits in anger, bang, done! He looks down and thinks ‘My God, what have I done’, ‘I wish I hadn’t done it’";
• That the cash withdrawn from the ATM machine by Mr Hakaraia was for drug purposes, when there was a no probative basis for it, and was thereby a character blackening exercise.

Last independent witness

[28] Some further background is required on this point. Mr Fraser was the taxi driver. His evidence was that Mr Paora was running away from Mr Hakaraia, that he was breathing heavily, and that he said to Mr Fraser "Call the police, call the police, they are after me."
[29] Mr Joseph was also called by the Crown. His evidence was that he was driving past the church yard and observed both Mr Hakaraia and Mr Paora. He saw Mr Paora walking towards Mr Hakaraia, looking very aggressive.
[30] In summing up, Nicholson J referred to the Crown’s submission that Mr Fraser was the last independent witness about the events before the killing. The Judge also referred to Mr Grieve’s submission that Mr Joseph was the last person to see Mr Paora before the assault, and referred to passages that Mr Paora had a mean and aggressive look.
[31] Mr Cullen submitted that Mr Joseph’s evidence was directly relevant to the crucial issue of murderous intent, in that it went to show what Mr Hakaraia was faced with at the time of the confrontation in the church yard. Mr Cullen submitted that, as Mr Joseph was a Crown witness, it was not open for Crown counsel to ask the jury to find that he was mistaken or was being deliberately misleading.
[32] Mr Raftery accepted that Crown counsel invited the jury to take the view that the evidence of Mr Fraser was preferable to that of Mr Joseph. However he submitted that it was open for the Crown to do so and that no prejudice arose to the appellant. Mr Raftery submitted that Mr Joseph had shown some animosity towards the Crown case and, to this extent, could not be regarded as independent in the evidence he gave. While he was not declared hostile, the fact that a Crown witness is not declared hostile does not prevent the Crown from calling evidence to contradict that of an unfavourable witness. He said that it follows that Crown counsel may suggest to a jury that it should prefer the evidence of one Crown witness over that of another Crown witness. Mr Raftery submitted that the language used by Crown counsel was not such as to impeach Mr Joseph’s credibility, but rather suggested that his evidence might not be as independent as that of Mr Fraser’s.
[33] We did not have an exact transcript of counsel’s submissions. But even accepting for the purposes of argument that such a statement was made by Crown counsel, we are quite unable to see that the use of such an expression by counsel was objectionable in these circumstances. The Crown was contending (and the issue was squarely before the jury) that Mr Fraser was the last independent witness, in the sense that he had no axe to grind. The fact that the Judge repeated that in his summing up at paragraph [53] was an accurate reflection of what Crown counsel had submitted, and the jury was free to accept or reject the submission, as they saw fit.

Most murders

[34] Again we do not have an exact transcript of counsel’s comments. Fortunately, in this case, Mr Cullen had a good note and Mr Raftery was able to confirm from Crown counsel’s notes that the comments in terms of those recorded in the second bullet point in paragraph [27] were made in Crown counsel’s closing.
[35] We need not rehearse the principles relating to objectionable comments by Crown counsel. These principles were most recently reviewed in this Court in R v Hodges (CA 435-02, 19 August 2003, judgment of the Court delivered by Tipping J).
[36] Abstracted from context, the comments are strange, and may be thought to be objectionable. However, as always with language, context is everything. It was common ground before us (and Mr Cullen very properly confirmed this) that at the particular point of his address, Crown counsel was making the point that the relevant murderous intent must be established at the time of the particular acts complained of, which can happen very quickly. It is true that the observations made are not entirely felicitously worded. The most troublesome aspect is the words "most murders" and something along the lines of "are quite common" would have been more accurate. However we are quite satisfied that, when properly placed in context, the true purpose of the observation was quite apparent and was not objectionable.

The withdrawal from the ATM machine

[37] The context of this observation by Crown counsel was that in the early hours of the morning of 15 June 2002 the accused had sought $20 from a bank machine.
[38] Mr Raftery was able to confirm that Crown counsel said to the jury something along the lines of "Why did he want that? And what was he going to do with it?".
[39] Mr Cullen submitted that the evidence of the ATM withdrawal was probative of nothing in the context of the trial, and that Crown counsel’s observations was simply an attempt to blacken the character of Mr Hakaraia by "apparently insinuating that a drugs purchase was being contemplated in that sum".
[40] Again, context is all. The Crown submission was that, when properly seen in the context of Crown counsel’s closing address, the remark was part of a concern on the part of Crown counsel to get rid of irrelevancies in the trial and to indicate that there were things of this kind which simply did not matter, given that this was a murder/manslaughter trial in which the only issue was the accused’s intent at the relevant time. Mr Cullen did not take issue that this was the context of the remarks, and when so understood, there is nothing in this point.

Conclusion

[41] The appeal is dismissed.

Solicitors:
Crown Solicitor, Auckland

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[1]	On 10 September 2003 the appellant, Mr Hakaraia, was convicted on one count of murder, following a jury trial in the High Court at Rotorua.
[2]	On 17 October 2003 Mr Hakaraia was sentenced to life imprisonment, with a minimum period of imprisonment of ten years.
[3]	Mr Hakaraia now appeals against his conviction on the ground that a miscarriage of justice was occasioned by one or more of the following:

[4]	On the night of 14 June 2002 Mr Hakaraia was socialising with friends, for a number of hours, at various taverns and bars in Tokoroa.
[5]	At approximately 2.30am on 15 June Mr Hakaraia had made his way to the Chill Bar where Mr Jarden Paora, the victim, was drinking. At that bar, another man tried to start a fight with Mr Paora. Mr Hakaraia, who was sitting nearby, was knocked off his bar stool. He became involved in the struggle with this other man. Eventually both Mr Hakaraia and this other man were removed from the bar by bouncers. Mr Hakaraia’s friends then joined him. Together they repaired to a friend’s house where Mr Hakaraia’s car was located. The other members of the group then went to bed.
[6]	Mr Hakaraia then left this address on a mountain bike that he kept in his car, and cycled back into town. He attempted to withdraw money from an ATM. He then visited an unlicensed bar, which was closed. Mr Hakaraia then started to cycle back towards his friend’s address.
[7]	On the way, Mr Hakaraia met Mr Paora outside the Tokoroa police station. Words were exchanged, and Mr Hakaraia began to follow Mr Paora down the street. Mr Paora hailed a taxi. Both he and Mr Hakaraia asked the driver to call the police. The taxi driver backed up his vehicle and drove off to avoid the pair.
[8]	Mr Paora then began to run. He was chased by Mr Hakaraia to a church yard. There Mr Hakaraia broke a beer bottle and used it to threaten Mr Paora, who responded by covering his head to protect himself. Mr Hakaraia then dropped the bottle, and began to punch and kick Mr Paora. Mr Paora fell to the ground and Mr Hakaraia began to kick Mr Paora repeatedly about the head.
[9]	Mr Paora’s injuries included numerous broken bones in his face, bruising and cuts. The cause of death was, however, asphyxiation caused by Mr Paora’s blocked airways.
[10]	Mr Hakaraia admitted assaulting Mr Paora. And there was no dispute that it was this assault which had caused his death. The issue at trial was whether Mr Hakaraia had assaulted Mr Paora with murderous intent, and was therefore guilty of murder, or whether the proper verdict was one of manslaughter.

[11]	The officer in charge of the case was a Detective Donaghy. He gave evidence concerning an initial interview with Mr Hakaraia.
[12]	After Mr Hakaraia had gone to the police station with the detective, some time was spent arranging for a lawyer to be present. Mr Grieve QC, senior counsel at the trial, arrived. He spent 35 minutes with Mr Hakaraia. The detective gave the following evidence of what then occurred:

[13]	At trial, the appellant’s counsel were apparently concerned about this evidence. Accordingly the detective was cross-examined by Mr Cullen, who elicited acknowledgements that the detective had persisted in questioning the appellant even after he (the appellant) had informed the detective that he wished to exercise his right to silence.
[14]	Crown counsel then began re-examination by asking:

[17]	On these facts, Mr Cullen submitted that the conduct of Mr Grieve and the appellant at the interview, beyond the exercise of his right to silence, was inadmissible as irrelevant. And Mr Cullen submits that the detective’s evidence was grossly prejudicial in that the jury may have inferred from it that Mr Hakaraia was willing to be interviewed and was answering the police questions prior to Mr Grieve’s interruption. Accordingly, the lawyer had perceived that Mr Hakaraia had something to hide and had prevented the truth from coming out. In order to mitigate this prejudice, Mr Cullen submits, it was necessary for trial counsel to cross-examine the detective in more detail about the interview process. However, that in turn led to re-examination by Crown counsel that elicited what, Mr Cullen says, was a particularly prejudicial statement by the detective.
[18]	Mr Cullen submitted that although a direction was given to the jury, this was insufficient. He suggests that the direction was not sufficiently strong in its terms, and that the Judge had failed to emphasise that the evidence should not have been led and that the jury should completely disregard it. Mr Cullen acknowledges that the Judge was in something of a dilemma in this case: there was no way to give the jury a direction on the potential inference that trial counsel had prevented the truth from emerging without drawing attention to that allegedly prejudicial aspect. However, by choosing a minimalist approach, Mr Cullen submits that the jury may have felt free to draw the adverse inference.
[19]	Mr Raftery submitted that the detective’s evidence was simply background information from which no real prejudice could be said to have arisen. He submitted that there was no real risk that the jury would follow the inferential chain proposed by Mr Cullen; juries are frequently called upon to accept that the exercise by the appellant of his right to silence gives no indication of guilt. In any event, the Judge’s direction was sufficient to remove any prejudice that might possibly have arisen.
[20]	There were really two aspects to this complaint. The first was that the jury might draw (or so it was said) an inference that Mr Hakaraia was prepared to tell the truth, but was stopped from doing so by his lawyer. We have grave difficulty in seeing how the inference suggested is anything other than speculative, and after the event. And we have the gravest difficulty in seeing how anything adverse to the accused could have been taken from this happenstance. The second aspect is as to whether Mr Grieve’s position as counsel was somehow impaired by what in fact occurred. The short answer here is that Mr Grieve did not raise any objection of that character at the time or seek to stand down and have a new trial. Mr Grieve is a very senior and well respected member of the criminal bar. It seems utterly improbable that he felt constrained by what had happened and we have no evidence he did. In any event, given the events that had occurred, in our view the direction given by the trial Judge was perfectly adequate and the trial then advanced in satisfactory fashion. This appeal point is therefore dismissed.

[22]	Mr Cullen’s submission is that in this answer, Dr Sage moved beyond giving expert evidence, and into the role of an advocate. Mr Cullen said that whether one takes ones victim as one finds him, is a matter of law. It was not for the witness to say, in effect, that Mr Hakaraia had to take his victim as he found him.
[23]	Mr Cullen noted that the doctor did not in fact answer the question posed at all, despite "survivability" of the injuries being an issue of clear importance to the inference of murderous intent. Mr Cullen said the witness should have restricted his answer to the question actually asked. He further submitted that had this evidence appeared in depositions, it would have been ruled inadmissible. He said, the defence was taken by surprise by the evidence.
[24]	Mr Raftery argued that whilst the doctor did not answer the question put to him directly, he did so indirectly. The implication of his evidence was that it was not possible to say with certainty whether the victim would have survived had he received early treatment. Mr Raftery further noted that had the defence wished to obtain a more direct answer, it could have objected to the evidence or cross-examined the doctor. This issue was not, however, raised at trial. Mr Raftery accepted that in the last sentence of his answer, the doctor made a statement that might appear to be directed towards the legal issue in the case rather than a medical question. However he said this caused no real prejudice to the appellant simply because the doctor’s evidence was in fact a fair statement of the legal position and, in any event, amounted to a single sentence in the course of the whole trial. The witness did not say that survivability was not an issue, but rather that the whole circumstances must be viewed in context.
[25]	In our view there is nothing in this point either. The first matter to be noted is the context in which the impugned answer arose. The defence was distinctly concerned about the issue of "survivability", and understandably so. Two other pathologists had already been asked questions in this trial relating to that issue. Crown counsel therefore quite appropriately, thought that it ought to be put to the Crown expert whether that expert had any comment on the sorts of issues which had been raised. The expert (Dr Sage) was therefore asked a question at a high level of generality. The answer he gave was relatively abstract, and quite unsurprisingly he gave a response which we read as indicating that it "all depends on the circumstances".
[26]	Turning to that part of the answer to which strongest objection is taken ("that you have to take your victim in the context in which things happen ...") that answer was not, we think, intended to nor did it convey, that the doctor was somehow entering the arena (as suggested) and conveying that (in legal terms) an accused must take his victim as found. Further, there was no commentary at all by the doctor (which would have been utterly objectionable) on how the accused might have viewed the victim’s state. Finally, again no objection was taken by very experienced trial counsel at the time. This appeal point is dismissed.

[28]	Some further background is required on this point. Mr Fraser was the taxi driver. His evidence was that Mr Paora was running away from Mr Hakaraia, that he was breathing heavily, and that he said to Mr Fraser "Call the police, call the police, they are after me."
[29]	Mr Joseph was also called by the Crown. His evidence was that he was driving past the church yard and observed both Mr Hakaraia and Mr Paora. He saw Mr Paora walking towards Mr Hakaraia, looking very aggressive.
[30]	In summing up, Nicholson J referred to the Crown’s submission that Mr Fraser was the last independent witness about the events before the killing. The Judge also referred to Mr Grieve’s submission that Mr Joseph was the last person to see Mr Paora before the assault, and referred to passages that Mr Paora had a mean and aggressive look.
[31]	Mr Cullen submitted that Mr Joseph’s evidence was directly relevant to the crucial issue of murderous intent, in that it went to show what Mr Hakaraia was faced with at the time of the confrontation in the church yard. Mr Cullen submitted that, as Mr Joseph was a Crown witness, it was not open for Crown counsel to ask the jury to find that he was mistaken or was being deliberately misleading.
[32]	Mr Raftery accepted that Crown counsel invited the jury to take the view that the evidence of Mr Fraser was preferable to that of Mr Joseph. However he submitted that it was open for the Crown to do so and that no prejudice arose to the appellant. Mr Raftery submitted that Mr Joseph had shown some animosity towards the Crown case and, to this extent, could not be regarded as independent in the evidence he gave. While he was not declared hostile, the fact that a Crown witness is not declared hostile does not prevent the Crown from calling evidence to contradict that of an unfavourable witness. He said that it follows that Crown counsel may suggest to a jury that it should prefer the evidence of one Crown witness over that of another Crown witness. Mr Raftery submitted that the language used by Crown counsel was not such as to impeach Mr Joseph’s credibility, but rather suggested that his evidence might not be as independent as that of Mr Fraser’s.
[33]	We did not have an exact transcript of counsel’s submissions. But even accepting for the purposes of argument that such a statement was made by Crown counsel, we are quite unable to see that the use of such an expression by counsel was objectionable in these circumstances. The Crown was contending (and the issue was squarely before the jury) that Mr Fraser was the last independent witness, in the sense that he had no axe to grind. The fact that the Judge repeated that in his summing up at paragraph [53] was an accurate reflection of what Crown counsel had submitted, and the jury was free to accept or reject the submission, as they saw fit.

[34]	Again we do not have an exact transcript of counsel’s comments. Fortunately, in this case, Mr Cullen had a good note and Mr Raftery was able to confirm from Crown counsel’s notes that the comments in terms of those recorded in the second bullet point in paragraph [27] were made in Crown counsel’s closing.
[35]	We need not rehearse the principles relating to objectionable comments by Crown counsel. These principles were most recently reviewed in this Court in R v Hodges (CA 435-02, 19 August 2003, judgment of the Court delivered by Tipping J).
[36]	Abstracted from context, the comments are strange, and may be thought to be objectionable. However, as always with language, context is everything. It was common ground before us (and Mr Cullen very properly confirmed this) that at the particular point of his address, Crown counsel was making the point that the relevant murderous intent must be established at the time of the particular acts complained of, which can happen very quickly. It is true that the observations made are not entirely felicitously worded. The most troublesome aspect is the words "most murders" and something along the lines of "are quite common" would have been more accurate. However we are quite satisfied that, when properly placed in context, the true purpose of the observation was quite apparent and was not objectionable.

[37]	The context of this observation by Crown counsel was that in the early hours of the morning of 15 June 2002 the accused had sought $20 from a bank machine.
[38]	Mr Raftery was able to confirm that Crown counsel said to the jury something along the lines of "Why did he want that? And what was he going to do with it?".
[39]	Mr Cullen submitted that the evidence of the ATM withdrawal was probative of nothing in the context of the trial, and that Crown counsel’s observations was simply an attempt to blacken the character of Mr Hakaraia by "apparently insinuating that a drugs purchase was being contemplated in that sum".
[40]	Again, context is all. The Crown submission was that, when properly seen in the context of Crown counsel’s closing address, the remark was part of a concern on the part of Crown counsel to get rid of irrelevancies in the trial and to indicate that there were things of this kind which simply did not matter, given that this was a murder/manslaughter trial in which the only issue was the accused’s intent at the relevant time. Mr Cullen did not take issue that this was the context of the remarks, and when so understood, there is nothing in this point.