R v Robertson CA472/04 [2005] NZCA 409 (14 December 2005)

Last Updated: 22 January 2014

IN THE COURT OF APPEAL OF NEW ZEALAND

_CA472/04

THE QUEEN

v

KELLY RAYMOND ROBERTSON

Hearing: 15 June 2005 and 28 October 2005

Court: Glazebrook, Randerson and Williams JJ Counsel: P S Neutze for Appellant

A Markham for Crown

Judgment: 14 December 2005

_{JUDGMENT OF THE COURT}

A The application to adduce new evidence is declined. B The conviction appeal is dismissed.

100. The sentence appeal is allowed in part. The minimum non-parole period of six years eight months is set aside and replaced by a period of five

_{years. The sentence is otherwise confirmed.}

REASONS

_{(Given by Glazebrook J)}

R V ROBERTSON CA CA472/04 14 December 2005

Table of Contents

Para No

Introduction [1] Background facts [3] Evidence as to cause of death [12] Procedural history of the appeal [18] Application to adduce additional evidence [27] The DVD reconstruction [28] Affidavit of Mr Clark [31] Affidavit of Dr Ferris [34] Affidavit of Dr Koelmeyer [40] Submissions on leave to adduce new evidence [42] Mr Robertson’s submissions [42] Crown’s submissions [46] Discussion of application to adduce new evidence [54] Submissions on appeal against conviction [60] Mr Robertson’s submissions [60] Crown’s submissions [73] Issues on the conviction appeal [85] Judge’s summing-up [86] Discussion on conviction appeal [91] Unreasonable verdict [91] Allegations of police misconduct [95] Allegations of prosecutorial misconduct [96] Hostile witness [98] Summing-up [102] Appeal against sentence [104] Sentencing remarks [105] Submissions on appeal against sentence [112] Mr Robertson’s submissions [112] Crown’s submissions [117] Discussion of sentence appeal [120] Result [127]

Introduction

[1] Mr Robertson was charged, together with Mr Gould and Mr Brittain, with the murder of the National President of the Highway 61 motorcycle gang, Mr Kevin Weavers, at the gang headquarters in Manurewa. Following trial in the Auckland High Court, Mr Robertson was convicted of manslaughter and sentenced to ten years imprisonment with a minimum period of six years and eight months. Mr Gould and Mr Brittain were acquitted.

[2] Mr Robertson now appeals against both conviction and sentence and seeks leave to adduce additional evidence.

Background facts

[3] Three days prior to the homicide, Mr Weavers and three Highway 61 associates committed a serious assault on Mr Brittain, whom they suspected of involvement in violent activities on behalf of a rival motorcycle gang. Mr Brittain was seriously injured, and the offenders took his Harley Davidson motorcycle.

[4] While Mr Brittain was receiving hospital treatment, he told medical staff that he did not want the Police involved, and would “deal with the situation himself”. He repeatedly said that he was going to “get” or “kill” the guy who assaulted him, and would do so as soon as he was discharged from hospital. Mr Brittain discharged himself from hospital on the morning of 27 September 2003, and went to visit Mr Robertson at his business premises in Manurewa. The Crown case was that this was to enlist Mr Robertson’s help in retaliatory action against Mr Weavers.

[5] Mr Robertson is a former President of the Auckland chapter of the Highway

61 gang. He was relieved of his position by Mr Weavers, who took over in 1997 and disbanded Mr Robertson’s chapter. A defence witness described their relationship as “two bulls in a paddock syndrome”. Mr Robertson had moved away from the gang in recent times and was a successful businessman at the time, operating a motorcycle workshop and sales yard. Mr Brittain was a friend and employee of Mr Robertson.

[6] Mr Brittain and Mr Robertson drove to Mr Robertson’s farm to collect the second co-accused, Mr Gould, who was also employed by Mr Robertson. Mr Gould was a patched life member of the Highway 61 gang. The Crown case was that, as a patched life member, Mr Gould was guaranteed entry into the fortified gang headquarters, or “pad”. The three accused then picked up a fourth man, a mechanic from Mr Robertson’s yard, whom the Crown alleged was intended as the getaway driver.

[7] The four arrived at the pad shortly before midday, and Mr Robertson and Mr Gould went inside. They went out the back to a workshop area where they found Mr Weavers, barefoot and dressed in his underwear. A confrontation took place. Mr Hutton, who was the “sentry” on duty at the pad, gave evidence that, one or two minutes after Mr Robertson and Mr Gould entered the pad, he overheard raised voices and sounds of banging and crashing, which continued for approximately

40 seconds, and went to investigate. He saw Mr Robertson and Mr Gould standing over Mr Weavers, who was on the ground on his back, leaning against a wall in a large pool of blood. Mr Robertson remarked that Mr Weavers needed an ambulance and both he and Mr Gould left. Mr Hutton did not see any weapon.

[8] Blood was gushing from Mr Weavers’ leg. Mr Hutton applied pressure to the wound and an ambulance was called but Mr Weavers was unable to be resuscitated and was pronounced dead at 1.03 pm. No weapon was found at the scene, although the Police found a leather sheath on a table in the workshop. Mr Fryer, a knife expert and operations manager for the House of Knives, analysed the sheath and drew various conclusions in respect of the knife held by it. He gave evidence that the sheath held a double-bladed knife or dagger but that the knife likely did not fit the sheath correctly and that it was impossible to estimate the likely length of the blade. He stated that, as distributors of knives in New Zealand are not permitted to supply double-edged knives, the knife could have been home made or sourced from the black market or the open market overseas. Mr Hutton said that he thought he had placed the sheath on the table after noticing it on the floor just underneath the table. He said that he did not recognise it.

[9] Mr Robertson claimed that he went to the pad to retrieve Mr Brittain’s motorcycle and to act as “peacemaker” in the dispute between Mr Weavers and Mr Brittain. He said that he told Mr Weavers that he had advised Mr Brittain to go to the Police, but that he would bring him inside, purportedly to effect a reconciliation. Mr Robertson said that he had turned to go towards the car, when Mr Weavers suddenly “came screaming” up behind him “with demons in his eye” brandishing a knife and threatening to kill him. There was a struggle, in the course of which Mr Weavers accidentally fell on the knife and stabbed himself. Mr Robertson denied touching the knife, and both Mr Robertson and Mr Gould

denied removing it from the pad. Mr Robertson said that, when he left, the knife was sticking out of Mr Weavers’ leg. He said that the knife had a chrome handle and was like a dagger but with a split down the middle so that it was in two pieces. He estimated the length of the blade to be about 20 centimetres. Mr Robertson claimed never to have seen the knife, or a knife of that type, or the sheath before.

[10] None of the three defence counsel at the trial put it to Mr Hutton that he had removed the knife (either from the wound or from the scene). Instead, it seems that a submission was made that an unidentified third party must have removed the knife from Mr Weavers’ leg and taken it away from the pad before Mr Hutton rushed into the workshop and tended to Mr Weavers’ injuries. However, Mr Hutton’s evidence was that, aside from Mr Weavers, only himself and Mr Weavers’ girlfriend, “Tooks”, were present at the pad that morning. He did, however, agree in cross examination that it could well be that other individuals were there who he did not have knowledge of due to the noise and the size of the pad.

[11] The first Detective at the scene gave evidence that the police found a number of weapons at the pad, including a samurai sword, many knives of varying shapes and sizes and an axe. Three witnesses gave evidence of having seen a double pronged knife either in Mr Weavers’ possession or in the pad. Mr Norman, who had known Mr Weavers for about 28 or 30 years, described a falling out that he had with Mr Weavers in 2000 regarding a financial matter. He said that Mr Weavers was holding a long, narrow knife that had two points and was almost like a tuning fork. He estimated the length of the knife as somewhere between seven and ten inches, although he did not see the handle. Mr Tau gave evidence that, on his way out of the pad following an altercation with Mr Weavers in September 2003, he saw a knife with two prongs, which he thought was about five inches long. Similarly, Mr Thorburn, who had spent quite a lot of time working at the pad, described finding a knife in an ill-fitting sheath at the pad a couple of years previously. He said that the knife looked “[l]ike a V section cut out of a solid plate” and agreed that the blades would have been about eight inches.

[12] The Crown called Dr Koelmeyer, the pathologist who conducted the autopsy on Mr Weavers. Because no weapon was left at the scene, Dr Koelmeyer was required to “reconstruct” the likely weapon or weapons based on the injuries he observed. In his evidence in chief, Dr Koelmeyer said that Mr Weavers died from a haemorrhage caused by blood loss. He expressed the view that the fatal wound was caused by an implement with a blade about three centimetres wide and

22 centimetres long, which had been twisted on withdrawal and had cut his femoral artery in two places. He said that such an injury is not necessarily fatal. The fatal wound was at an unusual angle, entering the outer aspect of Mr Weavers’ thigh

17 cms above the knee joint, and penetrating upwards through towards his groin, ending just under the skin. The Crown case was that the wound was inflicted when Mr Weavers was on his back with his legs raised to protect his abdomen.

[13] Mr Weavers also suffered a number of other injuries, including a second unusual “double entry” stab wound to his thigh, stab wounds to each of his buttocks, bruising and associated injury to his eye and mouth, and a small cut to his ear. Dr Koelmeyer gave evidence that the second stab wound on the thigh was likely caused by a different instrument, possibly a pair of scissors or similar, but he could not be certain as he had not seen anything quite like it before. The buttock injuries were possibly also caused by scissors or possibly by thrusts with a fine screwdriver. Dr Koelmeyer also discussed various bruising and lacerations to Mr Weavers’ face.

[14] During the cross-examination of Dr Koelmeyer, the defence produced the double-bladed sheath found at the scene and photographs of a “bifid” or double-bladed knife. Dr Koelmeyer had not been shown the sheath and had never seen a double-bladed knife before. Dr Koelmeyer accepted that the sheath would have helped in his reconstruction. Having seen the defence photographs of the knife, Dr Koelmeyer modified his opinion and said that it was a “definite possibility” that a bifid knife of around 22 centimetres in length may have caused the stab wounds. However, he did not exclude a single bladed knife as the cause of the fatal wound.

[15] Similarly, the defence pathologist Dr Ferris said that his original opinion had been that the fatal wound was caused by the twisting action of a single bladed knife. He was previously unaware of bifid knives. Having been shown the defence photographs, he modified his view and stated that the wounds were entirely consistent with some form of bifid knife, although none of the photographs fitted with all the features of the wound. Although he could not exclude the possibility that the fatal wound was caused by a single bladed knife, he now regarded this as highly unlikely. Dr Ferris said that he could not tell what the length of the blade was from the fact that the length of the track of injury was measured at 22 centimetres. He said that the length of the blade must be distinguished from the length of the track of injury and that the track length may be considerably more than the blade length.

[16] Both pathologists were asked to comment on various scenarios involving a struggle between Mr Robertson and Mr Weavers. The experts were unable to be definitive and would not be drawn into speculative reconstructions. However, Dr Koelmeyer accepted that a “disarming” scenario may need to be considered in relation to the buttock injury. In relation to the fatal injury, Dr Koelmeyer could not exclude the possibility of a fall, once the knife was in position. Similarly, Dr Ferris agreed that there was nothing inconsistent with the scenario of a fall, with the knife “firmly held” in position. Both pathologists also accepted the Crown scenario of Mr Weavers on his back with his leg up protecting his abdomen as a possibility.

[17] During closing, the Crown pointed out that the sheath was made for a knife with a blade between 15.5 and 16 centimetres long. Therefore, if this sheath housed a knife that was used in the assault, and if the knife was meant to be in the sheath, two knives must have been involved because that knife could not have caused the fatal injury. Ultimately, the Crown closed to the jury on the basis that the knife issue was “an enormous red herring”. It did not matter whether there was one knife or two, or whether it was a single or double-bladed knife. Only one knife was ever said to have caused the fatal injury. The only issues for the jury were whether the stabbing of Mr Weavers was accidental or deliberate and, if the latter, whether Mr Robertson was acting in self-defence. The fact that a bifid knife may have been used did not make either the “accident” or “self-defence” scenarios any more or less likely.

[18] In a Minute dated 3 June 2005, this Court refused Mr Robertson’s application for an adjournment of the hearing and directed submissions to be filed by Mr Neutze by 5.00 pm on 7 June and by the Crown by 9.30 am on 13 June.

[19] The Court began hearing the appeal on 15 June 2005. During the course of the hearing, the appeal was adjourned to allow Mr Robertson to make an application to adduce new evidence. A Minute was issued on 17 June directing Mr Neutze to file and serve the application, annexing signed briefs setting out the evidence, and a memorandum of submissions relating to the application by 5.00 pm on 27 July 2005. A period of six weeks was given so that senior counsel (if appointed) could have input into the application. The Crown had four weeks to file and serve any material relating to the application to adduce further evidence. Mr Neutze was given a further two weeks to file and serve any material and any updated submissions on the substantive appeal. The Crown was to file and serve updated submissions on the substantive appeal no more than ten working days later. The Court advised that the timetable set out in the Minute must be complied with strictly and stressed that this was a final adjournment.

[20] On 21 July a Minute was issued reminding Mr Neutze of the deadline and indicating that no extension would be given. The Court received from Mr Neutze at

5.16 pm on 27 July a memorandum of submissions with respect to the application for leave to adduce further evidence. Further memoranda were received on 29 July and

2 August. No application accompanied by briefs of evidence was, however, filed.

[21] In a further Minute dated 4 August this Court directed that, unless the application to adduce new evidence, accompanied by signed briefs, was filed and served by 5 00 pm on 19 August 2005, it would not be accepted for filing. We stated that this deadline would be strictly enforced. The Court noted that there appeared to be no reason why the application to adduce new evidence could not be filed forthwith with signed briefs from Dr Ferris and a Mr Clark pending the resolution of the issue relating to Dr Koelmeyer. Further timetabling orders corresponding to those set out at [19] above were imposed.

[22] This Minute stated also that the acceptance of the application was without prejudice to the Crown’s ability to argue that the application should be dismissed either because it did not meet the criteria for the admission of new evidence or because it was not filed and served before the original deadline.

[23] Mr Neutze was reminded of the deadline in respect of the application to adduce new evidence in Minutes dated 12 and 17 August 2005. The Court repeated that the deadline would be strictly enforced and that an application would not be accepted for filing outside the deadline.

[24] On 18 August, Mr Neutze advised that there remained an issue with Dr Koelmeyer. In a Minute that day, the Court reiterated that any issue regarding Dr Koelmeyer did not affect the timing of the filing of the application in relation to the proposed evidence of Dr Ferris or Mr Clark. We therefore reminded him that the timetable orders must be strictly complied with as regards their proposed evidence and said that any application relating to Dr Koelmeyer should be made in the proper form and be filed at the same time as the application to adduce new evidence.

[25] At 4.55 pm on 19 August, Mr Neutze filed an application for leave to adduce further evidence, a memorandum of submissions in support of the application and affidavits from Dr Ferris and Mr Clark. Dr Koelmeyer’s affidavit was received on

22 August. The hearing of the appeal and the application to adduce new evidence was set down for 28 October 2005.

[26] All of the Minutes referred to above, with the exception of the first Minute dated 3 June 2005, were copied to Mr Robertson.

Application to adduce additional evidence

[27] Mr Robertson has made an application to adduce additional evidence. As that evidence is said to be relevant to the cause of death, it is convenient to summarise it at this point.

[28] During the trial, the Judge permitted Mr Robertson and a third party to conduct a reconstruction of his version of the fight which resulted in Mr Weavers’ death. Dr Koelmeyer did not witness the reconstruction at this stage. Mr Robertson and the same third party recently reconstructed this reconstruction at Paremoremo Prison. He now seeks to adduce a DVD recording of this second reconstruction as fresh evidence. The DVD shows his version of the events immediately preceding Mr Weavers’ death from five different viewpoints.

[29] The five versions all show the third party approaching Mr Robertson from behind and lunging at him with a knife (represented by a spatula) held in his right hand. Mr Robertson turns around and a struggle ensues during which he manages to force the third party’s hands behind his back. It appears that this is when Mr Robertson asserts the stabs to the buttocks occur. The third party breaks free, during which time the “knife” switches to his left hand. He comes at Mr Robertson frontward with the “knife” and Mr Robertson grabs his arm to deflect the “knife”. The third party holds Mr Robertson’s neck with one arm and with the knife-wielding arm pulls both of Mr Robertson’s arms around to the left side of his body. Both men fall during the struggle, resulting in the “knife” lodging into the third party’s left leg with Mr Robertson on top of him.

[30] The same scene is depicted from five different viewpoints. There are no major differences between the scenes.

Affidavit of Mr Clark

[31] Mr Clark swore an affidavit dated 16 August 2005 for this appeal. Mr Clark is a financial controller and has been the accountant for Mr Robertson’s family trust for many years. He said that he made enquiries about bifid knives and learned from officers from Customs New Zealand that it is illegal to import double-bladed or bifid knives into New Zealand. Mr Clark explained that, to assist with Mr Robertson’s defence, he made extensive enquiries throughout the North Island primarily to locate

another example of the sheath that was left at the scene, which necessarily should house a double-bladed knife.

[32] Mr Clark deposed that he made inquiries with an individual who had done some research on the file and who had located an example of a sheath which housed a double-bladed knife in a novelty shop in Dunedin. Mr Clark said that he met with him and secured the sheath and knife. He said that further enquiries have revealed that, to enable the importation of such a knife, one of the two blades needs to be blunted, which he understood was the case with the knife sourced from Dunedin. His further enquiries have revealed that the bifid knife is a solid metal knife of one piece, but both edges are sharpened so that it is a double-bladed knife. He deposed that really it is a knife which has two cutting edges to it and this could realistically be done to any knife. We note that this description of the knife appears to be different than those given by the witnesses who claim to have seen Mr Weavers with a knife (discussed above at [11]). Mr Clark describes the knife as like a one piece knife with two sharp sides, whereas the witnesses describe Mr Weavers’ knife as a double-pronged knife.

[33] Mr Clark said that, after securing the sheath and knife, he then gave the knife to Mr Robertson’s lawyer who had passed it onto the pathologists who carried out the forensic examination of the deceased at the trial.

Affidavit of Dr Ferris

[34] In an affidavit dated 19 August 2005, Dr Ferris confirmed in principle the evidence he had given at Mr Robertson’s trial. However, he said that he is now able to give a more considered opinion, as he and Dr Koelmeyer have had more time to appraise the facts.

[35] Dr Ferris stated that he reviewed the DVD re-enactment and examined the double-bladed knife and sheath. He deposed that, in an assault resulting in the injuries sustained in this case, it is virtually impossible to reconstruct accurately the relative positions of the two participants at the time the injuries were sustained. In any such struggle there will be considerable relative movement between the

individuals involved. In his opinion, it is not possible to conclude with any degree of reasonable certainty that Mr Weavers must have been on his back at the time of the injuries or that Mr Weavers was either lying down or falling forward. He stated that the exact location of internal arterial injuries cannot be corroborated with any reasonable degree of accuracy to the relative positions of the parties involved.

[36] Dr Ferris explained that he has reviewed the five DVD reconstructions and understands that they are generally the same type of sequence from different angles. In his opinion, while any of these five reconstructions could allow for the injuries to have occurred, reconstructions number two and three are the clearest in that they seem to fit best with the pattern of injuries described by Dr Koelmeyer. He deposed that a knife similar to the double-bladed knife provided is capable of producing the injuries to the leg and buttocks of the victim. He gave evidence that a

16.5 centimetres knife blade could have caused the fatal wound, allowing for distortion of the tissues of the thigh and the difficulties in accurately measuring the depth of any stab wound. In his opinion, the pattern of this stab wound is entirely consistent with having been caused by a double-bladed knife and inconsistent with having been caused by a single-bladed knife, a pair of scissors or a screwdriver.

[37] Dr Ferris explained that, while it is standard practice for a pathologist to carry out a cursory examination of clothing at the time of a postmortem examination, a detailed examination and documentation of the clothing is almost always left to the ESR scientists. He said that it is unusual for a detailed examination of suspect weapons to be performed by a pathologist due to the need to preserve evidence.

[38] Dr Ferris declined to comment on the remarks of the Judge regarding the likelihood of this being a case of murder. He does not believe that the location of the wounds points to any particular manner of assault or indicates the nature of any intent at the time of the incident. He further stated that the evidence of a wound on Mr Robertson’s hand and none on Mr Weavers’ hand does not indicate who had control of the knife, since wounds are frequently seen on the hands of both victims and assailants.

[39] Dr Ferris said that he has personal experience of knife assaults in several hundred cases and, while most fatal wounds occur to the neck, chest and abdomen, knife wounds to the arms and legs are quite frequent, although not usually fatal. He has no doubt that the fatal wound in this case was most unusual and the fact that it proved to be fatal was the result of a quite unusual combination of circumstances, including the depth and angle of penetration and the largely fortuitous injury to the femoral artery.

Affidavit of Dr Koelmeyer

[40] In an affidavit dated 21 August 2005, Dr Koelmeyer stated that he had viewed the double-bladed sheath, the bifid knife provided by Mr Clark and the DVD re-enactment of the events in question, and had also read the affidavit of Dr Ferris. Dr Koelmeyer deposed that, in light of the new material and with the benefit of time to further consider the matter, his initial view substantially accords with Dr Ferris’ view as to the cause of Mr Weavers’ death.

[41] Dr Koelmeyer explained that the nature of Mr Weavers’ wounds caused problems in ascertaining the precise nature of the knife and it was difficult to make findings with certainty. He said that the introduction of the bifid knife during the trial clarified a lot of matters for him, in that the wounds were consistent with such a weapon. Dr Koelmeyer deposed that, if a bifid knife caused the fatal wound then, although he has not thoroughly examined the DVD, the sequence of events depicted therein is a plausible version of the infliction of the fatal wound. He said that he was otherwise in agreement with the views expressed by Dr Ferris.

Submissions on leave to adduce new evidence

Mr Robertson’s submissions

[42] Mr Neutze, for Mr Robertson, sought the leave of this Court to adduce the additional evidence of Dr Koelmeyer, Dr Ferris and Mr Clark and of the DVD reconstructions of the fight. Mr Neutze submitted that the evidence from Mr Clark

was fresh, as the example of a bifid knife was not located until well after the trial had finished. Although Dr Koelmeyer conducted the autopsy, he was not alerted to the presence of the double-bladed sheath at the scene of the altercation and neither pathologist had examples of a bifid knife that could have been in this sheath. Accordingly, in Mr Neutze’s submission, the knife is fresh evidence that is consistent with the opinion of the experts and it provides a proper evidential basis for their expert opinion.

[43] Mr Neutze also referred to what is, in his submission, the pivotal nature of this evidence. He submitted that Dr Ferris has clearly stated that the location of the wounds do not point to any findings regarding the manner of assault nor the intent of the assailants which, in Mr Neutze’s submission, clearly strengthens the defence position.

[44] Mr Neutze submitted further that Dr Koelmeyer did not have the benefit of witnessing the fight re-enactment that was conducted during the trial by Mr Robertson and another man. This re-enactment has only very recently been re-enacted. Mr Neutze referred to the considerable logistical difficulties involved in arranging all the persons required for the re-enactment, which caused considerable delay in providing a copy of the film to the pathologists. The pathologists, in turn, have had the pressure of other work and further delays have occurred which are not attributable to Mr Robertson.

[45] Mr Neutze submitted that it is in the interests of justice to allow the experts’

evidence to be given, as the pathologists had to work with a flawed evidential basis.

Crown’s submissions

[46] Ms Markham, for the Crown, opposed Mr Robertson’s application to adduce new evidence on the basis of the repeated breaches of Court timetabling orders. She emphasised that Mr Neutze was trial counsel and the Notice of Appeal was filed on

2 December 2004. Although the Minute of 4 August 2005 contemplated that the

Court may receive evidence filed before 5 00 pm on 19 August 2005, the directions

were explicit that nothing would be received after that date. Ms Markham submitted that, accordingly, there is no basis whatever for the receipt of the new evidence.

[47] Ms Markham submitted alternatively that the proposed evidence sought to be adduced by Mr Robertson is inadmissible, as it does not qualify as fresh evidence. In her submission, expert evidence must be of a truly compelling nature in order to qualify as fresh evidence. It is insufficient, in her submission, if, with the benefit of hindsight, a defence expert would have put a more favourable “slant” on the evidence, or would have made the points more forcefully than they were made at trial. It is not enough that the evidence “bolsters” the defence case, or even that it “should” have been given to the jury to consider in the context of all of the evidence: R v R CA130/98 24 September 1998.

[48] Ms Markham submitted that the proposed evidence is not “fresh” as it was plainly available at trial. Indeed, the proposed evidence of the pathologists to a large extent merely repeats their trial evidence. The only material difference between Dr Ferris’ affidavit and his trial evidence is his commentary on the DVD reconstructions, which is clearly not fresh.

[49] In any event, in Ms Markham’s submission, the purported “reconstruction” evidence is inadmissible, whether on the basis of an exclusionary rule or a discretion to exclude. It follows, in her submission, that the expert opinion on which it is based is likewise inadmissible. The general principle is that evidence which attempts to reconstruct an event at issue, as distinct from demonstrations or experiments, is inadmissible. It was submitted that it is impermissible to admit on appeal what is effectively a “reconstruction of a reconstruction”.

[50] Ms Markham submitted further that the reconstruction is “self-serving” and suspect. It was performed two years after the event, with the benefit of all of the pathology evidence. She pointed out that, under cross-examination at trial, Mr Robertson said a number of times that he did not know exactly how the knife became embedded in Weavers’ leg and “it all happened so quickly”. Further, there is no way of determining whether the DVD reconstruction is the same as the witness

box reconstruction. Nor is there evidence that the second participant in the DVD has similar physical characteristics to the deceased.

[51] Additionally, Ms Markham submitted that several pieces of evidence are not replicated or accounted for in the DVD reconstructions. At trial, Mr Robertson claimed that he fell with Mr Weavers against some tyres and then fell against the wall. Mr Hutton said that when he found Mr Weavers, he was leaning with his back up against the wall, with one of the tyres half under him. None of this is replicated in the DVD reconstructions. Nor do the reconstructions appear to account for Mr Weavers’ head injuries.

[52] Ms Markham submitted also that the proposed “fresh evidence” does not advance the “murder versus accidental killing” issue any further. Pathology evidence at both the trial and in the affidavits made it clear that there was a range of possibilities and that neither the defence nor the Crown position could be excluded. Consistent with his trial evidence, Dr Ferris noted that it is “virtually impossible” accurately to reconstruct the relative positions of the two participants at the time the injuries were sustained. He merely stated that the DVD reconstructions “could” allow for the injuries.

[53] Ms Markham submitted that it is unclear what the purpose of Mr Clark’s evidence is. The knife he located is merely an example of a bifid knife and is not the homicide weapon. The knife does not advance Mr Robertson’s case, given that photographs of example bifid knives were produced at trial and given that the pathologists have accepted all along that a similar knife could well have caused the stab wounds. More fundamentally, whether the knife that inflicted the fatal wound was single or double-bladed is irrelevant to the central issues at trial, namely whether the stabbing was accidental or deliberate and, if the latter, whether Mr Robertson was acting in self-defence.

Discussion of application to adduce new evidence

[54] We have set out above the procedural history of this application. We do not consider the delays in filing the application to adduce new evidence have been

satisfactorily explained. The consequences of not filing the application on time were clearly spelt out in Minutes, which were copied to Mr Robertson. Timetables set by the Court are designed to be met. In the circumstances, therefore, the application is declined.

[55] Even had we been prepared to consider the application, there were major obstacles facing the application. R v Bain [2004] 1 NZLR 638 (CA) at [22] said that, to be admitted, new evidence must be sufficiently fresh and sufficiently credible. However, this Court considered that this is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. In R v Kingi CA122/05 10 August 2005 this Court expressed the test from Bain in the following terms at [68]:

If the new evidence sought to be adduced on appeal was known to an appellant or his or her counsel before trial, it is unlikely in our view ever to be in the interests of justice that it be admitted, subject of course to allegations of trial counsel incompetence or failure to follow instructions being made out. To admit evidence on appeal that was known to exist before the trial would be effectively to allow a re-run of the trial on a different basis. As said in Bain, our system of justice requires that an accused puts up his or her best case at trial. On the other hand, where the evidence was not known to the appellant or his or her counsel before trial but could, with due diligence, have been discovered, the Court may be more likely to allow its admission in the interests of justice, perhaps depending on the ease with which the evidence could have been discovered. Obviously, as noted in Bain, the stronger the evidence is from the appellant’s point of view and the more it potentially challenges the Crown case at trial, the more likely it is to be in the interests of justice that it be admitted. We remark that evidence that directly challenges the veracity of the evidence of Crown witnesses at trial may be more likely to meet these criteria than evidence that merely bolsters the defence case. We reiterate, however, that cases where evidence that is not fresh is nevertheless admitted will be rare.

[56] In this case, the evidence is clearly not fresh. It was available at trial. Indeed, the pathologists’ evidence was not only available but was actually led at trial. It is true that there is now an actual bifid knife (but not the one alleged to have been the murder weapon) instead of a picture of a knife (again never asserted to be a picture of the actual murder weapon) but this is hardly a relevant difference.

[57] It is also true that the pathologists have been able to give a more considered opinion than they did at trial but essentially their evidence is the same as they gave at trial. It was a conscious choice, however, for the defence to lead the evidence of the

knife for the first time at trial. While it is hard to see why Dr Ferris, the defence expert, was not briefed beforehand, it was a legitimate (and effective) tactic to surprise the Crown pathologist with the possibility of a bifid knife at trial.

[58] Neither is the evidence sought to be adduced of special cogency which would justify its admission, despite it not being new or fresh. The pathologists’ evidence throws no light on the central defence issues in the case, being whether Mr Robertson was acting in self-defence or whether Mr Weavers’ death was accidental. The pathologists’ evidence at trial and in their affidavits was that it is not possible from the pathology evidence to ascertain these matters.

[59] As to the DVD reconstruction, we accept Ms Markham’s submission that this would not have been admissible in any event. It was also unlikely to have been of any assistance, given the discrepancies pointed to by Ms Markham at [50] - [51] above.

Submissions on appeal against conviction

Mr Robertson’s submissions

[60] Although not articulated as such in his counsel’s written submissions, Mr Robertson’s main ground of appeal appears to be that the verdict of the jury should be set aside as being unreasonable or on the basis that it cannot be supported having regard to the evidence. Mr Neutze, for Mr Robertson, elaborated on this ground in his oral submissions. He submitted that there was no basis in the evidence for a finding that Mr Robertson took the knife to the pad, that it was not possible for a jury acting reasonably to exclude the possibility of accident or self-defence and that the acquittal of Mr Gould and Mr Brittain was inconsistent with a finding of guilt on the part of Mr Robertson.

[61] Mr Robertson’s next ground of appeal was that there were deficiencies in the police investigation which impacted on Mr Robertson’s defence as, had he been fully informed of all relevant facts, Dr Koelmeyer’s autopsy and other enquiries would have fitted with the defence version of events. The police failed to conduct enquiries

regarding double-bladed knives, despite the fact that a double-bladed sheath found at the scene would house a double-bladed knife, and failed to provide the pathologist with the sheath and the boxer shorts with the twin incisions that Mr Weavers had been wearing. In Mr Neutze’s submission, the police refrained from providing Dr Koelmeyer with relevant evidence in order to maintain the Crown theory of there having been two weapons and two attackers.

[62] Mr Neutze submitted that, had the pathologist been aware of this evidence, then his enquiries may well have taken a different course and evidence potentially helpful to the defence may have been uncovered. In his submission, had the cut boxers and the bifid knife sheath been properly drawn to the attention of the pathologist, his examination could have focused on whether the fatal wound was caused by an accidental or intentional knife thrust. Further, in Mr Neutze’s submission, the location of the cuts on the boxer shorts indicated that the boxers must have been in their normal position, which is consistent with the defence narrative of a struggle. The boxers would ride up if, as suggested by the Crown, the individual were on his back. In Mr Neutze’s submission, the fatal wound was quite unusual and treatable, the other wounds were relatively superficial and the notion of the fatal wound being incurred while the deceased was on his back was no more than a possibility.

[63] Dr Koelmeyer was not shown the double-bladed sheath and he had never seen a double-bladed or bifid knife before. In Mr Neutze’s submission, Dr Koelmeyer clearly favoured the double-bladed knife as likely being responsible for all wounds when he was shown the sheath and a photograph of a double-bladed knife by the defence during cross-examination. Dr Ferris, who gave evidence for the defence, later corroborated this. At the very least, in Mr Neutze’s submission, the Crown theory as to “two weapons, two attackers” would have been thrown in doubt if Dr Koelmeyer had been aware of this evidence.

[64] Mr Robertson’s next ground of appeal was Crown Counsel misconduct. Mr Neutze took issue with numerous passages from the Crown’s opening address at trial which, in his submission, were later proven to be almost universally without foundation. The Crown’s opening address as to a “defenceless Weavers suffering a

series of blows from 2 concerted attackers...with cynical twisting of the blade on a prone Weavers” was speculative and emotive. In Mr Neutze’s submission, the Crown did not attempt to support its assertions with any proper chain of reasoning and failed to set out the sequence in which the wounds were alleged to have been inflicted, which was necessary in order to negate self-defence, accident or unwilled act.

[65] Mr Neutze also took issue with the Crown’s cross-examination and re-examination at trial. In Mr Neutze’s submission, the Crown undertook repeated improper questioning after its position was shown to be inconsistent with the evidence in an attempt to undermine the significance of the sheath and inappropriately maintain the earlier flawed position. It was submitted that the re-examination of Dr Koelmeyer was indicative of an improper striving for a conviction by seeking to maintain an evidential position that carried little or no weight. Further, although the mannequin wearing the boxer shorts sat in the courtroom during the course of the trial, it only attracted one brief question and answer from the Crown.

[66] Mr Neutze submitted further that the Crown prosecutor, during cross examination, repeatedly asked unfounded, sometimes contradictory, overly emotive and at times antagonistic questions seemingly directed at unsettling witnesses rather than at proving the Crown’s version of events. This included, in Mr Neutze’s submission, several unfounded allegations as to Mr Robertson paying witnesses.

[67] Mr Neutze submitted that the trial Judge inappropriately dealt with the proper objections raised by defence counsel to the prosecutor’s improper line of questioning. The Judge refused to hear argument on the issue, giving the defence no choice but to allow the questioning to proceed or run the risk that the jury might draw a negative inference from continued defence objections and the apparent hostile reaction of the trial Judge to such objections. In Mr Neutze’s submission, the Judge’s interjections seemed to worsen with the introduction of Mr Robertson as a witness, which could lead to the jury drawing an adverse inference.

[68] Moving onto the Crown’s closing, Mr Neutze submitted that the closing relied on very few facts and failed to set out a cogent evidential narrative. The Crown was at no stage required to set out a logical and coherent body of evidence supporting its position and nor was it required to negate self-defence or accident. Additionally, in his submission, the Crown’s closing inappropriately relied on prejudice and emotion. Mr Neutze submitted that the Crown’s failure to support submissions by any chain of reasoning was endorsed by the trial Judge by the detailed repetition and failure to make adverse comments on a number of matters.

[69] Mr Robertson’s next ground of appeal related to the ruling that the Crown could treat a witness (Mr Robertson’s 15-year-old daughter) as hostile. Mr Neutze submitted further that the ruling was premature and prejudicial. The prejudicial effect of this ruling was compounded in summing up when the Judge improperly, in a deliberate, forceful tone, slowly repeated the assertions in the previous statement which were not adopted at trial by the witness.

[70] Mr Neutze finally took issue with aspects of the Judge’s summing-up to the jury. He submitted that the summing-up was neither fairly balanced nor fairly presented and thus operated unfairly against Mr Robertson. In Mr Neutze’s submission, the Judge’s summing-up inappropriately supported the improper portions of the Crown’s closing address, failed to comment adversely on various aspects of the Crown case and largely ignored defence Counsel’s case, which was properly founded in both evidence and law. Mr Neutze submitted also that the Judge’s direction not to become “bogged down” in the details of the case was improper, as the details in this case were extremely important.

[71] Mr Neutze submitted further that the Judge’s directions as to inferences and circumstantial evidence were confusing and misleading. The Judge dealt with circumstantial evidence and inferences in abstract terms, without providing the jury with concrete examples. The Judge did not identify the inferences that the jury was asked to draw and improperly omitted directing the jury as to how to deal with two inferences of equal weight.

[72] In Mr Neutze’s submission, the improper conduct throughout the investigation and during the course of the trial resulted in an injustice and proceedings that operated unfairly against Mr Robertson. In his submission, the conviction should be quashed or, as a minimum, a retrial ordered.

Crown’s submissions

[73] For the Crown, Ms Markham submitted that Mr Neutze’s submissions do not properly identify relevant grounds of appeal and contain numerous allegations, including of serious impropriety on the part of the police and prosecutor, which are not supported by any evidence.

[74] On the first ground of appeal, Ms Markham submitted that there was ample evidence to support the verdict of the jury. Turning to the allegations of police misconduct, Ms Markham submitted that Mr Neutze’s complaints about the Crown and/or police concealing evidence about the bifid knife and/or sheath and “ambushing” Dr Koelmeyer on this issue are completely baseless. In her submission, the knife issue is essentially an irrelevant distraction and has no bearing on the central issues at trial.

[75] She pointed out that any shortcomings in Dr Koelmeyer’s evidence were explored in cross-examination and, in the present case, the defence made an issue of the fact that he was not shown the sheath. Further, at any time prior to trial, the defence was able to examine the knife sheath independently and/or instruct their own pathologist and, in the present case, the defence did both. Ms Markham submitted that there is no evidential foundation for Mr Robertson’s assertion that Dr Koelmeyer’s autopsy would have been “more comprehensive” if he had been aware of the possibility of a bifid knife at the time. Nor is there any foundation (even in the additional pathology evidence) for the assertion that a bifid knife rendered the “accident” or “fall” scenario more likely.

[76] Ms Markham submitted that, similarly, there is nothing in the “boxer shorts” issue. There is no evidence before the Court that the cuts in the shorts were consistent with a double-bladed knife, as contended for by Mr Neutze. Even if there

was such evidence, the issue is irrelevant, given that it was common ground at trial that a double-bladed knife may have been used. Ms Markham submitted that the suggestion that the police somehow deliberately concealed the significance of the shorts from Dr Koelmeyer is fanciful, as the clothing was intact when he initially examined the body. Again, the defence was at liberty to examine the shorts independently, to cross-examine Dr Koelmeyer about the cuts, and/or to provide them to their own pathologist. Ms Markham noted that Dr Ferris indicated during evidence that the shorts did not help him in any way and remarked that it is very difficult to reconstruct that type of injury. She submitted that there is no foundation to Mr Neutze’s assertions that examining the shorts may have assisted in determining whether the wounds were inflicted deliberately or accidentally or that the location of the cuts in the shorts undermined the Crown’s version of events.

[77] In response to Mr Neutze’s objections to the Crown’s opening address, Ms Markham accepted that the Crown opened to the jury on the basis that the stab wounds were inflicted by at least two different types of weapon and that the fatal stab wound resulted from the knife turning inside the wound before its withdrawal. Ms Markham submitted that this was entirely consistent with what the Crown believed the evidence to be at the commencement of the trial and, accordingly, no miscarriage of justice has been identified.

[78] Ms Markham submitted that the prosecutor’s re-examination of Dr Koelmeyer and cross-examination of Dr Ferris were perfectly fair. The prosecutor was plainly entitled to explore the “bifid knife” theory, which was raised for the first time during the cross-examination of Dr Koelmeyer, and to explore the extent to which Dr Koelmeyer’s original opinion of two weapons had been modified or discounted. Neither pathologist completely excluded the original theory that the fatal wound was caused by a single-bladed knife with a twisting action. Moreover, if a bifid knife were used in the fatal wound, it would need to have had a blade of sufficient length to inflict a wound of approximately 22 centimetres in length. The sheath found at the scene was designed for a double-blade of approximately

15.5 centimetres. Therefore, in Ms Markham’s submission, even with the modification of both pathologists’ original opinions, there was clearly still a foundation for a submission that two weapons may have been involved.

[79] Ms Markham submitted that a prosecutor is entitled to cross-examine in a robust and firm manner. The issue is whether the departure from good practice is so gross or persistent, or so prejudicial, that a miscarriage of justice has resulted: Randall v R [2002] 1 WLR 2237 (PC) at 2251. In her submission, considerable latitude will be extended to a prosecutor to cross-examine in a style appropriate to the trial context, and the trial Judge is in the best position to assess whether particular cross-examination is unfair in the circumstances. Ms Markham submitted that, in the present case, there is no substance in the criticisms of the prosecutor’s cross-examination. It was submitted that many of Mr Neutze’s submissions on this issue amount to a complaint that the prosecutor asked questions that challenged or were inconsistent with the defence case. She also emphasised that there was very little objection from Mr Neutze during the prosecutor’s cross-examination and re-examination.

[80] Ms Markham submitted that there was a foundation in the trial evidence for the prosecutor suggesting that a number of the defence witnesses were offered inducements by Mr Robertson to give false evidence. The witnesses’ evidence was inimical to the Crown case and at times patently improbable. Further, Mr Robertson had substantial means and the witnesses were connected to him through the Highway

61 gang and/or through employment. There was also evidence in the Crown’s possession that Mr Robertson had attempted to persuade a potential witness to sign a false statement and had then forged the signature when he refused to sign – see Ruling (No. 18) of Nicholson J dated 7 October 2004 in which he refused leave for the Crown to adduce rebuttal evidence.

[81] In Ms Markham’s submission, Mr Neutze’s objections to the Crown closing address amount to a rehash of the defence’s closing submissions at trial. She submitted that Mr Neutze has not identified any submission by the prosecutor in closing that was improperly made. Ms Markham submitted that, on the contrary, the prosecutor’s closing address dealt very fairly with the evidence and was not in any way inappropriate or inflammatory.

[82] Ms Markham’s next submission was that it was open to the Judge to find that

Ms Murray was a hostile witness. She accepted that the Judge’s summary of the law

relating to hostile witnesses may not have precisely captured the test, but, in her submission, the Judge was correct that an outwardly hostile demeanour is not a prerequisite and, in some circumstances, a prior inconsistent statement may be enough. It was submitted that the real issue is whether it was open to the Judge to infer that the witness was deliberately not telling the truth. Ms Markham submitted that a finding of hostility was open to the Judge as there was an unambiguous inconsistency and the prior inconsistent statement was specific and proximate to the events. Further, the prior statement was signed and was made in circumstances where there was no personal motivation to implicate Mr Robertson. Ms Markham also pointed out that the witness was Mr Robertson’s 15-year-old daughter.

[83] Ms Markham submitted further that, even if the Judge’s ruling was wrong, no miscarriage of justice has resulted as the evidence was peripheral in the overall context of the trial. The previous statement was also of some assistance to the defence, as it implied that Mr Weavers was angry and had come at Mr Robertson with a knife. In Ms Markham’s submission, the Judge dealt fairly and appropriately with the issue in his summing-up, making it plain that what was said on a previous occasion was not evidence of the truth of its contents. She submitted also that it would be difficult for a trial Judge to give a meaningful direction without reminding the jury about the evidence in question.

[84] Ms Markham submitted that the summing-up met the requirements set out in R v Keremete CA247/03 23 October 2003 and that the directions on circumstantial evidence and inferences were orthodox and unobjectionable. Accordingly, in her submission, no unfairness arises.

Issues on the conviction appeal

[85] With regard to the conviction appeal, the first issue is whether there was evidence to support the jury’s verdict. The second relates to police misconduct over the knife sheath and with regard to Mr Weavers’ boxer shorts. The third relates to alleged prosecutorial misconduct. The fourth relates to a ruling that held a Crown witness to be hostile. The final complaint relates to some aspects of the Judge’s summing-up.

Judge’s summing-up

[86] Mr Neutze, for Mr Robertson, objects to various portions of Nicholson J’s summing-up. The relevant passages are set out below.

[87] The Judge discussed drawing inferences and the role of circumstantial evidence in the following terms:

...As a jury you are entitled to draw inferences or conclusions from facts which have been proved to you in evidence, but inferences or conclusions are not guesses, rather they are logical reasonable and fair deductions from facts that have been proved. In this case the Crown asked you to draw a number of inferences from the evidence. These inferences submitted by Mr Dickey in his closing address. Defence counsel have also in their closing addresses asked you to draw a number of inferences. It is for you to decide whether each is the appropriate and reasonable inference or conclusion to draw from all the evidence which you have heard, but you must not of course speculate or guess. If, in respect of any aspect of the case, the evidence would support two inferences or conclusions of similar weight, then to choose between them would be to guess and you should not do that.

Next, circumstantial evidence: In asking you to draw particular inferences, the Crown relies on what is called ‘Circumstantial Evidence’. There is nothing inherently second rate or dubious about circumstantial evidence. It simply involves the process to which I have already referred, that of drawing inferences or conclusions from evidence you regard as being reliable. When a series of reliably established facts connect with each other in a way that carries conviction in the minds of a jury, that can result in proof beyond reasonable doubt. Taken individually, each fact may not prove much at all but if, when you put them altogether, you find a series of otherwise inexplicable coincidences, that is a matter of common sense and logic, the only conclusion you can come to is that an accused is guilty, then that will be sufficient. But if the cumulative effect of the individual facts does not reach that standard and still leaves gaps, then the evidence does not amount to proof beyond reasonable doubt. It is the cumulative effect of the evidence which is important. The analogy is often drawn with a rope. A rope is made up of many strands of fibre or material. Separately, a strand or some strands may not support much weight at all but sufficient of them, woven together, will do so. So it is with circumstantial evidence. It is for you to say whether you are satisfied that there is such a combination of facts or events that you are satisfied beyond reasonable doubt of guilt.

[88] Nicholson J discussed the evidence of Ms Murray, who had been declared a hostile witness in the following terms:

...You will recall that the Crown called Mr Robertson’s daughter, Jenna Murray, to give evidence. I gave Mr Dickey permission to cross-examine her on what she said in a statement made to the Police on the 19^th of October last year, and a further statement which she made to the Police, for the production at the preliminary hearing and which was in fact produced at that

hearing. These statements recorded Ms Murray as saying that on Sunday the 28^th of September last year, her father, Mr Robertson, said to her, words to the effect that Link had come at him with a knife. That he had taken the knife off Link, and had stabbed Link in the leg four times. Now Ms Murray agreed that she had signed statements containing that information, but she said that she did not recall saying that and that half the stuff in the statements she did not believe came from her mouth but came from the interviewing Detective. She said, however, that the statement about the four stab wounds or about four stab wounds to the leg, came from her but that it did not come from her father, but that it came from Sian Lawrence. In other words, she heard Sian Lawrence say that, she did not hear her father say that.

Now I direct you that anything that Ms Murray may have said in a previous statement to the Police, cannot be used as evidence unless she clearly accepted in her evidence that it was true and accurate. Ms Murray did not accept that the parts that were put to her, as being in her earlier statements, were true. Indeed, as I have stated, she made the qualifications which I have just referred to. I accordingly direct you not to use the statements which Ms Murray made in her two earlier statements, that her father said to her, words to the effect that Link had come at him with a knife. That he had taken the knife off Link and had stabbed Link in the leg four times, as proof of the truth of those such statements. However, in assessing whether you regard Ms Murray as being a truthful and reliable witness, you are entitled to take into account the fact that she has said different things on different occasions. How much weight you put on that, is a matter entirely for you.

[89] Later during summing up, the Judge summarised the Crown and defence cases. He said the following in relation to the Crown case:

...Now, first, for the Crown, Mr Dickey in his closing address said that the Crown case was fundamentally simple and that its strength flowed from its simplicity. He stated the basic Crown propositions, circumstantial propositions, which he said led to that conclusion based on evidence. First, that Mr Brittain wished Mr Weavers dead. That he said words to that effect when he was at Middlemore Hospital. Second, that the next day, Mr Weavers was dead. Third, that when Mr Weavers died, or when he received the fatal wound Mr Brittain was sitting in a vehicle immediately outside the place where Mr Weavers received the fatal wound. Fifth [sic], that death occurred, Mr Weavers’ death occurred within minutes of two men, Mr Robertson and Mr Gould, leaving the car outside the premises, the car in which Mr Brittain was sitting and going into the place where Mr Weavers received the fatal wound. Mr Dickey submitted that in those circumstances the irresistible conclusion and inference on the evidence was that each of the three accused was guilty of murder. ...

...He submitted that the defence accident scenario was quite implausible. He submitted that it was a nonsense and that it was an invention. He made submissions about the fatal wound and how it could have been caused and he submitted that from the evidence it was not physically possible for that fatal injury to have been caused by Mr Weavers falling backwards and in the circumstances described by Mr Robertson in his evidence. He submitted that the probability of Mr Robertson overcoming Mr Weavers in that type of struggle which Mr Robertson described was unreal ...

Mr Dickey then dealt with what he termed to be ancillary issues. He stated that, so far as the knife or knives used in the fatal incident were concerned, the primary factor was that that knife or knives were taken from the scene by those who he submitted, brought it or them there, Mr Robertson and Mr Gould. He submitted that Mr Robertson in giving his evidence about the incident, knew about a double bladed knife being used because he had been there with it and used it, seen it and taken it away or Mr Gould had taken it away. Mr Dickey also made submissions about the sheath.

Mr Dickey then made submission about the wounds found to Mr Weavers’ body and he referred to Mr Robertson’s demonstration in evidence, about how that wound was inflicted, as being a “side show”. He submitted that Mr Robertson’s evidence was in effect “scripted”. That Mr Robertson was fine when he was giving evidence in chief according to the script but glossed over the difficult parts when he was cross-examined. He asked you to consider the way that Mr Robertson gave evidence. He submitted that there were implausibility in Mr Robertson’s evidence. First, the improbability of Mr Robertson telling Mr Weavers that he had told Mr Brittain to go to the Police, and also the improbability of Mr Robertson and Mr Gould going to the place where Mr Weavers lived and exercised power, unarmed, knowing that Mr Weavers had caused a savage attack on Mr Brittain some days earlier. ...

Mr Dickey submitted that self-defence was not relevant, that the fundamental defence was that the fatal wound was an accident. Mr Dickey submitted that self-defence was, in his words, “not a runner” because of the nature of the fatal injury. That being caused by a thrusting upward stab. The Crown case was that Mr Robertson was not acting in self-defence and that Mr Robertson and Mr Gould attacked Mr Weavers and that it was in retaliation for what he had done to Mr Brittain.

[90] Nicholson J continued on to discuss the defence case. He summarised

Mr Neutze’s case as follows:

Now in his closing address Mr Neutze made submissions about differences in the Crown opening and the Crown closing addresses. He submitted that this reflected a crumbling and weak Crown case and submitted that the correct version was that Mr Brittain “blew his trumpet” at the nurses and that the three accused went in a light hearted way down to the pad on the Saturday to work something out with Mr Weavers for the return of Mr Brittain’s motor bike. Mr Neutze submitted that the defence evidence fitted precisely with the evidence called by the Crown. He submitted that the Police and the Crown adopted a blinked approach in investigating and in presenting this matter and that this was illustrated by the sheath which was found by the Police at the headquarters, not being referred to the pathologist who carried out the post mortem, Dr Koelmeyer. He submitted that what actually happened was that the accused and Mr Robertson and Mr Gould as they said in their evidence at trial, were only on a mission of peace and in an effort to get the motor bike back. He asked you to bear in mind the evidence of three people who gave evidence that Mr Brittain came around to see Mr Robertson on the Saturday morning and did not say in detail what had happened to him. He submitted that the wounds were clearly consistent with a struggle with a double bladed knife as described by Mr Robertson, and that the demonstration during re-examination by Mr Robertson and another man painted a picture that was worth more than a thousand words. He stated or submitted that Mr Robertson and the witnesses that he called

did not budge in what they said. That they were firm and resolute. He pointed out the evidence of some witnesses that they had seen Mr Weavers, with a double bladed knife before the day of the incident. He said that there was no evidence that Mr Robertson had been seen carrying a knife.

Mr Neutze then made submissions about the Crown case and submissions in response to Mr Dickey’s submissions about the accused regarding themselves outside the law. Mr Neutze submitted that the evidence was that only one of the accused was a gang member at the time of the incident and that there was no evidence that any of the accused regarded themselves as being outside the law. He said that the defence evidence referring to Mr Robertson having children and what was done on the morning of the incident was relevant as it went to motive and he pointed out that allegations made to defence witnesses in cross-examination, were not accepted by them and their denials were not evidence of what was alleged and put to them in cross-examination. He submitted that that circumstantial evidence case for the Crown lacked in detail and that the correct situation was that disclosed by the defence evidence. He submitted that this was a clear case of self- defence where in the course of Mr Robertson defending himself, there was a struggle in which Mr Weavers was accidentally stabbed with a double bladed knife, which Mr Weavers was attacking Mr Robertson with. He submitted that there was no cogent evidence to prove that there were three people in the scrap. He submitted that Mr Robertson’s evidence was clear, consistent and honest.

Mr Neutze then outlined Mr Robertson’s evidence and read particular passages of his evidence and particular passages of cross-examination. He submitted that the Crown had not told you and proved who did what and where, and he submitted that reasons as to why were not proved and that the reason for the visit was as described by Mr Robertson and Mr Gould in their evidence. He submitted that the facts of what happened at the headquarters was as given by Mr Robertson in his evidence. He said that Mr Robertson’s evidence was simple. There was a fight which he did not want to get involved in and that he acted in self-defence and unfortunately Mr Weavers was accidentally stabbed.

Mr Neutze then made submissions about the pathologist’s evidence and in particular Dr Koelmeyer’s response when he was advised of a possibility of a bifid knife and how he had modified his decision or his opinion in light of being aware of such knife. Mr Neutze then made submissions about the evidence of Allan Hutton, particularly about the place where he alleges he first saw Mr Robertson and Mr Gould. He also made submissions about the evidence of Ms Tarue and referred to the evidence of the defence witnesses and the effect of their evidence, particularly Aston Smith, Gray Norman, John Thorburn, Tamati Tau, Shannon Freyer and Dr McIvor. Mr Neutze then made submissions about the pathologist’s evidence. The evidence of Dr Koelmeyer and the evidence of the other pathologist, Dr Ferris.

Mr Neutze then made submissions dealing in response to many of Mr Dickey’s submissions and submitted that the evidence did allow the possibility of a third person taking the knife away from the club headquarters that morning. Mr Neutze invited verdicts of not guilty.

Discussion on conviction appeal

Unreasonable verdict

[91] This Court has imposed a high threshold for succeeding in an argument that the jury’s verdict is unreasonable or cannot be supported having regard to the evidence. R v Ramage [1985] 1 NZLR 392 at 393 (CA) stated that a verdict will be of such a character if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the applicant. It is not enough that this Court might simply disagree with the verdict of the jury. This stringent test has been approved recently by this Court: see, for example, R v Wellington CA423/04 3 May 2005 at [27] and R v Aymes (2004) 21 CRNZ 523 at [38]. Elaborating on the Ramage test, this Court held, in R v McDonald CA142/04 29 July

2004 at [18], that, if there is evidence available to a jury which, if accepted, would support its verdict, then the verdict could not be impugned on the ground of “unreasonableness”.

[92] In our view, there was clearly evidence upon which the jury was entitled to find the case against Mr Robertson proved to the requisite standard. It was an available inference that Mr Robertson had brought the knife to the pad. This inference could be drawn from the circumstances of the earlier attack on Mr Brittain and therefore (the jury were entitled to think) the unlikelihood of Mr Robertson venturing into the pad unarmed, as well as from the evidence suggesting Mr Robertson took the knife away with him when he left the pad. As indicated above, it was never put to Mr Hutton that he removed the knife (and then presumably disposed of it). The submission at trial appears to have been that an unknown third person took the knife. The jury were entitled to accept Mr Hutton’s evidence that he arrived on the scene immediately, thus providing no opportunity for this to happen. There also seems no logical reason why a third party, unseen by anyone, would have come in and taken the knife.

[93] A version of events that saw Mr Robertson forming the intention to stab Mr Weavers in the course of the altercation with the knife he had brought to the pad is also perfectly consistent with the evidence and with the acquittal of Mr Gould and

Mr Brittain. The jury, by their acquittals, had obviously rejected (or were unsure about) the Crown’s theory of a pre-meditated attack by Mr Gould and Mr Robertson on Mr Weavers at Mr Brittain’s instigation. That did not mean they had to accept as a reasonable possibility Mr Robertson’s version of an accident or that he was acting in self-defence at the time Mr Weavers was stabbed.

[94] Even if the jury accepted that there was a reasonable possibility that Mr Robertson was attacked by Mr Weavers in the manner he said, they were entitled to take the view that the force used by Mr Robertson was excessive, given the depth of the fatal knife wound. This version of events is also perfectly consistent with the acquittal of Mr Gould and Mr Brittain.

Allegations of police misconduct

[95] There is no basis for any allegations of police misconduct with regard to the sheath or the boxer shorts for the reasons articulated by Ms Markham. In any event, as also pointed out by Ms Markham, the evidence as to the double-bladed knife was put before the jury by the defence and in a manner that allowed the defence the ability to throw considerable doubt on the Crown theory of the case as set out in its opening. There is no basis therefore for asserting that there may have been a miscarriage of justice.

Allegations of prosecutorial misconduct

[96] The proper role of counsel when representing the Crown in a criminal trial was discussed by this Court in R v Hodges CA435/02 19 August 2003. Drawing on the earlier case of R v Roulston [1976] 2 NZLR 644 (CA), this Court stated at [20]:

[Crown] Counsel is entitled, indeed expected, to be firm, even forceful. Counsel is not entitled to be emotive or inflammatory. The Crown should lay the facts dispassionately before the jury and present the case for the guilt of the accused clearly and analytically. Although different counsel will naturally and appropriately have different styles and different methods for addressing the jury, the Crown’s closing address should, at least at some stage, traverse the legal ingredients of the count or counts in the indictment, and call the jury’s attention to the evidence which the Crown says satisfies the onus and standard of proof in relation to each ingredient, and in particular those which are the subject of dispute. Crown counsel are

important participants in the dispassionate administration of criminal justice. They are entitled to contend forcefully but fairly for a verdict of guilty; but they must not strive for such a verdict at all costs.

[97] The Crown, therefore, is entitled to put its case firmly as long as there is a proper evidential basis for its contentions. We accept Ms Markham’s submission that nothing that was pointed to by Mr Neutze suggests other than proper conduct in this regard by the prosecutor in the course of the trial. The closing address may have been robust in parts but it did not go beyond the bounds of what was permissible.

Hostile witness

[98] The Crown applied to have Ms Murray, who is Mr Robertson’s 15-year-old daughter, declared a hostile witness. In her written statement, which she had signed and which had been accepted as evidence at the preliminary hearing, Ms Murray said that her father said that he went to talk to Mr Weavers “about getting Scrotty’s bike back”. She said that Mr Robertson said he went to the pad and that Mr Weavers came at him with a knife. Her father grabbed the knife off Mr Weavers and stabbed him in the leg four times. However, during examination in chief, Ms Murray said that Mr Robertson was upset and crying the day following Mr Weavers’ death and had said that there had been an accident. She said that she could not remember what else he had said.

[99] Nicholson J held that the pertinent test in law regarding hostile witnesses is not whether a witness is outwardly hostile or shows signs of hostility, but whether there is a material and significant difference between what they say in evidence and what they have previously said, as recorded in a signed statement. He considered that it was appropriate to grant the Crown’s application and, accordingly, declared Ms Murray a hostile witness and permitted Crown counsel to examine her upon the basis of her signed written statement.

[100] The law relating to hostile witnesses was examined in R v O’Brien [2001]

2 NZLR 145 (CA). This Court accepted the discussion in Phipson on Evidence (15ed 2000) where it was said that a witness is hostile where he or she bears a hostile animus to the party calling him and so does not give his evidence fairly and with a

desire to tell the truth in court. He is not hostile when his testimony merely contradicts his proof or because it is unfavourable to the party calling him. This test was expanded on in Commerce Commission v Giltrap City Ltd (2001) 7 NZBLC

103,446 (HC) where Glazebrook J said (at [18]) that, while the cases still put an emphasis on demeanour in assessing whether there is a hostile animus, more objective factors, particularly whether there has been a prior inconsistent statement, are now also taken into account. While prior inconsistent statements will not in all circumstances be sufficient in themselves to justify a finding of hostility, that is not always the case. We agree. In some cases, the very nature of the inconsistencies can show a hostile animus.

[101] We accept Ms Markham’s submission that there were ample grounds in this case for the ruling as to hostility in terms of the above test. We also accept her submission that, even were that not so, the evidence was peripheral and could not have led to a miscarriage of justice. The Judge’s directions also, in our view, correctly set out the proper use of the prior inconsistent statement. There is no reason to suppose that the jury would ignore these directions.

Summing-up

[102] The fundamental requirements of the summing-up were set out in R v Keremete CA247/03 23 October 2003 (and endorsed in subsequent cases such as R v Payne [2004] NZCA 3; (2004) 20 CRNZ 790 (CA)). This Court collated the authorities and expressed the principles as follows (at [18] – [19]):

A judge’s summing up must identify the fundamental facts in issue, be balanced in its treatment of opposing contentions with respect to those facts, and leave the jury in no doubt that the facts are for them and not for the judge. Rival contentions with respect to the factual issues will normally be summarised (R v Miratana, 4 December 2002 CA 102/02) but there is a wide discretion as to the level of detail to which the judge descends in carrying out that task. Treatment of matters affecting the cogency of evidence is not required as a matter of law: R v Foss (1996) 14 CRNZ 1 (CA) at p 4.

The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other: R v Hall [1987] 1 NZLR 616 (CA). A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact (R v Hall, supra, at p 625). Any comment on the facts

should be made in suitable terms without the use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms: R v Daly (1989) 4

CRNZ 628 (CA). Inevitably these are ultimately matters of degree and judgment.

[103] In our view, as can be seen from the extracts above, the Judge’s summing-up covered all the important aspects of the defence case and there was no improper weighting in favour of the prosecution case.

Appeal against sentence

[104] Mr Robertson appeals against his sentence on the grounds that the sentence was manifestly excessive and based on a version of events that was not available on the evidence. He also appeals against the imposition of a minimum non-parole period.

Sentencing remarks

[105] In sentencing, Nicholson J found it proved beyond reasonable doubt that Mr Robertson went to the gang headquarters to retrieve Mr Brittain’s motorcycle. Mr Robertson realised, from his knowledge of Mr Weavers and the circumstances of violence in which he had taken that motorcycle three days earlier, that Mr Weavers was unlikely to relinquish it willingly and therefore he took a knife to persuade Mr Weavers to give up the motorcycle. He thus anticipated that there might be violence.

[106] When Mr Weavers did not agree to give the motorcycle back, there was a fight in which Mr Robertson head-butted or punched Mr Weavers’ head and injured him with his knife in several parts of his body. The fight ended when Mr Robertson stabbed Mr Weavers in his left thigh, cutting the femoral artery, causing substantial blood loss leading to death. Mr Robertson took the knife away after he had stabbed Mr Weavers with it. The Judge considered that the jury, by its verdict, had rejected the defence claim that Mr Robertson had acted in self-defence and that the fatal injury was caused accidentally.

[107] In Nicholson J’s view, the aggravating factors were that Mr Robertson’s offending involved both the threatened and actual use of a weapon leading to death, the extent of the harm caused to the family and friends of Mr Weavers and the fact that Mr Robertson had previous convictions and had served a term of imprisonment. In mitigation, Mr Neutze referred to Mr Robertson’s ill-health, Mr Robertson’s regret, his personal circumstances and family responsibilities and the fact that the manslaughter offending was out of character.

[108] The Judge noted that there is no sentencing tariff for manslaughter cases. In his view, the gravity of the particular offending is the main factor in sentencing for manslaughter and the circumstances of the offender and personal characteristics are secondary factors. He stated that recent manslaughter cases have resulted in longer sentences in serious cases, reflecting concern at the trend towards more frequent resort to weapons and the need for deterrent sentences to reflect the unacceptability of such conduct.

[109] In Nicholson J’s view, the gravity of the offence in this case was high and near the top end of the scale of manslaughter, being very close to murder. Mr Robertson deliberately took a knife to the headquarters at which Mr Weavers lived with the intention of using it to extort the return of Mr Brittain’s motorcycle, knowing that Mr Weavers might not be intimidated by the threat and that violence could erupt. After the fight culminated in what clearly was a serious disabling wound to Mr Weavers, Mr Robertson left him bleeding to death on the ground and did not provide any assistance.

[110] In the circumstances, the Judge considered that, allowing for the aggravating factors, a starting point of 11 years imprisonment was appropriate. Although the mitigating factors were not strong, he made a reduction of one year, resulting in a term of ten years imprisonment.

[111] Nicholson J was satisfied that the circumstances of the offence were sufficiently serious to justify a minimum period of imprisonment that is longer than the period otherwise applicable under the Parole Act, as the circumstances took the offence outside the ordinary range of offending of this particular kind. A period of

one-third of the length of the sentence would not, in his view, be enough to punish, deter and denounce the offending. Accordingly, he ordered Mr Robertson to serve a minimum period of imprisonment of six years and eight months.

Submissions on appeal against sentence

Mr Robertson’s submissions

[112] In relation to the appeal against sentence, Mr Neutze’s first ground was that the Judge erred in law in not following the procedure prescribed by s 24(2) of the Sentencing Act in relation to disputed facts. Mr Neutze had filed a sentencing memorandum setting out the facts in the Crown’s memorandum that were disputed by the defence. The Judge stated that he had decided the disputed facts in accordance with the Sentencing Act. However, the Judge omitted the step prescribed by s 24(2)(a), that is, indicating to the parties the weight and significance he would be likely to attach to each disputed fact if it were found to be proved. Further, many of the allegedly “proven facts” were not supported by the evidence. Mr Neutze submitted that the Judge could not have been satisfied on the evidence adduced at trial that all the disputed facts had been proven beyond reasonable doubt. As there was insufficient evidence adduced at trial to determine the disputed facts, the dispute should have been set down for hearing pursuant to s 24(2)(c).

[113] Mr Neutze’s second ground of appeal against the sentence was that the sentence was manifestly excessive having regard to all the circumstances and in comparison with the sentences imposed in other manslaughter cases. In his submission, the sentence should have been at the lighter end of the scale, given the nature of the wound itself and the fact that that the death occurred by accident in a situation where an unarmed Mr Robertson was defending himself against a knife-wielding Mr Weavers.

[114] There is no sentencing tariff in cases of manslaughter but there is a continuum of gravity of offending ranging from near inadvertence to “very close to murder”. Mr Neutze submitted that the Judge’s findings that the circumstances were “close to murder” and that Mr Robertson deliberately took a knife to the pad with the

intention of using it to extort the return of the motorcycle were not open on the evidence.

[115] Mr Neutze submitted further that the authorities relied on by the Judge as sentencing indicators are distinguishable. In any event, in his submission, comparison with other sentencing decisions is not a particularly useful exercise, due to the diverse range of circumstances in which a person can be convicted of manslaughter.

[116] Mr Neutze’s final ground of appeal against sentence was that the circumstances of the offence were not “sufficiently serious” to justify imposing a minimum non-parole period. He submitted that, on the facts as proved, the offending was not out of the ordinary range of offending and was therefore not sufficiently serious to justify a minimum period of imprisonment greater than that provided by the Parole Act. Accordingly, in his submission, no such minimum term ought to have been imposed.

Crown’s submissions

[117] In relation to the sentence appeal, Ms Markham submitted that the Judge’s findings of fact were open on the evidence and were not inconsistent with the jury’s verdict. Contrary to Mr Neutze’s submissions, the Judge did not sentence Mr Robertson on the basis of a joint intent to commit an assault. Further, Mr Brittain’s acquittal did not mean that the Judge could not accept that Mr Robertson went to the pad to retrieve Mr Brittain’s motorcycle and that he took the knife with him for that purpose.

[118] In Ms Markham’s submission, Mr Robertson was sentenced on the basis of a homicide occurring in the context of a planned confrontation in which violence was clearly foreseen and Mr Robertson was armed with a knife. She submitted that the Judge was correct to place Mr Robertson’s culpability “near the top end of the scale of manslaughter”. Although not expressly referred to by the Judge, it was, in Ms Markham’s submission, likely that the jury’s verdict of manslaughter was based on the acceptance of an intent to cause grievous bodily harm but a reasonable doubt

as to Mr Robertson’s knowledge that death was likely to ensue. She emphasised that there is a wide range of culpability in manslaughter cases and that most recent cases have resulted in longer sentences in serious cases, reflecting the concern at the trend towards more frequent resort to weapons and the need for deterrent sentences.

[119] In relation to the minimum period of imprisonment, Ms Markham accepted that the “old test” applies, as the offending pre-dated the amendment to s 86 of the Sentencing Act 2002. The sentencing Judge proceeded on that basis and, in her submission, set out the correct principles. It is a matter of judicial judgment whether the “sufficiently serious” threshold is crossed and the appellant must show that the Judge was plainly wrong in the exercise of this discretion. She submitted that, given the aggravating features and the Judge’s assessment of Mr Robertson’s culpability as high, the offending was sufficiently serious for the purposes of s 86. In addition, it was submitted that a sentence of six years and eight months was available in the Judge’s discretion.

Discussion of sentence appeal

[120] For the reasons we have already given with regard to the conviction appeal, we consider there was ample evidence on which the Judge could come to the view of the facts that he did. In particular, there was ample evidence for the Judge to be satisfied that Mr Robertson had brought the knife with him in order to intimidate Mr Weavers and in the knowledge that violence might erupt. There is nothing in the acquittals of Mr Gould and Mr Brittain that is inconsistent with that version of events. The Judge did not sentence on the basis of a pre-determined plan to commit grievous bodily harm.

[121] We do not consider Mr Neutze’s complaint about the Sentencing Act procedures not being followed is sustainable. In this case, all of the evidence had been heard at trial. There is no suggestion that there was any further evidence that could have been adduced at any sentencing hearing. The differences between the Crown’s and Mr Robertson’s version of events were well understood and had all been fully explored at trial. Mr Robertson, through his counsel, had every

opportunity at sentencing to impress upon the Judge his version of events (to the extent these were not inconsistent with the verdict).

[122] As to the length of the sentence, we accept Ms Markham’s submission that it is likely that the Judge took the view that Mr Robertson’s intention was to inflict grievous bodily harm (not in self-defence) but that he was not reckless as to whether death ensued. This follows from the Judge’s assessment of the crime being “close to murder”. We also accept her submission that the very depth of the fatal knife wound points to that conclusion, the jury clearly having rejected the contention the wound was accidental. It would have been better, however, if the Judge’s conclusion was explicit in his sentencing remarks rather than implicit. It would also have been better had the Judge acknowledged the pathologists’ evidence that death was a very unusual result of a wound of this kind.

[123] If the Judge did sentence on the basis that the fatal blow was struck with the intention of causing grievous bodily harm then we consider that 11 years was well within the range for offending of this kind. Were Mr Robertson being sentenced for intentionally causing grievous bodily harm, his offending would, in terms of R v Taueki [2005] 3 NZLR 372 (CA), have fallen into band three due to the significant aggravating features. These features included a home invasion by a group of two, with a bifid knife taken to the scene in anticipation of and resulting in, although not seeking, serious violence. His offending, therefore, would have attracted a sentence in the range of eight to 14 years. The fact that death ensued could only have made the offending more serious. We consider further that there can be no quibble with the amount of the deduction for mitigating factors personal to Mr Robertson.

[124] Even had the sentence proceeded on the basis that Mr Robertson had been acting in self-defence in the course of a fight with Mr Weavers but had used excessive force (another possible explanation for the jury verdict), we consider that the sentence, although stern, would still have been within the range available to the Judge. This is because the Judge found that the knife had been taken to the scene by Mr Robertson, in order to intimidate Mr Weavers, anticipating (but not deliberately seeking) violence. This puts this case into a different category from the pub brawl

type of cases where the violence was spontaneous and not anticipated: see, for example, R v Reyland CA439/03 13 July 2004. There is no doubt that strong deterrence is needed with regard to the type of behaviour Nicholson J found to have been exhibited in this case.

[125] With regard to the minimum non-parole period, on both possible versions of events, there were clearly grounds for the setting of a minimum non-parole period. The normal one-third must be insufficient to denounce and deter the taking of lethal (and indeed illegal) weapons to a person’s home to intimidate and in anticipation of possible violence. Although death was an unexpected consequence, the knife was nevertheless used in a vicious manner.

[126] If the first version of events is accepted, the period chosen by the Judge may have been available as a starting point, but, in setting the length of the minimum non-parole period, the Judge should have considered again the mitigating factors he had identified. If, however, the excessive self-defence theory was accepted, then the length of the period cannot be justified. No more than five years should have been imposed. In all the circumstances, including the fact that the basis upon which the Judge sentenced is not totally clear, we consider the period should be lowered to one of five years.

Result

[127] The application to adduce new evidence is declined. [128] The conviction appeal is dismissed.

[129] The sentence appeal is allowed in part. The minimum non-parole period of six years eight months is set aside and replaced by a period of five years. The sentence is otherwise confirmed.

Solicitors:

Crown Law Office, Wellington